KARACHI: The burden of the country’s judiciary, which is struggling to cope with the backlog of 1.9 million cases nationwide, can be reduced by promoting the practices of alternative dispute resolution (ADR), said speakers at an international conference here on Saturday.
Jurists and lawyers from all over the country as well as Turkey expressed these views during the International Conference on Alternative Dispute Resolution — An Overview of National and International Best Practices organised by the Legal Aid Society in collaboration with the Sindh Judicial Academy at a local hotel.
In his opening speech, former Supreme Court Justice Nasir Aslam Zahid, the chairman of the Legal Aid Society, said after retirement he had spent time working on establishing a fully fledged legal aid system for the unprivileged prisoners in Sindh and had managed it with some success for which he gave credit to the Sindh government and the prisons department for their support in this regard.
He maintained that they partnered with the Sindh Judicial Academy in many areas and together had achieved something special as the international conference was held to celebrate meaningful policy legislative reforms on the subject of ADR in Sindh.
Speakers highlight the importance of mediation in resolution of civil and commercial disputes
He informed the participants that for the first time the newly devised cadre of the ADR professionals, called Saalis, had been notified, recognised and provided with accredited training, hoping it would go a long way in strengthening ADR beyond simple arbitration.He also praised the services of Chief Minister’s Law Adviser Barrister Murtaza Wahab for his efforts towards bringing legislative reforms within weeks, which could have taken years.
‘Islam encourages mediation’
In his presentation, SC’s retired Justice Ghulam Rabbani said ADR was a process to seek resolution of civil and commercial disputes out of court and amongst them mediation was considered to be a leading process.
He opined that the ADR system was compatible with the Muslim conceptions, as Islam also encouraged mediation in order to ensure peace and tranquillity in society.
He cited the Family Laws Ordinance, 1961 which provided a method of referring divorce and other modes of dissolution of marriage to an arbitration council for the purpose of bringing about conciliation. “The family courts have been empowered to hold pre-trial proceedings to ascertain the points at issue between the parties in an attempt to affect a compromise or reconciliation between them, if possible,” he added.
In 2002, the top court’s jurist mentioned, the civil and criminal procedure codes enabled the court to adopt ADR method with the consent of the parties, where it was considered necessary, having regards to the facts and circumstances of the case with the object of securing expeditious disposal of a case in or in relation to a suit.
Furthermore, the Small Claims and Minor Offences Ordinance, 2002 was also promulgated the same year, whereby it was enacted that the provincial government in consultation with the high court may establish one or more small claims and minor offences courts in each district to resolve the small civil claims up to Rs100,000 and determine minor offences, he said.
He mentioned that the presiding officers of these could refer the cases for amicable settlement of the disputes on their own or on the request of the contesting parties at any stage. The cases are to be referred to the Saalis or any other person from a list prepared and maintained in each district, while the parties are also allowed to nominate Saalis other than the person named in the list.
Mr Rabbani said the National Judicial Policy 2009 also required the courts to use, among others, the measures in terms of Section 89-A CPC to resolve disputes through ADR, including conciliation, mediation and arbitration or any such other appropriate mode.
“The rules under Section 89-A CPC are said to be on the anvil to be finalised and given statutory sanction,” he told the participants.
Umut Ilhan Durmusoglu, head of the Mediation Department of Ministry of Justice of Turkey, gave an overview of how the concept of mediation was adopted by the Turkish government by enacting the Law of Mediation for Civil Law Disputes enforced in 2012, the Turkish Mediation Regulation in the following year and establishing the Mediation Department and Medication Council for regulating mediation activities regularly and efficiently and performing coordination among the institutions.
He explained that the mediation bureaus were established in the major courts to appoint mediators. He said the scope of the law was limited to civil disputes, adding that under this legislation mediation was a voluntary process until 2018 but the disputes, including domestic violence claims, were not suitable for mediation.
Mr Durmusoglu said the mediation board would comprise judges, representatives of bar associations, union of public notaries, council of higher education, three mediators from the ministry of justice, representatives of the union of chambers and commodity exchanges and confederation of tradesmen and craftsmen.
Former SC judge Khilji Arif Hussain, Barrister Wahab, directors of the Judicial Academies of Punjab, Khyber Pakhtunkhwa and Sindh High Court’s senior judge Justice Irfan Saadat Khan also spoke.
Published in Dawn, April 14th, 2019