PHC rejects plea against law on alternate dispute resolution

Published July 9, 2021
In the petition, lawyer Fawad Afzal Khan had pleaded that the KP Alternate Dispute Resolution Act, 2020, was in conflict with the Constitution. — DawnNewsTV/File
In the petition, lawyer Fawad Afzal Khan had pleaded that the KP Alternate Dispute Resolution Act, 2020, was in conflict with the Constitution. — DawnNewsTV/File

PESHAWAR: The Peshawar High Court on Thursday dismissed a petition seeking to declare a provincial law on alternate dispute resolution illegal and unconstitutional.

A bench consisting of Justice Lal Jan Khattak and Justice Shakeel Ahmad announced a short order for the purpose after the completion of arguments by advocate general Shumail Ahmad Butt and petitioner’s counsel Noor Alam Khan.

The detailed verdict will be released afterwards.

In the petition, lawyer Fawad Afzal Khan had pleaded that the KP Alternate Dispute Resolution Act, 2020, was in conflict with the Constitution and that the executive had encroached on the functions of the judiciary through it.

The respondents in the petition were the provincial government through the chief secretary, law secretary, provincial assembly’s secretary, and KP Bar Council through its vice-chairman.

Detailed verdict to be released later

The petitioner’s counsel contended that the impugned law didn’t provide the right of appeal or revision against a court’s decree passed following an alternate dispute resolution.

He contended that the government had introduced a parallel judicial system in the form of alternate dispute resolution.

The lawyer argued that the ADR Act, 2020, had been passed in violation of Article 175 of the Constitution which guarantees separation of judiciary from the executive.

He said the new law provided for the establishment of the Saliseen selection committees at divisional level with the respective commissioners, police, judges and members of other law-enforcement agencies being part of it.

The lawyer argued that under the Constitution, adjudication was the sole job of the judiciary and that the judiciary would be progressively separated from the executive as declared by Article 175(3) of the Constitution.

He, however, said the new legislation mixed up the adjudication authority and that the new setup will be a ‘direct violation’ of Article 175(3) of the Constitution.

Advocate general Shumail Ahmad Butt rebutted his arguments and contended that the ADR Act was not in conflict with any provision of the Constitution.

He said alternate dispute resolution was a very successful system of mediation which was in vogue across the world.

The advocate general argued that the cases would be referred to the committee with the consent of all parties to the case and not unilaterally.

He added that the contesting parties would be permitted to choose members of their choice for mediation.

About the petitioner’s plea that no appeal could be filed against an order issued by a court on basis of alternate dispute resolution, Mr Butt that it was also available in the Code of Civil Procedure that if a decree was passed by a court with the consent of parties, it couldn’t be challenged in the court.

He argued that the system of alternate dispute resolution had been present in the region in different forms since 1940 and it was not new.

The advocate general said the Supreme Court, in different judgments, had given approval to the system of alternate dispute resolution.

He dispelled the impression that the new law was an encroachment on the powers of the judiciary and said the cases would be referred to the committees for alternate dispute resolution by the courts and the order would also be passed by them in light of the findings of the mediators.

Mr Butt said the government wanted through the enactment of the law to reduce the pendency of cases before the courts and resolve disputes pending since long.

Published in Dawn, July 9th, 2021

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