KARACHI, Aug 29: Laws are being amended to promote alternative dispute resolution (ADR) and curb unnecessary litigation and burden on courts, Chief Justice Iftikhar Mohammad Chaudhry told an International Finance Corporation seminar here on Monday.
While increase in the quantum of litigation showed confidence in the legal system, it also posed a challenge to the judiciary and the executive, he said. Dispensation of justice was not expeditious in Pakistan. The Law and Justice Commission was considering various reforms to ensure speedy disposal of cases.
The Supreme Court had finalized the process of categorization of cases, he said. From Oct 1, all cause lists would be posted on the SC website three months in advance. The lists would be firmed up two weeks before the hearing and no request for adjournment would be entertained thereafter.
ADR, mediation, conciliation and arbitration were not new to the country, the CJ said. Its legal system already had provisions for such alternative modes of dispute resolution. In family matters, for instance, it was mandatory for trial courts to arrange conciliation before and after the proceedings. The Small Claims and Minor Courts Ordinance, 2002, provided for court-controlled ADR.
The CJ also referred to recent amendments to the customs, income tax and sales tax laws. The creation of the office of tax ombudsman was another innovative attempt to resolve disputes without requiring the parties to tie up productive assets for years while awaiting the outcome of adjudication, he said.
The Arbitration Act, he pointed out, was enacted 40 years ago but had not worked successfully, primarily because the law subjected arbitration awards to judicial review. All too often, this involved conduct of arbitration proceedings ‘de novo’. “It is high time that the law is revised and its deficiencies removed in the light of international practices,” the CJ said.
Federal Law Minister Chaudhry Wasi Zafar praised the efforts of the IFC, private sector arm of the World Bank, to introduce ADR. Among the measures taken by the government to promote ADR, he said, was insertion of Section 89A in the civil procedure code. The provision obliged courts to persuade parties to arrive at an amicable settlement through arbitration, conciliation and mediation. A law reform bill was being considered by parliament to further streamline the legal system. He proposed that instead of model projects, the IFC should develop a designer project for judicial academies.
Attorney-General Makhdoom Ali Khan said greater attention should be paid to the drafting of contracts and treaties to avoid unnecessary litigation. Time-barred claims and appeals were filed in courts, including the Supreme Court, to evade responsibility for flawed drafting. The US supreme court, the AG said, barred appeals by federal and state governments without clearance by the solicitor-general.
He said the Central Board of Revenue was trying to institutionalize ADR, which made a great deal of commercial sense. The attempt should be encouraged and its progress duly watched to make a success of ADR in the country. A fundamental change in the attitude of lawyers was required to work the ADR system efficiently, the AG emphasized.
Lord Justice Carnwath of the UK Court of Appeal said the emphasis in ADR was not so much on legal rights as on practical reality. It aimed at mutual and commercially acceptable solutions. The judge extensively dealt with the concept of ADR, its development in English courts, the mediation scheme devised by his court and the courts’ role in encouraging ADR. He cited a ‘classic’ case wherein the parties, which refused mediation over a small claim of 18,318 pounds relating to construction work, ended up paying trial costs amounting to 185,000 pounds.
Speaking at the opening session of the seminar later, former Indian chief justice M.B. Ahmedi called for an ADR system acceptable to the lawyers and litigants in order to reduce the backlog of cases. Need for a complementary and supplementary system to augment the legal system was being felt the world over. ADR was making great advance because it provided flexibility that was not available in the rigid court procedures, rules and laws, Mr Ahmedi added.
Justice James Ogoola of Uganda said backlogging of law courts was a universal phenomenon. His country had achieved remarkable progress in working the new system and 80 per cent of small causes were being settled through mediation. The law courts were now free to concentrate on and promptly decide major cases involving legal issues.
Michael G. Essex, IFC assistant director for Middle East and North Africa department, said ADR was now a recognized and established method of resolving disputes. It ensured smooth and amicable settlements of commercial disputes to the satisfaction of parties.