Accessing justice through ADRs
Alternative Dispute Resolution (ADR) is an important pillar of justice system which gives parties in dispute the opportunity to work through disputed issues with the help of a neutral third party. It is generally faster and less expensive than going to court.
According to different studies by the end of 2017, total number of cases reported and pending at different courts is 1.87 million. These cases are found at different levels i.e. cases are found pending in session courts, high courts and in Supreme Court. To deal with this daunting task of settling the huge number of cases, a number of reforms were introduced in police system, complaint mechanism, security system and in the judiciary. With this challenging number of cases, reforms were also introduced related to mediation courts.
Thus with these reforms, questions arise that what is missing from formal justice system of Pakistan? Why is the number of cases under the formal justice increasing with the passage of time? What are the challenges faced by the components involved in formal justice system? What are the challenges faced by consumers while accessing the formal justice system in Pakistan?
First, when we look at the formal justice system of Pakistan, the primary challenge is of delays in administration of justice system. These delays occur in the disposal of civil and criminal cases. An ordinary civil suit under this system can linger on for two decades, and on the completion of the trial, perhaps another half a decade passes by in the execution process. Furthermore, there are also delays occurring in the criminal cases at the time of disposal. The causes of such delays are in numbers particularly due to the factors both inside and outside courts, and legal/procedural gaps/lacunae.
Performance of the formal justice system in Pakistan is charecterised by low conviction rates. This low conviction rate is rooted in the lack of qualified judges in the system to document the case as per the standard procedures
Second, number of learned judges at various levels is low to cope with the countless number of cases before the courts. This challenge is also present at the lawyers’ level i.e. number of lawyers having knowledge and skills to settle the case at earliest are low in the formal justice system of Pakistan.
Third, performance of the formal justice system in Pakistan is influenced by low conviction rates. This low conviction as reported by a number of studies is because of the absence of the learned judges in the system to document the case as per the standard procedures.
Fourth, high cost of justice in the formal justice system is also a challenge for both complainants and respondents. In one of the recent studies conducted by SDPI, people appearing before courts at different levels cannot bear the cost of justice. The cost of justice which was reported include monetary cost (lawyer fees, access to courts at different level and losses occurring in business at the day of appearance) and time cost (time period in which the case is resolved).
With these challenges in the formal justice system, government of Khyber Pakhtunkhwa in 2014 and federal government in 2016 signified the need for alternative dispute resolution mechanisms. Through this, mechanism both governments prioritized the need to settle civil (non-cognizable) disputes through Dispute Resolution Councils (DRCs) at district level.
When it comes to signifying the importance of DRCs, it gets the shape of access to speedy justice without bearing any cost. It was observed for number of cases and disputes which were active in courts from decades and people were bearing the high cost. After establishment of DRCs, such disputes were resolved within the shortest possible time without any cost on the complainant and respondent.
Secondly, DRCs have importance as mediator because serving members of these bodies get involved in the matter and remain committed to doing their job until the cases are fully resolved. In a number of cases observed, members also get involved in the post dispute settlement time to effectively transform the message of mediation and dispute resolution in the society.
With this role of settling disputes and playing the role of arbitrator, there are number of challenges (from complainants, respondents and members) which were identified from the study conducted.
First, respondents were observed not complying with the summons issued. Due to this weak compliance, effectiveness of DRCs in terms of enforcing decisions and making respondents comply with summons come under question. Second, in each district structure of community (lack of awareness, education and influence of the tribal culture) varies, thus there is no uniformity in the systems of DRCs working across districts.
Third, due to the geographical and population spread in the district, access to the DRC is one of the core challenges. This has also resulted in information about DRCs not going beyond particular boundaries, thus numbers of disputes are found under reported.
Fourth, in most of the disputes where privacy should be maintained cannot be ensured due to the limited space provided for the offices for DRCs.
Fifth, there is challenge of covering the expenditures which are being incurred by people associated to DRCs either as member or record keeper. Expenditures which usually are done include expenditures related to traveling to collect information for a particular dispute and covering basic needs in the office. Police department due to limitations at their end cannot support DRCs in the long run.
Sixth, there is lack of basic knowledge and skills related to basic rights of citizen, legal procedures and practical approach towards alternate dispute resolution. Due to absence of these modules from the training, tactfully dealing with the disputes becomes a challenging task.
Seventh, due to spread of population and area of DRCs, less people are aware about DRCs in the region. With this less information there are challenges of outreach. Eighth, with more involvement of the local people who are influential at the district level, there is limited impact of the decision in the long run. With this limited impact and influence, it was observed that respondents don’t appear before the panel either.
Ninth, it was also observed that there was no standardised format of the documentation and its related practices. With this non-uniformity in the documentation process, there occurs a challenge in working on the information collected thus limiting the scope of DRCs.
While signifying access to justice as one of the core objectives of social development, governments at federal and provincial level need to look into the following recommendations. These recommendations will further strengthen DRCs and will also enable them to provide quick justice.
First, for effectiveness of DRCs in the district, these bodies need to be devolved to district and union council level. This devolution of DRCs will not only help create more awareness among people but also strengthen the cooperation between different actors involved in its functioning.
Second, there is also a need to provide infrastructural support through centralised system. This support should be for provision of space which should be utilised for facilitation of complainants, respondents and members.
Third, Since DRCs are dealing with family matters (divorce, dispute between mother and sons, sister and sister, father and sons), there should be sufficient space provided which can help in ensuring privacy of the disputes.
Fourth, to enhance the capacity of members, there is a need for more training which can enable them to act in different situations more effectively in order to provide quick justice. Training modules should include and stress on a) access to basic rights of a citizen; b) access to basic rights of living; d) legal procedures; and e) practical approach to alternate dispute resolution.
Fifth, DRC members need to be authorised for enforcing and implementing the decisions and settlements on which agreement is reached or about to be reached. DRCs with this authority can ensure implementation of the decisions and control the problem of absenteeism. Further courts should also work and contribute towards the strengthening of DRCs in terms of decisions and settlements.
Sixth, to cover the monetary expenditures as done by members with the limited support from police department, a fund should be allocated directly to Dispute Resolution Councils. This fund allocation can be done by having separate institutions under police department with role of police limited to selection of members, audit, assistance in calling respondent and implementation of particular decision or settlement.
Seventh, there is also a need to address the challenge related to uniform documentation. Government through existing structure and with the aid of police department can formulate uniform documentation procedure for reporting a dispute, hearing a dispute and implementation of agreement or decision.
Since Dispute Resolution Councils are still at early stage and functioning on the principle of easy access to justice, with this set of recommendations role of DRCs can be further strengthened in terms of settling the dispute, mediation and welfare of the society.
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The opinions expressed in this article are the author's own and do not necessarily reflect the viewpoint or stance of SDPI.