“Justice delayed is justice denied.”
William Ewart Gladstone
The justice system of Pakistan is on the brink of collapse. You have heard this phrase from almost every expert in legal and jurisprudential systems. But what is this doomsday about? The answer to this lies in our legal system being compromised on inclusive function over dysfunctional in many ways. The criminal and civil justice systems are cornerstones for every state to maintain social order and tranquility. They pave the way for a just society, including the rule of law.
Constitutionalism and its apparatus are what matter most in civilized society. However, in Pakistan, the former and latter concepts seem to have no relevance to the country’s image. The issues must have been there, but the problem is reluctant behavior, which makes it more and more stringent to adopt new ways. On the other hand, the global world has identified the new horizons in legal studies and consequently implemented them, which produces potentially positive and long-term results.
Defining Alternative Dispute Resolution (ADR)
Among these systems, alternative dispute resolution (ADR) is one of the primary and effective systems that provides a meaningful alternative to the slow process commonly known as “litigation.” Alternative Dispute Resolution, in simple terms, refers to “methods used to settle disagreements without going to court, such as arbitration or mediation.” It has so many other branches, which make it more quintessential in different ways. In addition to these effective terminologies, conciliation, negotiation, and good offices are key services performed in the meantime while adjudicating matters.
Historically, ADR was developed in Rome, where matters of trade were numerous. Whereas being involved in traditional litigation requires extra money, time, and resources. Consequently, the jurists of that time perceived that it would be more helpful for them to develop a new method for getting justice more easily and more timely. Subsequently, it was ADR that made a new way and unfolded the path of the justice system more expansively. Firstly, it was established to govern financial and trade matters across the globe, but eventually it led the way to resolve other matters.
Secondly, the theory and academic prevalence have long been quite sufficient, making the very end of this system more reliable than traditional litigation. In the global arena, complicated fiscal, debt, and companies’ transactional disputes are myriad, which require special attention to govern the relationship bonds between regional compliances. However, litigation could have been the prospect for them to determine outcomes, yet the shift from litigation to ADR is significant.
Thirdly, the practical implications have now been everywhere and seem more likely to change the world’s justice system in the near future. Global geopolitics, world order, and globalization are the world’s keys to ensuring harmony and peace in state relationships. Changing state behavior, contested wars over resources, and technological inventions drag away peaceful settlements. In the meantime, ADR is, blissfully, a good way out of these disputes.
The Pakistani Context: From Morally Corrupt Traditions to Constitutional Roadblocks
In Pakistan alone, alternative dispute resolution has somehow been featured through old-school concepts like jirga, fatwas, and panchayat. But these lack effective substance and are morally corrupt, due to which they are often subject to widespread criticism from critics; for instance, in the renowned case of Mukhtaran Mai. Article 175 of the Pakistani constitution explains that these systems, practicing wherever in the corner of Pakistan, are subject to illegal activities, except those working under the shadow of government administration. So, the theoretical probability of alternative dispute resolution is available in Pakistan, while the practical outcomes are yet vague, which leaves the legal system unstable.
ADR is generally a method of formal and informal language. However, in the aftermath of this concern, the valuable results are probable. Most of the time, when disputed parties engage in any matter, it is quite easy to get it resolved through this means. Since the cultural and traditional approach to responding to disputes goes through litigation, the environment has, feasibly, undermined ADR practice. In a society where cultural transition is considered a sin and a rebellious act, change is infeasible. Nevertheless, change is naturally inevitable, but what if the public at large does not support it? Human conduct is candidly more important for inclusive growth and equally imperative for national harmony.
Global Frameworks and Pakistan’s International Commitments
Legally, alternative dispute resolution and its practical implications are far better than the old and deteriorated litigation system in Pakistan. Notwithstanding, every field of knowledge is not perfect; it somehow has some deficiencies. Still, the highest-result forms in legal research are coming through ADR. Different countries have adopted its sheer value and enforced it in courts. The English justice system has taken mandatory steps to inspire confidence in ADR practice.
The Civil Procedure Code has taken realistic initiatives to steadily move and engage parties in out-of-court settlements. More than 150 countries are using ADR-related mechanisms, and approximately 193 countries under the UN Charter are benefiting from them. Countries including China, the US, Canada, India, the Netherlands, and certain African countries are on the list that has incorporated ADR into the modern justice system. International organizations and studies demonstrate that ADR has now become a leading figure in the modern justice system and commercial dispute resolution.
A useful indicator of ADR is the Convention on the Enforcement and Recognition of Foreign Arbitral Awards (New York Convention 1958), which supports international arbitration and has been adopted by more than 170 jurisdictions. Pakistan ratified the convention on July 14, 2005, during General Musharraf’s presidency, and it entered into force on October 12, 2005, showing how alternative dispute resolution and its related mechanisms have become worldwide.
The Need for Professional Capacity Building
Characteristics of this legal wall are redundant; nonetheless, some are certainly helpful ones. Mediation and negotiation are two ways of dealing with matters comprehensively. These processes are commonly known as the first step towards adjudicating matters. Afterwards, if somehow the issue is not resolved, the neutral arbitrator is the one who gets involved and provides expertise. Not every legal battle is for winning or losing; some may be compromised to get the desired outcome.
ADR is a method to secure confidential information. Whereas, in litigation, the matter is publicly out and debated in assemblies, media, societies, and communities. Confidentiality is agreed upon between the award givers, and it is the most effective use of ADR if handled industriously. Pre-trial bases and the inception of legal proceedings could be well established in ADR rather than litigation.
Professionalism, on the other hand, is a reassuring strategy to avoid delayed cases. Mediators, conciliators, and arbitrators must go through rigorous practice while studying theory. Case management, neutrality, ethics, efficiency, and time management are the keys to deciding matters. In Pakistan, the professionals are not beyond the levels that they must have been. This is why we have material, but we require substance to grind and ensure better prospects.
In law, we have a procedure, but how to use it and obtain credible results lies in compatibility and inclusive attention. Pakistan needs competency and skill-based technicalities to ensure proper access to justice while ensuring speedy procedural reforms and a broad-based approach.
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The views and opinions expressed in this article/paper are the author’s own and do not necessarily reflect the editorial position of Paradigm Shift.
Mohsin Ali Somroo is a dedicated and aspiring law student with a keen interest in legal research, critical analysis and the pursuit of justice.
