Access to Justice: The Challenges and Opportunities Posed by Alternative Modes of Dispute Resolution Panel Report on the occasion of 16th SDPI’s Sustainable Development Conference

By: Maryam S. Abbasi

Chair: Dr. Zarina Salamat,Council ofSocial Sciences PakistanIslamabad Speakers:

1. Dr. Sultan-i-Rome, Associate Professor of History, Government Jahanzeb College, Swat 2. Barrister Dr. Ehtisham Anwar,Additional Deputy Commissioner General (ADCG),

Islamabad; and Humphrey Fellow, University of Minnesota, USA 3. Mr. Asif Memon, Sustainable Development Policy Institute, Islamabad, Pakistan 4. Mr. Waqar Chohan, Assistant Inspector General (Special Branch), Police Service of

Pakistan, Islamabad

Special comments by:

1. Mr. Harris Khalique, Team Leader AAWAZ, Development Alternatives, Inc (DAI), Islamabad

2. Mr. Muhammad Tehseen, South Asia Partnership Pakistan (SAPP) 3. Dr. Abid Suleri, Sustainable Development Policy Institute, Islamabad, Pakistan

Dr. Zarina Salamatchaired the session with an introduction to alternate dispute resolution mechanisms and its provision in constitution while elaborating its stipulations in the formal justice system.

Dr. Sultan-i-Romehighlighted the collateral damage of Shariat-e-Mohamadi by the Talibans in the Malakand and Swat Agency and the step taken by the Military to control it, lead to a three year war and displacement of many.He further added that from 2007-2009 Army started operation against Taliban’s. Between this time period dialogues were also made between Awami National Party and Talibans but they were not successful because of the violations of terms of agreements. Between the dispute of military and Talibans, communities of Swat suffered a lot. Their houses, schools,property and markets were damaged.Thousands of the Taliban were caught and a large number of them surrendered. By the end of June 2009 the security forces claimed success and in the second half of July the internally displaced persons (IDPs) were allowed to come back.While discussing the main findings he said that“Actions (in Aid of Civil Power) Regulation, 2011” has not been followed in letter and spirit in its entirety by the quarters concerned, which has created and creates misunderstanding, mistrust, abhorrence, and resentment in greater circle of the society especially against the Armed Forces. This, in turn, is likely to ignite and spark unrest, once more, sooner or later, in which case there will be violent reaction against the Armed Forces as has been observed in respect of the police as a result of the police degrading and abusive behavior and treatment with the Tahrik Nifaz-e-Shariat-e-Muhammadi’s (TNSM’s) activists after the rising of 1994. He recommended that the regulation may be followed in letter and spirit, in its entirety, by the federal and provincial governments and the Armed Forces.

Mr. Asif Memonpresented his findings of research carried out at Punjab and Khyber Pakhtunkhwa under AWAAZ project. According to his findings the preference is to resolve issues In-House. Most of the families are reserved and they don’t let their issues to be discussed at other forums. But if issue cannot be resolved at home, then it is brought into Jerga. These are universal forums for dispute resolution in Punjab and KPK. Disadvantage is that women don’t get representation there. Some male relative is appointed on their behalf and decisions are made. If one party doesn’t agree to Jerga decision then strong party involves judiciary. Mr. Asif Memon told that, Jerga is the most prefer system in rural area of KPK and Punjab because its cost effective and saves time.

Barrister Dr. Ehtisham Anwarmade a lot of beneficial recommendations for the improvement of ADR system. He told that there are provisions of ADR in Pakistani Law but unfortunately none of stakeholder is aware of this and public is worst in this case. He strongly recommended that manuals of ADR should be developed and awareness should be given at grass root levels. He also added that lawyers are not friend of ADR but if they are made legal part of ADR then they will be interested in it. He also recommended for making ADR as curriculum of judiciary so that judicial officer have knowledge of ADR. Civil society can also be part of it by developing database of ADR. Media and Civil society can also take part for the awareness especially media can project ADR in positive way. There are many issues which can be resolved at lower level to save time of judiciary.

Mr. Waqar Chohan focused his discussion on the effectiveness of the alternate dispute

resolution mechanisms to provide compensation and emotional restoration to the aggrieved

party that lacks in the formal dispute resolution system. Since people are ignorant of the formal

dispute resolution system, the access to ADR (Alternate Dispute Resolution), like Masalihati

Committee, is quick and has lesser opportunity cost for masses who cannot afford to forego

their day wage in favor of formal justice system.He told that ADR is the most preferred process

by the people because it’s less formal, maintains respect and confidentiality, cost effective and

produces better results. On the other hand he also highlighted some drawbacks of ADR such as

influence of existing power on decision making and increase of victim’s fear in some cases. He

added that rights of victim and offender cannot be ensured in ADR process. He emphasized that

government can create more space for ADR Mechanism in PPC and can facilitate its centers at

lower courts level and police station levels. Government can also impart trainings for the

sensitization of judicial and policy officers, Mr. Waqar Chohan recommended. He said that

NGOs and Civil Societies can do research in ADR Mechanisms in the context of Pakistanis

legal, social and cultural background.

Discussion

“There is a dire need to identify the leader within the community to recognize and manage the

conflict” said Mohammad Tehseen, Executive Director of South Asian Partnership Pakistan. The

team lead of AAWAZ program Harris Khalique raised the question for needing informal dispute

resolution mechanisms in presence of formal justice system as the unregulated ADR further

empowers the powerful and pushing the marginalized against the wall.

Findings from AAWAZ project depicted that ADR is the secondary mode of dispute resolution as

their first choice is family elders. Although a separate mechanism exists for minorities to solve

their disputes but when the conflict is between minority and majority the case is taken up to the

majorities ADR system which fails to accommodate them.

The session was concluded with the congratulatory remarks of Dr. Abid Suleri, Executive

Director of SDPI. He stated that in order to have the right answers we need to ask the right

questions and it requires an in-depth analysis of ADR mechanisms to understand what works to

restructure the system by bringing all the stakeholders on board.

Experts in the session on alternate dispute resolution (ADR) and access to justice highlighted

the need for such mechanisms in the prevention of various types of conflict, including the

persistent militancy problem in Pakistan.