A legislation based on assumptions.

Byline: Mubashir Hassan

LAHORE -- Punjab Assembly on Thursday passed a bill to provide for a system of alternate dispute resolution of civil and criminal disputes.

The government thinks that it is necessary to ensure delivery of 'inexpensive and expeditious' justice by means of an alternate dispute resolution system for settlement of disputes through an arbitrator without resort to formal system of adjudication of disputes by the courts.

A case referred to ADR shall eventually return to the court on the completion of ADR proceedings, or, on the expiry of time provided under the law.

While one should not doubt the government' intent to provide speedy justice to the people, the new legislation is less likely to achieve the desired results because of some inherent defects.

It is strange to see that entire edifice of the dispute resolution law hinges upon the assumption that the parties involved in a case would agree to refer the case to a court of arbitration, called the Alternate Dispute Resolution (ADR) Center.

According to clause- 3 of the law, a court (of primary jurisdiction) shall refer certain cases (specified in Schedule- 1) to ADR within 30 days of appearance of the defendants subject to consent of the parties involved in the cases. Similarly, in respect of cases mentioned in Schedule II, a trial court may refer the case to ADR at any time or stage where it is of the view that the case is likely to be resolved through ADR. Here again, the case would not be referred to the ADR Center without consent of the parties to the case. If any of the parties is not willing, the case would not be referred under the law.

In most of the cases, the parties to a case are less likely to agree on resolution of their dispute through an arbiter(s) because the losing side will not have the right to appeal to a higher court for revision. Under section-15 of the said law, a case settled through an ADR and the subsequent judgment passed by the primary court cannot be challenged in any court of law.

Section-15 read: 'No revision or appeal shall lie from the decree or order of the court except that a public prosecutor may challenge the judgment of the court'. Here, the reference made to a public prosecutor who may challenge the case has been kept vague.

Also, under the law, it is not binding on the ADR person to settle the dispute in any case and the dispute may return to the court of original jurisdiction without resolution. Section-13 of the law deals with...