December 4, 2020
By Rehan Piracha & Kamran Ali
The Khyber Pakhtunkhwa government on Friday tabled the Alternate Dispute Resolution bill in the provincial assembly despite opposition claims that it was equivalent to a parallel judicial system in the province.
Sultan Muhammad Khan, KP Law Minister, told Voicepk.net that the alternate dispute resolution mechanism was gaining credence all over the world.
“The purpose behind the ADR Bill was to lessen the pressure on the judicial system in the province which was overburdened with cases,” he said. The cases were not being adjudicated on time or taking too long for resolution. The bill would have helped settle cases through non-formal channels before or after parties went to courts, he added, as well as provide a less prohibitive forum for people to settle their disputes on. He said that the settlement reached in the alternate dispute resolution committees would go to a court which would then issue an order or a decree. According to the bill, the alternate dispute resolution forum can settle civil cases as well as compoundable criminal cases under Section 345 of Criminal Code of Procedure (CrPC).
Muhammad Nisar, Member of Provincial Assembly (MPA) of the opposition Awami National Party (ANP) from Mohmand district, said his party has opposed the alternate dispute resolution bill as it violates fundamental human rights. The government was attempting to enforce a parallel judicial system in the province. “The proposed bill is worse than the Frontier Crimes Regulation law enforced by the British Raj in the merged districts,” he said.
Nisar said the previous ADR law had been challenged in the high court and their party would oppose the bill in the assembly as well as challenge its imposition in the court. He said the government was reluctant to enforce regular laws in the merged districts to bring them at par with citizens living in other provinces. “We are still being treated as second class citizens,” he said.
Farhad Afridi, a senior lawyer, said the proposed law goes against the Constitution and rulings of the Supreme Court by setting up a parallel judicial system in the province. Under the proposed ADR Bill, the Jirga or committee would consist of a retired judge, a lawyer, a notable personality of the area and an official of the law enforcement agency, he said. “The composition looks more of a joint investigation team rather than a local Jirga,” he said. Secondly, the bill allows for both civil and criminal cases adjudication besides the committee would recommend its decision to the court, he said. “Dictating a decision to a court casts doubt on the independence of the courts. The Constitution forbids a parallel judicial system in the country,” Afridi said.
What’s in the Bill
According to the draft bill, the Alternate Dispute Resolution System in Khyber Pakhtunkhwa ‘will facilitate the settlement of disputes without resorting to formal litigations and to ensure inexpensive and expeditious justice’. The Khyber Pakhtunkhwa Alternate Dispute Resolution 2020 Act will extend to the whole province but the government can appoint different dates for different areas in the province for enforcement.
Civil and criminal cases
The ADR law handles civil disputes and disputes based on all compoundable criminal offences under Section 345 of the Criminal Procedure Code. The Act calls for setting up an Arbiters (Saliseen) Selection Committee on divisional level in the province. The selection committee will then approve and notify for each district a panel of arbiters on the recommendation of the concerned district administration.
The Saliseen Selection Committee
The divisional selection committee will have the commissioner of the division as the chairperson. The members will include a regional police officer, senior civil judge, a representative of law enforcement agencies, regional director prosecution, a representative of Special Branch and deputy commissioner of district concerned, a senior lawyer, retired civil servants, Ulema and notables.
The selection committee has been empowered to remove a Salis/Saliseen with simple majority on its own or on the recommendation of the district administration. The Salis/Saliseen have also been barred from acting as representatives of parties to an Alternate Dispute Resolution in subsequent proceedings.
Under the law, the Saliseen committee has to settle civil disputes within three months and in case of criminal offences six months.