Byline: Iftikhar Ahmad Tarar
Since the dawn of independence in 1947, Pakistan has been experiencing a substantial rise in litigation and predominantly, it has been relying on court based adversarial system of adjudication. A cursory view of the literature of the contemporary jurisdictions will add credence to the view that alternative dispute resolution mechanisms have proved to be the effective ways of relieving the litigants of unbearable costs and prolonged trials. With this view, this article explores some current strains within the litigious circles in Pakistan. After a discussion of Labour Laws, Land Laws, Family Laws, and Income Tax laws, Customs laws, Excise Laws and Code of Civil Procedure, it examines the possibilities of extending its scope to other areas as well.
In case of a dispute, the litigants not only make recourse to the state sponsored methods of settlement i.e. adjudication through judicial forums but they try to solicit the help of alternatives as well i.e. mediation, conciliation, arbitration and abridged trial procedures1. Albeit, particular means of alternative dispute resolution vary from one another but still they reveal some striking similarities that a non partisan individual gets in with an acceptable opinion or keeps the combatants informed of all the developments pertaining to the issue2. Broad fields which carry a reasonable portion of litigation and on which this work will focus, are labour disputes, family disputes, taxation disputes and the disputes relating to agriculture land. Primarily this article is based on archival work and analysis of judicial paradigms, the work suggests that the reinvigoration of this system in Pakistan.
Albeit the idea of out of court settlement of differences in Pakistan has, in some cases, been onto the statutes since the dawn of independence rather in some cases it dates back to the pre-partition era but the concept couldn't attained required voracity due to the reasons to be adumbrated in later sections of this article. As the principal urge behind the incorporation of the provisions relating to participative justice are heavy costs and lengthy trials, therefore, the use of alternative dispute resolution achieves this objective through the use of more structured, dynamic negotiating forum than in traditional out of court settlement negations and through the influence of an effective mediator trained to tease out settlements from difficult negotiations3. Being parallel to two established means of dispute resolution, i.e. litigation and arbitration, the ADR presents the best way to reduce costs and improve the reputation of the civil litigation system4.
True that the ADR is riddled with numerous advantages, yet the most daunting task, in this respect, is to persuade the combatants to accept the mediation as panacea as a first step5. Especially, in an adversarial legal system which is, predominately, tainted with combative approach, disputes can become personal and the parties entrenched, the importance of ADR increases manifold6. In order to forestall a further escalation of the conflicts, the benefits of ADR in mainstream litigation, and court disapproval of refusal, have been documented and the judicial pronouncements add credence to its inevitability by holding that there has to be a good reason to refuse7. For instance in the UK, the claimant who declined to respond to settlement proposals had to attract the court's disapproval.
At appellate stage, Lord Justice Longmore held that such conduct would not have mattered in pre-CPR days but now mattered very much and a claimant who made no attempt to negotiate could expect the courts to take that into account when making the appropriate order as to cost8. In another case while raising a question Lord Justice Ward asked what could the court do to prevent what, to those outside the litigation, may seem like an unseemly, or at least uncommercial, squabble? His Lordship answered his own question by holding that we could and we did encourage mediation, the earlier the better. It did possess exceptional aptness of yielding compromise9. During the course of analysis of the
Constitutional perspective of ADR
As the dispensation of justice to the people has been rendered to be the soul of good Government10, therefore, it requires the creation of an ultra-modern disseminating infrastructure and manpower; sympathetic and planned; need for new judicare technology and models; and remedy-oriented jurisprudence11. Interestingly, no express allusion about ADR has been made in the constitution of 1973, but a reference to commercial and financial activities can be pinpointed in the constitution, which may, however, implicitly lead to a view that Pakistan practices certain methods of ADR12. Unlike its abiding popularity in contemporary jurisdictions, the movement for the flourishment of ADR couldn't assume required impetus on legislative frontiers in Pakistan. For instance, against the backlog of hundreds of thousands cases in lower judiciary it can be safely said that the ever growing steep rise in the number of cases is principally a reflection of permissive treatment of ADR by the parliament.
ADR under the Income Tax Ordinance, 2001
Income Tax Ordinance is one of those areas which fetch a reasonable quantity of litigation in Pakistan but with a complex system of levying tax. But surprisingly, the provisions relating to the ADR could find the place onto the federal statute very lately. Section 134-A of the said Ordinance lays down the scope and parameters of making recourse to the ADR. In order to have the full comprehension of the ADR under the said law it would not be out of place to make mention of the Revenue Authorities under the said law. For the purposes of the Ordinance, following income tax authorities have been provided: namely, Central Board of Revenue, Regional Commissioner, Commissioner of Income Tax, Commissioner of Income Tax (Appeals) and Taxation Officers13.
As far as the control and superintendence of these officers is concerned, the board has to exercise the general administration and the Regional Commissioners of Income Tax and the Commissioners of Income Tax (Appeals) would be subordinate to the central Board of Revenue; Commissioners of Income Tax would be subordinate to the Regional Commissioners14. All other taxation officers would be subordinate to the Commissioner of Income Tax with the condition that if a taxation officer is invested with the powers and functions of Commissioner under section 209(2), he would be subordinate to the Regional Commissioner of Income Tax15.
As the tax matters carry a reasonable magnitude of litigation and the exigency demands that the tax payers should be provided with a form which is an inexpensive, less time consuming, less cumbersome and a result oriented mode, but unfortunately, the legislative intent has been...