The Khyber Pakhtunkhwa government on May 20 issued a notification for enforcement of the KP Alternate Dispute Resolution Act, 2020, and rules framed thereunder in six of the seven tribal districts, which were merged with the province in 2018.

With the enforcement of the Act in the said six districts, including South Waziristan, Kurram, Orakzai, Khyber, Mohmand and Bajaur, now three different laws have been in vogue in the province for alternate dispute resolution (ADR).

While the KP Police Act, 2017, provides for setting up of dispute resolution councils (DRCs), the KP Local Government Act, 2013, envisages establishment of mediation council for settlement of civil disputes.

Section 73 of the Police Act deals with DRCs, stating the Provincial Police Officer for out-of-court amicable settlement of petty nature cases may constitute DRCs at district, subdivision or police station levels.

Similarly, in the KP Local Government Act (LGA), 2013, drastic changes were made through Local Government (Amendment) Act, 2019, and one of the newly-incorporated provisions, section 118A, provides for establishment of mediation council for out-of-court arbitration, reconciliation and mediation of disputes of civil nature.

The KP Alternate Dispute Resolution Rules, 2019, were framed for the merged districts under section 118A of the LGA. These rules empower a deputy commissioner to constitute a mediation council on subdivision level.

Now there are different ADR laws for different districts.

Section 1(3) of the ADR Act provides that the law shall come into force on such date as the home department may by notification in the official gazette appoint and different dates may be appointed for different areas of the province.

Under the said provision, the home department has for the time being now ordered enforcement of the law only in the six of the merged tribal districts. Even the seventh tribal district of North Waziristan has not been included in the notification.

The Act provides for referring a civil dispute for ADR by the relevant court or by the deputy commissioner or any other officer nominated by the government.

Similarly, in all compoundable offences under section 345 of the Code of Criminal Procedure, including murders, the court may, with the consent of the parties, refer a criminal dispute for ADR. Moreover, a deputy commissioner or the DRC set up under the Police Act may also refer a dispute for ADR before the relevant court had taken cognizance of the case.

This law provides for a Saliseen (mediators) Selection Committee to be headed by the divisional commissioner and comprising other members, including regional police officer, senior civil judge, a representative of law enforcement agencies, regional director prosecution, a representative of special branch and concerned deputy commissioner who will also be secretary of the committee.

The committee shall approve and notify a panel of Saliseen on the recommendation of the district administration. Such mediators shall be selected for a period of three years from among lawyers with at least seven years of experience, retired judicial officers, retired civil servants, ulema, notable of a locality and experts or such other persons of repute having prescribed qualifications.

Through ADR Act the section 73 of Police Act has also been replaced and now the only function given to DRC is to refer a criminal dispute under section 345 of the CrPC to Saliseen notified under the ADR Act. This new provision will be applicable in districts where the law has now been enforced.

Moreover, through ADR Act the section 118A of the LGA about establishment of mediation council has also been repealed.

The ADR Act has already been under challenge before the Peshawar High Court on multiple grounds. Advocate Fawad Afzal Khan has filed a petition early this year stating that through this Act the executive has encroached on the functions of judiciary.

The petition was filed through senior advocate Noor Alam Khan, stating that the impugned law neither provides the right of appeal nor that of revision against a decree of a court passed following an ADR.

He contends the KPADR Act, 2020, has been passed in violation of Article 175 of the Constitution which guarantees separation of judiciary from the executive.

These different ADR bodies have been empowered to proceed in both criminal and civil disputes.

Apparently, the powers of these bodies of dealing with criminal disputes are in conflict with a judgment of the Supreme Court of Pakistan, delivered in Jan 2019, wherein the court while declaring functioning of all sorts of jirgas/panchayats as unconstitutional had ruled that they may operate under a law to the extent of civil disputes.

A two-member bench of the apex court headed by then Chief Justice of Pakistan Mian Saqib Nisar had delivered the said judgment in two sets of petitions. One of the petitions was filed by National Commission on the Status of Women (NCSW) requesting to declare the functioning of jirgas/panchayats in the country as illegal and unconstitutional.

The other petition was filed by the KP government against a judgment of Peshawar High Court delivered on Oct 30, 2018, whereby the court had declared some of the provisions of the Fata Interim Governance Regulation (FIGR) in conflict with the Constitution and had given a month time to the government to set up regular courts in the erstwhile Fata.

The SC bench had upheld the verdict of the high court and declared the entire FIGR ultra vires to the Constitution.

Experts on the subject believe that in the light of that judgment the government could neither set up arbitration bodies for criminal disputes nor different systems could be introduced for different areas. They believe the government has been acting in a haphazard manner over the issue as first ADR Rules were framed under the LGA on Dec 16, 2019, and then ADR Act was passed by the provincial assembly on Dec 18, 2020.

Published in Dawn, May 24th, 2021