Beyond Statutory ADR: Why Pakistan Needs a Codified Shariah-Compliant ADR Framework

Abstract

Pakistan has already enacted several ADR related legislations with an aim of making justice more accessible and judicial process less time-consuming. Despite these legislative advances, the legal direction of shariah-compliant ADR is disjointed and does not have a unified statute. This article suggests that the problem is not that there is no legislation on arbitration in Pakistan, but the lack of a comprehensive law for the codification of ṣulḥ, taḥkīm and wasāṭah under the constitutional and procedural framework in Pakistan. The doctrinal and comparative legal analysis explores Pakistan's current state of affairs, as well as the developments in Malaysia, Saudi Arabia, England and Singapore. It argues that for the Shariah-compliant ADR to be effective, it cannot be limited to legislative recognition, it must have institutional regulation, it must be procedural, it must have ORI, and there must be legal standards that are enforceable and are adherent to Shariah. Therefore, the authors suggest the possibility of enacting a comprehensive Shariah-Compliant Alternative Dispute Resolution Code to harmonise Islamic jurisprudence with the constitutional guarantees and the principles of international dispute resolution. It concludes that such codification would help to reinforce access to justice, build public confidence in ADR and create a coherent legal structure that is consistent with Pakistan's constitutional obligations and the Islamic principles of justice, reconciliation and public welfare.

Keywords: Alternative Dispute Resolution (ADR); Shariah-compliant ADR; Sulh; Tahkim; Wasatah; Islamic Law; Arbitration; Mediation; Pakistan; Comparative Law.

https://doi.org/10.5281/zenodo.23480151