LAL JAN KHA TTAK, J.----This judgment of ours shall also decide the connected Writ Petition bearing No.1086- P/2021 as common issue is involved in both the petitions wherein the petitioners have questioned the vires of Khyber Pakhtunkhwa Alternate Dispute Resolution Act of 2020 (the Act) and have prayed that same be declared ultra vires of the Constitution of Islamic Republic of Pakistan, 1973.
2. It is the petitioners' case, as argued by their learned counsel that in the garb of the Act, the respondents once again have brought back the draconian Frontier Crimes Regulation, 1901 which, according to them, has not only introduced a parallel judicial system in the newly merged districts of the Province but is an onslaught on the independence of judiciary .
3. As against the above, the learned Advo cate General, while opposing the petitions, submitted at the bar that the Act is quite in line with Article 37 of the Constitution and has been enacted in order to provide inexpensive and expeditious justice to the people. The learned Advocate General further argued that the provisions of the Act are made applicable only when parties to lis agree to adopt them and sans their express consent no action is taken under it.
4. Arguments heard and retort gone through.
5. It is well settled that vires of a law can only be assailed if it is shown that either the legislature was not competent to enact it or there was any male fide on the part of the Parliament in the enactment. If none of the above elements exists then the desired writ to declare the law ultra vires of the Constitution cannot be issued.
6. On the touchstone of the above, when we looked at the Act, it did not appear to us that either the Provincial Assembly of Khyber Pakhtunkhwa was not competent to legislate on the subject or there was any mala fide on the part of the legislature to pass the law. It is also worth to mention that learned counsel for the petitioners too did not address the court on the above aspects of the case.
In addition to the above, pronounced aspect of the Act is that its provisions are made applicable only when both the warring parties consent for placing their case before the nominated Saliseen. According to section 3 of the Act, the court, after appearance of all parties as soon as possible, may refer a civil dispute for Alternate Dispute Resolution except, where; "(a) any of the parties to the dispute do not agree for Alternate Dispute Resolution." 'bid provision of law shows that the stage of Alternate Dispute Resolution will come only when all the parties to the case agree to it. In case of no agreement between them to go for resolution of the dispute through Saliseen the controversy then will be decided but the court in accordance with the settled law .
8. Furthermore, in the composition of the Saliseen Selection Committee, persons from all walks of life have been included wherein Senior Civil Judge of the concerned District is also a member . Besides, in the nomination of Saliseen , the parties have also a say who are selected in the prescribed manner from amongst the lawyers with at least seven years of experience, retired Judicial Officers, retired Civil Servants, Ulama, notables and experts of repute and integrity .
9. To further alleviate the concerns of the petitioners, it is worth to mention that the referring authority , with the consent of the parties, may either nominate the whole panel of Saliseen or nominate one or more Salis from amongst the panel of Saliseen . So by doing so, the ball fully lies in the court of the parties and everything is done with their express consent and approval.
10. The concerns expressed by the petitioners that the arrangement of Alternate Dispute Resolution is akin to a parallel judicial system too are unfounded as in the present day scenario every effort is made first to get resolution of the disputes through the Alternate Dispute Resolution system. In this respect, reference is made to the various provisions of Arbitration Act, 1940, recent amendments to the Civil Procedure Code and other relevant laws. Also in the agreements and contracts of Trade, Energy , Petroleum, Mineral, Communica tion, Roads, Industry , Services and Supplies etc. executed between the individuals and state functionaries adequate provisions are made to the effect that in case of any dif ference, the matters will be referred to Arbitrators for resolution.
11. Apart from providing inexpensive and expeditious justice to the litigants, there are further advantages of the Alternate Dispute Resolution System which include direct engagement of the parties in the process than what is usually done in the courts of law. Parties before Saliseen will be in better position to explain their stances in their own languages, accents and styles to the Saliseen who also know well the custom s and traditions prevailing in the area. They discuss the issue holistically and try to put an end to a lis once for all without adverting to technicalities.
12. So advantages of the Act are much more than its disadvantages, if any, there fore, the petitioners need not be worried particularly when parties to the cases are at liberty either to opt or not for the process of Alternate Dispute Resolution.
13. For what has been discussed above, this and the connected petition, being bereft of any merit, are hereby dismissed.