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February 23, 2017

Justice: an alternative course


February 23, 2017

A married woman set herself on fire in Gujrat in November 2016 after she was raped on the order of a panchayat and subsequently learnt that she was pregnant.

In Rahim Yar Khan, a nine-year-old girl was married off to a 14-year-old boy by a jirga in March 2016 under the age-old custom of wani as a settlement for a murder. Meanwhile, in April 2016, it was reported that a gang rape case in Umerkot was “settled” for a compensation of 30 mounds of wheat.

Earlier this year, the ADR Bill was passed by 23 members of the National Assembly. The legislation ensures the speedy resolution of petty civil matters and reduces the burden of litigations on the courts. It provides legal and constitutional status to jirgas and panchayats. Under the ADR system, 23 types of civil and criminal disputes.

Jirgas and panchayats have often been the purveyors of archaic traditions, customs and inhumane practices. The three cases cited above are glaring testaments of this belief. As a result, the government has, through this legislation, proposed a number of adjustments to the workings of jirgas and panchayats.

The bill proposes the appointment of mediators or panels of ‘neutrals’ in districts. They will selected by the government from among lawyers, retired judges of the superior and subordinate judiciary, retired civil servants, social workers, ulema, jurists, technocrats and other experts, after consultation with the high courts.

However, it is important to consider whether the conflicting parties and the people of the districts will accept the authority of a jirga and panchayat if their leaders are not drawn from their own milieu and their decisions are not in line with their entrenched traditions and values. The possibility of opposition from local elders and the elite – who have traditionally constituted and headed these jirgas and panchayats – to the replacement and dislocation of their authority might also exist.

There is also a strong likelihood that parallel jirgas and panchayats might spring into action and further complicate the process of justice delivery. It is therefore essential for the government to develop a plan to ensure the acceptance of the appointed mediators’ authority. This would guarantee adherence to their decisions and neutralise any potential opposition and conflict that may arise.

The law minister said that the disputes will be settled with the consent of both parties to a dispute. He maintained that if any woman believes she has not been provided justice, she can approach the court. This is where the main issue arises. While alternative mechanisms for administering justice are important, it is also necessary to keep the nature and character of jirgas and panchayats in view. More often than not, their decisions have been notoriously misogynistic.

Last year, 16-year-old Ambreen was hanged and her corpse set ablaze in Makol Village in Galiyat on the orders of a local jirga after they discovered that she had helped her friend elope. In 2015, a local jirga in Kohistan ordered the murder of five women after a video of them dancing at a wedding was released. Most verdicts and orders given by jirgas and panchayats in Pakistan are repugnant to basic human rights – especially with regard to women. It is precisely for this reason that women’s rights organisations have voiced concerns regarding the passage of this bill. The Women’s Action Forum has deemed ADRs to be unacceptable under the “ patriarchal and socially unjust and unequal conditions that prevail in Pakistan”.

Building on the law minister’s statement, if an aggrieved party has decided to take a matter to court, providing legal cover to panchayats and jirgas will not be a positive step towards the speedy resolution of dispute. It will also fail to reduce the burden on litigation.

In her article on jirgas in 2015 – written in the wake of Ambreen’s murder – lawyer Sahar Bandial located the need for jirgas and panchayats in the “inaccessibility… and delays in the dispensation of justice by the formal legal system”.

It is evident that Pakistan’s mainstream legal system possesses a plethora of problems and burdens that need to be streamlined. As a result, alternative avenues for the dispensation of justice are provided.

However, attempting to provide a legal cover to institutions that are as deeply problematic as jirgas and panchayats seems to be a solution reached in haste. It appears to be taken without a thorough examination of their nature and the mechanisms used to ensure the dispensation of justice. That this bill was passed in the National Assembly by a mere 23 out of the 342 members also casts doubt upon its legality and emphasises the scant sense of duty and regard for the institution among elected representatives.

While the passage of the ADR Bill in the Senate appear uncertain, the possibility of the dispensation of justice by jirgas and panchayats – especially given their history, the existing social and cultural realities and the power structures they operate within – appears equally doubtful.


The writer is a freelance contributor.



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