The need to scrutinise the legality of ‘jirga’ system
The Alternate Dispute Resolution (ADR) Bill-2017 will cover 23 types of cases which include land and property disputes, civil matters, commercial disputes, and also domestic disputes among others
The National Assembly passed a bill last week to legitimise the‘Jirga/panchayat’ system in order to reduce the burden of ligitations on courts. The bill was heavily criticised by most, firstly, for being ambiguous, and secondly, because it indicates that Pakistan is being taken back to the ‘dark ages’.
The Alternate Dispute Resolution (ADR) Bill-2017 will cover 23 types of cases which include land and property disputes, civil matters, commercial disputes, and also domestic disputes among others.
The amendments in the bill call for recognising the jirga system as an essential part of the ADR and giving it more authority, despite the fact that verdicts from the ‘jirga’ system have caused grave human rights violations in the past.
The bill was passed by 23 members — 17 from the treasury benches and six from the opposition out of a total House of 342.
It is the state’s responsibility to protect the fundamental rights of the citizens, however, only 23 members of the National Assembly decided to pass the bill that concerns the whole population, without any debate.
The responsibility of the members of the assembly was to call a quorum to suspend the proceedings since the bench was incomplete, however, the proposal was rushed without any proper discussion.
“The members of the opposition were not present to argue their case and those who were present only asked for further information instead of proper amendments,” said journalist and activist Marvi Sirmed, while talking to DNA.
“The committee is responsible under the parliamentary ethics to scrutinise the bill clause-by-clause, yet they passed the bill without any public hearings or discussion.”
According to Article 175 of the Constitution, no other institution, unless established by the law, shall exercise the adjudicatory powers of a court. It means Jirgas are manifestly unlawful and against the constitution of Pakistan.
It further explains that no system can continue running if it disrupts the basic structure of the judiciary.
Nonetheless, the decision to provide a legal cover to jirga and panchayatsystems shows the lack of competence of the justice department and its inability to perform its duty.
On one hand, the quest for justice for Pakistani citizens can be defined by the backlog of cases, and on the other, is the nightmare of living through barbaric decisions imposed by alternative methods of resolution such as jirga and panchayat.
Pakistan is still struggling with ideological differences that divide the nation between a progressive minority and a majority of people holding on to outdated traditional values
However, some argue that the jirga system under ADR is cost and time effective.
The inability of the judicial system is a major reason why thejirga/panchayat system continues to thrive as the public opts for quicker, cheaper, and simpler dispute resolution methods.
Moreover, lack of judges, delays in trials, expenses of legal action, and corruption expose the failure of the judicial system.
“Constitutional amendments are passed in minutes under judiciary and the procedures are not even followed properly,” said Justice Wajihuddin Ahmed, in an exclusive chat with DNA.
However, the jirga/panchayat system, under ADR, cannot impose verdicts and cannot penalise the offenders which means that the matter will eventually have to be taken to court.
Also, in case the parties do not reach consensus or do not agree with the decision made by the neutrals, the dispute will be resolved by the court, negating the argument that jirga system will be time-effective under ADR.
The public demands quick results in accordance with their norms and culture, hence, they prefer resolving their disputes under jirgas headed by tribal leaders.
“The arbitrators resolving the matter in the case of jirgas are tribal chiefs who act as a representative body of the parties which is similar to the process in ADR centres,” he added.
However, the bill states that the state-appointed arbitrators or neutrals will be selected from a group that will be made up of people from different backgrounds — from ‘lawyers’ to ‘ulemas’ and “other people having such qualifications”.
Without proper training, local elders acting as neutrals are prone to biases and can be easily manipulated by rich and elite offenders.
“Legalising the jirga system means allowing the powerful section of the society to manipulate the decisions for compoundable criminal offences,” said Marvi Sirmed. “It is privatisation of the justice system and directly affects the lower class of the society.”
Another major setback of the bill is that it does not provide adequate protection to women who have been the biggest victims of decisions taken under jirga system.
The jirga system has been termed misogynistic as most women become subject to violence when the local leaders decide to give away girls asswara, vani, sang chatti and irjaai as compensation for serious criminal offences.
The government needs to train more women to work as mediators to ensure that women are not being subject to exploitation as it usually happens under jirga’s headed by feudal lords or tribal leaders.
“The jirga system under ADR should work only if it amended to cater the needs of the public, emitting its flaws and errors,” said Justice Wajih.
In 2004, the Sindh High Court declared the jirga system as illegal — since this old tribal system was against the fundamental human rights and a setback to development.
Pakistan is still struggling with ideological differences that divide the nation between a progressive minority and a majority of people holding on to outdated traditional values.
The jirga system, even under a legalised structure, is against the constitution as it is a threat to human rights and does not guarantee that justice given will be fair to all parties.
