Miscarriage of justice

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    A blemish that is the new Jirga Bill

     

    Omer Mansoor, a Lahore based lawyer who specialises in human rights laws, had this to say: “While the intentions of the governing PML-N may not be entirely malafide, it sure chose a day when there were only eight percent of total legislators available in the Assembly, a slap in the name of justice and democracy

     

    The hallmark of any elected democracy is that representatives are answerable to the electorate – the people. That means every institution in a democratic country’s political system is one way or another answerable to the public. Since it is the beauty of democracy to keep checks and balances on every pillar of state, failure to do so or a misuse of authority falls squarely in the category of injustice. As our nascent democracy has been through a lot in its short, intermittent period of life, there has been injustice upon injustice the people in the country had to go through.

    A new one in this long series of unfortunate events is the so-called Jirga Bill which was recently passed by the National Assembly. Questioning the collective will of the august House may seem like an exercise in futility but it is not, for laws are not meant to be regressive. They are meant to be pragmatic, even progressive. It seems ironic to advocate for a progressive society while not laying down its foundations on a solid base.

    Omer Mansoor, a Lahore based lawyer who specialises in human rights laws, had this to say: “While the intentions of the governing PML-N may not be entirely malafide, it sure chose a day when there were only eight percent of total legislators available in the Assembly, a slap in the name of justice and democracy. Among those 23 present in the House, six were from opposition parties who raised objections on the bill that can be virtually categorised as none. And thus the Alternate Dispute Resolution (ADR) Bill-2016 was passed.

    “Passing a law that puts the life of even one person at risk is a grave miscarriage of justice.”

    To get to the bottom of the issue from a viewpoint of jurisprudence, this correspondent talked to another lawyer, Muhammad Ali, who teaches law at a private college. He says, “There are plenty of reasons why lawyers are insistent on calling this bill an injustice, but let’s first discuss an issue bigger than these reasons: the very existence of panchayats and jirgas. While justice in itself may be something intangible, justice delivery mechanism is not. It is as tangible as it can get. That means it should also stand to higher standards of merit, impartiality and quality, all reasons why we have a highly structured judicial system. We have courts, judges, lawyers, and laws. Judges, being the adjudicators, are selected through a process, there is a minimum qualification criteria for their selection and there is always at least one higher forum where you can appeal if you are not satisfied with their judgements. Panchayats orjirgas, archaic systems that have survived modernity and resisted change, do not fall in the category of judicial systems. They represent an era when laws were related to who gets dibs at the new water-well, or whose turn it is to do the neighbourhood watch. Times have changed, we have complex laws now to deal with even more complex situations.Panchayats or jirgas are not equipped to deal with them.”

    Other than the flawed logic and the problems of logistics, there is the issue of representation. Virtually all panchayats and jirgas are dominated by men

    “This law is not only a bad piece of legislation but also a regressive one. It has taken the evolution of justice system at least a century back in the past,” opines Muhammad Ali.

    Justice must be swift to look like justice, but no matter what happens it must still qualify and pass the gold standard of any modern judicial system: the guilt must be proven beyond a reasonable doubt.Panchayats and jirgas are ill equipped to do that, leaving the entire exercise of adjudication at the mercy of those who may have vested interests or those who may not be impartial.

    Speaking to a seasoned lawyer, Naveed Raza, who advises an NGO that deals with the victims and families of honour killing, this correspondent learned that panchayats and jirgas are in most cases a platform to settle vendettas and sometimes to score a new one.

    “They are a double edged sword for the families of victims of honour killing: first they force them to accept an otherwise unacceptable and totally barbaric form of justice and then they force them to keep quiet through coercion and social pressure. Moreover, it is the victim’s family that is stigmatised.”

    Federal Law Minister Zahid Hamid was excited at the prospect of the bill providing “cover to panchayats and jirgas across the country”. What he, along with the rest of the 342 lawmakers, has forgotten is that it will hurt those who are already weak and vulnerable. It will hit hard those who already don’t have proper access to justice or those who are stunted by monetary issues.

    Naveed shared these views and said: “With this law, the vulnerable and hapless will eventually be left without any recourse to justice. If that is not a miscarriage of justice in the most regressive manner, then I don’t know what is. By creating more power centres, the government is doing a disservice to democracy.”

    The bill lists 22 types of crimes that can be tried by these panchayats and jirgas. While some of those can, and probably should, be tried under alternate dispute resolution (ADR), like issues related to companies and banking; insurance; and patents, trademarks and copyrights, most others will instead leave the aggrieved party open to pressure and coercion.

    It is, for example, pretty hard for a farmer in South Punjab to come to Lahore High Court bench at Bahawalpur to settle a dispute on a joint property but he still has a chance, as miniscule as it may be, to get justice. But if he has to get the same done from a panchayat or a jirga, at his nearby town, the other party may use influence or buy out arbiters and get the decision in its favour.

    “Creating this parallel system of justice is nothing short of a blemish an attack on fundamental human rights and in direct contravention of the Constitution of Pakistan 1973. It is also an attack on judiciary, for instead of creating this parallel system of justice the government should strengthen judiciary at lowest level. If the judiciary is empowered and independent, you won’t need this panchayat system or any other system for a just and swift delivery of justice,” argues Barrister Zia Ullah Ranjha, an academician.

    Other than the flawed logic and the problems of logistics, there is the issue of representation. Virtually all panchayats and jirgas are dominated by men. Combine that with the fact that they are mostly in already backward areas of the country, and you have a ready-made recipe to trample women rights and strengthen their patriarchal control on women — travesty and grave injustice, indeed.

    “And to think that your own government would do that to you –impose a regressive legislation on its electorate — is beyond me to express in words,” Barrister Ranjha says.

    And to those who are going to argue in favour of customs and traditions, just keep in mind this: One of the simplest definitions of law says that ‘law is nothing more than common sense’. Another one says that laws are derived from customs and traditions. But as history is witness, customs and traditions evolve or they face the axe of time and are left in the dust. This evolution happens when common sense deems certain customs and traditions to be archaic and finds them of no value to society. That time happened to be more than a century and a half ago. Why we are still stuck in the rut cannot be explained by common sense, or can it?