Is legalising jirga system the only way to sort things for Pakistan or is it mere incompetence of the current legal system
The system is dominated by the men in the tribe/society, with no female representative. The decisions are usually based on consensus in light local traditions and are biased against women in most cases
People in Pakistan went into a frenzy when the National Assembly (NA) passed an important bill, giving legal and constitutional cover to centuries-old jirga and panchayat systems in the country.
The bill tabled by Law Minister Zahid Hamid has been enforced with immediate effect in Islamabad, and he claimed that the objective is to ensure quick action on civil matters and reducing the burden of litigation on the courts. Titled “The Alternate Dispute (ADR) Resolution Bill 2017”, the bill is likely to be implemented in the whole country soon.
The jirga system is centuries old tradition within our culture to resolve disputes during meetings convened by elderly members of the tribes. The elders address, discuss and resolve important issues that are of priority to their community.
“Representation of the world, like the world itself, is the work of men; they describe it from their own point of view, which they confuse with absolute truth,” said Simone de Beauvoir in her book ‘The Second Sex’.
The system is dominated by the men in the tribe/society, with no female representative. The decisions are usually based on consensus in light local traditions and are biased against women in most cases.
In regions where formal courts are not trusted or the locals cannot afford to take their cases to the actual judges, this seems to be the most convenient way for locals of obtaining justice. But the jirga/panchayatsystem is largely regarded as ‘barbaric’, ‘medieval’ and an ‘ignoble’ partisan tradition.
Currently, in most parts of Pakistan, jirgas operate as unsanctioned parallel justice systems, but NA passing the bill is proof that the current judicial system is failing to serve the people with the justice they need. Thus implementing the jirgas seems to be the only effective way to solve out of court issues according to the benches.
“The bill passed right now is very ambiguous with a lot of legal, human rights clauses,” said Pakistan People’s Party (PPP) member Dr Nafisa Shah.
“There are a lot of unanswered questions with this bill, which needs to be answered before it is implemented. Because if it is not, then it will be misused and abused.”
The current judicial system does not have laws strong enough to punish the perpetrator, especially if they belong to a powerful financial background; this incompetency of the system has been pointed out time and again by international institutions like World Bank, etc.
“People have lost faith in the current judicial system, so for now legalising the jirga system is the right thing to do,” said anthropologist Dr Hafeez ur Rehman. “They are looking for a system that will is time and cost effective and provides them with instant results.”
With this system one can only check out two of four objectives from the list, thus the law must provide both the parties the right to appeal to the court as well
If the current Jirga system is followed, where justice is provided under the blanket of guns and threats, most of the times wrongly punishing the women in the name of ‘honour’; it will just be a counter-productive action taken by the government, yet again.
“Society knows that judges and courts keep delaying the matter so the reason why this is correct is because people believe if they have to compromise something for quicker, better results they are willing to do it,” Dr Hafeez added. “A layman would go to a place where his voice is heard and instant results are provided.”
Dr Nafisa said the current bill needs to be amended; it is limited in scope and there needs to be a woman representative in the jirga council; otherwise it will just be like local, customary institutions where women have no voice and they are treated as nothing but objects.
Thus, the need to strengthen and develop a proper ADR system is urgent; not as a replacement for the current system, but as a supplement. The bill does not look like an attempt to improve the current system, rather regulate the ADR system.
ADR is needed to resolve small civil disputes locally as well, in institutions where they can be addressed instead of having them linger in the courts. Though, what the system needs to be careful about is the vagueness in the bill that can lead to the law being misused.
As of now, what is not known is who will represent the jirga; they need to be qualified, well-known people. As the current bill states, there will be ‘neutrals’ to moderate the dispute, this needs to be further elaborated as well.
“There is no need to reject the bill; the treasury benches should understand the implications, protect the fundamental rights of the citizens and provide a clearer picture of things for when the bill is legalised,” said Dr Nafisa.
Lahore University of Management Sciences (LUMS) public policy Assistant Professor Dr Mohsin Bashir is an agreement with Dr Nafisa’s viewpoint as well.
“The government needs to have a recognised jirga with a female representative to avoid any sort of injustice being done towards women,” he said.
He said if this is not done women will continue to be punished wrongly in most disputes.
Furthermore, the professor said there are four ways to know if the conflict resolution has been successful or not.
“First is to reach a solution, second to save money, third to save time and lastly, to know that all parties are satisfied and justice has been served,” said Dr Mohsin.
With this system one can only check out two of four objectives from the list, thus the law must provide both the parties the right to appeal to the court as well.
“The decision to legalise jirga system is taken because of the pressure from international institutions,” said Bashir.
“It should also be clearly defined that jirga verdict should not affect people other than the guilty,” he said.
If and when this Jirga system becomes legalised in the country by the Senate, it should be continued with a systematic approach to making it successful and provide justice for all. It will not only ease the burden on the current ineffective judicial system, but make sure everyone’s cases are heard and acted upon.
