Outsourcing dispensation of justice

ADRs and Pakistan

National Assembly of Pakistan recently passed a bill giving legal and constitutional cover to jirgas and panchayats – Alternate Dispute Resolution (ADR) Bill-2016 was passed by a 23 members out of a total of 342 members. Should not there be a mandatory provision to have a minimum number of legislators vote for passing of any law or/and change in existing law?

Twenty three kinds of disputes will be within the purview of these panchayats which will have ‘neutral’ members locally appointed by the government. Any female finding justice has not been done has the option of moving to courts.

Regarding appointment of Neutrals, the bill said: “The government, after consultation with the high court, shall notify in the official gazette a panel of neutrals for each district from amongst lawyers, retired Judges of superior and subordinate judiciary, retired civil servants, social workers, ulema, jurists, technocrats and expels and such other persons of repute and integrity having such qualifications and, c experience as may prescribed.” (Dawn February 3, 2017)

Dr Ijaz Ali Shah observes, “Neutrals (Ulemas, retired judges, politicians) are to play a role of meditation according to the context of bill, who would be appointed by government in consultation with the respective high courts. In an intolerant and dishonest suburb, it’s almost impossible to find mediators that are to stay neutral. Even our Ulemas, have fallen astray unfortunately, so it rather seems ludicrous. Follow-up by the government would be something “sine quo non “if this bill is to be taken up on humanitarian terms. Arbitration technique has been an integral component of judicial systems of other countries but it has certain limitations. Jurisdiction of jirgas or panchayats need to re-considered and should not be extended this much.” (The Weekly Pakistan, February 14, 2017)

Section 19 of the Bill states

19) (3) No legal proceedings shall lie against a Neutral or any other person or official associated in the ADR process for any act done or omitted to be done in good faith in the course of the performance of his functions, in reference to such ADR.

Is good intention adequate qualification and how can good intentions be weighed? Like many clauses in Article 62 and 63 it defies legal definition. In this case the Jirga/Panchayat being dwarfed with the influential of the area it is well-nigh to expect justice as understood in the legal sense.

The jirgas/panchayat are known for in many cases, for supporting honour killings and abuses against human rights. Panchayat and jirgas enforce their laws on locals in many cases at the cost of social and economic ostracising those who do not conform. It is therefore unfathomable to expect women to move courts, flying in face of the pressures in decisions taken on a basis that has nothing to do with law.

The decision to substitute constitutional law with giving umbrella to panchayats/Jirga, will lead to further weakening of writ of the state. According to a press release by AHRC, ‘’by strengthening the Panchayat and Jirga system (which was previously declared illegal by Pakistan’s judiciary), its abuse of human rights, particularly against the weak and vulnerable, is given legal cover and institutionalised. Women’s rights activists have expressed their concerns, citing the karo kari (honour killings) incidents that have been ongoing with complete impunity due to the Jirgas.” (February 11, 2017)

If one recalls, in 2008, in Baluchistan three girls were buried alive after a decision given by their tribal judicial council. The leader of that tribe was a provincial minister of ruling party. The Deputy Chairman of Senate Jan Jamali gave a statement which reflects the mindset of tribal leaders who are the main stakeholders of this informal justice system. He criticised the media not the perpetrators. He said “The media gave the matter such a colour as if heavens have fallen”, the other feudal lord and part of government Senator Sana Ullah Zehri also defended the decision of Jirga openly. He clearly said on national media that “These are centuries-old traditions, and I will continue to defend them” (Telegraph, 2008).

“In remote areas daughters are usually considered useful only for her potential to consolidate land within her own family through marriage, strengthen or restore relations with other clans or to save the male family members who have killed the person of rival tribe. Hence little girls are sacrificed for the community or family honour and sent to alien households, where they have to face taunt and humiliation for rest of their lives; girls are not allowed to participate in any rituals or festivities and they live like virtual slaves. According to the annual report of Human Rights Commission of Pakistan (2003), Swara has been considered a ‘virtual death penalty’ for women who have become unfortunately target of this heinous tradition. In these cases girls are not physically killed, but they have to face the misery and humiliation for rest of their life, which is no doubt an inhuman and terrible punishment. It is made worse that the concerning girl is not guilty of any crime (pg. 56). In Punjab, this custom is called Vani, In Sindh it is Sangchatti and Swara in Khyber Pakhtunkhawa Province. Unfortunately these practices are used against women under panchayat forum in order to infringe and manipulate their basic rights, and to exert control over women.” (Inquest into justice of the Pakistani customary “Panchayat Justice System” in context of International Human Rights Law- http://sas-space.sas.ac.uk/4780/1/1143204.pdf)

Both women and economically disadvantaged, lower caste people are at a severe disadvantage in dealing with the panchayat/Jirga system. Though it is true that we need justice to trickle to grassroots levels, outsourcing dispensation of justice to such forums is a mockery of justice.