The outsourced judiciary
Astonishingly, the bill was passed in the presence of only 23 members in the National Assembly out of a total of 342, which certainly raises serious questions on the democratic outlook of the process
Nearly a century old jirga and panchayat systems functioning in Pakistan in their designated territories, aimed at resolving disputes, and providing speedy, and low cost justice to the local people, on Friday, have been offered a legal, and constitutional shelter in a move by the government through the lower house of Parliament. The law minister, Zahid Hamid, presented the to-be historic bill, termed as Alternate Dispute Resolution (ADR) Bill 2017 before the 342 member National Assembly with a vision to expedite the provision of justice at the district level without having to rely on the already over-burdened courts. In fact the bill, in view of the law minister, is a move by the PML-N government to abate the load of legal affairs on the courts.
Astonishingly, the bill was passed in the presence of only 23 members in the National Assembly out of a total of 342, which certainly raises serious questions on the democratic outlook of the process. Some representatives from PPP, PTI, and MQM although had concerns over the bill, yet voted in favour.
The law minister elaborated to the house that 23 types of civil and criminal disputes will be settled through the ADR system. The mediators in the ADR system, referred to as neutrals, will be appointed by the government in consultation with the High Courts of the concerned districts, and will act as the judges while hearing and resolving the disputes between two parties. Dr Shireen Mazari of PTI and Nafisa Shah from the PPP also raised their voice against the bill in view of fulfillment of women’s rights, which has been a least considered factor in the decisions undertaken by such jirgas and panchayats. Both demanded to include female Neutrals in the jirga/panchayat too.
ADR centers will be set up by the government where a complaint or dispute could be lodged by a complainant for hearing.
Jirga and panchayat system, which has been a medium for speedy and low cost resolution of disputes, has also remained ignorant of judicial standards, and providing it with a legal and constitutional cover is an expression of mistrust in the country’s supreme judicial system, and its ability to deliver justice.
The Lal Masjid operation conducted in 2007 by the then President General Musharraf and his political team which had the support of mainstream democratic political parties had one objective; to establish the writ of the government, and not to allow anyone create a state within a state
In the name of cultural norms
Jirga and panchayat system has always been owned with pride as a cultural and tribal norm of our people. The question, however, remains that has this cultural and tribal norm been a source of equal pride for all people, or for just a benefitted few?
Providing in-time justice and resolution of disputes, where is important, on the other hand cannot defy the significance of complying with legal standards and the concept of just justice for all. Human rights violations, till date, remain a trademark trait of jirga and panchayat verdicts, women rights in particular, so to speak. We can still recall the burial of living women on account of a decision by a Baloch jirga, which was afterwards claimed to be a proud Baloch tradition.
Provision of a legal and constitutional cover to this system, that too in the name of carrying forward cultural norms, will strengthen the latter by legitimising their decisions. The presence of government officials remains a less convincing tool in this case, as the government’s proactive involvement and effective handling is evident through the level of good governance in the country.
Whether cultural and tribal norms, jirga and panchayat system, now with a constitutional back, running parallel to the country’s supreme judicial system can prove to be a rebellious set back.
A nail in democracy’s coffin
The ADR bill being tabled in presence of and passed by 23 members in a house of 342 is an act negating democracy. The bill must have been presented before full strength of the NA, in order to draw feedback on the proposed draft from across the board. Endorsement of ADR by a few members does not authenticate its democratic recognition, and the same remains questionable.
The jirga and panchayat systems, more than the general public, have enjoyed the support of feudal lords, since it is the best way for them to maintain the status quo, and their dominance over the haplessly oppressed population. With the influence of the feudal lords, to expect that the jirgas and panchayats would be successful in upholding the law and ensuring justice is equivalent to living in a fool’s paradise. The move by democratic forces to provide a legal and constitutional cover for jirgasand panchayats will further strengthen the foundations of long reigning feudalism in the country.
Prevalence of Democracy in a feudal society is a dream hard to come by. In Pakistan, when there was light for democracy, the self-proclaimed democratic forces themselves with this bill have added to the hurdles in the way of democracy’s prevalence, and have hammered a nail in the coffin of democracy.
The government’s writ in peril?
The Lal Masjid operation conducted in 2007 by the then President General Musharraf and his political team which had the support of mainstream democratic political parties had one objective; to establish the writ of the government, and not to allow anyone create a state within a state.
The same flag bearers of democracy, today, voting in favour of an alternate judicial system in the state, and shielding it with a constitutional cover emerges as a contradiction to their claims of commitment to state’s empowerment, and to promote democratic values. Instead of re-affirming the longing perception of inefficient state owned judicial system by legitimizing the non-state jirgas and panchayats, the government should have worked towards enhancing the capacity of the judiciary to deliver justice to the public. The government’s writ will always be under threat since the judgments passed by the jirga or panchayat cannot be challenged in any court of law, whether right or wrong.
What if the idea of settling disputes, providing speedy, and low cost justice on their own, which is ultimately legitimised by the government, inspires the same people to form their police force, or even their armytomorrow? The government’s writ will definitely be then in peril.
