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Patriarchal justice

August 07, 2017

THE panchayat or jirga system is firmly rooted in the socio-political and cultural matrix of the Indian subcontinent. This informal mechanism of adjudication has a history spanning multiple centuries, and today, far from being an ancient and disremembered relic of the past, it continues to run parallel to our state-sanctioned judicial system, delivering its own version of justice, at times with devastating consequences.

Recently, a panchayat convened in Muzaffarabad, Multan, ordered a man to rape a young girl. It appears that the members of the panchayat deemed this to be fitting retribution, since the girl’s brother had allegedly raped the man’s sister — a classic tit for tat, so to speak. Regrettably, by the time that either the media or law-enforcement agencies caught wind of the panchayat’s decision, the deed had been done and the order executed.

This is not the first time that news of such perverse justice has surfaced, nor is it likely to be the last. Panchayats and jirgas have, in recent times, acquired a great degree of notoriety for subjecting women to unchecked exploitation and abuse. With a composition that is almost entirely male-dominated, these ad hoc tribal councils have long been accused of perpetuating outdated and patriarchal notions of equity and fairness.

Panchayats and jirgas have acquired a great degree of notoriety for subjecting women to unchecked exploitation and abuse.

Women, rather than being involved in the adjudication process, are used as mere bargaining chips, stripped of any agency, with no voice, no representation and no right of appeal. Their bodies are reduced to the front lines of petty battles over family honour, piety and prestige, and in this process, they are defiled, humiliated and exchanged — less human and more commodity.

In the aftermath of the incident and amidst an outpouring of public outrage, the state quickly catapulted into action. The chief minister of Punjab suspended officials at the local police station, expressing displeasure over their ‘extreme negligence’ and ‘criminal delay’, and called for a three-member investigation team to carry out a probe. Similarly, the country’s chief justice took suo motu notice of the case and directed the inspector general of Punjab to produce a report on the matter before the Supreme Court.

However, these temporary and superfluous knee-jerk reactions from the state have, by now, become far too familiar. They are always quick to follow such atrocious events, and they always fall short of addressing the systemic problems that these issues highlight. What is far more important for us to consider, at this critical juncture, is whether these panchayats and jirgas should even be allowed to continue to exist, and if so, under what conditions?

There are two options available. The first is to call for an immediate blanket ban on panchayats and jirgas, criminalising their convention and penalising anyone that participates in them. This is likely to be the simplest solution, for it requires the least amount of active involvement from the state. However, it is questionable whether this would actually be effective.

As a rule of thumb, top-down projects of social engineering rarely work in practice, especially if they are met with opposition from below. It is highly likely that such a ban would lead to antagonism from rural quarters, where it would be quickly coloured as an assault on customary and tribal values, and that even despite the presence of a ban, these councils would continue to be convened, albeit now behind closed doors.

Furthermore, it is also important to consider that informal justice is not necessarily an anathema to the rule of law. Not all cases belong in courtrooms, and at times, it is much more expedient for parties to settle their disputes amongst themselves. This stands all the more true for Pakistan, where litigation is not only expensive but also considerably time-consuming and cumbersome, what with our judicial system being infamously mired in corruption and nepotism and already being overburdened with a heavy backlog of undecided cases.

The second option is to bring informal judicial processes within the folds of the law, thereby ensuring their regulation and delimiting their legal mandate. Panchayats and jirgas ought to be treated as any other alternative dispute mechanism. Any party involved in a conflict may opt to seek redressal through this mechanism, but only where every party expressly consents to this in writing. During the process itself, state-appointed officials ought to be present, not only to record the content of the proceedings but also to ensure that each party is permitted to have its say. In addition, if a resolution is forthcoming, it ought to be recorded as consent decree, which, must ultimately be sanctioned by a court of law in order to be legally binding.

Moreover, it is also pertinent that the mandate of panchayats and jirgas be solely confined to civil disputes. Criminal conflicts, by their very nature, are inherently unsuitable to informal mechanisms of adjudication. After all, a criminal offence does not simply involve the individual victim and perpetrator, but also has immense repercussions for the public at large. Furthermore, even a cursory look at the history of panchayats and jirgas indicates that it is precisely with disputes of a criminal nature that the gravest forms of injustices occur.

Whatever the eventual form of their regulation, one thing is certain — for far too long have such assemblies of men been allowed to clothe misogyny as justice, to dispense sexism as equity and to legitimise violence as collective wisdom. The state must act, and it must do so before another victim is forced to surface.

The writer is a barrister and teaches constitutional law.

Published in Dawn, August 7th, 2017