SOCIETY: OUTSOURCING JUSTICE

August 20, 2017

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A jirga underway| File photo
A jirga underway| File photo

In 2002, the story of Mukhtaran Mai gripped the nation — a victim of gang rape in the village of Meerwala in Punjab — she refused to succumb to pressure and fought to bring her rapists to court. After a long struggle the culprits were arrested but were acquitted from the court.

In a recent interview on Geo News, however, the now activist-cum-philanthropist said that she hasn’t seen much progress a decade and a half after her case. “My 15 years of struggle and effort to highlight this injustice has gone to waste. Nothing I said or did was of any use,” she pointed out. The case of a 16-year-old girl being raped in July of this year as ‘revenge’ for her brother allegedly raping a 12-year-old girl in the village was the immediate reason for Mukhtaran’s dismay.

Over the past 15 years, there have sadly been many such cases perpetuated on the behest of the jirga, such as the chilling murder of 16-year-old Ambreen in May 2016 in Abbottabad. Ambreen was ordered to be killed by a 15-member jirga and set on fire as punishment for helping her friend escape the village (her friend wanted to marry someone of her own choice). There have been numerous cases reported over the years and even more have gone unreported.

Fifteen years after Mukhtaran’s ordeal, the jirga and panchayat systems still fail to provide justice to women in Pakistan. Is it time to ban or change the way they are regulated?

Since jirgas and panchayats are usually constituted only of men, often rule against women and are misogynistic in their rulings, why have the systems survived for so long? According to Afiya S. Zia, a Karachi-based social researcher, it’s because there is a public demand for such system. “People demand such forums,” she points out. “However, these alternative tribunals often issue judgements that may not be rights-based but resolve the dispute. The law recognises some quasi-legal forums such as Musalihat Anjuman (arbitration council) but not panchayat and jirgas.”

In view of their notorious reputation, one ponders whether panchayats and jirgas should be allowed to continue to function, and if so, under what conditions. “Criminalisation of jirgas is not the right approach as they will work on an ad hoc basis out of sight,” points out Asfandyar Waraich, a barrister who teaches constitutional law. “It will also not be acceptable to the rural population who may consider it an attack on their customary and tribal values. The court systems are slow, formal and unfamiliar to people which can lead to alienation.”

IS ALTERNATE DISPUTE RESOLUTION (ADR) THE ANSWER?

Waraich believes that if they are to be treated as an alternative dispute mechanism, panchayats and jirgas need to be regulated. “In that case, anyone seeking redressal through this mechanism will have to notify the court of the holding of the jirga and get the order sanctioned by the court. In a dispute involving a woman, the court should follow-up to see if she was heard or not,” he adds.

In this regard, the Alternate Dispute Resolution (ADR) Bill 2016 passed in February of this year seems to be a step in the right direction. At present, the ADR law is only applicable in the Islamabad Capital Territory — to be applicable in the rest of the country it will have to be passed by the provincial assemblies.

“It is a process in which parties resort to a method of resolving the dispute other than by adjudication by courts [such as a panchayat],” says Shumaila Hussain Shahani, a research associate at rights advocacy organisation Bolo Bhi. The lawyer is quick to point out, however, that the “ADR system is not a suitable alternative when matters involve a criminal dispute.”

Reema Omer, a legal adviser for the International Commission of Jurists disagrees. “It would be incorrect to say the ADR Act accepts or legalises traditional dispute resolution systems like panchayats and jirgas,” she says. “While at some level both the ‘neutrals’ and the ADR centres and panchayats/jirgas can be called ‘informal justice systems’, there are fundamental differences. The mechanisms established by the ADR Act are, to an extent, supervised by courts and their jurisdiction is very specific to settlements in some civil cases. Thus the blatant illegalities in the orders of jirgas and panchayats in the name of ‘settlements’ are unlikely.”

Shahani is also concerned over the procedure around the appointment of the panel which will include ‘neutral’ panelists such as social workers, retired civil servants and ulema. “It is unclear how those having no knowledge of the law can resolve a case referred by the court.”

Zia, however, isn’t as concerned. She explains that the ‘neutrals’ will be nominated by the government after consultation with the High Court based on certain qualifications. In addition, the law provides the option of training courses for the panelists and, significantly, if one of the petitioners is a woman, the ADR panel is required by law to have women representatives present on the panel.

Given the huge backlog of cases in both subordinate and superior courts of the country, an alternate dispute resolution system will also ease the burden on the courts.

“The stated objectives of the ADR Act are to ensure expeditious and inexpensive justice and to reduce backlog in courts,” explains Omer. As such, the ADR mechanisms are envisioned more as an alternative to the ‘formal’ justice system, not ‘traditional’ mechanisms like jirgas and panchayats.

REFORMING THE ADR

Zia, however, is not in favour of completely rejecting or over-enthusiastically embracing the informal arbitration systems. “Intra-familial or intra-community issues are still considered private in nature,” she says. “Only those conflicts that pit a citizen against state institutions or services are considered the business of the judiciary to resolve. This chasm defines the jurisdiction and mode of dispute resolution that is acceptable to citizens.”

While jirgas are criticised because they don’t treat women fairly, Zia points out that the formal system often fails them too. “The Dispute Resolution Centres (DRC) in Khyber Pakhtunkhwa have shown some ‘success’ but one should remember that success means resolving the issue, not necessarily imparting justice,” she emphasises. “Women have been participants in Musalihat Anjumans and in DRCs. Women’s groups have maintained that in petty disputes, ADRs are acceptable but certainly not in rights-based or criminal cases. There we need to adhere to universal rights and state laws as benchmarks of judgements.”

In addition, there have been accusations that government functionaries are involved in jirgas/panchayats even though rights activists consider them against basic human rights. “The ADR alone is not likely to stop traditional mechanisms from functioning unless this complicity is exposed, corrected and penalised,” says Omer. “Many other factors behind the functioning of jirgas and panchayats have to be addressed as well.”

While most experts and rights activists agree that jirga/panchayat are traditionally more acceptable when it comes to civil cases, Waraich strongly suggests that “jirgas should not be allowed to try criminal offences. In fact, no ADR process is fit for criminal cases. Criminal cases do not simply involve the opposing individuals, but involve the state, and hence all criminal cases should be taken out of the jirga.”

The writer is a member of staff and tweets @naqviriz

Published in Dawn, EOS, August 20th, 2017