Stuck between the devil and the deep blue sea

jirga1

Love it or hate it – the ADR Bill is now a part of our reality

 

In a December 2016 report published in the Washington Post, Pamela Constable brought the world’s eye to Kohistan, where a jirga had ordered house arrest, prolonged torture and eventually, the murder of five young women – allegedly for a video depicting them dancing at a wedding

 

Depending on which camp you’re in, there are a limited number of ways you can react to the National Assembly passing the Alternative Dispute Resolution Bill: either you’ll take to the streets or you’ll take to the streets. And yes, one of those things is, in fact, not like the other. In a country that remains predominantly “traditional” and has presented what is not the greatest track record on the promotion and safeguarding of human rights – particularly on the part of religious authority figures – it is difficult not to generalise all decisions made by policy makers that do not reflect a western, left-wing approach as “backward”, “misogynistic” or “fundamentalist”. And yet, ADRs do come with their own baggage, starting with the less than stellar history of their incarnation in Pakistan: the jirga and panchayat system.

What is supposed to be a traditional assembly of leaders gathered to resolve communal disputes in accordance with religious teachings has gained an infamy of its own. One could have argued that this is, in part, due to dramatisation in a media looking for a villain. It wouldn’t be that far-fetched – Pakistani media’s favourite avatar for women is clothed in oppression and subjugation (simply: tearful heroines sell) – if it weren’t for the fact that too many of the stories told about jirgas are based on real events. Mukhtaran Mai may be one of the more recognised victims of their rulings, but the world knows she’s not alone.

In a December 2016 report published in the Washington Post, Pamela Constable brought the world’s eye to Kohistan, where a jirga had ordered house arrest, prolonged torture and eventually, the murder of five young women – allegedly for a video depicting them dancing at a wedding. Also sentenced to death was the young man also seen in the video – and with his entire family. While some members of the boy’s family managed to escape, others – including his brothers – were not so lucky. In December 2016, another case surfaced: a minor was gang raped on the orders of a local jirga because her brother had assaulted a village girl. And only recently, a jirga ordered the murder of an educated young woman for dishonouring her family by refusing to marry her cousin.

“It’s a tragedy,” said policy analyst, Raza Rumi. “They (NA) should have asked for a law that included some form of ADR but instead they’ve proposed adopting these medieval practices – the jirga and panchayat systems are among the most regressive, often having given verdicts that violate the spirit of the constitution.”

It’s no small wonder then that law makers – including Sheerin Mizari and the PPP’s Nafisa Shah — pointed out the glaring lack of representation of women in the Bill when it was brought to the National Assembly. After all, based on historical evidence alone the jirga and panchayat systems have a tradition of being used for the systematic oppression of minorities in general and women in particular – one reason why quite a few believe, based on first impressions alone, that the bill will not pass through Senate.

If the Senate passes the bill … the resulting ADRs would need to be different from how we know jirgas today. They could not be headed by feudal lords or people who, say, were powerful because they owned a lot of property or wealth – they’d need to be appointed by the government after approval of the district commission

“It does depend, eventually, on how the Opposition plays its cards,” Raza Rumi pointed out, “but if asked, on first impressions alone I’d have to say, no, I don’t see this Bill passing through Senate. I don’t think it will become a law.”

Senior journalist Ayaz Amir and Advocate Abuzar Salman Khan Niazi were of the same opinion when asked, pointing out that the Senate majority did not fall under the government – and that the PPP’s manifesto had always been known for its liberal, leftist leaning.  

Both agreed that jirga system’s bad reputation – for lack of a better description – was not without cause. As Ayaz Amir put it, this was in part because jirgashad “evolved in a completely different milieu”.

And yet, when asked why the system still persisted, or why policy makers – well aware of its history – would propose or advocate it, they admitted that, too, was not without reason.

To illustrate his stance, Ayaz Amir drew attention to a presumably less tragic matter – that of transport disputes. “Seldom are these cases taken to courts. These people – the drivers and transport vehicle owners – they’re poor people with a livelihood to earn. They have neither the time nor the ability to bear the expenses that lengthy court cases bring.”

And lengthy they are.

While it often presents as difficult to accept, the judicial process itself exists with one simple purpose: to interpret the law and resolve disputes.

However, as previously stated, this can prove difficult to accept, through – in no small part – to the fault of the system itself. The judicial system in Pakistan, in fact, reminds one of the introductory lectures of an economics module: the story of scarcity. Cases can take months to reach the appropriate courts and once there, can take years to see rulings, even decades — as anyone who’s been caught in a property case in Pakistan would knows all too well.

Abuzar Salman Khan Niazi used the example of landowners to explain why, like it or not, the judicial system needs ADRs. “Justice delayed,” he pointed out “is justice denied. And where a property case can take up to ten years to reach resolution in a court of law, a communal gathering or jirga could bring the matter to a conclusion in a matter of weeks.

In Pakistan, there exists a limited number of judges overwhelmed with a backlog of cases dating between forty to fifty years back on a plethora of unresolved disputes – and more just keep on coming.

Raza Rumi called ours a “slow judiciary”. Clearly, that’s not without reason.

Still, it’s a bitter pill to swallow. Ayaz Amir pointed out the damage the system causes to the vulnerable. Raza Rumi acknowledged the blow this would be to the activist’s community in Pakistan. Pakistan’s recent legislation on women’s protection and domestic abuse had given people much hope in the reformation of our society – already infamous for its patriarchal leanings.

The word jirga itself draws up nightmarish scenarios of bearded men and draws the ire of most educated, middle and upper class citizens – regardless of our gender or experiences. And the fact remains that the only reason the country would feel the need to resort to alternative sources of justice would be if the existing judicial system itself was flawed and lacked credibility. And on that note, one wonders – how would this even work?

Wouldn’t a judicial system running parallel to the existing judicial branch of the government disturb the basic structure of the Constitution? Can a system based on traditions instead of the rule of law truly be an effective mechanism for the dispensation of justice? And can the legality of this Bill – passed by the National Assembly in a session that had not had more than 23 members present (of the total 342) – become a possible point of controversy?

“What you need to understand,” explained Abuzar Salman Khan, “is that the need for ADRs is very real – but as supplements to the existing judicial system, not as a replacement. And while the jirga system is deeply embedded in our culture, they have been declared unconstitutional by the Supreme Court (under Chief Justice Iftikhar Muhammad Chaudhry). So if they are to be institutionalised, it must be done by adapting them.”

If the Senate passes the bill, he explained, the resulting ADRs would need to be different from how we know jirgas today. They could not be headed by feudal lords or people who, say, were powerful because they owned a lot of property or wealth – they’d need to be appointed by the government after approval of the district commission. He also pointed out that there would need to be check maintained by the judicial system itself.

And that, according to Advocate, High Court, Muhammad Saqlain Arshad, would actually not be impossible – because of the Bill itself.

“The issue of jirgas is, of course, very sensitive. But my first impression upon reading the Bill itself was that its advocates have been very careful in how they’ve dealt with it. For one thing, they’ve restricted these “jirgas’” scope – there are only 23 cases in which these ADRs can give rulings. And even then, the matter can only be brought to a jirga with the written consent of all parties involved. Also, should any party disagree with the jirga’s ruling, its decision is not binding – and the party can appeal the decision in federal court.”

“Admittedly,” he said, “jirgas can be criticised separately. And yes, they can be improved. But with this Bill, it (the system) is being evolved. We need ADRs, and this is a step that should be viewed positively. In fact, based on first impressions alone, I think that this Bill may very well be passed in Senate.”

Differing opinions on ADRs aside, the facts remain the same: democracy is about more than votes and elections – it’s about representation. And until our legislation, past and present – and its interpretation — is amended to represent all voices in this country, we can’t hope for the safeguarding of the rights to life and free trial that this country’s constitution promised its citizens.

Pieces of legislation like the one in question need to be debated, as analysts pointed out, both within and outside legislative bodies. They definitely need to be amended. But whether or not the ADR Bill will be the representative of those voices, however, remains to be seen — the real decision lies with the Senate.

Noor RK

The writer is a staff member. She is a political science graduate and small business owner and is also affiliated with various youth projects. She tweets at: @nrkhawar



Top