Alternative Dispute Resolution: the Bill
Jirgas do not possess the concept of due process — there is only an oral hearing and verdict
The writer is a barrister and UK solicitor who works with Aurat Foundation on law and governance issues
When injustice becomes law, resistance becomes duty — Thomas Jefferson.
A government bill was put to the lower house of parliament in Islamabad on a sleepy Friday afternoon in February of this year. Out of a total 342 members, only 23 were present and voted for the Alternative Dispute Resolution Bill 2017. The Bill has now been sent to the Senate for approval. By the unassuming title one would not be able to decipher just how backward this bill, if made law, will take us. It has gone beyond purely commercial matters to affect areas that in Pakistan should only be dealt with by the formal court system.
Though overall poorly drafted, two major concerns are enough for the Senate to reject the bill in its entirety. Firstly, the most alarming point is the attempt to legalise unconstitutional, illegal and informal ‘judicial’ structures prevalent throughout the country. These structures are known as jirgas, panchayats and fasloos, depending on which part of the country one is in. But regardless of the title given, the composition and the decision making of these bodies are frighteningly similar. Composed of only influential tribal elders, of men only no doubt, the body is a decision-making one that has passed judgment after judgment, playing havoc with the lives of helpless poor people affecting in many cases fatally girls and women.
Judgments, if they can be called that, have no doubt been speedy — but justice, as we know it, is not the aim of these self-composed bodies. Jirgas and panchayats have shown repeatedly that the judgments passed by them surpass logic, violate the dignity of the most vulnerable, and do not, nor wish to have, the basic understanding of the rights of a human being. It would be incomplete if I did not mention the obvious — that our present judicial system is crumbling before our very eyes, where one generation files a petition, only for their grandchildren to receive the verdict — such are the painfully long delays. And there is no doubt that the decisions of these jirgas are speedy — in a day, even a few hours, the jirga decides the matter. But swift decisions cannot be equated to justice. The aim of these self-composed bodies, with self-imposed powers, going far beyond the ambit of the law, is not justice. Their decisions are whimsical and arbitrary, deeply rooted in extremely harmful, ancient customs, which not only violate international commitments made by successive governments in Pakistan but also contradict basic human rights provided for in our constitution.
Jirgas do not possess the concept of due process — there is only an oral hearing and verdict, no rules on admissibility and collating of evidence, no woman may come forward to defend herself or as a witness, no appeal system; the verdict of the jirga is final. Decisions of jirgas have seen girls as young as three years old being given as a way to resolve a dispute between two rival families. In fact, the exchange of women between families to resolve a conflict is a very common jirga decision in cases in cases ranging from murder to unpaid debt. In Sindh, two young girls from the offender’s family were ordered to be given to the victim’s family as compensation; one girl was married to a sixty-year-old and while the other to an eight-year-old boy. In K-P and Balochistan, a seven-year-old girl was forced to marry an old man from the rival family. In Punjab, a five-year-old girl was given in marriage to a forty-year-old to settle a dispute and in another case an eleven-year-old girl given to a fifty-year-old man who already had eight children. Need I go on? But it goes further than this. Jirgas have ordered the sale of women to settle disputes and ordered rape and the killing of women in their warped understanding of retribution.
The Supreme Court has declared these contemptible structures illegal. But despite the judgment of the Supreme court, jirgas operate openly and unapologetically. Lawmakers of this law, however, claim that we have confused the traditional jirga with the one being referred to in the bill. Even if one was to give the benefit of the doubt here to the draftspersons, how will you tell a poor family in the depths of a village in interior Sindhi, in K-P or Fata, or in the rugged terrains of far-flung Balochistan — that this jirga is harmful but the one across the street is different. The cultural connotation of the word jirgas and panchayats and everything that they stand for is such that legalising their very name is enough to create confusion. Confusion that will favour the powerful tribal make up of a jirga and disadvantage the powerless, ordinary person, seeking justice. But this is if you are giving the government the benefit of the doubt. If you are not, then it must be obvious whom the government is attempting to oblige with a law like this, at the expense of poverty stricken, culturally bound citizens.
Secondly, the underlying bedrock of the new law is based on mutual consent. All 23 categories of disputes provided for under this law will require mutual consent between the parties. Both parties will, therefore, either agree or disagree mutually to the decision of the panel of arbitrators, mediators and conciliators, known as a panel of neutrals under this law, before things go any further. Mutual consent is ideal in principle as it gives both parties equal weightage. But it is only ideal where both parties are actually equal or nearly so. There is no mutual consensus between a husband and wife in a marriage in which more often than not the husband is the dominant decision-maker and usually the breadwinner. There is no mutual consent in cases where there is a poor tenant up against a powerful landlord, or in cases where there is a land dispute between a poor labourer and an influential landowner.
Mutual consent and agreement work where is there is economic and social parity. We suffer greatly from both these forms of disparity. Pakistan’s current environment does not really permit mutual consent. Mutual consensus does not work where institutions that profess to be neutral are strife with patriarchal undertones and actions. It does not work where gender discrimination and inequality is stark to the point of being alarming. It does not work in cases where inequality between the rich and poor and influential and weak is such that it affects more than 90% of the population. Among the land owning feudal lot and the political ruling elite of this country, it is not difficult to guess what the process of mutual consent will look like. Forced consent through the dominance of gender or class or influence will be guised as mutual. Rarely has a case in the family courts, where meditation and conciliation are escorted to, work in favour of women. For this reason, family courts have finally diluted this method of dispute-resolution.
The flawed understanding of mutual consent in this law is followed by a non-appealable clause. The process of a mutual agreement under this law will not, therefore, be able to be challenged in a court of law. All on the basis that the decision has been reached ‘mutually’ between the parties in front of and with the help of a panel of arbitrators that will range from legal experts to technocrats and members of the wider ulema. This basic clause has contradicted Article 10A of the Constitution, which states the right to a fair trial and due process.
In addition to contradicting fundamental constitutional principles the lawmakers have misunderstood imperative principles of confidentiality in certain types of proceedings. The law has also failed to take into account far more comprehensive laws that are already existent, which govern alternative dispute resolution.
Our judicial system is unable to cope, failing citizens seeking justice. But to create yet another parallel system that will probably be underfunded, undertrained and under monitored is not the solution. The funding being promised under this law should be diverted to identify the bottlenecks and strengthen the crumbling judicial system. What we need is an aggressive re-haul of the present structures; not the establishment of parallel ones that reinforce violence and breach fundamental rights.
Published in The Express Tribune, March 7th, 2017.
A government bill was put to the lower house of parliament in Islamabad on a sleepy Friday afternoon in February of this year. Out of a total 342 members, only 23 were present and voted for the Alternative Dispute Resolution Bill 2017. The Bill has now been sent to the Senate for approval. By the unassuming title one would not be able to decipher just how backward this bill, if made law, will take us. It has gone beyond purely commercial matters to affect areas that in Pakistan should only be dealt with by the formal court system.
Though overall poorly drafted, two major concerns are enough for the Senate to reject the bill in its entirety. Firstly, the most alarming point is the attempt to legalise unconstitutional, illegal and informal ‘judicial’ structures prevalent throughout the country. These structures are known as jirgas, panchayats and fasloos, depending on which part of the country one is in. But regardless of the title given, the composition and the decision making of these bodies are frighteningly similar. Composed of only influential tribal elders, of men only no doubt, the body is a decision-making one that has passed judgment after judgment, playing havoc with the lives of helpless poor people affecting in many cases fatally girls and women.
Judgments, if they can be called that, have no doubt been speedy — but justice, as we know it, is not the aim of these self-composed bodies. Jirgas and panchayats have shown repeatedly that the judgments passed by them surpass logic, violate the dignity of the most vulnerable, and do not, nor wish to have, the basic understanding of the rights of a human being. It would be incomplete if I did not mention the obvious — that our present judicial system is crumbling before our very eyes, where one generation files a petition, only for their grandchildren to receive the verdict — such are the painfully long delays. And there is no doubt that the decisions of these jirgas are speedy — in a day, even a few hours, the jirga decides the matter. But swift decisions cannot be equated to justice. The aim of these self-composed bodies, with self-imposed powers, going far beyond the ambit of the law, is not justice. Their decisions are whimsical and arbitrary, deeply rooted in extremely harmful, ancient customs, which not only violate international commitments made by successive governments in Pakistan but also contradict basic human rights provided for in our constitution.
Jirgas do not possess the concept of due process — there is only an oral hearing and verdict, no rules on admissibility and collating of evidence, no woman may come forward to defend herself or as a witness, no appeal system; the verdict of the jirga is final. Decisions of jirgas have seen girls as young as three years old being given as a way to resolve a dispute between two rival families. In fact, the exchange of women between families to resolve a conflict is a very common jirga decision in cases in cases ranging from murder to unpaid debt. In Sindh, two young girls from the offender’s family were ordered to be given to the victim’s family as compensation; one girl was married to a sixty-year-old and while the other to an eight-year-old boy. In K-P and Balochistan, a seven-year-old girl was forced to marry an old man from the rival family. In Punjab, a five-year-old girl was given in marriage to a forty-year-old to settle a dispute and in another case an eleven-year-old girl given to a fifty-year-old man who already had eight children. Need I go on? But it goes further than this. Jirgas have ordered the sale of women to settle disputes and ordered rape and the killing of women in their warped understanding of retribution.
The Supreme Court has declared these contemptible structures illegal. But despite the judgment of the Supreme court, jirgas operate openly and unapologetically. Lawmakers of this law, however, claim that we have confused the traditional jirga with the one being referred to in the bill. Even if one was to give the benefit of the doubt here to the draftspersons, how will you tell a poor family in the depths of a village in interior Sindhi, in K-P or Fata, or in the rugged terrains of far-flung Balochistan — that this jirga is harmful but the one across the street is different. The cultural connotation of the word jirgas and panchayats and everything that they stand for is such that legalising their very name is enough to create confusion. Confusion that will favour the powerful tribal make up of a jirga and disadvantage the powerless, ordinary person, seeking justice. But this is if you are giving the government the benefit of the doubt. If you are not, then it must be obvious whom the government is attempting to oblige with a law like this, at the expense of poverty stricken, culturally bound citizens.
Secondly, the underlying bedrock of the new law is based on mutual consent. All 23 categories of disputes provided for under this law will require mutual consent between the parties. Both parties will, therefore, either agree or disagree mutually to the decision of the panel of arbitrators, mediators and conciliators, known as a panel of neutrals under this law, before things go any further. Mutual consent is ideal in principle as it gives both parties equal weightage. But it is only ideal where both parties are actually equal or nearly so. There is no mutual consensus between a husband and wife in a marriage in which more often than not the husband is the dominant decision-maker and usually the breadwinner. There is no mutual consent in cases where there is a poor tenant up against a powerful landlord, or in cases where there is a land dispute between a poor labourer and an influential landowner.
Mutual consent and agreement work where is there is economic and social parity. We suffer greatly from both these forms of disparity. Pakistan’s current environment does not really permit mutual consent. Mutual consensus does not work where institutions that profess to be neutral are strife with patriarchal undertones and actions. It does not work where gender discrimination and inequality is stark to the point of being alarming. It does not work in cases where inequality between the rich and poor and influential and weak is such that it affects more than 90% of the population. Among the land owning feudal lot and the political ruling elite of this country, it is not difficult to guess what the process of mutual consent will look like. Forced consent through the dominance of gender or class or influence will be guised as mutual. Rarely has a case in the family courts, where meditation and conciliation are escorted to, work in favour of women. For this reason, family courts have finally diluted this method of dispute-resolution.
The flawed understanding of mutual consent in this law is followed by a non-appealable clause. The process of a mutual agreement under this law will not, therefore, be able to be challenged in a court of law. All on the basis that the decision has been reached ‘mutually’ between the parties in front of and with the help of a panel of arbitrators that will range from legal experts to technocrats and members of the wider ulema. This basic clause has contradicted Article 10A of the Constitution, which states the right to a fair trial and due process.
In addition to contradicting fundamental constitutional principles the lawmakers have misunderstood imperative principles of confidentiality in certain types of proceedings. The law has also failed to take into account far more comprehensive laws that are already existent, which govern alternative dispute resolution.
Our judicial system is unable to cope, failing citizens seeking justice. But to create yet another parallel system that will probably be underfunded, undertrained and under monitored is not the solution. The funding being promised under this law should be diverted to identify the bottlenecks and strengthen the crumbling judicial system. What we need is an aggressive re-haul of the present structures; not the establishment of parallel ones that reinforce violence and breach fundamental rights.
Published in The Express Tribune, March 7th, 2017.