It is unimaginable for any democratic, law-abiding society to outsource its key function of justice. And yet, the Government of Pakistan first outsourced the dispensation of justice to the military, and now to the Panchayat and Jirga, which are known for aiding and abetting grave human rights abuses, and are the primary cause of rising honour killings and cruelties by the powerful people in the country.
On 3 February 2017, the National Assembly passed the "Alternate Dispute Resolution (ADR) Bill" 2016, which gives legal and constitutional cover to the country's centuries-old Jirga and Panchayat systems. With the promulgation of the bill, the state aims to ensure speedy redress of petty civil matters and reduce the burden of litigation on courts.
Instead of mainstreaming one constitution throughout the country, the state is enacting arbitrary law, which can only weaken the already fragile writ of state and rule of law.
Pakistan's archaic laws and collapsing judicial system is signalling a regression to medieval times, bringing the country on the verge of anarchy and chaos. Although civil society activists legal experts have long demanded an overhaul of the criminal justice system, the state's priorities have always laid elsewhere.
By strengthening the Panchayat and Jirga system (which was previously declared illegal by Pakistan's judiciary), its abuse of human rights, particularly against the weak and vulnerable, is given legal cover and institutionalized. Women's rights activists have expressed their concerns, citing the karo kari (honour killings) incidents that have been ongoing with complete impunity due to the Jirgas.
The 20-point National Action Plan that the state is claiming to follow in the enactment of this bill has envisaged a complete overhauling and reforming of the criminal justice system. Far from a reformation of the system, the ADR bill is a testament to a collapsing judicial system.
The Law Minister tabled the bill initially in the federal capital, and it will gradually be implemented in other provinces with the consent of provincial governments, as amendments in civil laws are in the domain of the provinces.
It is pertinent to mention that a mere 23 members in a 342 member's house, less than the required quorum, passed the bill. It must be asked why such an important bill was passed without extensive deliberation, and why no consultations with legal experts were held. Moreover, the Act backtracks on the Supreme Court order of 2012 holding the Jirga system to be illegal and unconstitutional. Earlier in 2004, the Sindh High Court banned all trials conducted under the Jirga system throughout Sindh, and ordered that all those found violating the order would be charged with contempt.
Given the sensitive nature of the bill, the legislators should have been extra cautious to leave no ambiguity to cause any potential abuse; unfortunately, the bill is replete with ambiguity. The appointment of mediators for instance, called 'neutrals' is provided for by stating that:
"The government, after consultation with the high court, shall notify in the official gazette a panel of neutrals for each district from amongst lawyers, retired Judges of superior and subordinate judiciary, retired civil servants, social workers, ulema, jurists, technocrats and expels and such other persons of repute and integrity having such qualifications and experience as may prescribed."
The Bill does not mention how 'repute, integrity and other qualifications' is to be determined however. How will the government ensure that the neutral is unbiased against the vulnerable factions of society, and not prejudiced against minority and women? In fact, the appointment of such neutrals is a farce, as several parliamentarians have reportedly been presiding over these Jirgas, thus perpetuating the feudal system. The vested interest of the legislators becomes apparent by a perusal of the definitions clause:
Definitions. - In this Act, unless there is anything repugnant in the subject or context, - (a) 'Alternate Dispute Resolution (ADR)' means a process in which parties resort to a method of resolving the dispute other than by adjudication by Courts and includes arbitration, mediation and dispute resolution through Panchayat;
The inclusion of Panchayat exposes the true and vested interest of the legislators who are mostly feudal lords themselves, and regularly preside over such proceedings, charge hefty sums.
The state has also not ensured that human rights of the litigants are not abused. In case of human rights abuse, the aggrieved party has no redressal. The act also provides no dispute resolution as the Pakistan Penal Code and Criminal Procedure Code are not applicable. Moreover, Section 19 of the Bill states
19) (3) No legal proceedings shall lie against a Neutral or any other person or official associated in the ADR process for any act done or omitted to be done in good faith in the course of the performance of his functions, in reference to such ADR.
To reconcile the call for speedy expeditious justice while easing the backlog of cases from the lower judiciary, the state should have set up more ADR Centers instead of regularizing the panchayat. The civil society's contention with the law is that Panchayats are legalized through the act. The ADR should have been limited to petty civil matters; by extending the ambit to criminal matters the panchayat has been bolstered to extend its clout.
The Act requires more scrutiny and should have been passed after extensive consultation with civil society to make it abuse free. In its current form, the bill has the potential to cause abuse and miscarriage of justice.