Legalising The Jirga And Panchayant

There are two competing images that define Pakistani citizen’s quest
for justice; on one hand is the queue of exhausted and despairing
applicants waiting outside and crowded courtroom for months and
years even, the second is a horror story of barbaric decisions handed
down by local methods of dispute resolutions such as the jirga and
panchayat systems. The government has to find a workable balance
between the two, where it provides its citizens with structured and
expert judicial arbitration, while also giving them access to an
affordable and quick method of Alternative Dispute Resolution (ADR)

The government has sought to do this by giving legal cover to the

centuries-old jirga and panchayat systems by passing the Alternate
Dispute Resolution Bill, 2016. In the process of giving legal cover, it
has sought to regulate and streamline the process to make it more
equitable and to check its power to hand down abhorrent decisions.
While there are some attractive features in the bill, it needs to be
thoroughly considered by the provinces – as only 23 members of the
National Assembly were present to pass it and it contains some very
problematic clauses.

By limiting the jurisdiction of the ADRs to 23 minor civil and criminal

cases which are already compoundable under present law, the bill
ensures that these local systems would never have to deal with
restriction, until a restriction is also placed on the kind of punishment
and the limit to the fines that can be handed down, the problems will
still persist. Outlandish punishments can still be given for minor
offences.

Another problem is the set of neutral arbitrators that will head each
ADR. While the concept of state appointed arbitrators is employed by
several other countries, none of them have an open ended pool from
which to pick them from – which includes “ulema”, retired bureaucrat
and “other people with qualifications”. The government needs to
immediately restrict the pool to members of the legal fraternity or train
a set of dedicated arbitrators, a practice common in many legal
systems.

The biggest problem however, one that compounds all the others
before and takes the possibility of injustice into stellar realms, is that
there is no right of appeal from these decisions. While it is true that
the participants voluntarily decided to submit to the jirga or the
panchayat’s judgement, this not a commercial arbitration handled by
trained professionals where we can enforce judgement. These are
local village elders, untrained and prone to biases, assisted by equal
untrained arbitrators under the present law in criminal cases. If
perchance, they hand down a biased or disproportionate punishment
we cannot deny the defendant a chance to redress that injustice.

The legalisation of local ADRs is an innovative solution to reducing

the workload on the courts, but it needs a lot of refinement before it
should become law.