In February, the National Assembly of Pakistan unanimously passed a controversial bill that gives legal cover to the old ‘jirga’ and ‘panchayat’ system and would shift part of the weight from the judicial system to a century’s old local system to settle minor disputes, petty civil matters, and find simpler and faster alternates which can supplement the traditional legal system. Termed as the Alternate Dispute Resolution Bill 2016 (ADR), the new legislation aims at arbitration and mediation for an effective out of court resolution. With the consent of provincial governments, the federal government has implemented it with immediate effect as amendments in the civil laws are in the domain of the province.
If passed, the bill will allow panchayats and jirgas to decide on 23 different offences; most are monetary in nature such as commercial disputes, landlord and tenant disputes, water issues, redemption of accounts of joint property, etc. In addition, they will also decide specific family issues such as the dissolution of marriage, and maintenance.
Pakistan’s current legal system is based on an Anglo Saxon system of justice, a colonial remnant that has codified, systemized, and objectified criminality, cultural customs, and legal precepts into a constitutional wad. Before the British system of justice prevailed, community courts and informal legal arrangements were effective and influential in dispensing justice. Community ties rendered null the very philosophy of justice as understood today; criminalizing offenses and imparting the necessary punishment by the state, justice is understood as abolishing crimes rather than creating a space for mediation, negotiation, and diplomacy, which has the corrective ability to transform society for the better rather than creating individuals who are incarcerated and categorized as delinquents. By legalizing informal community courts, there is a reinvention of justice and the how it is practiced. That means everyday issues are decided speedily and effectively in light of proximal relations based within a community, tribe, or society.
On the other hand, by empowering age-old justice systems like the jirgas and panchayat, especially in light of its negative effect on progress and development, the judicial wing of the country is in effect authorizing an archaic interpretation of law and order. And by conceding this space, it has given up its reach and its authority. While it is true that the federal government will place a good number of ‘Neutrals’ within the cover of the Jirga to represent the state’s writ in the space of justice, the effectiveness of a working judicial system is willfully ignored or negated. In addition, while punishments are not the responsibility of the Jirga or the panchayat, by donning the mantle of authority they are in effect in a position to affect the tide of community opinion. Justice will become arbitrary and in some cases uninformed.
In truth, the bill has raised pertinent questioned not only on the competence and ability of our judicial system, but also the very definition of justice and order. In the temporality of life, order is never black and white, and neither is justice. Instead of sanctioning informal courts and alternate routes of justice, the state needs to reforms and reinvent its own vast judicial machinery. If all cases of terror are tried by military courts and all petty civil matters by jirgas (which have almost no participation or representation of women), then what is the function of our judiciary?