Formalising the panchayat and jirga
The National Assembly passed on Friday (February 4, 2017) an Alternate Dispute Resolution Bill that aims at legalising the ancient panchayat and jirga systems of the subcontinent. Immediately, there was backlash from certain quarters against the resolution. With just 23 members out of the total 342 present in the house when the bill was presented, it is absolutely right to point out the lack of quorum. However, lashing out at the bill itself without reading its contents or without understanding the idea behind it is, to me, unfair.
First, let’s see the scope of this bill. If passed, this bill will allow panchayats and jirgas to decide on 23 different offences. Most of these disputes are monetary in nature, such as commercial disputes, landlord and tenant disputes, water issues under the canal and drainage law, redemption of accounts of joint property etc. The panchayat or jirga (from here on I’ll refer to them as informal community courts) will also be able to decide family disputes but the bill specifically mentions issues such as the dissolution of marriages, and maintenance.
It is quite clear here that most of the disputes that fall in the jurisdiction of such courts under this bill are of financial nature. But I believe that this should mark the beginning of a process that is long overdue. The idea should be to reform and regulate the community justice system so that it may not only lower the burden on the courts but also come under some governmental check. The fact is that currently we do have community courts but they are not recognised by the state and thus can neither be regulated nor reformed. They are simply off the state’s radar. Yet these courts exist, they deliver verdicts, and most importantly they are more popular than the state-recognised courts. Some may call it a failure of the state judicial system, but the fact is that the justice system we are currently living with is destined to fail because of its inherent weaknesses.
Currently, we follow the Anglo-Saxon law which is, of course, inherited from our colonial masters. The British had introduced it and it is out of this legacy that we are still following the same justice system in a country which it was never really suited for. “One of the most thoughtful of British officials, Sir Mountstuart Elphinstone sought to safeguard and recognise customary law, because of the need for government ‘to escape the evil of having a [British] code unsuitable to the circumstances of the people, and beyond the reach of their understanding’,” writes Anatol Lieven in his book ‘Pakistan – A hard country’.
Why is it not suitable for us? There’s always a philosophical basis to every law and every justice system. The philosophical basis behind Western law is quite different from that of our part of the world. To quote Lieven again:
“In the Western systems of justice derived from or influenced by Roman law, and in all the legal codes around the world which in modern times have been based on Western codes, all crimes should be punished, and the purpose of the law and the criminal justice system is – in principle – to abolish crime altogether. These are also the basic principles of the Pakistani state legal system, because this system is based on that of Britain.
“The traditional codes of Pakistan are based on quite different aims: the defence of collective honour and prestige; the restoration of peace, and the maintenance of basic order … they are based on diplomacy as much as rules; they usually aim at compromise not punishment.”
Journalist Imran Aslam tells Lieven: “… One thing that ordinary people here fault the state’s Anglo Saxon legal system for is that there is no compensation. Yes, they say, the law has hanged my brother’s killer, but now who is to support my dead brother’s family – who by the way have ruined themselves bribing the legal system to get the killer punished? Both the traditional justice systems and the Shariah are all about mediation and compensation, which is an important part of their appeal for ordinary people.”
The problem, as stated above, is in the basic philosophy. While the Western code actually aims at abolishing the crime by punishing the criminals, the local law here is mainly about mediation and compensation. It is a fact that the monetary compensation of a person’s life is almost impossible to be obtained from the court, especially in a country where the state doesn’t have enough resources to compensate aggrieved families. The idea of compensation and mediation actually is aimed at the restoration of normalcy. For example, if a person kills another in a dispute and the issue is brought before the court working under Anglo-Saxon law, the court is supposed to hand him a death sentence. Let’s suppose that the offender is hanged by the court. Now we have two families that have been left without a bread-earner. One family is that of the victim of the crime while the other one is that of the offender. And none of the two is actually a part of the conflict.
On the other hand, a community court working under the customary laws of Pakistan would let the offender live and go free, but on the condition that he would not only be responsible for the expenses of his own family but also for those of the aggrieved family. Moreover, a jirga in the North West of Pakistan would actually make it the duty of the entire tribe of the offender to pay for the expenses of the aggrieved family in case the offender is incapable of earning enough for two families. The idea is called ‘restorative justice system’. And this form of justice is also being practiced in developed countries like New Zealand.
Then there is the administrative side of the problem. Pakistan is a country of some 200 million people. The state judicial system is burdened to a point of almost total breakdown. The police system is ill-equipped to deal with crime in a manner that the Anglo-Saxon law actually demands i.e. ‘total abolition of crime through punishment of the criminals’. Lieven quotes the police chief of Larkana district in Sindh from 2009 in his book as saying:
“We are not like the army; we can’t just shoot people until they obey us. In the end we live among the people and have to work with local people. If we don’t, the whole system collapses.”
As a matter of fact, the community courts are not the only institutions in the country that are settling issues outside state courts. Informally, police also coerce the parties of a dispute in many cases into accepting mediation and out-of-court settlements because it is literally impossible for the police to operate in certain areas of the country. For example, if a person commits a crime and flees to FATA to some relatives, how do we expect the police to recover him? Send in the force?
Unfortunately, parliament didn’t debate the philosophical questions surrounding this issue when it passed the bill. Dawn has reported that there were only 17 members from the treasury benches and just six from the opposition when it was tabled. Dr Shireen Mazari was present as was Nafisa Shah. Shafqat Mehmood is reported to have raised a concern or two. But they all almost immediately fell in line and accepted the bill as it is. Thus criticism from certain quarters of the social media is definitely expected. The honourable members may have reached the same conclusion but it would have been much better had they reached it after some debate. The debate would actually have opened the discussion at the national level and the arguments on both sides would have probably been more mature.
The bill immediately attracted criticism on multiple counts. Some said that the punishments given by the community courts in Pakistan are harsh and patriarchal. Some claimed that the system is outdated and tribal, while others simply resorted to the defeatist argument that these community courts are nothing but a tool in the hands of the elites to control the common people.
There is no such thing as a patriarchal system. It is the culture that is patriarchal, or gender biased. Patriarchy is prevalent in every part of society. Community courts are no exception either. When they declare someone a kari or condemn a woman to vanni, it is not a law, it is actually a custom. If our society is patriarchal, it is unfair to blame the community court system. Community law is derived from custom. We have to fight it at every level, including the justice system, and recognising the community court system can actually be a first step in this direction. Yes, the harsh punishments to women or patriarchal decisions or customs in a panchayat or jirga system must be done away with. But by not recognising this system, we are actually letting them do whatever they want to.
Moreover, we must bear in mind that it is the bad decisions only that make it to the media. Hundreds of cases are decided daily by these community courts all across the country but we never hear about them simply because they’re not highlighted in the media. We cannot declare a system outdated and unrepairable with almost no data available at all. It is very much repairable and certainly too popular to be condemned as outdated. By bringing this system into the mainstream, we will actually be able to reform it. Once the state recognises it, it will be able to intervene, modify and regulate the system. Recognition is the first step towards reformation.
The harsh punishments that we must definitely condemn are nothing but a custom. Customs can change, they can adapt, they can improve, and they can be removed too. Even the laws can be removed. Once this system is recognised and the community judges, described by this bill as Neutrals, are picked on some criteria set by the state, it will automatically become easier to do away with these punishments. There was a time when the murderers in Rome were condemned to fight a group of executioners. But the law evolved. Now we execute people by hanging them, and their hands are tied behind their backs so that they may not be able to resist. Most countries in the West have officially given up on death sentences entirely.
So, laws can always evolve. A system of law is never outdated. It is never unrepairable. The Anglo Saxon law some centuries ago was nowhere near what it is today. It has evolved over the course of centuries. And this is only because it was recognised and owned by the people who inherited it from the people who developed it. The problem here is that of ownership. The people don’t own the Anglo Saxon law in our part of the world. They abhor it for its delays and formalities. This is precisely why when there was a popular revolt in the Swat valley in 2009 the rallying cry of the movement was speedy justice. And it is not just limited to Swat valley or the Taliban. In his book ‘ISIS – Inside the army of terror’ Michael Weiss talks of how ISIS won over the local populations in the southern parts of Syria simply through the provision of timely justice. Even the people who did not support ISIS admitted that local monetary disputes were taken care of immediately and that was why the organisation was quick to earn popularity.