Politics of access to justice is determined by everyday client-patron relationships where influential intermediaries (tribal, territorial, religious, ethnic, familial, kinship, caste and social networks) tend to negotiate between both formal and informal institutions of justice, security and the client.
Thana (police station), Katchehry (court) and Patwarkhana (revenue office), particularly in rural setting of Pakistan, become empirical sites of venality and client-patron transactions whereby informal tools and tactics are deployed to engage, influence and placate the formal institutions of justice delivery and grievance redressal to achieve desired results. These transactions broadly shape the nature and direction of politics of justice at local levels.
Negotiations in this case could be supported and facilitated by social and economic transactions involving rent-seeking, bribe, exchange of social influence and reciprocity in kind or coin. Thus, the state-citizen as well as aggrieved-institution exchange in this context does not remain dyadic, direct and impersonal; instead this exchange is mediated and steered by the strength or weakness of socio-economic profile and clutch on supra-institutional social transactions of the parties, communities and individuals involved.
This creates a contest among local elite to approximate and perpetuate control on local population through control and capture of institutional power and resources. Thus poor and vulnerable with weaker social and economic basis remain victims of the formal, expensive and inaccessible justice system without external social support and requisite cliental capacity. This has been corroborated by some recent surveys done by a local NGO, which recorded that “formal institutions [of justice] are largely by-passed, regarded as inaccessible, expensive, corrupt, and believed to be influenced by political peddling.”
Informal mechanisms of dispute resolution do not present themselves as any insulated entity either as social and financial capital plays a primary role in accessing both formal and informal justice regimes. However, the transactional cost for informal system remains low with greater accessibility. That is perhaps one of the key reasons noted by Foqia Sadiq et al that poor communities prefer Jirgas, Panchayats and other informal and customary forms of dispute resolution over formal courts and Kachehris.
Informal mechanisms of dispute resolution do not present themselves as any insulated entity either as social and financial capital plays a primary role in accessing both formal and informal justice regimes. However, the transactional cost for informal system remains low with greater accessibility
Alternative dispute resolution (ADR) can be broadly divided in two categories in Pakistan: formal and informal mechanisms of alternative dispute resolution. The first category involved legally provided instruments of dispute resolution while the second category employs customary, ethnic and tribal laws and codes regulating traditional dispute resolution mechanisms. The formal ADR remains underutilised while informal ADR is criticised for human rights and gender related deficiencies which needs codification in line with basic principles of justice, inclusion and fairness. Informal ADRs are referred to as jirga in Pashtun and Baloch areas, faislo in Sindh and Panchayat in Punjab.
There is a general consensus among experts that the prevalent Jirga system in Pakistan is elite, patriarchal and misogynistic. These reports argue that the composition of Jirga is inherently prejudicial, firstly it comprises only influential people like Waderas, Sardars and Chaudhrys of a particular locality and secondly, there is no representation of women in these jirgas.
The proponents of rule of law argue that arbitrary decisions of existing Jirga system breach major constitutional provisions such as Article 4 which provides the right to be treated in accordance with law, Article 9 which provides the right to security, Article 10-A which provides the right to fair trial, Article 14 provides the right to inviolability and dignity and Article 33 discourages parochial prejudices.
In 2012, Supreme Court declared Jirgas unconstitutional ordering strict action against organisers of such jirgas in accordance with article 10-A. The chief secretaries and Inspector General of Police (IGPs) of all four provinces were asked to submit reports regarding details of such gatherings held in their respective areas, action taken by the police, registered FIRs, arrests, punishments and acquittals, challaned and pending cases.
Despite these strict verdicts, the jirga system continues to operate in different areas of the country. Recently, donkey cart of two brothers mistakenly collided with vehicle of an influential person in Nushero Feroze, Sindh. A Jirga sat and pronounced a verdict whereby both the brothers were forced to chew ‘chapals’ (slippers) in their mouth and apologise to the owner of the vehicle.
Jirga is invariably declared a violation of Article 10-A but now in a recent case in which prime minister was ousted by a SC Bench, the judgment is being tested on the touchstone of the same Article with an argument if the ‘due process of law’ was followed in the prime minister’s case. This and so many other similar cases present an interesting data-set to examine if the ‘negotiated justice’ will remain relevant both at formal and informal systems of justice administration in Pakistan; and as if the ‘intermediaries’ will continue playing an essential role in getting access to justice at both — the formal courts and informal jirgas? And for how long will this neo-patrimonialism continue to persist in the ‘land of pure’?
The writer is an independent researcher with interest in politics of culture, media and governance. Email: [email protected]
Published in Daily Times, November 5th 2017.