By Inamullah Marwat
The passage of the Alternative Dispute Resolution Bill, 2016, recently by the National Assembly might have let the judiciary take a sigh of relief.
A parallel legal system has been authorised by legislative corridors to help it rid of the backlog of cases, the resolution of which it had lackadaisical approach towards and for which it was getting a lot of flak. But there is a flip side to this bill. It is going to legalise primitive justice dispensation models like Jirga and Panchayat system in the country. Both these justice dispensing models are still followed in far flung areas of Pakistan, and they have a poor record of catering justice to women.
Because of this nonchalant approach on the part of government towards women concerns in the bill, women empowerment activists all over Pakistan have raised voice against the discriminatory nature of the bill. The passage of the bill, not only reflects the complacent approach of the government toward injustices meted out to women through these archaic models, but may also put in question Pakistan’s commitment to uphold the Convention on Elimination of All Forms of Discrimination against Women (CEDAW), an international treaty to which Pakistan acceded in 1996 and which obliges all states, which are party to the treaty, to make sure through legislation that women are not discriminated.
For readers’ convenience, CEDAW is an international convention aimed at developing an international norm of “non-discrimination on the basis of sex”. It was adopted by the United Nations General Assembly on December 19, 1979, and came into force on September 3, 1981. The convention has currently 165 ratifications and accessions. The main aim of the convention is to make it obligatory upon the states, which are party to the treaty, to not only ensure equality but also take a stand against women discrimination.
Article 2 of the CEDAW obliges all states party to the convention that they condemn discrimination against women in all forms and agree to introduce policies that curb discrimination against women. Moreover, clauses a, b, c, d, e and f of Article 2 not only ask states to provide legal protection and sanctions through national tribunals and public institutions but also abolish all those laws and practices that discriminate against women.
In the face of Article 2 of CEDAW, the passage of the Alternate Dispute Resolution Bill 2016, in which Jirga and Panchayat system have been legalised, is a blatant violation on the part of Pakistan to pledges that it had made to the international community while becoming a party to CEDAW.
It is because if there is one take away lesson from the overall past trajectory of Jirga and Panchayat system in Pakistan, that the arbitrary nature of both justice dispensation models has proved discriminatory towards women.
Sabrina Khan, a woman rights activist, in one of her articles published in ‘Criterion Quarterly’, writes, “The traditional Jirga system stands in the way of the democratisation of the family. It takes the law into its own hand and has been particularly discriminatory towards women. The latter are often used as compensation or for the settlement of family disputes. The clan’s decision is above all laws.
This has resulted in the humiliation and the victimization of women. Their fate is determined by a few men who make all the decisions on their behalf. Females have no option other than to abide by these decisions as any resistance on their part can have severe consequences including death. ”
In order to make the current legal system responsive to present-day requirements of the society, to help judicial system get rid of the backlog of cases and to introduce time-efficient, cost-effective and strictly confidential way of resolving disputes amicably, introduction of alternate dispute resolution mechanism is the need of the hour. Many other countries have supplemented services of the court with alternate dispute resolution mechanisms.
The superior judiciary in Pakistan has, time and again, drawn our attention in this direction. In his farewell speech, last December, Chief Justice Anwar Zaheer Jamali said, “one of the solutions to this problem in civil litigation, used by other countries is to resort to alternative dispute resolution.
” But can Pakistan afford to have a parallel legal system in the form of an alternate dispute resolution mechanism with society steeped in patriarchal values? This is a big question of concern for all those in Pakistan who believe in gender inclusive society and want Pakistan to implement CEDAW in letter and spirit, which it signed as a sovereign and democractic country.