Barrister Naveed Qazi
In August 2024, Chief Justice of Pakistan Qazi Faiz Isa took a momentous step toward judicial reform by spearheading efforts to revamp the Alternative Dispute Resolution (ADR) Committee and Task Force. This groundbreaking initiative aims to streamline the justice system and tackle the backlog of 2.2 million cases pending in courts nationwide. Established under the 2017 ADR Act, the ADR system is supported by comprehensive provincial frameworks, offering a promising approach to expediting dispute resolution in a cost-effective manner.
The concept of Alternative Dispute Resolution (ADR) encompasses various processes designed to resolve disputes outside of formal litigation, utilizing methods such as arbitration, mediation, and conciliation. This approach has deep roots in the region and has long been in practice, predating the establishment of Pakistan. Historically, the tradition of resolving disputes without legal proceedings was embodied in various uncodified systems based on unwritten, community-specific customs. The Jirga, which evolved from the Aryan tribes of what is now Afghanistan and India, is a prominent example of such a system. Over time, the Jirga became a community-centered mechanism for resolving disputes, mediating conflicts, and ensuring justice.
Despite its historical significance, the Jirga system has been a source of concern due to its patriarchal structure, lack of codified rules, absence of legal precedents, and potential for human rights violations, especially against women. These factors led the Supreme Court of Pakistan to declare the Jirga system unlawful. However, the Jirga system has persisted due to its deep cultural roots and the pervasive lack of trust in the state’s formal judicial systems, which are often seen as lengthy and costly. Additionally, state-run ADR systems remain insufficient as an alternative due to their lack of formalization and enforcement mechanisms, as well as low public awareness. Nonetheless, there are pockets of progress, such as in Khyber Pakhtunkhwa (KPK), where the creation of Dispute Resolution Councils (DRCs) under the KPK Police Order (Amendment Act) 2015 presents a glimmer of hope.
Taking inspiration from the efficiency of the traditional Jirga, the DRCs have adopted a similar structural and functional framework. These councils, operating at district and, in some cases, tehsil levels across the province, provide restorative justice through a grassroots approach that integrates indigenous cultural practices while addressing modern challenges. DRCs have implemented a hybrid approach that incorporates traditional methods alongside modern legal frameworks, involving community members, including elders from Jirgas, as jurors with government support.
The mechanisms and procedures of DRCs are considered to be more reliable, with competent and impartial stakeholders from diverse ethnic and gender backgrounds. In an interview, a DRC jury member noted that these councils provide equal rights to all individuals, including women, transgender persons, and minorities, with the forum even including transgender and female members in leadership roles. This approach gives the forum a more inclusive, transparent, and reliable outlook compared to traditional Jirgas.
While DRCs offer a promising hybrid approach that acknowledges the strengths of both systems, there are inherent flaws in their implementation. Reports have indicated instances of corruption and bribery within the DRCs, with allegations of demanding large sums for settlements. Additionally, the location of DRCs within police stations presents a barrier for women, as they may feel intimidated or ashamed to approach these male-dominated spaces, further discouraging them from seeking help.
The question remains whether modern ADR systems can completely replace traditional Jirgas, particularly in rural and tribal areas, where they continue to hold significant influence, especially in criminal matters for which ADR lacks precedence. The persistence of the Jirga system suggests that state-sanctioned ADR mechanisms have yet to fully replace or even coexist seamlessly with traditional systems.
Despite these challenges, DRCs hold great potential. By fostering a more inclusive, transparent, and accountable ADR framework codified in law, Pakistan can move towards a more just and equitable society, where traditional and modern systems of justice complement rather than compete with each other. Reforms should ensure inclusivity, stringent monitoring, and broader public awareness. Moreover, these systems should be expanded to other provinces, such as Balochistan, where the Jirga system remains prevalent, but ADR laws are weak and poorly enforced.
