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Retributive justice

Why people in rural areas prefer traditional dispute resolution forums over the formal justice system?

Retributive justice

Last month a Panchayat, a village council of elders, in Raja Ram’s rural locality of Multan district ordered a complainant’s family to undertake a revenge rape of a girl whose brother was accused of having earlier raped another girl from the complainant family. Interestingly, both families were distantly related too.

Busy with Panama case in the Supreme Court of Pakistan, the media and the governments could only notice it ten days after the incident. Around the same time, in the environs of the beautiful metropolitan Lahore, a court of law disposed of another case where a young college student was tried for attempting to murder a girl named Khadija, his class fellow and friend, which had left her severely wounded. This case was dragging since May last year but following the notice by media and from Chief Justice Lahore High Court, the case was expedited which resulted in award of a seven-year sentence to the accused.

These two cases, although similar in the sense that it’s women who had to suffer the wrath of men who were related to them in some way, tell of two different worlds. The case from Raja Ram is from the fringes of our society, government and media priorities, while the Khadija’s case is from an urban centre, Lahore, the very core of Pakistan where the government and media is concentrated.

Much like the dilapidated situation of government’s writ, services and facilities specifically in the secondary towns and rural remote areas of the country, the formal justice system too is inaccessible, virtually unrelated, and financially unaffordable for the communities living there. Hence more often they resort to traditional dispute resolution mechanisms, which modern lexicon calls Alternative Dispute Resolution (ADR).

However, as the access to and influence of government and media is conveniently available in urban centres such as Lahore, people opt for and are able to avail services of formal justice system with comparative ease and economy.

Unless we understand why people in rural areas prefer traditional dispute resolution forums — which so very often results in most appalling and inhuman form of retribution such as revenge rape through Panchayats — over the formal justice system of the state, we may not be able to effectively address this problem.

Keeping in view the unmanageable number of cases in lower judiciary which operates at no lower than Tehsil level, it’s important to take this justice system down to the level of villages to end the plight of millions of people living in remote rural areas.

Historically, the local Panchayats have worked in the Indian subcontinent since 1500 BC; these were the earliest forms of local self-governments in the villages and satisfactorily performed revenue, executive and judicial functions in their respective jurisdiction. However, following the defeat of Mughal Emperor in Battle of Buxar in 1764 and takeover of Diwani, revenue collection, rights by the British East India Company, these village councils were stripped of these functions.

The British of course were not interested in promoting local governments but revenue collection and extraction of resources. For almost a hundred years the British didn’t realise their folly of enfeebling the local village councils until the Sepoy Mutiny 1857 after which they tried, albeit only half-heartedly, to revive the village councils. So it could hardly help resuming the evolution of these councils to that level of effectiveness where these bodies had been performing when these were strangulated a hundred years back. Rural communities understandably saw the British and their enforced systems as alien, costly, time consuming, and unrelated to local culture and norms. They nevertheless kept resolving their local disputes informally.

When the British left India in 1947 and united India was partitioned into two countries, the rural communities in both India and Pakistan hardly felt any change with respect to their routine matters of land revenue, policing and justice system. So people continued to identify the nature of governance and laws with what these were during the British Raj, which motivated them to continue with their own local cost effective and time efficient informal justice system that however often gave rulings in conflict with the human rights and laws of a modern society, as seen in the case of Raja Ram revenge rape incident.

Such outcomes through these Panchayats are common place in Pakistan’s rural communities; it’s only that these remain unknown until media highlights them. If these Panchayats were recognised, linked to lower level courts and invested with training in basic principles of human rights, these could have saved thousands of cases lying with various courts.

Since we didn’t care about that, like it or not, these Panchayats will continue to function and deliver most horrible retributive justice mainly for two reasons: one, the time and financial costs of availing formal justice system are unaffordable to our rural communities characterised with widespread poverty; the other is the absence of judicial system close to these villages. While in cases of land disputes, theft and murder they still have an incentive to opt for costly formal justice system, in cases of rape and women honour however, they find it extremely expensive, both financially and socially, and time consuming to opt for formal justice system.

Mukhtaran Mai’s gang rape case, for instance, despite all the media attention took nine years before the main culprit could be sentenced while the rest, the Panchayat members who had ruled for her gang rape, were acquitted.

Now keeping in view the unmanageable number of cases in the lower judiciary which operates at no lower than Tehsil level, it’s important to take this justice system down to villages. Understandable, having court of laws at village level seems impossible. But then we must not forget the plight of the millions of people from rural communities for whom the expenditure of court case and travelling to nearby city and district courts to pursue their cases for years only push them to abject poverty.  Depending on geography, on average in a rural Union Council, there are 15-20 villages, and each rural Tehsil, where one can find the law courts, is composed of 20-28 UCs. So just imagine how many people and communities are at stake.

The parliament had passed an Act on Alternative Dispute Resolution last May, which intends to regulate Panchayats and Jirga rulings, especially in remote rural areas. However, it misses the point that the Act actually envisages to run the ADR from districts and Tehsil level without recognising the existence of informal village councils and making them the nucleus of ADR. It’s imperative to think this way and help develop these councils aligned with principles of formal justice system. It’s quite possible; but only if those at the helm want to look beyond their class interests.

Zulfiquar Rao

The writer is a sociologist with interest in politics and history. He’s accessible on Twitter @ZulfiRao1

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