In August 2024, Chief Justice of Pakistan Qazi Faiz Isa initiated a significant judicial reform aimed at reconstituting the Alternative Dispute Resolution (ADR) Committee and Task Force. This effort seeks to streamline the justice system and address 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.

ADR, in its essence, encompasses processes designed to resolve disputes outside formal litigation, using methods such as arbitration, mediation, and conciliation. The concept of resolving disputes without legal proceedings has deep roots in the region, long predating the establishment of Pakistan. This tradition was embodied in various uncodified systems based on unwritten, community-specific customs, with the Jirga being the most prominent example. Originating from the Aryan tribes of what is now Afghanistan and India, the Jirga evolved into a community-centred mechanism for resolving disputes, mediating conflicts, and ensuring justice.

However, despite its historical significance, the Jirga system has been a source of concern. Its patriarchal structure, lack of codified rules, absence of legal precedents, and potential for human rights violations, particularly against women, led the Supreme Court of Pakistan to declare it unlawful.

Yet, Jirgas have persisted, largely due to their deep cultural roots and the pervasive lack of trust in the state’s lengthy and costly formal judicial systems. Moreover, state-run ADR systems remain insufficient as an alternative due to their lack of formalisation and enforcement mechanisms, as well as low public awareness. Khyber Pakhtunkhwa (KPK) offers a glimpse of hope in this regard with the creation of Dispute Resolution Councils (DRCs), established under the KPK Police Order (Amendment Act) 2015.

To capitalise on the popularity and efficiency of the traditional Jirga, the DRCs have borrowed from their structural and functional framework. Operating at district and, in some cases, tehsil levels across the province, they provide restorative justice through a grassroots approach, maintaining indigenous cultural practices while addressing modern challenges. DRCs integrate traditional methods with modern legal frameworks, involving community members, including elders from Jirgas, to act as jurors under government support.

The DRCs’ mechanisms and procedures are seen as more reliable, with stakeholders from diverse ethnic and gender backgrounds who are competent and impartial. In an interview, a DRC jury member noted that these councils provide equal rights to all individuals, including women, transgender persons, and minorities, with even transgender and female members in leadership roles. This practice gives the forum a more inclusive, transparent, and reliable outlook compared to traditional Jirgas.

Like Jirgas, DRCs are deeply rooted in cultural norms and traditions, enabling them to address the root causes of conflicts with a focus on reconciliation. They are also flexible in their approach, unlike Jirgas, which rely on village elders who may not understand complex issues and are often perceived as biased, particularly against minorities and women.

The DRCs offer a hybrid approach that acknowledges the strengths of both systems while addressing their weaknesses. However, the DRC system is not without flaws. In some cases, DRCs have perpetuated the same negative qualities as Jirgas. Reports indicate that corruption and bribery have been legalised under the DRC platform, with the forum allegedly demanding large sums for settlements. Additionally, DRCs are often located within police stations, making it difficult for women to access them. Cultural barriers mean many women feel intimidated or ashamed to approach male-dominated spaces like police stations, where they fear judgment, harassment, or stigmatisation, further discouraging them from seeking help.

The question remains whether these modern ADR systems can truly replace Jirgas, particularly in rural and tribal areas, where they continue to hold significant influence, especially in criminal matters for which ADR lacks precedence. Their persistence suggests that state-sanctioned ADR mechanisms have yet to fully replace or even coexist seamlessly with traditional systems.

Nevertheless, 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.

Meher Rana
The writer is a researcher at the Centre for Aerospace & Security Studies, Lahore. She can be reached at info@casslhr.com