Voices from the Field

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Voices from the Field Experience From
Balochistan By Capt Mohammad Younes Durrani,
Secretary LG RD Deptt. GoB For Federal
Judicial Academy Trainees
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• Introduction
• Article 37(d) of the constitution of Islamic
  Republic of Pakistan 1973 enshrines that state
  shall ensure inexpensive and expeditious
  Justice.
• In Balochistan Province Judicial System (F.C.R)
  was introduced for resolving disputes through
  councils of elders. Subsequently declared
  repugnant to fundamental rights.

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Introduction ..cont

• Civil Law (Special Provisions) and Criminal Law
  (Special Provision Ordinance) were introduced in
  the rural and other parts of the province except
  Quetta. As principles of natural justices were
  not being followed and also offended the
  fundamentals principles governing criminal and
  civil administration of justice and right the law
  was declared void by the Supreme Court of
  Pakistan in 1993.
• Conciliation Court Ordinance 1961 promulgated for
  resolution of minor dispute also failed on
  account of non implementation for various
  reasons.

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• Introduction ..cont
• Alternate disputes resolution has been introduced
  to resolve petty disputes. Purpose being to
  provide expeditious disposal and inexpensive
  justice on the principles of equality and
  fairness.
• Section 89-A of the CPC has been introduced to
  take measures for resolving the matters through
  mediators, who are people of repute.
• Small Claims and Minor Offences Courts Ordinance,
  2002 enacted to decide matters where the
  punishment involved is less than three years and
  the amount involved is about one hundred
  thousand.
• Alternative Dispute Resolution (ADR) relevant in
  the context of present governance structures
  focuses mainly on community based mechanism
  (Conciliation Committees within Union Councils ).

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• Introduction ..cont
• The Devolution Plan emphasizes that delivery of
  justice at the doorstep is an essential element
  of good governance. The system requires that in
  every Union, a Musalihat Anjuman be constituted
  for amicable settlement of disputes amongst the
  people of the Union.
• Studies resultant to consultative exercise held
  the formal system of justices as the least
  preferred option for resolution of disputes.
• The statistics on the pace and efficiency of
  decision making in the judicial process support
  prevalent skepticism about the formal system. An
  alarmingly high rate of undecided cases
  reconfirms the widely shared view regarding
  chronic delays in the dispensation of formal
  justice leading to the maxim Justice delayed is
  justice denied.

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• 2. Situation Analysis
• Impediments Delaying access to Justice
• Poverty
• Illiteracy
• Lack of basic facilities
• Geo-political situation
• Tribal feuds
• Security
• Male dominance
• Long distances
• Non partisan attitude of redressal forums
• High Cost

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Alternative available particularly to victims of
gender violence a) Section 7(4) of Muslim
Family Law Ordinance, 1961 (MFLO) provide relief
in cases of divorce. These proceedings do not
cover the issues of violence against women, even
if agitated during proceedings b) Under
Section 9 (1), 10, 6 (3) of MFLO women can
approach the Union Councils for maintenance,
return of dower and polygamy
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c) Forum of Guardian Court is available to
address issues involving custody of child
Another forum, which has proven effective for
women victims of violence includes a wide range
of human/gender rights NGOs which assist women
in seeking justice. d) A limited number of NGOs
also provide safe shelter to the victims of
violence where from mediation or subsequent
court processes can be initiated.
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• 3. Need for some alternative redressal
  forum/system.
• Formal justice institutions have not been able
  to play their vital role in dispensation of
  justice to the Community. Partly, the problem is
  rooted in the over burdened justice institutions
  discouraging victims to approach these services
  with the required confidence mainly attributed to
  non-promotion of Alternate Dispute Resolution
  (ADR) systems / Mechanism.
• Reference can be sited to the ADR fora
  which were previously effectively delivering like
  
• Jergah
• Mere /Maraka
• Panchayat

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• 4. Weaknesses
• Gender violence, prosecutions are rarely
  initiated by women themselves (such as to women
  are child custody, maintenance and khula)
  because of cultural barriers and the associated
  stigma attached when they step out of their homes
  to pursue a legal course of action in the public
  arena.
• Women could not approach the courts of law for
  relief due to a variety of reasons including
  inability to pay court fee , fear of repeated
  violence by perpetrators, negative publicity,
  hostile and unfriendly attitude of Law
  Enforcement functionaries. There is very little
  difference in womens perception of lady police
  station compared with ordinary police station.
• c) Police attitude is not supportive in
  registering FIRs in domestic violence cases,
  terming them as internal family matters.

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d) The perpetrators of rape cases usually
exploited provisions of Hudood/ Qanoon-I-Shahadat
laws for falsely implicating the women victims in
Zina offences. This leads to a reluctance amongst
women victims of rape to approach formal court
system for seeking justice e) The procedures
followed by police and medico legal functionaries
typically delay and hence spoil the evidence in
cases of rape and violence against
women f) Withdrawal of Gender Violence / rape
cases by affected families (under so called
social pressure) has led to a less effective
police response to such incidents.
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• 5. Strengthening of the System (ADR)
• Gender Violence victims face numerous problems in
  seeking relief through the existing formal
  judicial system and also through partially active
  alternative dispute resolution (ADR) mechanism.
• Preferring dispute resolution through ADR rather
  than through the traditional method of litigation
  are obvious. The process is time consuming and
  expensive and does not cater to the special needs
  and concerns of women.
• The most important advantage ADR has over
  traditional methods of dispute resolution is the
  fact that it removes justice from the public to
  the private arena and offers to the disputants an
  opportunity to settle their disputes speedily in
  an informal and more personal setting without the
  restrictions of rigid rules.

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• 6. Availability of ADR services at the grass
  roots.
• LGO 2001 provides a basic framework for disputes
  resolution through Musalihat Anjuman (MA) at each
  Union Council
• 102 refers to constitution of Musalihat Anjumans
• 103 mentions about the encouragement for amicable
  settlement of disputes.
• 104 explains about the referral of cases by
  courts to Musalihat Anjumans
• 105 explains the appointment of musleh for
  individual cases.
• 106 explains the procedure of settlement of the
  disputes.

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• 7. UNDP intervention in the shape of GJTMAP
• The project whilst endorsing the problems faced
  by victims in relation to gaining access to
  justice, highlights a number of problems and
  constraints faced by victims of Gender Violence
  in seeking relief through the existing judicial
  and the alternative dispute resolution (ADR)
  systems.
• ADR platform provided in the Local Government
  Ordinance, 2001 (LGO) in form of Musalihat
  Anjuman (MA), which is community based, informal
  and in expensive is considered to effectively
  dispense justice to victims of Gender Violence
  and resolve their disputes amicably.
• The Project sets out a comprehensive strategy for
  operationalizing ADR Framework for curbing gender
  violence through strengthening and capacity
  building of Musalihat Anjuman.

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8. Formation of ICs The ICs, are to be elected
under section 88(n) of the LGO from amongst the
members of Union Council who are to constitute
MAs. 9. Formation of MAs MA under LGO to
comprise of a selected panel of persons from
within the community, who are publicly known as
persons of integrity, good judgment and command
respect.
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• 10. ADR being top priority of the Present Govt.
• The President Islamic Republic of Pakistan while
  addressing MASS assembly of Nazims elected for
  the second tenure of LGs emphasized that
• The Musalihat Anjuman must be activated
  so that common local disputes can be resolved
  through this mechanism. This will save the poor
  of this nation from the court cases and the
  judiciary will also be able to concentrate on
  crimes of serious nature.

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11. RoBs for working of MAs

• To regulates functioning of MAs rules notified
  contain the following salient features
• Selection Criteria of MAs
• Nomination by UC Insaaf Committee.
• Credentials of MAs members viz integrity, good
  judgment command respect.
• Notification of MAs by UC Nazim .

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• Removal of Musleh by Insaaf Committee
• Appointment of Musleh for individual cases by
  parties
• Procedure for issues to be brought to the notice
  of MAs
• (verbally or in writing).
• Referral of court cases (Small Cause Minor
  Offences
• Court Ordinance Section 89-A of CPC) details
  exhibited
• in the annexed schedule as under
• Domestic violence
• Matrimonial disputes.
• Property disputes
• Child abuse, vagrancy and compelling children,
  female and disable persons to beg.
• Exclusion of female from inheritance.

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• Marriage to Quran, Watta Satta(exchange
  marriage), Walwar, Swara Wani (giving women in
  marriage to settle disputes)
• Zhagh (asserting ownership over women of the
  enemy tribe).
• Forced marriage and human trafficking.
• Forced labour.
• Public insult, assault and degradation of
  females.
• Sexual harassment.
• Related matters.
• Record maintenance.
• Mode of amicable settlement (Mediation,
  Arbitration,
• Reconciliation)

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• Implementation of settlement (stipulated time
  frame 7 days in criminal and 30 days in civil
  matters).
• Back reference of Court /annexed ADR cases
  referred for declaration after completion of MAs
  proceedings.
• Honoraria to MAs by District Government/Union
  Council

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• 12. Experiences / issues arising from the working
  of MAs
• (i) Financial Issues
• Province of Balochistan is facing Budgetary
  deficit and working on the overdraft from the
  State Bank of Pakistan which has adversely
  effected functioning of Local governments due to
  financial constraints. To support strengthening
  and enhancing of MAs assistance from project
  resources solicited have been extended.

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• ii) Political Issues
• Centuries old Jirga, Mere and Maraka System
  prevalent in Balochistan. To have MAs installed
  and functional under the prevailing system was a
  challenge. To combat the situation a lot of
  mobilization and media campaign was necessitated
  for awareness of the masses. This has been
  successfully accomplished resultant to which the
  performance of MAs is effective and delivering.
  Emphasis being that MA system introduced is to
  supplement efforts legally and in no way intended
  to ridicule the traditional customs/traits.

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• Social Issues
• Representation of female in a Musalihat Anjumans
  was likely to invoke a lot of agitation within
  the prevailing tribal society/ norms. This
  again required a lot of mobilization and media
  campaign for awareness and to convince the people
  conversant of the fact that the intention was not
  intended to intrude upon male dominance, but was
  principally an effort to provide representation
  to larger segment (52 )of the population. This
  has been achieved in the pilot districts of the
  project by providing representation to women in
  ICs MAs.

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• (iv) Socio-Cultural Issues
• Balochistan remains to be society of tribal
  dominance therefore female representation for
  dispute resolution apparently appeared a distinct
  proposition. To face the challenge a lot of
  determination and courage coupled with Mass media
  campaign had to be undertaken for acceptability.
  The project is fortunate to have overcome this
  difficulty through adoption of required
  methodology and through effective counseling for
  acceptance amongst the tribal chiefs.

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(v) Avoidance of Influence in the decision
making Anticipating Local Leadership having
stake in the local affairs try to influence MAs
decision has been encountered through vigorous
awareness campaigns about, importance of ADR and
role of MAs to address minor disputes for the
elected representative, community and
influentials. The project has succeeded in
providing a conducive environment for the
effective functioning of MAs. (vi) Active Role
of Female members Representation of female in
the ICs/MAs and their proactive role in the MAs
proceedings can be deemed as a major contributory
factor.
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(vi) Legality of decision and its acceptability
Status of decisions pronounced by MAs has got
its own legal inference as resolution of disputes
is through mutual consent of parties coupled with
statutory protection. Experience proves that the
decisions made so far are being effectively
implemented with out any questioning or retrieval.
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• Way forward
• Sharing of experiences of the project in the
  pilot districts with the remaining districts for
  effective replication through adoption of the
  following measures
• Awareness campaign
• Orientation of Nazims / Naib Nazims, UC.s
  members, ICs
• and MAs members about importance of ADR in
  lines
• with the devolution plan .
• Capacity building
• Training sessions on RoBs.
• Optimum Utilization of expertise of stakeholders
  for promotion of MAs.
• Support of Judiciary, police and Administration
  as experienced in pilot districts for
  dispensation of Justice through ADR methodology .

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14. Citation.
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Conclusion

• To ensure the viability and effectiveness of the
  ADR process, it is insufficient to merely
  introduce the concept in the legislature. It is
  further imperative that appropriate steps be
  taken to make ADR a meaningful option. One way of
  doing so, is by ensuring the availability of
  appropriate panelists for the tasks. For ADR to
  nurture we can overcome the legal hurdles, we can
  train panelists, we can set up centers for
  mediation in order to provide a properly
  conductive environment, we may even succeed in
  ensuring that men submit themselves to this
  process of dispute resolution particularly in
  the context of vulnerable section of the society.
  
• The focus now is on achieving excellence justice
  to every one, which should be fair, expeditious,
  inexpensive and based on principles of natural
  justice.
• To quote the Honorable Chief Justice of Pakistan
  has brought refreshing dimensions and management
  style, which emphasizes that justice must not
  only be fair, it must also be effective timely
  and convenient to the public.