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COMMUNITY—BASED CONFLICT RESOLUTION

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Certain ConstraintsCOMMUNITY—BASED CONFLICT RESOLUTION(Pakistan Experience)byMuhammad AfzalIntroductionCommunity life in Pakistan, particularly in rural areas, has been characterized by tribal discipline, both for meeting external threats and maintaining internal tranquillity. Until recently, communities had remarkable capacity for resolution of conflicts without intervention fromoutside.In more parts of Pakistan, disputes, including family disputes, among individuals were resolved by Panchayats, i.e., groups of elders. On the advent of the British in the 19th century,fare reaching changes in the administrative and judicial systems were introduced. Concentration of judicial powers in the office of the deputy commissioner and of the sessions judge at the district level* weakened the systems of community—based and out—of—court settlement of disputes. Rival groups soon found that they could challenge local decisions at higher forums, removed from communities, and could also use various kinds of influence. A class of lawyers grew around the Anglo—Saxon types of courts. The age-old system of Panchayats was reduced to nullity.* There are 89 districts in the four provinces (Punjab, Sind, NWFP and Baluchistan), Capital Territory, Azad Jammu and Kashmir and Northern Areas of Pakistan.Contd...The Britishers soon realized that the emasculation of Panchayat~3 had placed unnecessary burden on government. Petty disputes in the rural areas distracted their attention from major political and administrative issues, Over— concentration of authority did not help in strengthening their hold over a heterogeneous people. Meantime, local pressures started building up for the rehabilitation of traditional rights of communities. Consequently, in the area of dispute resolution, the Punjab Village Panchayats Acts were passed in 1911, 1922 and 1939. The Sind Village Panchayat Act was passed in 1933. These Acts granted more and more authority to Panchayats. However, the decisions of Panchayats were subject to approval by the deputy commissioner under these laws. Even before the enactment of these laws, a number of arbitration societies were constituted under the Cooperative Societies Lawfor settlement of disputes relating to cooperatives without intervention of courts. Thestatutory Panchayats or the arbitration societies were not fully spread out. For instance, there were Panchayats in only 2700 vi1lages out of the 2~OO0 villages of the Punjab Province in 1959.Jirga SystemThe tribal areas of Pakistan which adjoin Afghanistan have continued to resist the introduction of codified laws.Civil and penal laws applicable elsewhere in Pakistan are not ~ applicable in tribal areas. This signifies faith in internal organization of tribes. In these areas, the ancientJirga system for resolution of disputes has maintained its~-3-vitality. Jirgas are analogous to Panchayats in other parts of the country.Contd...Typically, a Jirga comprises upto 50 male elders with respectable credentials. Some members are hereditary. Decisions of the Jirga are by consensus and are not challenged. These decisions are enforced through fines, burning the house of an offender, confiscation of property or ostracism. If a Jirga fails to resolve a dispute, it is reconstituted. Normally, Jirga members are men of integrity, but there have been allegations of favouritism or bribery against some of them. On the whole, the integrity of the Jirga system continues to be above-board. The uncodified Jirga system isso effective that the incidence of crime is insignificant in tribal areas as compared to other areas where codified criminal, civil and family laws have been in operation for a century.Conciliation CourtsAfter Independence in 1947, the Government of Pakistan had to contend initially with the problems of survival, including the rehabilitation of millions of refugees migrating from India. However, restructuring of the indigenous system of conflict resolution could not be postponed for long. The Panchayats Acts of the Britishperiod were replaced by the Conciliation Courts Ordinance(1)of 1961 - applicable to all parts of Pakistan, excluding the tribal areas. Under this Ordinance, certain criminal and civil disputes were made triable by conciliation courts. These courts were dove—tailed with the local government-4-system. This system remained operative for ten years. In 1971, 1Lcal governments were dissolved by the Martial Law Government. In the absence of elected representatives, the powers of settlement of disputes were again vested in the ordinary judicial courts.In 1979, the local government system was introduced again. The Ministry of Justice which was responsible for federal functions in respect of the Conciliation Courts Ordinance Contd...doubted the ability of local councillors to administer justice. On balance, however, the usefulness of involving local representatives in conciliation of disputes could not be questioned and these courts were revived in 1982.Under the Conciliation Courts Ordinance, the union councils, town committees and municipal wards have been enabled to constitute conciliation courts for settlement of civil or criminal disputes. A conciliation court is headed by the chairman of the (rural) union council orthe town committee or the member of a ward in urban areas. Each party to the dispute nominates two representatives on a conciliation court. Thus, a five-member conciliation court is constituted for each case. The cases of criminal and civil nature triable by conciliation courtsin their compu1sory or optional jurisdiction are given in the Annex;A conciliation court has jurisdiction to try a case when the parties to a dispute ordinarily reside within the 1imts of the local area where an offence has been committed—: 5 :— or where the cause of action has arisen. These courts are empowered to award compensation to an aggrieved party, but cannot pass sentence of imprisonment. Recoveries of fines and satisfaction of decrees awarded by conciliation courts are effected through ordinary judicial courts.(2)The Law Reforms Commission of Pakistan (1967—70) had examined the working of conciliation courts in detail and reported that 878 thousand cases were registered with conciliation courts during 1962-68. Of these, 44.78 percent cases were of criminal and 55.21 percent of civil(3)nature. The writer found that in Mutlan District, 7.1% of the cases registered with conciliation Contd...courts in 1963-64 were


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