JUSTICE UNDER THE SHADOWS OF GUNS AND THREATS IS UNACCEPTABLE
A few weeks ago, the donkey cart of two brothers mistakenly collided with vehicle of an influential person in Nushero Feroze, Sindh. Things got escalated and to resolve the matter, a Jirga sat and pronounced a shameless verdict whereby both the brothers were forced to chew “chapals” in their mouth and apologise to the owner of the vehicle. Recently, 16-year-old Ambreen in the village of Makol, District Abbotabad was drugged and hanged to death upon the edict of a local Jirga as punishment for assisting an elopement. Subsequently, her corpse was set ablaze; the image of her cooked body was beyond identification and too horrendous to digest. Few years back Mukhtaran Mai in Muzafar Garh faced the fury of Jirga decree which ordered her organised gang rape. Her only fault was that her brother was found involved in a relationship with a woman of an influential local tribe.
These aforesaid atrocious incidents of Jirga justice are not new in Pakistan, myriad of people have suffered due to this deep rooted and antediluvian system of informal justice. Innumerable women have been killed, mutilated, raped, paraded unclothed and swapped in marriage, as payback or in compromise for wrongdoings normally committed by their male kin. These ignominious rulings have made us all bend our heads in humiliation; they reflect collective depraved wisdom of self righteous and self appointed judges. It seems like that women have been branded into tools of dispensing justice for violation of both the formal law and notions of morality.
Unquestionably, currently prevalent Jirga system in Pakistan is elite, patriarchal and misogynistic. The reason why Jirga edicts are frequently against women and especially against those belonging to poor class, can be best understood if composition of a Jirga is evaluated. The composition is inherently prejudicial, firstly it comprises only influential people like waderas, sardars and chaudhrys of a particular locality and secondly, representation of women in Jirga is zero. Under such circumstances, there is always a strong probability that the judges will provide cover to their affluent friends/ relatives and decide against the poor especially the women.
The greatest paradox is that the police and civil administration have always patronised and encouraged Jirgas instead of taking action. The local law enforcing agencies are happy if the crimes are not reported and are settled informally. In order to protect their vested interests, the feudal lords, politicians, police, bureaucracy and parliamentarians, all have cahooted together to keep the Jirga system active and thriving.
Justice delivered by Jirgas contravenes not only moral scruples, but also flout the notions of due process of law and protection of fundamental human rights. Jirgas follow neither formally codified procedural nor properly defined substantive law; in fact they deliver edicts in a capricious manner deeply influenced by male chauvinism, tribal ignorance and feudal prejudice. A woman accused of committing honor crime is not provided a chance to prove her innocence, thus the universally recognised principle of natural justice that ‘no one should be condemned unheard’ is blatantly sullied. In addition to that, the decisions of the Jirga are considered final and regrettably there is no mechanism of appeal if one is not contented with the pronouncement. Another legal flaw is in the enforcement mechanism of Jirga edicts i.e they are enforced by private individuals, who while implementing the so called diktats act as if they are completely oblivious to the fact that they are dealing with humans not animals.
Arbitrary decisions of existing Jirga system breach major constitutional provisions as provided in Constitution of Islamic Republic of Pakistan 1973.Article 4 provides the right to be treated in accordance with law, Article 9 provides the right to security, Article 10-A provides the right to fair trial, Article 14 provides the right to inviolability and dignity and Article 33 discourages parochial prejudices. The superior courts while interpreting the said provisions have given them a very wide meaning and have time and again declared the provisions to be of overriding and mandatory nature. However, it seems like these constitutional protections only exists in theory as far as their applicability to rights of those adversely affected by Jirga edicts is concerned.
Article 175 of the Constitution lays the basis and foundations of our judicial system, and provides that no other institution, unless established by the law, shall exercise the adjudicatory powers of a court. It means Jirgas except those functioning in FATA and PATA, are manifestly unlawful and they operate outside the judicial ambit as envisaged by the Constitution. This provision has been consistently interpreted by the superior courts exactly in line with the intention of the legislature and its best construal was produced by Sindh High Court in case cited as SBLR 2004 Sindh, 918. In the said case, the court gave a landmark judgment by declaring the Jirga system unlawful, unconstitutional and violative of fundamental rights whilst relying on several judgments of the Supreme Court.
Opponents of Jirga system assert that this parallel system of justice is ruthless, immoral, illegal and unconstitutional and demand its complete abolition. However, some support its existence subject to the condition that it must be reformed in consonance with system of Alternate Dispute Resolution (ADR). The idea of completely banning Jirga system, both in theory and practice is not viable and in-appropriate for two reasons. Firstly, it must be remembered that Jirga system is a centuries old tradition deeply embedded in our socio-cultural environment and cannot be eliminated instantly.
Secondly, our failing and burdened judicial system already struggling to prove its relevance will collapse as proscribing Jirgas will open flood gate of frivolous and unnecessary litigation. It needs to be understood that our judicial system has failed to deliver; this is one of the major reasons behind consistent relevance of Jirgas in our society. The inaccessibility and delays in the dispensation of justice by the formal legal system compel individuals to seek recourse through a quicker and less complex mode of dispute settlement. Huge backlog of pending cases in courts, scarcity of judges, rising expenses of litigation, inordinate delays, corruption and inefficiency are major factors responsible for failure of our judicial system.
Rather than banning Jirga system completely, it will be more apposite that the lawmakers shall introduce its reformed version like ADR and integrate it in our formal judicial system. Some reforms in Jirga system which can be suggested are that, the law must provide the parties right to appeal to the District and Session judge if they are not happy with the verdict of the Jirga. The members of Jirga must be well reputed, educated and sane individuals and shall be notified by the local government. In case of non compliance with edict of Jirga the private individuals shall not be allowed to enforce the decisions in fact an application to District and Session judge shall be made who may order the police to ensure compliance. The jurisdiction of Jirga shall be confined to civil matters or petty criminal offences (offences having imprisonment of 12 months or less), rest of issues shall be decided by formal courts. It should also be clearly defined that Jirga verdict should not affect people other than the guilty.
Current form of Jirga system is a ruthless malaise whereby justice is dispensed under the shadows of guns and threats, it deserves to be outlawed and wiped out, however, it needs to be substituted with a reformed version wherein the proceedings shall be governed by uniform and clearly defined adjudicatory rules. This way not only the arbitrary edicts based on whims, enmity and caprice will disappear but also the ever increasing burden on shoulders of formal judicial system will soothe down. Reformed and officially regulated edition of Jirga system in form of arbitration, mediation and reconciliation can do wonders, same way ADR has revolutionised and supplemented the judicial system of UK.