Pakistan: Travesty of justice in the name of jirga

Asia Human Rights
June 2, 2017
Reproduced with Permission
Asian Human Rights Commission

Women in Pakistan continue to be prey to jirgas, a parallel justice system held by the influential and landed aristocracy. Rape victims and their parents are forced by jirgas to make out of court settlements or otherwise the rape survivors will be declared as Kari, liable to be killed by anyone. In the latest such event, a jirga forced the parents of a 12-year-old girl to accept a 1.8 million rupees settlement. In another case, when a settlement could not be reached with the family of a 19-year-old girl, the jirga declared her Kari and sentenced to death by stoning or to be sold off.

A 12-year-old girl from Kandhkot, Sindh province was allegedly gang raped by her employer and seven other men who remain at large in Karachi's Malir Cantonment area. The main perpetrator, an influential landlord, has allegedly taken refuge at the house of a powerful gang leader. The police are reluctant to apprehend him, given his political clout in the region. Though the Chief Justice took notice of the incident, not a single hearing in the case has taken place to date.

Meanwhile, a senior politician and influential feudal lord, Sardar Taj Mohammad Domki, called a press conference to announce that he had settled the case through a jirga, and imposed a fine of Rs1.8 million against the "real accused". Ironically, an FIR has been registered against the girl's father, the father of one of the alleged rapists and 12 others, on behalf of the state for settling the matter in a jirga.

In another travesty of justice, a jirga ordered a 19-year-old girl from Rajanpur who was raped at gunpoint by her cousin, to be either killed by stoning or sold off on charges of adultery levelled against her. When the girl's family approached the Panchayat after learning of the rape, four men, including the father of the alleged rapist, forced the Panchayat to pronounce the girl a Kari. The girl's father was forced to accept the decision. Subsequently the girl approached the police to lodge a complaint of rape. The rapist is still at large.

In all these events, the police are merely silent spectators, while the lower judiciary, where the cases are being heard, do not bother to stop such crimes despite jirga or tribal judiciary having been declared unconstitutional and illegal in 2004. Those found in breach are to be tried for contempt of court. The silence of the judiciary makes it an accomplice to the perpetrators of such crimes.

The practice of jirga also contravenes Articles 4, 8, 9, 10, 10(a), 14, 25, 34 and 37 of the Constitution which guarantees legal protection, right to enjoy life, liberty and justice to the citizens of Pakistan and to be treated in accordance with the law.

The prevalence of jirga indicates the lack of trust in the country's criminal justice system. The jirga purportedly provides a summary trial as opposed to lengthy criminal proceedings, which is thus favoured by ordinary people unable to afford expensive and lengthy litigation. However, a system that denies justice and equity in favour of nepotism and monetary gains, only serves to destroy society's moral fabric. Having no sound knowledge of legal or Islamic jurisprudence, jirga members dole out horrendous punishment whimsically, and impose undue fines on the parties. As it is often the perpetrator of the crime who calls on the jirga, it is assumed that the alleged perpetrator is innocent. Moreover, the party with higher social and economic standing gets away with all manner of crimes, leaving the victims high and dry.

This unjust system serves to further empower criminals, particularly regarding violence against women. Rape is the second most prevalent form of violence against women after domestic violence. According to the National Commission for Human Rights (NCHR), violence against women was on a rise throughout the country. Its report stated that more than 14,500 cases of rape were reported during the last three years. Honor killing is another phenomenon that is fuelled by a dysfunctional justice system and the power of jirgas.

While honor killings are seen by perpetrators as a means to wipe out all evidence of other crimes, such as rape, the tribal mindset does not see the murder of a woman in the same way as the murder of a man. For a society that denies her every single basic human right, a woman's life is worth less than her honor. Just as crimes against women are increasing in brutality, the punishments prescribed by jirgas are also becoming more brutal. In 2016 for instance, a 16 year old girl from KPK province was ordered to be burnt alive for helping her friend elope.

Despite certain laws promulgated for the protection of women, these laws are useless without effective public justice institutions that can implement them. Until Pakistan addresses its dysfunctional institutions, its religious and social taboos, and eliminates alternate justice systems, women friendly laws will have no effect on protecting women or punishing the perpetrators.

Such illegal practices being carried out in different parts of the country with impunity violate the state laws and fundamental rights of its citizens and also jeopardise state position with regard to international treaties to which Pakistan is a signatory.

The Asian Human Rights Commission urges the government of Pakistan and concerned authorities to provide security to the girls and their families, and make arrangements for their physical and mental well-being.

The authorities should also protect the victims and their familieas from the wrath of the local influential persons threatening them. The Pakistani authorities must take strong action against the unconstitutional parallel justice system of Jirgas that perpetuates violence against women.

The AHRC urges the state to actively enforce anti-Jirga laws and punish the perpetrators and members of jirgas, doing away with this system once and for all. In order to wipe out such an illegal parallel judicial system, it is necessary to ensure access to justice for every citizen of the State and ensure that justice is dispensed expeditiously.