Pakistan: Jirga's antidote is fair and functional justice system

Asia Human Rights
May 20, 2016
Reproduced with Permission
Asian Human Rights Commission

In the absence of a fair and functional judicial system that can uphold the rule of law, Pakistan citizens are at the mercy of landlords, who dole out punishment in whimsy. Recently, two peasant brothers from Phul Village, Nowshehro Feroz District, Sindh Province, were ordered to seek forgiveness from their landlord, while holding their shoes in their mouths and put it in the feet of land lord. The landlord belongs to Sindh's largest political party Pakistan People's Party (PPP).

According to the media reports, the two brothers, Suhail and Ayaz, were on their way when their donkey cart hit the car of landlord Muhammad Bux Mubejo, causing minor damage to Mubejo's vehicle. There have been murmurs that the accident was the fault of the landlord's driver, the punishment was given to the peasants.

Mujebo's henchmen first beat the brothers and dragged them to the landlord's Autaq (private residence) and then both brothers were beaten again. Later Mujebo held a jirga, the illegal tribal judicial system, and elders of the area were called to decide on the matter. The members of the jirga ordered the brothers to beg pardon from the Mujebo while holding their shoes in their mouths.

Hapless and poor, the brothers agreed to the verdict and did as they were told in the presence of hundreds of villagers. A video of the scene was leaked by local journalists and aired by several television channels. Subsequently, the Sindh government moved and ordered the police to investigate.

The police brought the landlord and cart owners to the police station where the feudal lord was given a warm welcome with a privileged protocol while the peasants were asked to bring evidence of the incident, with the refrain that any person can make such videos to blackmail the politician.

The brothers tried but failed to gather any witness, as nobody was ready to serve as witness. The Sindh government, the PPP ruling party, and the perpetrators are all happy that nobody wanted to openly accuse the feudal lord.

Such a system of oppression perpetuates itself by planting fear in the hearts of the local populace. The methods used are that of shaming, torturing, and the meting out inhuman treatment.

Notorious for abusing the concept of justice through their illegal verdicts, the jirga system is allowed to exist and flourish, as the State sanctioned judicial process is lengthy, labyrinthine, expensive, and also corrupt and arbitrary.

The jirga is pervasive in remote areas and continues to sanction punishments after summary trials, where the accused are even assumed to be guilty ab initio and denied the right to defend themselves. The accused and their family must suffer the wrath of the jirga and its controlling members if they dare to defy order, however unjust they maybe. Many victims of the system cede to the injustice, knowing they have no choice and no hope of redress from the State.

The live burning of a 16-year-old girl from Abbottabad underscores the barbarity of the system that continues unchallenged. The girl, Amber, was ordered by the local jirga to be burned alive for helping her friend elope. The system, despite being held unconstitutional, perpetuates, as many politicians and legislators from feudal backgrounds patronize it. The lack of political will to weed out the menace once and for all becomes all too apparent when such cases surface. In August 2007, the apex court, under former Chief Justice Iftikhar Chaudhry, had ordered the arrest of then Federal Minister Mir Hazar Khan Bijarani and other jirga members, who had offered five minor girls as compensation in a murder case. Unfortunately, the Minister was never arrested and the fate of the girls remains unknown.

In 2012, the Supreme Court of Pakistan declared jirgas to be illegal and unconstitutional. However, as the country's judicial system has direct control only in the fringes of urban society, the barbaric customs of honor killing and giving girls away in compensation continue to persist. The denial of the fundamental right of access to justice has invariably forced many to revert to the illegal system to seek justice, however retrogressive and faulty.

Sindh is the first province where the Chief Justice has declared jirgas to be illegal, in 2004. However, due to the political power of the feudal and tribal leaders, the Supreme Court remained silent till 2012.

The State's non-seriousness in implementing its writ and its conscious decision to leave citizens to the mercy of local lords is a cause for grave concern. By allowing unscrupulous factions to take over the reins and permitting them to hold jirgas and set up a parallel judicial system, the State has violated its constitutional duty to protect and safeguard the rights and interest of its subjects.

When the State apparatus and legislative assemblies constitute feudal lords expecting change is an exercise in futility. The absence of political will is also apparent from the fact that the legislative assemblies are yet to legislate on the issue of jirga. The polity of the tribal and remote regions not governed under the Constitution has made it difficult to curb the system that is pervasive throughout the region. The lack of access to justice in the State has also made matters worse.

Though the police often arrest jirga members after media reports and condemnation from civil society follow such leaks, no jirga member is ever convicted. For instance, in the Mukhtara Mai gangrape case, the culprits were allowed to go scot free by the Supreme Court for lack of evidence, despite the fact that the jirga was held in public and the rape occurred in broad daylight. Mukhtara Mai went from pillar to post to seek redress but the judicial system failed her at every step. In the end, the court decided in favour of her rapist while she was left high and dry.

Such a parallel judicial system destroys the sense of equity that justice rests upon. Marred by corruption and delay, the State criminal justice system has failed the citizens of Pakistan who inadvertently prefer the jirga to seek quick remedy. Unfortunately, the formal legal system of the country does not have the enforceability of the jirga system. Without enforcemen,t Court judgments are just expensive paper that not many in Pakistan can afford. The criminal justice system has failed to curb and abolish the political control of the feudals, exercised in part through jirgas.

The feudal lords, politicians, police officers, bureaucrats, and parliamentarians all join hands to keep the tribal justice system alive and flourishing, because all collectively and individually benefit from such a system. It is time that the State actively enforces anti-Jirga laws and punishes 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.