Jirga’s Antidote Is Fair For A Functional Justice System
In the absence of a fair and functional judicial system that can uphold the rule of law, Pakistani citizens are at the mercy of landlords, who dole out punishments upon their whim. 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 later placing them at the feet of the landlord. The landlord belonged 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 had been murmurs that the accident was the fault of the landlord’s driver – punishment was nevertheless given to the peasants.
Mujebo’s henchmen first beat the brothers and dragged them to the landlord’s autaq (private residence) where both brothers were beaten again. Later Mujebo held a jirga, an illegal tribal trial, where elders of the area were called to decide on the matter. The members of the jirga demanded that the brothers beg for pardon from 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 the entire village. A video of the scene was leaked by local journalists and aired by several television channels. Subsequently, the Sindh government ordered the police to investigate.
The police brought the landlord and cart owners to the police station. 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 witnesses, as nobody was ready to serve as a witness against the landlord. The Sindh government, the PPP ruling party and the perpetrators were all pleased 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 carrying 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 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 defy the order, however unjust that may be. Many victims of the judicial system cede to the injustice, knowing that they have no choice or 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, is supported and patronized by politicians and legislators from feudal backgrounds. 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 continues to persist. 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 had 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 interests of its subjects.
When the state’s apparatus and legislative assemblies are constituted by feudal lords, expecting change is an exercise in futility. The absence of political will is 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 country has also made matters worse.
Though the police often arrest jirga members after media reports and condemnation from civil society, no jirga member has ever been convicted. For instance, in the Mukhtara Mai gang rape 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’s 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 enforcement, a court judgment is just an expensive piece of paper that not many in Pakistan can afford. The criminal justice system has failed to curb and abolish the political control of the feudal leaders exercised 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 of them, collectively and individually benefit from such a system. It is high time for the state to actively enforce anti-jirga laws and punish the perpetrators and members of jirgas, ending 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.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.
