How the Parallel Judicial System of Jirga Perpetuates Injustice For Pakistani Women
Women in Pakistan continue to fall prey to jirgas, a parallel justice system held by the influential and landholding aristocracy. Rape victims and their parents are forced by jirgas to make out of court settlements, otherwise these rape survivors will be declared as kari, liable to be killed by anyone. In the latest such event, a jirga forced parents of a 12-year-old girl to accept a settlement of rupees 1.8 million. 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 her to death by stoning or being sold off.
A 12-year-old girl from Kandhkot in the province of Sindh 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 rupees 1.8 million against the “real accused”. Ironically, an FIR (first information report) 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 with whom the cases are being heard, does 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 and the right to enjoy life, liberty and justice to the citizens of Pakistan and the right 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 the 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 manners of crime, 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 has been on a rise throughout the country. Its report states that more than 14,500 cases of rape have been 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 killing is 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 the province of Khyber Pakhtunkhwa was ordered to be burnt alive for helping her friend elope.
Despite the promulgation of certain laws for the protection of women, these laws are useless without effective public justice institutions that can implement them. Until Pakistan addresses its dysfunctional institutions and its religious and social taboos, as well as eliminates alternative 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’s laws and fundamental rights of its citizens and also jeopardise the state’s position with regard to international treaties to which Pakistan is a signatory.
The government of Pakistan and concerned authorities should 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 families from the wrath of local influential persons threatening them. Pakistani authorities must take strong action against the unconstitutional parallel justice system of jirgas that perpetuate violence against women.
The state should 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 as well as expeditious dispensation of justice.
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