Should Jirgas Be Given Constitutional Cover?
The philosophy of an Islamic judicial system is none other than what has been told by Prophet Muhammad (peace be upon him), “People before you were destroyed because when the noble among them stole, they would let them go and if the poor and weak stole, they would punish them. By God! If Fatimah (daughter) stole, I would hold her accountable.” Since Pakistan’s inception, the pragmatism of these words implemented by the state has been none other than the phenomenon of “phantasmagoria”.
The state gathers taxes from its subjects in order to make sure that their lives and properties are under protection. Shielding the basic human rights of its citizens lies within its responsibility. But for decades, the common citizen has been subjected to the despondency of our judicial system, paying heavy sums to lawyers in order to pursue litigation in court and absorbing the anxiety of cases that linger on for years. This has caused nothing but mistrust in the system.
Under General Musharraf’s dictatorial rule, the then Chief Justice’s reinstatement was backed by the lawyers’ movement and by the masses who stood against aristocratic regimes. This derived a new sense of belief into something that had long been mistrusted. The people had high hopes again and wanted to constitutionally strengthen the judiciary.
A much-awaited plea of the common citizen, in the name of speedy and inexpensive justice, took a turn when the government recently introduced a Bill for alternative dispute resolution – the name given to a process where disputed parties undergo settlement without going to courts – aimed at ensuring speedy and inexpensive justice to the people, by giving constitutional and legal cover to the centuries-old system of jirgas and panchayats.
The government’s intention behind its pioneering sounded solemnly pure, substantiated by the fact that for years the courts had been under a huge burden of litigation involving petty claims, civilian matters and issues of “pendency” as roughly 2.5 million cases had still been unsettled, while also acknowledging the failure of the present system in catering to the needs of an ordinary citizen, the time rubbished in pursuing these lingering and manipulated cases and the addition to financial burdens of aggrieved parties, however, the actual narrative of the Bill appears contradictory to government’s intentions.
The initiative seems to be devoid of research, undertaken in haste and reflecting retrogression. Overhastiness and lack of interest are further validated by the fact that 23 members of the National Assembly were present at the time of the Bill being presented and passed, meaning that the right to justice and fair trial of 200 million people was only left to 23 representatives.
Can this be justified in a state where there is a conundrum of law and order? In the light of this Bill, can this parallel judicial system wash away the discrepancies of our main judicial system? Should illiterates be handed the reigns of the right to justice and plight of the proletariat? Will this system bring an overall halt to exploitation of the weak at the hands of the bourgeoisie? Does this piece of law ensure that the basic rights of our women wouldn’t be breached any further? The narrative of the Bill and the loopholes encircling it do not seem to suggest so.
Ideologically, the Bill sounds very weak. Apart from some positivity that surfaces for the woes of a common citizen that the state has finally heard his or her long-standing plea for a fair trial and acknowledging the longtime judicial inadequacy, the rest of the Bill reflects political mileage and I wonder if that would add further displeasure among the people.
The Bill needs to be re-looked into for the following reasons:
1. In the given context of the Bill, the term jirga or panchayat needs to be readdressed with a proper definition. For centuries, jirgas have been the focus of influential politicians, family heads, village elders, feudal lords and tribal chieftains, who decide matters according to their customs and traditions, restoring societal equilibrium by completely disregarding basic human rights, and if one expects something egalitarian in this regard, he or she is surely a resident of the fool’s paradise. Apart from settling some civil disputes, such as petty theft, the institution of jirga has become the locus of misogynist practices such as barter of women for conflict resolution. Rubbishing of basic human rights and immolation by jirgas are not unprecedented.
Anti-women practices of jirgas are known to all and sundry. There have been several incidents where young girls have been forced to marry men who are several times older than their age, while the innocent have been left with no other choice than to accept their fate. Similarly, at the time of general elections, religious leaders and candidates of political parties in remote areas disenfranchise women from exercising their rights. In a patriarchal society where incidents of honour killing and customs of vani and swara are asserted by jirgas, disorder is inevitable. Participation of women in jirgas needs to be ensured in order to avoid these anti-women practices.
2. Neutrals (ulemas, retired judges, politicians, etc.) are to play the role of mediators according to the text of the Bill, and they would be appointed by the government in consultation with the respective High Courts. In the intolerant and dishonest suburbs, it is almost impossible to find mediators who will stay neutral. Even our ulemas have unfortunately been led astray, so this all seems rather ludicrous. Follow-ups by the government would be something sine qua non i.e. absolutely necessary if this law is to be implemented on humanitarian terms.
3. Arbitration technique has been an integral component of judicial systems in other countries but it has certain limitations and for these reasons the jurisdiction of jirgas or panchayats needs to reconsidered and should not be extended any further.
4. In the present judicial system, there often comes a case where the victims have no one by their side. The state then pursues litigation on their behalf, giving them a good chance to get justice, but the given Bill curtails the role of the state. The government is now handing over its very own responsibility to the centuries-old, shabby and mistrusted third-party, which can lead to complete lawlessness.
Giving constitutional cover to jirgas seems to be an agreement between the elite, the powerbrokers and the government. The Bill does not seem to comply with the main attributes of an Islamic judicial system of speedy, inexpensive and practicable justice.
Justice still remains to be served.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.