Jirga justice

The Galiyat is known for its unmatched beauty and calm, its pine-scented air and the hills full of daisies. One often encounters little girls with sparkling eyes, skilfully carrying home a lot of firewood on their heads or trotting on its winding streets selling wreaths of wild flowers. They always stop to exchange greetings or a smile. To conceive of brutality, fear and injustice in these seemingly perfect hills is difficult.

Yet the harrowing image of the singed body of 16-year-old Ambreen, brutally murdered in the village of Makol, drew light to a different — and darker — reality of the lives of the women living on these hills. Ambreen was drugged and hanged to death upon the edict of a local jirga as punishment for aiding an elopement. Her corpse was then set ablaze beyond recognition. Ambreen is not the first female casualty of the parallel system of informal justice imparted through jirgas across Pakistan. Countless women have been murdered, raped, sold or exchanged in marriage, or paraded naked on the orders of local jirgas, as retribution or in reconciliation for ‘offences’ most often committed by their male kin: a love marriage by a brother; murder or rape committed by an uncle; theft by a son; illegal occupation of property by a husband (Aurat Foundation, 2015). Women are commoditised into instruments of executing ‘justice’ for violation of both the formal law and of culturally-rooted notions of morality. Jirga justice is then patriarchal and misogynistic. With members of most jirgas drawn from the local elite, jirga justice also reinforces social and economic privilege. The rape of a labourer’s daughter in Umerkot last month by a notable is, on a jirga’s order, then to be compensated through a mere exchange of maunds of wheat.

Does our law provide any room for the operation of such collectives of men imparting twisted and archaic notions of justice? The simple answer would be a ‘No’. Article 175 of the Constitution defines the limits of the formal judicial system, and provides that no other institution, unless established by the law, shall exercise the adjudicatory powers of a court. Jirgas, excepting those functioning in Fata and Pata, have no basis in any law and operate illegally outside the judicial scheme envisioned by the Constitution. ‘Justice’ delivered by jirgas, such as in Makol, contradicts not only moral conscience, but also the basic tenets of due process of law. Jirgas follow neither procedural nor substantive law, and instead deliver edicts on an adhoc basis rooted in ignorance or prejudice. In enforcing their own brand of law and justice, jirgas, according to our courts, essentially usurp the functions of both parliament and the judiciary. The superior courts of this country have given a clear verdict that jirgas themselves are “unlawful and illegal”, violate fundamental rights guaranteed in the Constitution and enjoy no protection under the law.

Yet despite these judicial pronouncements and interventions by the courts, particularly in jirga-sanctioned cases of swara or vani, this parallel system of justice endures across the country. The ‘Darul Qaza Sharia’ (Islamic courts) set up by the Jamaatud Dawa earlier this year to provide justice with the “consent of the parties” in Lahore (home to the provincial high court) is a case in point. Paradoxically, women, too, have in the past resorted to calling an all-women’s jirga in Swat to settle matters of unpaid salaries, water shortage and murder. While the standing of a women’s jirga is contestable, one must question why the need to convene it even arose. The inaccessibility of and delays in the dispensation of justice by the formal legal system compel individuals to seek recourse through a quicker and less complex mode of settlements of disputes. The impunity permitted at times by the state, to members of jirgas, on account of their influence or power is another explanatory factor for the continued persistence and relevance of jirgas in our society. Although the cause of Ambreen’s murder cannot be reduced to a simple causal equation, it is important to realise that her death is in part a consequence of the failures of our judicial system. Other women are more likely to meet a fate like her’s until these flaws are corrected.

Published in The Express Tribune, May 10^th, 2016.

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