Biased/unbiased: The parallel justice system in rural Pakistan - a close scrutiny

Published: February 26, 2014
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Jirgas may intend to truly serve justice, but the verdicts are not always fair and just, especially when related to women.

Jirgas may intend to truly serve justice, but the verdicts are not always fair and just, especially when related to women.

KARACHI: 

The council of elders, or jirga/panchayat, is believed to offer cheap and speedy justice in rural Pakistan. Yet, this is not what always happens. Last month, one such village council ordered the gang rape of one woman in a hamlet near Muzaffargarh, Punjab. She wasn’t raped because she asked for pardon – although she was stripped and humiliated.

Mukhtaran Mai’s gang rape was also ordered by a panchayat in Meerwala, also in Muzaffargarh, in 2002.

The logic: avenge dishonour with dishonour.

“If they are providing justice, then why is the punishment only geared towards women?” asks Samar Minallah, a rights activist who was the petitioner of a public-interest litigation in the Supreme Court against such councils. “The case is still pending, but the top court [in one of its rulings] has declared jirgas illegal.”

Neither is there any provision in the Pakistan Penal Code that allows the panchayat, nor is there any special regulation on it in Punjab body of law.

Be it panchayats in Punjab, jirgas in Khyber-Pakhtunkhwa and Balochistan, and faislo and sulh in Sindh, these are all non-institutional, parallel mechanisms for the settlement of disputes, with punishments usually targeting women.

However, in the tribal areas, jirgas are the judiciary. With no formal court system, the tribal elders – given the title of Maliks – and the leader of a jirga who hears the arguments of the plaintiffs, the jirgamaars, assemble to resolve the dispute or conflict at hand. Jirgas are enshrined in the body of law that governs the Federally Administered Tribal Areas (Fata) – the Frontier Crime Regulation, 1901.

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Similar to the Muzaffargarh panchayat ruling, a jirga in Darra Adam Khel ordered the execution of three women after one of them ‘dishonoured’ the family. The girl, her mother and her cousin were shot dead in cold blood.

One tribal elder from Kurram Agency contended that Fata’s seven tribal agencies are different from each other. “Darra Adam Khel has a low literacy rate and they prefer to give jirga rulings based on their tribal laws,” explained Haji Ghulab, who is a member of the Grand Jirga in Kurram.

Moreover, he claimed that extreme punishments are given only in extreme situations. “Jirgas only order murder in a conflict that has claimed many lives or has been going on for many years.” Does the practice of Swara – the marriage of young girls to settle blood feuds – come under extreme measure? “Yes, it does,” he responded. “If the two sides become relatives, they will not kill each other or continue the conflict.”

He quickly added, “But the practice seldom takes place. And we have to convince the girl first.” This was a surprising response, but he explained the logic. “The jirga decision won’t work out if the girl is not willing to marry.”

But Minallah, who has supported and even sheltered Swara ‘victims’, argued that many of them are seen as the enemy after the ‘forced marriage’. “These girls are told by their in-laws that their faces remind them of the crime committed by their sons or brothers,” she said. They are never accepted and their lives are ruined, she maintained.

Tribal elders do admit that it is not a perfect system, just like the judiciary and court system. “Bad decisions are made sometimes. But not all jirgas make unfair decisions. It’s only the ones that adjudicate murder and rape cases that make the news,” said Malik Khanijan Afridi, a tribal elder from Khyber Agency.

Jirgas are formed by members of society, who are corrupt, take bribes and are biased towards their tribe or biraadri. “However, it’s a system that involves mediation, arbitration and consensus-building. It works in the absence of courts,” defended Afridi.

“We have ordered murder, mostly of men,” Afridi admitted, but quickly clarified, “It’s rare. You need to understand that the point of giving these verdicts is to end conflict and resolve disputes.”

Under FCR, there is allowance for the political administrators, who have magisterial authority, to dissolve the jirga if its ruling does not have consensus, or it causes outcry, or someone files an application to him, or he is not satisfied with the decision. “Therefore, there is room for a kind of appeal and make amends,” explained Haji Ghulab. There have been instances when there were complaints about some jirga members for being greedy for money and irresponsible, who were later dismissed.

However, panchayats, faislos and Balochistan jirgas do not have similar provisions as it is an informal system.

The only possible solution: accountability. “Those who give unfair rulings must be held accountable and punished,” suggested Minallah. That is the only way that those who claim to be the custodians of justice do not establish their own fiefdoms of absolute power.

Published in The Express Tribune, February 26th, 2014.

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