‘Jirgah’ in Pashto and ‘Panchayat’ in Punjabi are terms used to represent the parallel justice systems in tribal communities. The gist of the Jirgah system is that the elders of the tribe act as mediators where the disputant parties bring their claims to be adjudicated upon. The mediator hears the issues and applies the local customs and laws which usually differ from the laws applied by the courts operating under constitution. At the end of the proceedings, he reaches a decision which is binding in the local area.
Tribal Jirgahs use bizarre methods to find the accused guilty. On some occasions the accused have been forced to walk on burning coals barefooted. If the feet are burned it is taken as sign of guilt and they are further punished. If he is without injury then he is considered innocent. This custom is called (Bha-pani) bha mean fire and pani is the water. Other archaic torturous methods are also used to determine guilt such as water-boarding and water dripping.
Furthermore, the traditional tribal practice of Karo Kari is also supported by the Jirgah system in Sindh which is a form of honour killing. Karokari is a compound word literally meaning “black male” and “black female, “and is used metaphorically for adulterer and adulteress. This tradition in Sindh is an intervention from the Pashtun culture. The Karo Kari tradition decrees that the family whose honour has been offended should kill those who are allegedly responsible for it. However, in practice the victims of this tradition are mostly women. The head of the tribes who preside Karo-Kari Jirgahs readily punish the accused even at the slightest of suspicions without concrete proof of their relationship.
The conviction is awarded on the basis of mere suspicion, usually it operates by what is called in Sindhi language ”Tanno” which means taunting. A family having unpleasant relations with the other taunt the men of the other family for unreasonable behaviour of their women without any solid evidence, and in return the brother/father or husband have to kill their women in order to preserve their honour, Taano is not the only ground for awarding such punishments. A Sindhi woman living under the influence of tribal customary practice will be alleged of being a Kari if she is found frequently looking from the door or window, talking to a male who is not a close relative, praising any male except her husband or if she was unfortunate enough to wear makeup.
In most of tribal areas, women do not have control over their lives nor free consent when it comes to their marriage. Their futures are determined and controlled by tribal customs and the male members of their family. Only male members of the family have vested in them the prerogative to choose a man for their female family members, a woman’s wish to marry a man of her own choice is considered as a defamatory step to the honour of her family and subsequently, she will be charged as being a Kari. Sometimes a married person who wishes to get rid of his wife declares her a Kari on the basis of mere suspicions and kills her. And the protection which is awarded to such actions in tribe is by their feudal lords through the Jirgah system.
In tribal custom, killing someone for honour is not a crime. The person who kills the women in the name of honour becomes ‘’Ghairat-mand’‘. In other words, a person who is to be considered as a murderer in formal justice system becomes a man of honour and dignity within the Jirgah. Another tribal custom protected by the Jirgahs is when the sister of a male who dishonours the respect of another woman has to pay for the acts of his brother. The Jirgah can either order the men from the ‘’dishonoured’‘family to rape the sister of the male or marry the sister to any of the male family member of the other family. Most of the marriages settled by the Jirgahs are child marriages without the consent of females or their fathers. This goes against the essence of the rule of law which demands no punishment to be inflicted and prohibits any suffering in body or goods unless there is a clear breach of law. This is not the only fundamental principle undermined by this system. Usually in the Jirgah system, the elder tribal leader himself is the judge, law-maker and the executive which is against the principle of Separation of Powers and the tracheotomy powers of the constitution.
This system does not have regard for women right despite the rights given to the women by Islam.Women are treated ‘property’ and male members of the tribe are completely vested with the powers of owning, disowning, keeping in the family, discarding and depriving them from any form of possession and liberty. Whenever the leader decides that one party has to pay the compensation money, an outlandish tradition is followed pursuant to which the tribal leader receives a share from the compensation money which usually is 25% or more. Article 10-A of the Constitution of Pakistan confers a right on every person to be heard by an impartial tribunal and guarantees him/her right to a free and fair trial, But in the Jirgah system, women are not allowed to come to the proceedings and their fathers or brothers speak on their behalf. Furthermore, Article 9 of the Constitution guarantees each and every person a right to be protected, this is totally undermined by the punishments imposed by this justice system. Usually, the honour killing is done by the Wali/ Guardian of the girl in the case of Karo Kari, After Islamization of Pakistan by Late Zia-ul-Haq, Monetary compensation can be paid in the case of murder to avoid the retaliation which is known as blood money. The guardian/Wali of a woman has the right to forgive her murderer but unfortunately, where the guardian himself is the murderer the law sustains a severe loophole. Virtually, the guardian can forgive himself and the state is left without any cause of action against the wrongdoers.
This practice was in action even before the partition of British India. During the British rule in sub-continent, this practice was discouraged by the British rulers, A proclamation by the first governor of Sindh appointed by British rulers, Sir Charles Nappier, attempts to illustrate the point:-
”People of Sindh – the government has forbidden you to murder your wives, a crime commonly committed when the British conquered this country. This crime of woman-murder is forbidden by the religion of the English Conquerors; who shall dare to oppose their law? Woe be to those who do. But this is not all, ye Sindhians, Balochis, and Mohammedans, murder is prohibited by your prophet. You, who murder your wives, outrage your own religion as much as you outrage ours! This government will not permit”
However this did not last very long and after a few weeks, the Governor had to warn people against honour killings in a stricter context. In Pakistan, a continued opposition of this culture by the human rights activists and the members of the civil society lead to the enactment of The Criminal Law (Amendment) Act 2004 which made numerous changes to the existing state of law. The offense of Honour Killing was introduced in the Pakistan Penal Code, with a provision stating that the murderer cannot be the wali. The exchange of women for Budl-i-Sulh was made illegal. However, the 2004 Act did not remove the option of Qisas and Diyat, leaving uncertainty, ambiguity and absurdity in the law.
In 2004, Sindh High Court imposed a complete ban on Jirgahs, but the decision was ignored and Arbab Ghulam Rahim, the ex-chief minister of Sindh presided a Jirgah in the months following the decision. In Muhammad Ameer v. The State (2006 PLD 283), The Supreme court of Pakistan rejected the contention that honour killings are due to sudden provocation or loss of self-control, for which the law suggests a lower sentence. However, this left some space open for the offenders who can prove that their provocation was sudden and grave which was to some extent countered by The sitting Chief Justice of Pakistan, Mr. Justice Tasadduq Hussain Jilani in his old judgment of 2006, reported as Abdul Jabbar v. The State, (2007 SCMR 149) whereby it was stated that:
“A mere allegation of moral laxity without any unimpeachable evidence to substantiate would not constitute grave and sudden provocation. If such pleas, without any evidence are accepted, it would give a license to people to kill innocent people”
The attitude of lower courts however differs from the view of Supreme Court. Lahore High Court has demonstrated its will in some cases to protect such offenders and to allow the defence of provocation for honour killings. (Muhammad Waryam v. The State 2005 YLR 1017). Sindh High Court seems most determinant to protect women and justice system from this abuse and in their reported judgments; they have shown a revolutionary approach in this regard (Daimuddin and others vs. The State, 2010 M L D 1089, Karachi). However, notwithstanding these judicial precedents and amendments made to the laws of Pakistan, a change may still be a long way to go. According to a research conducted by Aurat Foundation in 2008-2010, 1636 incidents of honour killings were reported in Pakistan, signifying the current Jirgah system structure to be diverting from the objectives of law enforcement agencies.
The primary reason for this is the continuing feudal mind-set in the tribal areas of Pakistan. It is speculated most of the Pakistani politicians and parliamentarians from the areas of Interior Sindh, Baluchistan and rural Punjab are secretly supporting the honour killings as evidence shows their attitude towards such heinous acts. In 2008, Israr-ullah Zehri, a Pakistani politician of Baluchistan defended honour killings of 5 women belonging to Umrani tribe. He had the audacity to say in the parliament, “These are centuries-old traditions and I will continue to defend them. Only those who indulge in immoral acts should be afraid”- Recently, another politician, Ghaus Bakhsh Mahar headed the Jirgah which approved the murder of two girls after holding them Kaari in Shikarpur, Sindh.
Theoretically it may seem so that the jirgah system is a method of alternative dispute resolution, and it simply helps to dispense the justice among litigants without the complex procedure of courts, but this reasoning is undoubtedly fallacious. As Justice(R) Saiduzzaman Siddique indicates in the International Judicial Conference ] paper (2013), that members of the legal profession must not view mediation as a process that reduces the role of the Courts, but one that supplements and aids it. In light of this view it is not unfair to question that how can a procedure that lacks fairness and operates by undermining the very basic notions of justice and constitution can help the judicial system? Rather, it seem that it will increase the criminal and public interest litigation by the organizations and those who will be subjected to the arbitrary punishments of the Jirgah system.
Conclusively, till the day Jirgah system keeps on playing its part in the justice system of Pakistan, the rule of law can’t prosper and the justice system can’t progress in the right direction. A collective effort is in dire need to reform such measures prone to illogical cultural norms over legal solutions serving humane justice. The intervention by the Jirgahs in Pakistani legal system is worse than all the military interventions in Pakistani democracy. The reason why people from tribal community are reluctant to bring their disputes before the ordinary courts is not merely that the procedure demands time, costs and involves complexities. In my humble opinion, one of the major reasons behind that reluctance is the type of justice and the different procedural and substantive law which they want to be dispensed and implemented, a court which has derived its jurisdiction from the constitution would never impose punishments like stoning to death or whipping without satisfying very high thresholds of burden of proof, but a Jirgah would. Even if Pakistani justice system is reformed to be less complex and more efficient, these people would still opt for the Jirgah system because they don’t believe in human rights or the constitution, they have their own understanding of law and justice based entirely on their inherent cultural norms or opinions. Another reason why people still have faith in this parallel justice system is the literacy rate in the rural areas of Pakistan which is below 30% for both men and women. Most of the women belonging to those areas have never been to schools or colleges and have no awareness about any of the rights conferred upon them by either Islam or Constitution of Pakistan. Another dilemma is the policing system in the tribal and rural areas, Most of the appointments to the police are without merit and the officers are very reluctant usually to go against the tribal leaders who in a way or another have helped them to be a part of police. To fight against this parallel justice system, all we need is education, a higher literacy rate, fair appointments and good governance. Whichever party you vote in the next elections, make sure they consider fight against honour killings and Jirgah system a part of their docket.