August issue 2002

The Meerwala gang-rape case and the Mianwali incident, involving the offering of eight girls as barter in a murder case, have brought into sharp focus the inherent deficiencies of the state’s justice system and the dangers of the jirga system as an alternative means to resolve disputes.

In the Meerwala case, the father of the gang-rape victim had offered her in marriage to the other party (and to accept the allegedly wronged woman from the latter party as his son’s bride). In the Mianwali case, eight girls were offered in marriage as part of the deal to save four men from execution. In both cases, the surrender of girls was in accordance with the tribal custom followed in murder feuds that are resolved outside the courts. However, in the Mianwali affair, this custom infiltrated into the judicial system because of the opening provided by the Qisas and Diyat law.

This law allows the compounding of the murder offence. The killers can win freedom at any stage of the case if they can secure a compromise with the victims’ families on receiving blood money or satisfaction in other forms. Thus, when such bargains are negotiated, the victim’s family may demand compensation according to its tradition and there are numerous tribes that insist on taking women from the offenders, the prohibitory proviso in the Qisas law notwithstanding.

Some of the girls surrendered in the Mianwali episode were too small to realise the enormity of the deal. Most significant, however, was the case of an 18-year-old collegiate: she reportedly expressed her willingness to sacrifice her future to an octogenarian to save her father from the gallows. This amounts to a stunning indictment of the death penalty, a desperate lack of confidence in the judicial process and the lengths a convict’s family will go to if offered a way out of their despair. The girl accepted the horrible choice because the Qisas law offered an opportunity to save her father at the altar of her life and happiness.

Awareness of the fate in store for victims of the system, called vani in Mianwali and swara in the Frontier, has only now begun to filter out into society. An infant girl given in barter in Buner was abandoned by her husband who maintained that a woman given away in a swara deal had no rights. She won freedom 25 years later under a Peshawar High Court order. Reports are now coming in from Mianwali about women threatening to kill themselves if they are forced to consummate vani deals made when they were infants. Such deals, based on a callous rejection of women’s rights under Islam, is a telling reflection on the blatant disregard for both Islamic and state law.

The Mianwali case also confirms the view that the death penalty does not end a feud, it only fuels the fires of revenge and generates a bloody cycle of more murders and more executions. It is therefore imperative to make a serious effort towards the abolition of the death penalty in Pakistan. Only then could a way be opened to reduce the abuse of the Qisas law’s compromise provision and soften the horrors of a barbaric custom.

The media hype generated by these two incidents, however, has also revealed an even more horrifying fact: a large section of the population is wedded to this custom that upholds the surrendering of women to a rival party to settle a dispute. Those negotiating such deals see no harm in them. Indeed they seem to prefer bargains struck at tribal jirgas/community forums/panchayats to settlements pronounced by normal courts of law, proving that the jirga system enjoys a fairly wide range of acceptability.

Ironically, the state recognises some tribal jirgas as lawfully established judicial tribunals, although the law under which they are created, the Frontier Crimes Regulation (FCR) of 1901, has been roundly denounced by the superior judiciary as well as enlightened public opinion as a draconian piece of colonial legislation. A jirga under the FCR, technically described as a council of elders, is not an elected body; its members are nominated by the deputy commissioner or political agent. Theoretically, a jirga’s findings are in the form of an advice, but custom has elevated these findings to the level of a court verdict which usually translates into law. This law is applicable only to the tribal areas. The council of elders has jurisdiction in both civil and criminal matters. No appeal is provided for against jirga verdicts although the commissioner can review a case. A jirga has sweeping powers to impose penalties in criminal cases. It can award sentences of fines, whipping and life imprisonment, demolition of a convict’s house and the blockade of a hostile or unfriendly tribe. Technically, under the FCR, a jirga cannot award capital punishment.

However, in some tribal areas, jirgas are formed by tribes themselves and these are subject neither to the FCR nor any other law and there is no limit to their power. They have awarded and enforced capital punishment. For instance, in 1999 in the Waziristan Agency, a man belonging to the Bara Khel tribe was executed by firing in the presence of thousands of spectators. He had been tried by a tribal jirga for killing a fellow tribesman over a property dispute. The jirga also ordered the demolition of his house and fined him half a million rupees. In 2000, a jirga in the Orakzai Agency awarded the death penalty to two men who had been accused of kidnapping for ransom. The convicts were executed by a firing squad. In 2001, one Shamsul Qamar was executed in Khyber Agency under a local jirga’s orders. He was shot dead by the heirs of the man he had allegedly killed. In another case, a jirga in North Waziristan ordered the execution of an Afghan, Abdullah, who was accused of first sodomising and then stoning to death an 11-year-old boy. The man was shot dead by the boy’s father.

In several parts of the country, tribal jirgas use methods steeped in ancient superstition to determine innocence or guilt. The accused is forced to walk barefoot over burning coals; if his feet burn he is pronounced guilty and liable to punishment, if the fire leaves his soles unsinged he is declared innocent. The jirga system has survived even in those areas described as settled districts although it is not recognised by law. For instance, some of the jirga cases noted in the annual report of the Human Rights Commission of Pakistan (HRCP) for 2001 included: A tribal jirga held at Ratodero, Larkana district, to resolve a feud that had claimed 11 lives. It found one party guilty of murder and ordered a fine of one million rupees as compensation to the aggrieved tribe. A property dispute between two political leaders was resolved at a jirga held at a rest house in Ranipur. In Sukkur, a jirga reportedly resolved a 16-year-old feud between two factions of the Rind tribe in which 15 people, including two women, had been killed. The jirga found one faction guilty of five murders and the other faction of three murders. Both sides were fined.

A number of factors have contributed to the survival of the jirga system, which is supported not only by tribes, but also by political leaders and even the administration. Quite often jirgas are held at official premises and attended by district officials including police officers. In one case in Sindh, the administration brought a tribal chief from prison to preside over a jirga. Nazims too have attended jirga proceedings. The jirga system has also been strengthened by official sanction. For example, last year the Dera Ghazi Khan administration convened a large Punjab-Balochistan jirga to resolve a long-standing conflict between the Buzdars in Punjab and the Jafars of Balochistan, which was presided over by the D.G. Khan district nazim. The Frontier government accepted the plea that only a jirga could resolve the Shia-Sunni feud in Hangu and accordingly set up a 10-member forum. The Sindh government too has often relied on the jirga system in its campaigns against dacoits, especially while negotiating ransom in abduction cases.

Meanwhile, some tribal jirgas, particularly in Sindh, have won public respect by meting out punishments to police officers responsible for extra judicial killings. For instance, a Nawabshah jirga in 1998 ordered a Sakrand SHO to pay 400,000 rupees as compensation for torturing one, Khamisoo Khan, who later died in a Karachi hospital. In the same year, a tribal jirga in Khairpur held a former SHO guilty of killing a landlord and ordered him to pay 400,000 rupees to the victim’s family. Last year, a DSP, an SHO and some other policemen in Sindh, were found guilty of extra-judicial killing and causing injuries to five persons by a tribal jirga and were ordered to pay 1.2 million rupees in compensation.

There has been no serious effort by the state to contain the jirga system. In 2000, the commissioner of Larkana prohibited the holding of jirgas. The order was defied with impunity, as the jirga leaders carried on regardless without informing the district authorities. When the commissioner was transferred, his successor withdrew his orders. Perhaps, above all, the jirga system has been sustained by the deficiencies in the country’s judicial system. Quick access to justice is still not guaranteed to citizens, particularly those living in traditionally neglected rural areas. Recourse to police action has its own hazards, while litigation in courts is an expensive and lengthy affair. Court decisions do not inspire confidence either in merit or impartiality and the state’s policy of protecting the feudal system under writes the tribal norms. In large cities, like Karachi and Lahore, the jirga model has given rise to mafias. Gang-leaders are approached to settle money disputes or to get houses vacated by troublesome tenants. This form of quick justice is preferred to protracted litigation while gang-leaders take their cue from corrupt elements in the police. Finally, local communities are influenced by the nature of the national dispensation. Authoritarianism at the top legitimises authoritarianism at the tribal/community level.

The defenders of the jirga system offer many arguments in its favour: parties do not have to leave their homes and go to the police and courts that may be at a considerable distance. They do not have to bribe the police and pay lawyers’ fees. Matters are adjudicated upon by the peers of the persons involved, cases remain within the community and the shame generated by wider publicity is avoided. All issues are promptly settled. The norms of settlement enjoy the sanction of tradition and are accepted more willingly than state laws that ordinary villagers cannot comprehend. If the objective of dispute resolution is elimination of grievances, any means that secure this objective should be accepted as just. These arguments have received their fair share of state support.

Needless to say, there are even stronger arguments against the jirga system. Different communities and tribes have different traditions. The agriculturists and the mercantile community follow different codes. Acceptance of jirga rule means allowing many parallel systems of justice within the nation, contrary to the wisdom of ages which enjoins a uniform code of justice, especially in criminal matters, for the entire population of a state. All tribal codes in Pakistan are rooted in patriarchy and ignore even Islamic codes of law, particularly with regard to women. They do not recognise a woman’s independent identity. The murder of a woman can be avenged or compensation sought for it, but a woman can neither be a member of a jirga nor a counsel. Worst of all, she is treated as a commodity, comparable to money or a piece of land, to be bartered away to secure a settlement. A typical example of the symbiosis between jirga and patriarchy is section 30 of the FCR which defines adultery as an offence that can be committed only by a married woman. Why this special favour to women if Penal Code provisions in rape and illicit sex are also applicable?

Except for some rare tribal communities where class distinctions have still not affected the status of individual members, most jirgas are dominated by economically and socially dominant groups. A landlord-dominated jirga may be able to do justice between two tenants but its capacity to do justice between a tenant and a landlord (if the latter at all agrees to submit himself to a jirga or panchayat) will always be suspect. Religious, sectarian and political polarisation undermines the non-partisan credentials of jirgas.

Mediation, adjudication or arbitration is only one part of dispute resolution. The jirgas do not necessarily enjoy the support of penitentiaries, resettlement/rehabilitation services, except for the tribal areas where the state enforces the jirga verdict. Thus in settled districts, disputes are settled only through fines or the surrender of land and women. Except for the jirgas under the FCR where the penalties they can impose are clearly mentioned and limited, unauthorised jirgas are free to give any punishment. If a panchayat can sanction gang-rape and execute it as well, there is no limit to the heinous punishments that can be awarded. Some of the punishments that are routinely carried out by jirgas, such as execution after summary trial, demolition of houses, expulsion from homes, stoning to death, or the barter of girls, are unacceptable to all norms of civilisation.

Two particular effects of the jirga system are of special significance. If a jirga based on tribal tradition can be accepted as a legitimate tribunal to dispose of criminal matters, a jirga on ideological foundations can also be defended. This argument has led to the formation of private Islamic tribunals in certain parts of the Frontier province. Incidentally, the jirgas set up under Pakhtunwali do not admit Sharia concepts into their deliberations and rely solely on traditional custom. Breaking away from this tradition some conservative clerics have formed tribunals where they claim to decide cases according to the Sharia. Little objection can be taken to them if acceptance of a system by the parties concerned is considered sufficient to justify a forum. The second consequence of attaching legal sanctity to the jirga system is allowing disputing parties to dispense justice themselves. If belief, tradition or custom permits a man to kill a woman of the family who has compromised his honour, evil customs such as karo kari and siah kari will never be eliminated.

At a different level, the question of respect for tradition or tribal culture has to be addressed. A community wishes to retain a code which conflicts with contemporary human rights values. Should it be allowed to observe its traditional norms? Forced modernisation is counter productive but is nobody responsible for helping such a community to advance to modern concepts of social behaviour? There is a saying among jurists that no one has a right to opt out of one’s rights. Can the right to life, liberty or the pursuit of happiness be surrendered by anyone? Can anyone in Pakistan be allowed to keep slaves on the plea that his forefathers had slaves? Blind surrender to tradition may well imply recognition of the tribal sardars’ right to maintain private jails. Besides, it may not be fair to examine custom only in areas of its conflict with what is described as legislated law. Yielding to custom in matters of criminal jurisprudence means also yielding in the realm of politics and education and economy. Going back to feudal ways of settling criminal disputes strengthens the sardari system and endangers representative rule. It is impossible to marry concepts of democracy, equality of citizens, gender equality, religious tolerance, et al, with vestiges of feudal arbitrariness that are often confused with law.

Alternative modes of settling disputes have been made by superior judges and the Law Commission. An ordinance has just been issued to authorise courts to try alternative means of deciding civil suits, but all this is in accordance with the law. Neither any judge nor the Law Commission has suggested an alternative course in criminal matters; there is only a proposal to create new subordinate courts for the disposal of minor criminal matters.

If the state and conscious sections of society wish the entire population to be governed by a uniform, national and humane judicial order, they have a multi-dimensional task on their hands. Jirga law is only one aspect of tribal and feudal society. Those steeped in its values have to be freed of its shackles by a multi-pronged system of mass education, independent economic opportunity, and the promotion of women’s identity and independence. At the same time the judicial system needs to be reformed to restore the people’s confidence in the justice it dispenses. Bad laws and manipulation for political, sectarian and class ends have turned the judiciary into shambles. The ruins need not only repair, but also renovation, not to mention redesigning. The foremost task in this direction is getting rid of the Zia legacy of irrational and cruel laws, the abandonment of the decadent theory that the death penalty deters criminals and the acceptance that peace can be secured by treating women like chattel.