July issue 2006

In a village called Haji Kamal Magsi, near Jacobabad in Sindh province, a tribal jirga of the Banglani tribe decided to hand over five girls, aged between five and 10, in marriage to a rival family. This was a deal made to settle a tribal feud, and the incident, unfortunately, is only the latest in a chain that stretches over years, as the formal system of justice fails to overtake the feudal one represented by the jirga.

“The girls should be given in marriage once they attain puberty,” announced the jirga in its verdict, on June 4. Sweetmeats were distributed amongst the crowd and the parties to the conflict embraced each other in a goodwill gesture to announce the end of a nine-year-old feud.

The jirga’s decision was announced in front of hundreds of spectators, including Dr. Sohrab Sarki, Sindh minister for inter-provincial coordination, PPP-backed legislator, Mir Hazar Khan Bijarani and a host of other local influentials. Those not present were the five girls who had no inkling whatsoever that their fate had been sealed by their elders, who agreed to trade them off in marriage.

The Sukkur Bench of the Sindh High Court had banned the holding of jirgas throughout Sindh, and called for the registration of contempt of court cases against those who held them, but across the province, the decision of the court continues to be violated, often with impunity.

In its judgment, the court says the holding of jirgas has been illegal in Sindh and Punjab since 1963, and all jirgas held since then are against the law of the land. It declared jirgas punishable under sections 340, 349 and 350. The verdict says that if a Sardar or tribal chieftain holds a jirga despite this order, he could be charged under sections 3 and 4 of the contempt of court law.

And in the case involving the five girls from Haji Kamal Magsi, the Supreme Court has indeed stepped in and froze the jirga’s ruling. On June 28, the Supreme Court ordered the police to conduct an independent inquiry, file a report within the next two weeks and arrest all guilty parties responsible for the outlawed ruling, saying that neither local leaders nor MPs like Mir Hasan Khan Bijarani were to be overlooked.

Yet this case is just one of many unlawful jirgas. On June 7, in a bid to resolve a dispute between two groups of the Noonari tribe over Karo-Kari, a meeting of tribal elders decided on the forced marriage of another girl. Newspaper reports suggest that the jirga was presided over by the Taluka Nazim of Thull sub-division, Ghulam Akbar Banglani, while elected Nazims, Naib-Nazims and dozens of other influentials of the area were in attendance. The jirga, after listening to the parties to the conflict, the Bagh Ali group and Shahnawaz group, found the Bagh Ali group guilty of honour killing and imposed a fine of 120,000 rupees and the award of a girl in marriage to the Shahnawaz group. Of this, 20,000 rupees were paid on the spot, while the remaining amount and handing over of a girl in marriage was to be done in the next two months.

The Sindh government decided to move against the culprits only when rights activists made a hue and cry, condemning the inhuman verdict. They took out demonstrations, demanding the government arrest those who presided over the jirga.

Sindh chief minister Dr. Arbab Rahim called the decision unlawful and asked the District Police Office (DPO) of Kashmore to take action against those responsible, but no legal action has been taken so far.

These macabre jirgas not only exist today , but continue to flourish. Unlike the formal justice system, here the parties to the dispute are not seen as victim and culprit, but simply as people seeking a solution to a problem. Hence, the character and direction of proceedings is closer to arbitration than litigation.

The jirga was an integral institution of tribal, feudal society. The disputes settled by jirgas, whether between individuals or clans, generally involved zar, zan and zameen — money, woman and land.

While most jirgas are held in the rural areas, the backlash of their decisions often impacts urban centres. In one such case, a Pakhtoon tribal jirga brought the metropolitan city of Karachi to a standstill when a Pathan girl, Riffat Afridi, eloped with a mohajir boy, Kanwar Ahsan, in 1999.

The jirga is an exclusively male domain. The jirgas pronounce judgement on women, but the woman herself is not allowed to attend the jirga nor is she given a chance to narrate her side of the story. She is traded as a piece of property to settle tribal disputes. Whether a case involves murder or any other dispute between men, a woman often has to pay the price.

The case of Mukhtaran Mai in Meerwala provides a classic example of how badly a woman can be treated by these primitive ‘courts.’ The case started with the sexual abuse of Mukhtaran’s brother by several members of the local feudal landowning clique. They then attempted a cover-up and accused the unfortunate boy of having an affair with one of their women. A jirga was summoned, and in its collective wisdom, it decided that a just punishment would be the organised rape of one of the boy’s sisters. Mukhtaran Bibi was the chosen object. As members of the tribe danced in joy, four men stripped her naked and took turns raping her. The deed was done in front of hundreds of spectators and Mukhtaran Mai was sent home naked.

In the village of Abakhel in Mianwali, a panchayat ruling on a dispute over murder ordered that eight girls (the youngest being only eight years old) of a clan should be forcibly married to men of the rival clan. The council taking this decision included an MNA, the present Nawab of Kalabagh, and a number of religious leaders.

Another jirga in Khairpur in 2002 planned to execute a seven-year-old girl, alleging she had illicit relations with an eight-year-old boy.

In late June 2001, a jirga in Thatta district ruled that two young girls from a murderer’s family would be given to the victim’s family: the 11-year-old daughter of one accused was married to the 46-year-old father of the murdered man, and the six-year-old daughter of the other married to the victim’s eight-year-old brother.

In Sukkur, in 2000, six-year-old Asma was married off by her family to a 60-year-old man to settle an unpaid debt. According to newspaper reports, the marriage was consummated.

In another outrageous case, a tribal jirga in Gumbat taluka Khairpur, Sindh, decided to kill Dr. Shazia Khalid, a doctor, who was raped in Sui, to restore the “lost honour” of her tribe. The jirga’s premise was that after she was raped she became a symbol of “moving dishonour” for the tribe, thus she should be eliminated.

Pakistan’s jirga system continues to enmesh the poor and helpless in feudal practices contrary to legal and human rights principles. And rarely does the government or administration intervene to put a stop to the inhuman punishments ordered up by the jirgas.

In one society, or in one state, there is always one law, so that justice can be done under one norm. Unfortunately, we have parallel systems of justice, from the laws on the books inherited from the British to Shariat Law and the primitive jirga or panchayat system which operates with impunity under the very nose of the state.

Any crime, whether it be theft or murder, once committed is considered a crime committed against the state, in civilised societies. The modern nation-state does not place any particular emphasis on pardons by the families of victims. If a defendant is convicted in a court of law, then he or she has to face the punishment meted out by the state. And any attempt to influence the state’s decision by a private party can be seen as undermining the state’s authority. Unfortunately, the law of the land in Pakistan fosters such loopholes in the justice system.

The country’s judicial system involves many different court systems with overlapping jurisdictions. There are civil and criminal systems with special courts for high-profile cases as well as the Federal Shariat Courts for Hudood offences. The civil system consists of civil courts, district courts, High Courts and the Supreme Court. Criminal cases are handled by the district magistrate, session courts, High Courts and the Supreme Court.

Because of the limited number of judges, listing problems and lengthy court procedures, cases routinely drag on for years. According to statistics, there are roughly 1,400 judges in the country to attend to a population of nearly 150 million, a proportion of one judge to over 100,000 people.

For example, there are 28 high court judges in Sindh. Besides hearing ordinary cases and overseeing administrative affairs, including the inspection of lower courts and launching judicial inquiries, these judges have to supervise proceedings at three more High Court benches in Hyderabad, Sukkur and Larkana. They are assigned to hear cases on these three benches on a rotation basis.

According to available data, an assortment of 79,504 cases are pending in the Sindh High Court at the moment. Likewise, in the lower courts in Sindh, according to figures, the number of criminal and civil cases pending is a staggering 102,815.

The fact that the formal legal system is dysfunctional is one factor encouraging people to resort to traditional methods of resolving disputes.

While people will go to any lengths to circumvent the formal justice system, in which they have no confidence, they are willing to accede to the justice meted out by the jirgas, even when asked to hand over their daughters to make amends for crimes.

Nawabzada Haji Lashkari, a tribal chieftain of the Raisani tribe, believes that the feudal or Sardari system will only lose ground once the state proves itself capable of providing a viable alternative to the people.

“How can you expect people to abandon their centuries-old traditions that provide them quick and cheap justice and rely on a corrupt and ineffective system instead?” he asks.

The jirga is most often used to uphold retrogressive values. Thus, a jirga will inevitably rule that a woman leaving home to marry of her own free will must be returned to her family, she is considered their property. Jirgas have also imposed bans on NGOs funded by western governments, demanded closure of girls schools and disallowed women from voting, decreeing the death penalty for those who defy these bans. Only last month, locals in tribal areas of the frontier province killed two women teachers when they tried to defy the ban and continue to teach womenfolk in the area.

Girls school have been destroyed and NGO offices ransacked, including those that tried to impart contraceptive methods to unlettered women in the tribal belts of the Frontier province. Some of these tribal jirgas have also issued a ban on male doctors conducting ultra-sound examinations of the women in the areas and have decreed that those who defy these bans will be signing their own death warrants.

Jirgas held in Balochistan force people to walk on burning coal to determine their innocence. The ritual is known as cherbaili, in which the offender is ordered to walk over burning coals. If his feet are burnt and blistered during the proceedings, he will be deemed guilty and if he does not have any mark on them, then he is considered innocent. Crimes from the theft of a goat to that of a woman are adjudicated in this manner.

The walk is preceded by a ritual in which verses from the Quran are read out by a man, who prays that should the offender be innocent of the charges, the fire should spare him. There is a long held belief that the verses of the Quran which are blown to the fire would compel it not to harm the innocent.

People of the Mazari tribe, settled at the border of Sindh-Balochistan and Punjab, have their own test of innocence. Anyone charged with an offence is made to ride a wild horse. If he manages to control the horse, he is absolved of the charges.

If accused of theft, people of the Sasoli tribe in Kot Sasoli, Balochistan, have to prove their innocence by jumping into a 20 deep pool of water, swimming to the depth of the pool and scouring the earth from the bottom.

Women of an offender’s family in the Frontier province are often handed over to the aggrieved party to end a blood feud. In the ritual, known as Swar’a, these women have no right in the matter, often becoming victims of abuse or being punished for the sins of their fathers or brothers.

According to the tribal code, if women are not given in compensation, the tribes can fix a price for murder which ranges from a minimum of 200,000 rupees to one million rupees a person. Some Sardars have fixed a minimum price of 500,000 rupees per murder, which they claim acts as a deterrent.

Recently, a jirga was convened to settle a dispute involving two families of the Mirani clan in Larkana, in which at least 20 people were murdered. The jirga convened to settle the dispute fixed a whopping fine of 7 million rupees on the accused party for committing murder. The parties in conflict were asked to pay the sum within a span of one year.

The litany of cases is an endless one. In spite of the fact that cases are increasingly picked up by the press and human rights groups, action on the part of the state remains the exception rather than the rule. The operation of this barbaric system under the nose of the Musharraf administration belies the general’s much-touted slogan of “enlightened moderation.” If his administration could abolish parallel systems of justice, this would certainly be a huge step towards it.