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10 November 2017

The Jirga System and the Plight of Women

Muhammad Zaheer Abbas (Ph.D)
The writer is Research Associate (Law) at International Islamic University, Islamabad

 

Throughout Pakistan, especially in feudal and tribal areas, a parallel judicial system exists in the form of jirga or punchayat system. Although this system does not enjoy any legal cover and its constitutionality may be challenged under Article 175(2) of the Constitution of Pakistan, many people in rural areas make recourse to this system because of their reluctance to use formal judicial system possibly due to their mistrust in police and courts. Jirga or punchayat system has many flaws and has been severely criticized every now and then especially for its decisions in honor crime cases. Only five most fundamental problems associated with this system are highlighted as under.

Firstly, this system does not follow judicial procedure and women accused of honor crimes are not provided a right to prove their innocence. Universally recognized principle of law that ‘no one should be condemned unheard’ is thus violated.

Secondly, as the jirga or punchayatcomprises of only male members and women have no role or representation even as witnesses, most of the decisions especially in honor crimes are gender biased and against women.

Thirdly, the jirga or punchayat consists of only influential people like waderassardars, and chaudharis; honor crime and rape cases normally involve women from poor families and men from influential families; there is a strong likelihood that the waderas provide cover to their friends and relatives and decide against the poor.

Fourthly, decisions of the jirga or punchayat are considered final and binding by the illiterate masses and there is no system of appeal if one is not satisfied with the decision.

Fifthly, enforcement of decisions, especially death sentences in honor crimes, by the jirga cannot be justified. Jirga has thus assumed all three powers –legislature, executive, and judiciary- which is against the well-established principle of separation of powers.

It is constitutional obligation of the state to provide justice to its citizens. Government of Pakistan should either abolish this de facto judicial system or take concrete steps to institutionalize jirga system; if government makes sure that members of jirga are fair, honest, unbiased, and acquainted with basic know how of law, and there is governmental check and balance on powers of jirga, this parallel judicial system may serve the masses to have access to expedient justice. But the present situation is quite alarming and deserves prompt attention of all concerned authorities.