Pakistan People’s Party, in its manifesto for Election 2013, had promised that once in power it will eliminate parallel justice system in the country and reform law enforcement agencies to ensure that violence against women is curtailed.
Jirga, the council of elders, referred to in Punjab as Panchayat and in Sindh as Faislo, is a traditional mode of justice system in rural Pakistan. Its popularity lies in the mechanism to provide cheap and speedy community-based justice. This mechanism of justice has however earned the ire of human rights groups and the mainstream judicial system for being biased, prejudiced and on many occasions cruel towards women. Women have been used as compensation to settle scores between the erring parties. The famous case of Mukhtara Mai in 2002, also involved a Jirga that ordered her gang rape as indemnification.
Ali, Mumtaz, an elder from Shikarpur, defended Jirga system while talking to Truth Tracker. He said that it could be corrupt, but in the absence of a responsive and prompt judicial system, Jirga provides the best alternative to the rural people. It offers, he said, mediation, arbitration and consensus by the elders of society.
A report conducted by USAID in 2016. ‘Women, Violence, and Jirgas— Review study for the National Commission on the Status of Women,’ says that Jirga is an all male-dominated institution. Its members are selected for their reputation as “honorable men,” of the society. “The focus is on restoring societal equilibrium rather than justice and human rights of the individuals.”
In 2015, a Jirga in Darel Valley of Diamir, district, ordered that women would not be allowed to vote in elections. The Jirga included religious leaders and candidates from political parties.
In 2014, an eleven-year-old girl Amna was married to an elderly man. He was the brother of a girl raped by Amna’s uncle. Such compensations are commonly ordered by jirgas. In 2013, a girl aged 12 appealed to the Chief Justice of Pakistan to protect her from Jirga that had ordered her to marry an older man in Doong Derra in Upper District.
In a recent incident (2016) two brothers were ordered by a Jirga in Noushero Feroze, Sindh, to chew their Chappals (slippers) because their donkey cart had collided with the vehicle of an influential man.
The irony is that these cases happen in the presence of Prevention of Anti-Women Practices (Criminal Law Amendment 2011) that empowers the police to arrest without warrant people engaged in violence against women.
Article 175 of the Constitution of Pakistan says that ‘no other institution unless established by the law, shall exercise the adjudicatory power of a court.’
The Sindh High Court in a case cited as SBLR 2004, Sindh, 918 gave a landmark ruling by declaring the Jirga system unlawful, unconstitutional, violating fundamental human rights.
The Supreme Court of Pakistan banned Jirgas in 2012, calling it unconstitutional.
To check if PPP has managed to fulfill its promise at least in Sindh where it has been in power since 2013, Truth Tracker contacted Nafisa Shah, a member of National Assembly from Sindh. While inquiring her via email if the Sindh government has done anything to eliminate the parallel justice system she replied:
“Criminal justice should ideally involve the whole country. So to say that there should be a provincial response to a problem that is Countrywide may not be the right approach in my view.”
Shah vehemently objected to the Jirga system saying that Jirga system, which is called Faislo in Sindh, operated through a system of fine and compensation. “I think both systems are unfair to women because women’s access to justice regarding their presence is limited, and their voices remain unheard in both.”
Giving more details, she commented that the Faislo and Jirga thrive in Pakistan because of the failure of criminal justice system to provide fair, speedy and transparent justice system. “I have seen in my area (Kharipur Mir, Sindh) for instance that cases in the courts or the police are used as a bargaining chip in the final settlements,” she maintained.
Shah stressed the need to reform the police and the judicial system and emphasized that such laws should be made at the federal level. Further, she recommended that Jirgas or Faislo should be forbidden to mediate in cases that involve murder, violence against men or women, children and marriage disputes.
Another PPP Leader Robina Qaim Khani, who is also a member of Sindh Assembly and had held the portfolio of Social Welfare and Special Education until 2015, told Truth Tracker that the PPP government had made many laws to give protection to women. She, however, admitted that there was a general lethargy in getting these laws implemented. She also confirmed that no law has so far been made to eliminate the Jirga system. “Our government has, however, setup women police station to ensure that women could access the law enforcers without fear of intimidation,” Khani added.
The member of the opposition party Pakistan Muslim League-F in Sindh, Nusrat Sehar Abbasi, told Truth Tracker that Jirga system was very common in Ghothki, Shikarpur, Jacobabad, and Larkana. Talking about women police station, she said, these stations are not entirely operational. She opined that Sindh government failed at implementation of the laws.
Abbasi suggested that the failure of the Sindh government to enact legislation to eliminate the parallel justice system was because the parliamentarians sitting in the Sindh Assembly happened to be feudal lords. “Since the system thrives on fine and compensation, and women are commonly used to settle the dispute in place of any monetary or punitive action, it goes for those in power,” noted Abbasi.
A senior lawyer, practicing in Sindh, Tahir Khan, blamed the Sindh government for not taking Jirga system and its anomalies seriously. He told Truth Tracker that Jirga system was highly biased towards women. “In spite of a law that gives power to the police to intervene, the law enforcers have not taken any substantive action,” said Khan. He commented that it was probably so due to the involvement of lawmakers in the Jirga system. On implementation of law, he agreed that the government has failed to enforce laws already in place to protect women rights.
PPP in spite of being active in making laws about women rights has failed to fulfil its promise to eliminate the most heinous system called Jirga that uses women as the compensation tool to settle disputes in rural Sindh.