From an informal, community-based body that was meant to settle small claims, the ‘jirga’, or council of tribal elders, has in Pakistan been allowed to emerge as a powerful force protecting the interests of the powerful. This all-male body is often called upon to adjudicate on matters pertaining to women — whose views are never sought. Who can forget the Meerwala jirga in 2002, that pronounced the ‘judgement’ of gang rape on a woman whose 14-year-old brother was accused of having molested the woman of an ‘upper class’ family — as a cover-up to the fact that the boy had been sodomised by men of that family. Or six-year-old Asma in Sukkur, in 2000, married to a 60-year-old man in lieu of an unpaid debt by her family. According to newspaper reports, the marriage was consummated and the little girl screamed for hours after the rape.

Jirgas have become synonymous with the heinous practice of swara (gifting young girls or women) to settle debts, in violation of Pakistan’s constitution, religious injunctions, and court rulings like that of the Peshawar High Court which in November 2000 declared swara unlawful.

These bodies continue to settle disputes arising from murder or runaway marriages; young girls are sacrificed at the altar of family or community ‘honour’ and packed off to alien households, where they live as virtual slaves. Runaways are either killed, or made to work off their bondage. Rarely does the government or the administration step in to prevent such illegal and unlawful exchanges.

In late June 2001, a jirga in Thatta district, ruled that two young girls from the murderers’ 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 accused was married to the murder victim’s 8-year-old brother. Jirgas often rule that a woman marrying of her own choice must be ‘returned’ to her family, as if she were property. Worse, she may be declared a ‘kari’ and thus liable to be killed as an adulteress along with her ‘karo’ husband.

In August 2003, a jirga in Mardan district decided to hand over seven-year-old Gul Rukh, to the family of Fehmida, who had run away with Gul Rukh’s brother. (Fehmida’s family then violated the jirga’s ruling that the girl be given away after attaining maturity and kidnapped her; she was later recovered by the police, but on maturity, the pressure will be on to ‘honour the jirga’s verdict).

Jirgas are taking upon themselves other matters too. An Orakzai jirga in 2002 decreed that all NGOs working in the agency were illegal, and imposed a million rupee fine for violations; NGOs funded by Western and non-Muslim governments, it stated, were working against the religious and cultural norms of the area, and that it would not be responsible if women from such organisations were kidnapped or came to harm.

Such pronouncements are a far cry from deciding matters like whose cattle have been stolen or held after straying into another property. A recent report by the Human Rights Commission of Pakistan (HRCP) on jirgas, traces their history, citing several published sources according to which a British officer, Lt Sandeman introduced this system of resolving disputes among the Baloch tribes, although it already existed in the Peshawar area.

On April 24, 2004, the Sindh High Court imposed a ban on holding jirgas in the province, but government functionaries, ranging from chief ministers to union council nazims, continue to participate in these meetings, according to the list compiled from newspaper reports by the HRCP.
The icing on the cake is the Sindh government’s incredible step of secretly drafting a back-dated ordinance, the ‘Sindh Amicable Settlement of Disputes Ordinance, 2004’ to be effective from April 25, 2004 - obviously to nullify the SHC ruling.

The Ordinance, which has yet to be formalised, was brought to public attention by human rights organisations. At a meeting in Karachi recently, it was discussed and found to be full of lacunae and contradictions. Participants, including Justice (retd) Nasir Aslam Zahid, HRCP Director I A Rehman, and former law minister Iqbal Haider, categorically denounced it as a parallel judicial system which would only further institutionalise violence and discrimination against the poor and women, as it has historically done. Jirgas are justified as being necessary given the common man’s lack of access to the formal judicial system, which is expensive and long drawn out. But the jirga system can be no less so. Besides reinforcing swara, Jirgas have imposed huge fines on the guilty - Rs 80,00,000 in one case, liable to be paid over six months by a poor family - while a Jatoi-Maher dispute that started in 1990, has claimed 200 lives despite the sitting of as many as eight jirgas.
The proposed Ordinance provides enormous powers to the ‘naikmard’ or jirga chief appointed by the parties, including suo moto powers in cases of disputes that are "likely to cause bloodshed, murder or breach of peace" (Clause 4). Worse, it provides no system of appeal or self-defence or legal representation: "Notwithstanding anything contained in the law, no legal practitioner shall be permitted to appear on behalf of any party to a dispute before the naikmard" (Clause 5).

The Ordinance, if pushed through, would only confirm that the State is abdicating its responsibility towards its citizens and further denying justice to an already disempowered people.