Jirga injustice

Jirga system is a direct consequence of the failure of institutions caused by the repeated aggression on its institutions of justice by Pakistan`s own military. At ideological level military has no option but to destroy institutions of justice for its own survival and to stay in power because in its very make up the military dictatorship, no matter in what form it is, is an illegal and immoral occupation. So as long as military dictatorship will be in power there is absolutely no chance that Pakistan will ever evolve into a peaceful and civil society. This article is the evidence of this self-evident truth. Einstein once defined insanity as repitition of an act time and again hoping to obtain a different result each time. Pakistanis have to make up their choice now as to what kind of future they will want to give to their children.

In a recent, three week trip to Pakistan I had to attend three jirgas. Please keep in mind that my parents reside in a very urban community where education would be 100% if you exclude chowkidars, maidservents, and beggars. The community consists of engineers, doctors, businessmen, traders, beareucrats belonging from both upper middle class and upper class. The jirga system started about 3 years ago, when there was a dispute over the location of mosque. By chance my father`s house is just steps away from the mosque and in order to resolve the issue my father invited the feuding parties to his house to discuss the matter over a cup of tea. After a couple of meetings they unanimously elected my father as head arbiter of the ``Jirga``. I know my father well. He was never a community type of guy and stayed out of politics of any sorts througout his life, but in the best interest of mosque he reluctantly accepted the post. Soon afterwards people started coming to him to resolve their family feuds. I have been hearing about my dad`s new hobby from indirect sources but this time when I went there, with in a matter of three weeks, three disputes were brought to his attention.

The way it works is that the heads of two feuding parties are invited into mosque by a group of elders of the mosque. They both have to agree that in case a jirga is convened then they will obey and respect the verdict of the chairman of jirga who decides on the basis of show of hand of a group of elders.

The first case was that of a newly wed woman who wanted separation/khulla from her husband. Jirga was convened at our house where parents of both bride and groom were invited who came along with some of their relatives. A group of elders was chosen as the jury where I was also an appointed member - meaning that the word ``elder`` does not necessarily imply that only old men are the members of the jury. There were also some other people who were not members of decision making body but they were there to witness the justice being done. The case was presented by the father of the bride since they were the plaintiffs. The woman accused that the man did not treat her well. The woman was invited to speak and answer some of questions by the elders. It was soon clear that woman was trying to hide something. Sensing this my mother was asked by jirga to inquire woman of something that she could not speak in front of the people. The woman disclosed to my mother that the groom was unable to ``perform`` and even though he was getting treatment he was most likely not able to perform in future either. When this info was disclosed to my father, my father requested everybody accpet the members of jury and family members to leave and discuss it with the groom. In short, the groom ``admitted`` and said that he would divorce the woman and return all her belongings but he would prefer a reconciliation for an interim period while he gets his treatment. The woman agreed. And the couple was sent to their house. Had the woman filed this case in court of law, it would have taken at least 3-5 years to obtain `khulaa` (seperation). No one can get a date in court unless judges are bribed through their registrars.

The second case that came to jirga was also that of divorce between yet another newly married couple. The groom accused that his bride was psychotic and needed medical help whereas woman accused the family members of groom about mistreatment. Woman wanted to live with her husband while man did not. The man was granted the right to divorce had he agreed to return all belongings of bride including those that he and his family gifted his bride as ``bari`` as well as the expenses that the family of bride incurred during the marriage. The man agreed. Man divorced. Everybody was bitter but financial matters were handled justly.

The third case was that of the custody of a child. The child`s mother died while giving birth and child was raised by the family of woman untill he turned 7. The child was very dear to his maternal grandparents and his uncles because his mother was the only daughter among their five sons. After six years, the father of the child wanted to take custody of the child. It was an extremely emotional case. The elders decided in favor of a joint custody since the two houses were in close proximity. The child`s grandparents were heartbroken but had they taken this case to a court of law, this case would have dragged for at least three years and may be longer even though the law recognizes the custody of father but still grandparents could manipulate the system to drag the case for years. Imagine the bitterness that would have cutivated between the two.

The point of this long post is that in jirga system people have found a cheaper and effective way of getting justice while the institutions established by state rot and fail them miserably. The state system is so abysmal that land and property disputes take decades and generations to settle costing time and money to the feuding parties. I am not sure that any ordinance barring jirga system will ever work in pakistan unless the state establishes the trust of its institutions in the heart of people. Military occupation cannot do it because the military itself is established on the basis of a clauses 243-245 of the Constitution and as the military rapes the Constitution it negates its own legal existence thus becoming a gun totting criminal organization. For ordinary folk they find it better to seek justice from people it trusts and people who belong to the community rather than from the organized crime aka military dictatorship.

beena:

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.

…i beg to differ from the distinguished and learned panel you quoted …imho jirgas are not parellel legal system but extra judicial men’s system that in collusion with the other exclusive men’s club-- the mosque and its sponsoring mullahs dispenses with pseudo and quasi-divine justice to maintain its unwarranted hold over the population

…jirga justice and fatwas are two sides of the same coin that perpetuates an unjust hold over the innocent population…

lve,

t

education education education.......repeat till end of time

Education is the key. Education increases fear amongst the elite. Education increases fearlessness amongst the downtrodden.

Education the key to ensuring an equilibrium exists in society between the exploited and the exploiter, between high and low.

Educate and liberate. Liberation implies education.

BS
Very disturbing. I hope there are many other damning articles as yours in the media to create sufficient noise on raising concern among ordinary people; so there can be support to put an end to this. There have only been sketchy reports in the media so far on these jigra `courts`. This medieval highhanded, informal and without legal sanction methods of `dispensing justice` have got to be pushed out; we are all getting more and more barbaric by the day, the more horror there is to acts and situations like these, the more they seem to abound, with no reduction in their frequencyand of course functioning with no impunity; and always the unacceptable terrible plights of women. what `civil society` if we don`t raise our voices in support to stop what is wrong.For my part, going to circulate your piece, hoping there would be awareness.That also I hope is a beginning and support.
A stimulating piece of Journalism.

urstruly #1 you should have gone into politics rather than DMG and economics...that was one hell of a stirring write up - speech....yes!

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no - kaurasach they are literate not educated!

all of us are literate - we are numerate can read the news can read books etc.....but educated......it is a state of mind which (I will leave it to you to complete since you are a capable human!)

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Articles like this should be researched and effort should be made to bring out both good and bad sides of the story. I have noticed that before and here I see it again that Beena picks up a few instances and builds an ad-hoc story which may not be a true picture.
She reports four of five instances of gross misbehavior by some Jirgas but is it the norm? What percentages of good decisions are dispensed and what percentage of bad decisions are handed out by Jirgas all over the country?
Before that we need to understand the need for Jirga. In many countries such institutions exists where low cost and low value judgments are handed out within the community. One good example would be the Punchiat system in India with a variation that most of the punjchait members are elected and sometime they do have official recorder of the judgments.
There are several reasons that Jirgas are mushrooming in Pakistan. First and foremost is the cost of justice and delay in dispensing justice by the courts. We also need to look at the Police system in Pakistan which actually prevents many justice seekers to come forward. Especially poor folks in villages and even cities are disadvantaged. Often, it is whole lot easier for them to talk to some folks in their own neighborhood than to police officers who, in most likely cases would first try to avoid writing an FIR for a small matter and if he does, he will be have to be compensated for the time. Even the fkking munshi at a Thana demands money to write the report. Poor folks like any other people have problems, more problems than some stupid justice I A Rehman types would admit.
The opposition to Jirga also comes from lawyers, Judges and other official court related people. Simply, it is a pocket book issue for them. More cases go to the Jirga, less money these vultures like Lawyers and Judges make.
The police in Pakistan do not oppose the Jirga system because it takes a good burden of resolving local issues from them.
Beena presents a picture which appears to show that all decisions by Jirgas are bad. If we compare those decisions to official court decisions, we will find that on average Jirgas are making better decisions. They do fkk up sometime as they can be influenced by local rich.

Are formal courts immune from this? From lower courts to the top court in the country, Judges are deciding cases not on merit but on bid. Criminal Lawyers mostly, and some civil lawyers are lawyers because they have good connections in the criminal and civil justice system. All they do is find a judge who would accept money to decide the case. The poor folks who could not afford that money end up spending time in jails.
Before any attempt to reform the Jirga system is made, Pakistan needs to reform the judicial system first.

“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.”

This is all baloney. Like the current judicial system is not heavily weighted against the poor.
Poor don’t make decisions for themselves but they have to live with decisions made for them.
I fully support Jirga compared with the whiteman judicial system in Pakistan. I think the current judicial system should only handle criminal cases and civil cases should be transferred to the Jirgas all around the country.
The criminal Justice system must first be reformed and Jirga leaders must be given some training in legal matters.
These IA Rehman and Iqbal Haider types are vultures that have become rich by fleecing poor and they oppose the jirga to protect the money that comes to them.

we have an arbitration system in india as well. its called the mafia.

9 by HP
Very objective and impartial analysis of the pros and cons of the Jirga system. I personally had no experience of Jirga system but had much of the so called judicial system with al its paraphernalia. This much is however quite apparent that the Jirga system by its very nature is cheap, transparent and efficient whereas the judicial one is highly expensive, corrupt and utterly inefficient. So much so that the people nowadays say ``Why not hire a judge instead of hiring a lawyer``. As for their judgments it depnds on luck in whose favour the decision comes in the last court. See the decision given by our `Supreme Court` recently in the case of `Wedding meal`. As the story goes one judge wrote a decision declaring `Waleema or wedding meal` quite Islamic and thus setting aside the ban imposed upon it. But before he could sign it that judge was removed by the 17th Amendment. The succeding judge ignoring totally the decision arrived at by the previous judge declared the Wedding meal as an un-Islamic custom. He also gave a Fatwa that `Barat`, `Mehndi`, etc., rasoomaat were also un-Islamic, rather `Hinduana`. I wonder why he did not declare the marriage ceremoney also un-Islamic ``Nah bajta baans nah bajti baansr``. After all it was not introduced by Islam.

Ms Sarwar: I have an objection to the extensive usage of the word Jirga by people. The term Jirga is commonly used by Pashtuns and does not apply to other ethnic communities to my knowledge. Most cases of gang rapes have seemed to occur in Southern Punjab and were organised by ``Panchyats``.

I tend to agree with Urstruly and some others on this issue. Jirgas, panchayats, amins or anything else comes into play when the formal justice system is failing. People go out looking for quick and easy justice. The paralell system thrives where the government fails in awarding justice. Now of cours in the process there are some very unfair decisions that are made and the consequent actions may cause suffering to the effected parties. However, at the same time there are numerous occasions where the council system works very efficiently.

Women have always been soft targets of people who misinterpret religions and will continue to be especially in the subcontinent, arab nations etc. Even when the Khalistan movement was at it`s peak, women were the first targets- they were banned from wearing western clothes and asked to cover their heads and those who did not comply were assaulted. The general response was, `` Well, they were warned. They asked for it.`` Ours is a harsh society. It spares noone specially women. It is threatening to society that women have freedom equal to men.
Someone in response to the article has written that we should see what percentage of decisions are wrong and how many are sorted out amicably. Yes, there must be some panchayats where they do give sound judgements but the whole system is highly fallible as panchayat members are not well versed in the law and so are prone to making wrong decisions. Besides, personal feelings will enter the scenario as feelings tend to run high in small communities and that will unduly influence decisions. Therefore the entire process is faulty. Also try telling a 6 year old girl raped by the 46 or 60 year old man that we are sorry, your Jirga made a wrong decision but it was only one decision among many wise decisions that they made!!!!!!! HP- what do have to say to that.

Illiteracy is the route cause of this kind of decisions. We are a nation in a habit to get fun out of other people trouble. Lack of sincerity, general abuse of power and selfish attitudes are route cause of this kind of incidents. Jirga system can be compared with jury system in America. It works there as it is applied in a controlled manner. Jury can decide with in boundaries of State Laws. But jirga has unlimited powers. The usually projected unlawful activities of jirgas are against women. The ruthless decisions quoted in article and many other are result of deep routed sexual frustration. Only education i.e. the moral training of masses not the formal schooling backed by governments sincere efforts can eradicate this problem.

Who bothers about right and wrong in judicial decisions. One court gives a decision and the higher court reverses it. The decisions sometimes proceed like a pendulum. It depends on your luck where the pendulum stops at the last court and imagine at what a cost to the public, both as litigants and as tax-payers. It remnides me of a joke. A lawyer was aproached for hiring as a defence council for a man being tried for murder. The lawyer demanded a fee of Rs.5000. The party judging him by his fees as not fit for such a serious case employed another lawyer who charged them Rs. one lac as fees. One day when the party was coming out of the final court after hearing the final judgement, the lawyer which they had rejected happened to see them and enquired of them as to what was the judgement in their case. On being told that the acused had been setenced to death the lawyer said,``Oh! I could have obtained this decision only in 5000 on which you spent one lac``. But so far as cost factor is concerned there is no comparison between the Jirga and the judicial system. Even otherwise, if we keep in mind the adage ``Justice delayed is justice denied` our current judicial system is delivering nothing but denial of justice.