ON a recent
visit to the tribal areas, Prime Minister Imran Khan promised the continuation
of the jirga system as it was favoured by the people. While honouring this
commitment, the government would be well advised to bear in mind the Supreme
Court judgement given in January this year.
petition filed by the National Commission on the Status of Women (NCSW) against
jirgas, the Supreme Court, inter alia, ruled:
“i. The operation of jirgas/ Panchayats, etc violates Pakistan’s
international commitments under the UDHR, ICCPR and CEDAW, which place a
responsibility on the state of Pakistan to ensure that everyone has access to
courts or tribunals, [and all people] are treated equally before the law and in
all stages of procedure in courts and tribunals;
“ii. The manner in which jirgas/ Panchayats etc function is violative of
Articles 4, 8, 10-A, 25 and 175(3) of the Constitution.
“iii. Jirgas/ Panchayats etc do not operate under the Constitution or
any other law whatsoever to the extent that they attempt to adjudicate on civil
or criminal matters; however, they may operate within the permissible limits of
the law to the extent of acting as arbitration, mediation, negotiation or
reconciliation forums between parties involved in a civil dispute who willingly
consent to the same.”
the NCSW petition the Supreme Court also had before it a petition by the Khyber
Pakhtunkhwa government against a Peshawar High Court judgement whereby the
Interim Fata Regulation had been struck down. Although the petition was
dismissed as withdrawn, the court did confirm that the regulation was ultra
vires of the Constitution.
At the very
outset of the hearing, the KP advocate general stated that there was no cavil
to the unconstitutionality of the Interim Fata Regulation and he did not wish
to press the petition, provided the provincial government was granted six
months “to develop the required infrastructure, facilities and ancillary
superstructure for courts of law in the area previously referred to as the
Federally Administered Tribal Areas”.
granted the KP government six months from the date of the judgement (Jan 16,
2019) sought by it, “for the development of infrastructure to take steps to
spread a uniform system of courts of ordinary jurisdiction in [KP], mandating
the local law-enforcement agencies to ensure that the rule of law is observed
by reducing jirgas/ panchayats etc to arbitration forums which may be
approached voluntarily by local residents to the extent of civil disputes
It is much
to be hoped that the KP government will have complied with the court directive
by the coming Tuesday.
jirgas avail the Supreme Court’s permission to decide civil matters through
mediation and arbitration, the question of the amount of money or value of
property in dispute, or the amount of fine/ compensation to be awarded will
have to be determined, preferably before the jirgas are legalised.
Court upheld the Peshawar High Court’s judgement that had struck down the
Interim Fata Regulation on the ground that two different laws on a particular
issue could not be applied to the people of KP. Had the two laws made by the KP
government to revive the instruments such as the FCR and Actions in Aid of
Civil Powers Regulation of 2011 been brought to the Supreme Court’s notice,
they too might have been invalidated.
the court judgement revolves around the power wrongly assumed by jirgas/
Panchayats to hear cases involving criminal charges and award punishments and
thus arrogate to themselves the status and powers available only to courts
established under the law. Somehow, the question of the composition of jirgas/
Panchayats, even when they perform mediation and arbitration functions, was not
addressed by the honourable court. Democratic and independent legal quarters
have since long argued that jirgas/ Panchayats or any forum created to settle
disputes between citizens must be elected by the community. Application of this
principle to jirgas even when they mediate or arbitrate in civil matters will
be necessary to sustain the rule of law.
took exception to representation of women by men in cases affecting their
rights and observed that women should be allowed to speak for themselves if
they wished to. The tribal males’ ability to disregard women’s wishes and thus
deny them the facility granted by the court is known. Unfortunately, the
question of including women in all councils of elders and jirgas/ Panchayats
was not addressed. A way will have to be found to ensure women’s gradual
induction into these bodies.
issue is the class composition of jirgas. By tradition, jirgas and Panchayats,
not only in KP but elsewhere in the country, too, are dominated by landlords or
other influential men. They cannot take unbiased views of matters in which a
poor man is pitted against a member of the local nobility. Respect for fair play
demands that all classes and sections of society should be represented on
gave another time-bound directive to the KP police — to encourage citizens to
report violations of the law, open complaint centres, protect complainants and
witnesses, and allow women to appear before jirgas to present their brief if
they so desired. Two months were given for compliance with these principles,
and the period expired on March 16, 2019. The compliance status is unclear.
the law officers of the federal and all the four provincial governments
“unanimously submitted that although efforts are being made by their respective
provincial governments to eliminate any patriarchal practices prevailing in the
provinces, they are willing to extend any further support required to curb the
illegal practices of honour killings, wani, swara, karo kari, etc, that are not
only violative of the fundamental rights of women under the Constitution but
are also against the basic rights guaranteed under the international
conventions that Pakistan is signatory to in this regard, particularly the...
these words will be honoured.
Source: Dawn, Pakistan