Jirga
A jirga is a traditional assembly of leaders, criticized as Kangaroo courts by critics, that supposed to make decisions by consensus and according to the teachings of Pashtunwali. A tribal cultural system that predates modern-day written or fixed-laws and is conducted to settle disputes among the Pashtun people but to a lesser extent among other nearby groups that have been influenced by Pashtuns in Afghanistan and Pakistan. Its primary purpose has been to prevent tribal war. Most jirgas are conducted in Afghanistan but also among the Pashtun tribes in neighboring Pakistan, especially in Khyber Pakhtunkhwa. In 2017, the Pakistani government passed The Alternative Dispute Resolution Act, 2017 of Pakistan aiming to integrate jirgas into the formal justice system. In a January 2019 petition from National Commission on the Status of Women, Supreme Court of Pakistan restrained jirgas up to permissible limits of the law to the extent of acting as arbitration, mediation, negotiation or reconciliation forums between parties involved in a civil dispute, amidst continued reports of widespread flouting of constitutional norms and human rights.
According to The Economist, “barbarism has become synonymous with jirgas” due to their use of punishments such as burning the house of a criminal, though others view such punishments as rare and originating from illiterate backwaters. Pakistani daily newspaper Dawn's, an early June 2020 editorial says that, unlawful jirgas are not limited to tribal district but do operate across Pakistan with impunity.
While in January 2019 Supreme Court of Pakistan adjudicated against unlawful practices in Jirgas and Panchayats, in July 2019 Prime Minister of Pakistan, Imran Khan expressed his government's commitment on continuation of Jirga system.
Terminology and its Function
Origin and historicity
Jirga is a term of Mongolian origin, historically referring to a large assembly of men forming a very broad circle, initially intended for laying siege around games or animals to be hunted for sport or for food. Probably, the Pashtun elders were also sitting initially in a circular formation when debating and hearing a given dispute.Functioning methodology
The community council meaning is often found in circumstances involving a dispute between two individuals; a jirga may be part of the dispute resolution mechanism in such cases. The disputants would usually begin by finding a mediator, choosing someone such as a senior religious leader, a local notable, or a mediation specialist. In tribal Pashtun society, the Maliks serve as de facto arbiters in local conflicts, interlocutors in state policy-making, tax-collectors, heads of village and town councils and delegates to provincial and national jirgas as well as to Parliament. The mediator hears from the two sides and then forms a Jirga of community elders, taking care to include supporters of both sides. The jirga then considers the case and, after discussing the matter, comes to a decision about how to handle it, which the mediator then announces. The jirga's conclusion is binding.Quasi legal function
The jirga was also used as a court in cases of criminal conduct, but this usage is being replaced by formal courts in some settled areas of Pakistan and Afghanistan, elsewhere it is still used as courts in tribal regions.The jirga holds the prestige of a court in the tribal areas of Pakistan. Although a political agent appointed by the national government maintains law and order through the Frontier Crimes Regulation, the actual power lies in the jirga. The political agent maintains law and order in his tribal region with the help of jirgas. The jirga can award capital punishment, such as stoning to death in case of adultery, or expulsion from the community.
In the recent military operations against al Qaeda and the Taliban in Pakistan's restive southern tribal agencies bordering Afghanistan, jirgas played a key role of moderator between the government and the militants. The tradition of jirga has also been adopted by Muslims in the Kashmir valley of Indian-administered Kashmir.
The Alternative Dispute Resolution Act, 2017 of Pakistan
As per 2017 political dispensation in Government, unofficial Jirga and Panchayats are very popular among masses, so formal recognition of the same will help make the system more transparent and responsible, while left leaning political dispensations in opposition expressed their apprehension that weaker sections will suffer while feudalism will benefit. The Alternative Dispute Resolution Act, 2017 of Pakistan makes provision for selection of neutral observing arbitrator from Government approved panel agreed by parties. If a dispute is resolved amicably the court will formalize judgement, and if not parties can choose to opt-in further formal judicial administration for their grievances. Basit Mahmood criticizes the bill's provisions allowing the government to appoint “neutrals” to each jirga not being sufficient since the so-called "neutrals", who must approve their verdicts would most likely be consisting of retired judges and religious scholars of conservative nature and that will put principle of neutrality upside down and that will substantially affect on the lives of women across the Pakistan. Basit Mahmood also criticizes United Kingdom's donor agency Department for International Development for funding of misogyny protecting ADR tribunals.Contested justice and human rights violations
In a January 2019 on petition from National Commission on the Status of Women judgement Supreme Court of Pakistan ruled that, beyond 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; rest of practices and attempts by Jirgas to adjudicate on civil or criminal matters is not lawful, and that unlawful practices of Jirgas are violate Articles 4, 8, 10-A, 25 and 175 of the Constitution of Pakistan, and also that "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, are treated equally before the law and in all stages of procedure in courts and tribunals".According to correspondent I.A. Rehman, In January 2019 Pakistani Government law officials from provinces and federal confirmed governmenta-made commitments to Supreme Court of Pakistan to not to allow Panchayat and Jirga platforms for illegal practices of violating fundamental constitutional rights of women by honour killings, wani, swara, karo kari, and that the governments are committed to CEDAW
Instances of Jirga judicial overreach
In 2018 January, Basit Mahmood criticizes 2017 Pakistan act for Alternative Dispute Resolution saying that it creates scope for a parallel justice system which eventually can undermine states' authority. As per Dilawar Wazir's June 2020 news report in Pakistani news daily Dawn and subsequent editorial, district administration in Pakistan's tribal area was struggling to see one Ahmadzai Wazir tribe avoids to implement its Jirga ruling of raising a parallel armed force of around 2400 people to demolish houses of left-leaning political opponents. To make the tribal jirga to submit to a financial compromise, the district administration had to call in elite security force, and make victim submit to demand of 1 million Rupees plus four rams as reparation from victim and his clan.As per June 2020 Tribune Pakistan report, a Jirga attempted ruling to give up a 13-year-old minor girl in marriage to a 41-year-old married man as Swara for her brother's alleged disliked relation with his cousin, the Jirga's attempt was foiled by a close relative of the boy with help of police.
In another 2020 June incidence in Sindh Pakistan, police struggled to clampdown on a Jirga which declared two sisters to be ignoble 'Karis' fined father of the girls for one million Rupees plus ordered killing of the sisters.
Historic Jirga and women
The Sindh High Court imposed a ban on the holding of jirgas in April 2004 because of the sometimes inhumane sentences awarded to people, especially women and men who marry of their own free will. The ban, however, has been ignored.An all-female jirga Khwaindo jirga was held in Pakistan, and had 25 members. It was headed by Tabassum Adnan which helped 11 women get justice as of 2013.