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A first step

May 02, 2004

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It has taken this nation, now standing at near 160 million, 57 years to take a tentative first step. Justice Rehmat Hussain Jaffery of the High Court of Sindh can hold high his head - he has made a start and laid a pathway.

During the year 2003, 1,261 cases of 'honour killings' were reported in Pakistan - which means that actual killings under this quaint nomenclature were probably double the number. The main obstacle to the ending of this repugnant practice has been the equally repugnant jirga system, as practised in this country. Trial by jirga is the prime protector of the tradition of 'honour killing', and the prime protectors of the jirga system are the feudal lords who now, in large numbers, are in positions of political power.

Most fortuitously, we do have some bold and honest judges in our courts. In a truly landmark judgment, announced by the Sukkur Bench of the Sindh High Court on April 23, Justice Jaffery has, for the first time, banned trials under the jirga system throughout the province of Sindh, which system he has declared to be contrary to the Constitution and the law of the land.

As an excellent second step, our champions of human rights must, without much ado, approach the Supreme Court of Pakistan and petition the court to declare that trial by jirga is deemed to be illegal, unlawful and unconstitutional and to order that the practice be banned throughout the land. One of our human rights 'activists', senior advocate of the Supreme Court Iqbal (Groovy) Haider, has declared his intention to so do - now we await the actual act.

For the moment, if Justice Jaffery's judgment is honoured - and there is no reason why the executive managed by President General Pervez Musharraf should not spring into action - many poor, ignorant, illiterate, downtrodden women of Sindh who wish to make lives for themselves and marry whom they wish may sleep easier in their beds, thanks to Shazia Mangi, her lawyers, and to Judge Jaffery.

Shazia Mangi and Ehsan Chachar of Daharki decided of their own free will to marry, and they did so on October 16, 2003, according to the requirements of law, but without the permission of Shazia's father. That same day, her father, accompanied by six members of his tribe, physically attacked the house of Ehsan's parents, threatening to kill Shazia, declared by them to be a 'kari' and Ehsan, her legally wedded husband, a 'karo'. The two were lucky to escape. They managed to get to Sukkur, and were able to move the Third Additional Sessions Court Judge, Naseem Ahmed Sheikh, to order that the Sukkur Darul Aman give them shelter and protection. The police proved to be hostile to the desperate couple, their sympathies, for whatever reasons, lying firmly with the Mangi tribal elders.

On October 25, the seven assailants held a jirga, Shazia's father-in-law was summoned and asked to hand over Shazia so that she could be murdered. He could do little but promise to so do, and in the bargain the jirga imposed on him a fine of Rs.500,000.

Shazia's lawyer, Advocate Ghulam Shabir Shar, filed a petition (CP 92 OF 2004) on her behalf in the Sindh High Court. The respondents were seven police officers and seven Mangis who were represented by Advocates Tariq Hanif Gul Mangi and Sarfaraz Akhund, and the province of Sindh represented by A.A.G. Ghulam Dastgir. The court appointed Abdul Fateh Malik and Nizamuddin Baloch amicus curiae.

The petition prayed that the police be restrained from harassing the petitioner's family, that they be restrained from filing false FIRs at the behest of the Mangis, that the Mangis be restrained from carrying out the decision taken at the jirga to murder Shazia and her husband, and most vitally, the court was petitioned to:

".... declare that the jirga system is illegal, unlawful and against the cannons of [the] law of [the] land same is the inhuman act of feudal lords and Sardars."

Judge Jaffery signed his 48-page judgment on April 21. His findings, and his orders, are:

"47.........The private persons have no authority to execute the decision of jirgas nor the jirgas have the authority to execute their own decisions through their own sources. If such decisions are carried out and executed by killing persons, then the offence of murder will be committed and they will be liable for action as per the law ....... the jirgas have also usurped the powers of the executing authorities which is not permissible under the Constitution or the law.

"48. The Constitution is based on a trichotomy of powers, i.e. legislature, judiciary and executive, whose powers and duties are enshrined in the Constitution ..... in jirgas the powers of legislature, judiciary and executive authorities are being exercised. All the learned counsel are unanimous that Jirgas are against the trichotomy powers of the Constitution. It thus appears that Jirgas are undermining or attempting to undermine the provisions of the Constitution.

"49. Apart from the above position, in jirgas the assembly may be in the first instance lawful, but the purpose for which they assemble is unlawful and then they conspire to commit some offences therefore they expose themselves for action as provided under various and relevant provisions of [the] PPC ......... In such a situation it is the public duty of the police to act swiftly and to exercise their powers and perform their duties to curb the offences being committed or book the persons who committed the offences ....... It is also one of the public duties of the police to protect the life of the citizens who complain to them. In the present case, the petitioner complained to the police to protect her life and the life of her husband but when she could not get a proper response .... she has approached this court to save her life and the life of her husband ....

"50. Consequently, the official respondents are directed to provide due protection to the petitioner to save her life and the life of her husband .....

"51. It is pertinent to point out that under the West Pakistan Criminal Law (Amendment) Act 1963, trials, which were commonly known as jirga trials, were permissible, but the said law has been repealed. As such, the jirga system is unlawful and illegal which is against the provisions of the Constitution and the law of the land.

"52. The police are duty bound to take appropriate action to prevent the holding of jirgas within their jurisdiction. The press which has already played a commendable and positive role in this behalf is expected to continue to play the same role by pinpointing the assembly of jirgas so that the police may act promptly, according to law and such information can be made available to the police through their own intelligence agencies."

Now, all we can do is to await, patiently, the outcome of a petition to our apex court with the hope that the start made by Justice Rehmat Hussain Jaffery in the province of Sindh will be extended to the whole of Pakistan, thus ridding the country of just one of the reprehensible feudal shibboleths with which it is beset.