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.
On a 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.”
One hopes that KP will deliver on its commitment to ensure there are functioning courts of law in erstwhile Fata.
Along with 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 Although the petition was dismissed as withdrawn, the court did confirm that the regulation was ultra vires of the Constitution.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”.
The court 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 only”.
It is much to be hoped that the KP government will have complied with the court directive by the coming Tuesday.
While the 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.
The Supreme 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.
Further, 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.
The court 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.
Another 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 jirgas.
The court 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.
Incidentally, 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... CEDAW”.
We hope these words will be honoured.
Published in Dawn, July 11th, 2019