Should the Jirgas be given constitutional cover?

By Dr. Ijlal Ali Shah.

The philosophy of an Islamic Judicial System, is none other than the saying of my Prophet Muhammad (PBUH) ”People before you, were destroyed because; when the noble among them stole, they would let him go and if the poor and weak stole, they would punish him. By God! If Fatimah stole, I would cut her hand off “.

Since inception, pragmatism of this golden saying by the state of Pakistan, has been non-other than the phenomenon of “phantasmagoria”.

The state gathered tax from its subjects, in order to make sure that their life and property are under protection against all evil odds. Shielding, the basic human rights of its citizens, lied in its sole responsibility. For decades, a common man coupled an objection with despondency against our judicial system. From awarding heavy  sum to concerned solicitors; in order to pursue litigations in court, to burdening and absorbing  anxieties of a case, that linger on for years; filed non-other than mistrust.

Under Gen Musharraf’s dictatorial rule, then the Chief Justice’s reinstatement by the lawyer’s movement backed by masses from all forms: drove a new sense of belief  into something that had long been mistrusted. Meanwhile, people attached big hopes from; then constitutionally strengthened judiciary; when the rule by people, had fallen with the aristocrats.

Much awaited plea of a common citizen, in the name of speedy and inexpensive justice, took its final turn and the government introduced a bill titled “ADR” (Alternate Dispute Resolution) –name given to a process, where the disputed parties undergo a settlement without going to courts –aimed at ensuring speedy and inexpensive justice to its people, by giving a constitutional and legal cover to centuries-old jirgas or panchayats.

Government’s intention, behind  its  pioneering, sounded solemnly pure, substantiated by the given fact that for years, courts have been under a big burden of litigations involving petty-civilian matters, pre-eminent being the issue of “pendency” as roughly, 2.5 million litigations have been kept unsettled. Side by side, acknowledging, the failure of present system in catering to the needs of an ordinary, time that rubbishes in pursuing these lingered and manipulated cases; adding financial burden on the given aggrieved parties, but the actual narrative of the bill appears contradictory to government’s intentions.

The initiative seems to be devoid of research, taken in haste and shades retrogression. Hastiness and lack of interest is further validated by the given fact that 23 members of national assembly were present at the time, when bill was presented and passed. Right to justice and fair trial of 200 million people, was only left to 23 representatives.

Can this be justified in a state, which has law and order, its foremost conundrum? In the light of this bill, can this parallel system wash away the discrepancies of our judicial system? Should the illiterates be handed the reins of; right to justice and plight of a proletarian? Will this system bring an over-all stop to exploitation of weak at the hands of bourgeois? Does this piece ensure that the  basic rights of my women wouldn’t be breached, any further?

Narrative of the bill and the loopholes encircling it, doesn’t suggest so.

Ideologically, bill sounds very weak. Apart from the main positivity that surfaces for a common citizen; that the state has finally heard his long-standing plea for a fair trial; acknowledging the long-lasting judicial inadequacy, the rest predicts political mileage. I wonder this might further add displeasure among common men.

The reasons this bill needs  to be re-looked into;

  1. In the given context of the bill, the term jirga or panchayat needs to be re-addressed with a proper definition. For centuries, the jirgas have been the focus of big politicians, family heads, village elders, feudal-lords and tribal chieftains, who decide according to their customs and traditions; restoring societal equilibrium by disregarding the basic human rights and if one expects something egalitarian in this regards, he is for sure a resident of fool’s paradise. While also settling some civil disputes such as petty theft, the institution of jirga has become the locus of misogynist practices such as barter of woman for conflict resolution. Rubbishing of basic human rights and immolation by jirgas is not something unprecedented. Anti-women practices of jirga, is known to all and sundry. There have been several incidents, where young girls were forced to marry a man who was several times her age and the innocent, was left with no-other choice, than to accept her fate. Similarly, at the time of general elections, the religious leaders and candidates of political parties in remote areas, disenfranchise women from practicing their right. In a patriarchial society, where incidents of honor killings, customs of wani and sawara are asserted by jirgas, certainly lay waste and disorder. Participation of women in jirgas needs to be ensured in-order to avoid these anti-women practices.
  1. Neutrals (Ulemas, retired judges, politicians) are to play a role of meditation according to the context of bill, who would be appointed by government in consultation with the respective high courts. In an intolerant and dishonest suburb, it’s almost impossible to find mediators that are to stay neutral. Even our Ulemas, have fallen astray unfortunately, so it rather seems ludicrous. Follow-up by the government would be something “sine quo non “if this bill is to be taken up on humanitarian terms.
  1. Arbitration technique has been an integral component of judicial systems of other countries but it has certain limitations. Jurisdiction of jirgas or panchayats need to re-considered and should not be extended this much.
  1. In the present judicial system often, there comes a case where the victimizer has no one by his/her side. The state pursues his /her litigation and there is every chance of that victimizer getting justice but now the given bill curtails the role of state. Government is handing its very own responsibility to the centuries-old shabby and mistrusted third party, which could lead to lawlessness.

It seems to be an agreement between the elite, powerbrokers, stakeholders and the government.

The bill doesn’t comply with the main attributes of Islamic Judicial system such as speedy, inexpensive justice and then its practicality.

So, Justice still remains to be served.

About Author.

The author hails from Abbottabad. He  is an MBBS student at Ayub Medical College ATD. A humanist and a writing enthusiast. He is the member of Youth Parliament Pakistan under PILDAT. Tweets @shahaliijlal. Follow him on instagram Shahaliijlal

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