The Cost of Parallel Justice

When justice becomes slow, expensive and inaccessible, people inevitably turn to informal systems but arbitrary tribal verdicts cannot replace the rule of law or guarantee equal citizenship

Ambassador M. Alam Brohi

The tribal courts generally known as Jirga system are flourishing in Sindh and Balochistan where half lettered landlords, feudal chiefs, Sardars, tribal influential  preside over voluntary gatherings of the parties involved in a dispute over landed property, some matrimonial match,  honour killing, eloping of a couple, trespassing, threat, aggressive pasturing, harassment, robbery, theft, plunder of a standing crop, vengeance etc. The arbiter is selected by the parties keeping in view of his good reputation. As a result, he enjoys the trust of both groups. He selects his advisors from amongst the crowd, and asks the parties to name their pleaders, and witnesses.

With a view to giving an aura of serenity and sanctity to the proceedings, some verses from the holy book are recited. This reassures the crowd of the arbiter’s impartiality conveys a message that justice would be done to the aggrieved party. The crowd remains spellbound and watches the proceedings with patience and seriousness. Nobody is allowed to interrupt any advisor or witness. After his statement, the audience can seek clarification about a point or a reference to an event or a person or make some additions.

Neither these tribal courts have any legal support, nor are their decisions enforceable in any court of law. A few powerful arbiters enforce their decisions by sheer their social status and influence. Those decisions, mostly, relate to the settlement of disputes within their tribe making it convenient for them to implement them. In majority cases, the decisions remain unimplemented and, sometimes, exasperate the enmity between the tribes.

The Jirga decisions are not based on any law or judicial precedent. These are arbitrary, and unlawful tribal decisions, mostly based on common sense, and unorthodox practices. Some past Jirga decisions gained notoriety triggering a chain of shameful events causing national embarrassment and discrediting the country at the global level. Prominent among them was the case of Mukhtara Mai’s brothers who were alleged to have raped a girl of the village. While settling the case against her brothers, the Jirga allowed the aggrieved party to take their revenge by raping their sister, Mukhtara Mai. She was dishonored there in a side room. There were other instances of Jirga settlements also resulting in shameful events including the naked parade of the aggressors’ women or the approval for the return of an eloping girl tacitly sanctioning her honour killing.  In one case in Khairpur, hounds were set on a girl to punish her for eloping with a young man of a hostile tribe. She was mauled to death by the dogs.

Mukhtara Mai’s case caught the attention of the International Human Rights Agencies, Non-Governmental Organizations and brought a bad name to the country. Later, she received huge funds from some Western countries for her NGO which she set up after her disgrace. Some tribal courts’ decisions result in the handing over of minor girls to an aggrieved party as part of the redistributive justice. These girls face this stigma during their entire life. This is an inhuman, cruel, and a serious crime.

Societies can survive coercion or oppression but cannot last long without justice. The absence of justice fuels rebellion in political, economic and social spheres of life.

Why do tribal courts flourish? There are serious question marks about the law enforcement and police investigations; the prosecution and judicial proceedings in the country. The people of Pakistan have lost trust in these institution for obvious reasons. The police and the prosecution are corrupt to the core. The judicial proceedings are sluggish and involve expensive pleaders, and take a long time to reach decision even in simple and straight criminal and civil cases. These cases leave behind debt-ridden litigants.

Societies can survive coercion or oppression but cannot last long without justice. These Jirga courts demonstrate our people’s hunger for justice and protection against the highhandedness of the powerful. Political, economic, and social balance is a sine qua non for a stable society maintained by the enforcement of laws and dispensation of justice by an independent judiciary. Constitutions of nation states recognize judiciary as more important organ of the state than the executive and legislative.

We live in families, communities and societies which have both good and bad elements. Parental guidance, the community’s admonitions, and society’s disapproval deter people from the breach of laws. The observance of the rule of law advances the cause of equilibrium in national life and makes dispensation of justice quicker and cheaper. In such societies, the people do not have to seek justice from unlawful entities. They are equal citizens with fundamental rights. They seek justice within their rights.

Our people are left to fend for themselves. Some fight, some submit to a degrading life, some rebel and pick up weapons and become criminals. The police has a big role in creating such contradictory strands in the underdeveloped societies. The absence of justice fuels rebellion in political, economic and social spheres of life. Dacoity, highway robbery, bank robbery, smuggling, unlawful money exchanges, financial frauds, financial corruption, embezzlement, bloodletting are all forms of rebellion from an exclusive society representing extreme reaction and non-conformist ways  of dealing with social and economic injustices.

The arbiters of Jirga courts are moved less by an abiding spirit of love for peace and stable society than their hunger for personal publicity and social glorification. They want to show their power in their surroundings, and their social circles interacting with the people and trying to create political spaces for themselves. They try to maintain as much impartiality as possible in Jirga proceedings with an eye on the fact that the news of arbiters being just and neutral and ruthless in dispensing justice travel like a wildfire as the gathering represents scores of villages, tribes and families.

The provincial and federal governments either should sanction these Jirga courts rendering their decisions enforceable in courts of law, by declaring them as courts of peace and determining their jurisdiction in consultation with police and lower judiciary, or ban them once for all to save the people from this charade in the name of justice. The superior courts have given adverse judgments against such tribal settlements. The corrupt police has failed to enforce such court judgments.

Read: The Systematic Institutional Decay

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The writer is a former member of the Foreign Service of Pakistan and has served as Ambassador for two terms. He is the author of five books.

First published in The Friday Times Lahore