Public opinion seems thoroughly divided on Jirga system (Panchayat in Punjab). On the one hand, it has been scorned at by the modern and liberal people; the honorable courts have actually banned it. On the other hand, the general public especially people living beyond metropolitan cities continue to rely on this centuries old system to resolve their conflicts. Both the groups are right to some extent.
The Jirga system has very serious flaws especially in the feudal society of Punjab and Sindh, where the Jirga is always presided over by a feudal lord and decisions are often heavily biased and sometimes outright disgusting as in the case of Mukhtaran Mai in Muzaffargarh a few years back – the case that made us all bow our heads in shame. The Panchayat found Mukhtaran Mai’s brother guilty of having illicit relations with a girl of an influential tribe, and ordered a few men of the aggrieved party to rape Mukhtaran Mai to settle the score. Honor killings or karo kari, and vani like customs are the fruit Jirga has borne.
In Pakhtoonkhwa, we, the Pakhtoons, cannot even imagine that kind of verdict by any Jirga. Yet the situation is not very different when it comes to punishing the guilty. Men are more often let off the hook, and the punishment is borne by the close female relatives – sisters or daughters – of the guilty men. It is called Swara.
Keeping these facts in mind, nobody would dare to defend Jirga (or Panchayat), in fact nobody should. However, it is also a fact that despite a clear ban by the superior courts of the country, it continues to be used to settle disputes. It is a centuries old tradition. No doubt, old habits die hard.
The problem is that the critics would not bother to think of reforming it or making an attempt to integrate it with the existing justice system of the state. The defenders of the system would often close their eyes to the disquieting failings of the system.
Well, it is always easy to keep it or discard it. Reformation of the system is a gigantic task, which would be very tedious and, of course, somebody will have to take a lot of pain to accomplish it. Before I move on towards proposing some reforms, people would be quick to ask why reforms? Why should not we completely discard it?
I have following reasons for taking it along and against discarding it.
- Our judicial system is thoroughly corrupt and inefficient. The cases take years to reach the logical end. This inefficiency has created a vacuum, which would keep Jirga/Panchayat alive for long (Of course, a serious effort at reforming our justice system is also an important need of the hour).
- Our judicial system does not reach out to grassroots level. The small scale disputes cannot be taken to magistrates sitting a few kilometers away with already piled up cases. The small scale conflicts include cattle theft, damage to crops/property, and land distribution. If Mr. X borrowed Rs 3000 from Mr. Z, and failed to return at the agreed time, it is too small a matter to be taken to district court or local police. It should be resolved at community level. Jirga fills this gap.
- Jirga is a centuries old tradition, which cannot be wished away. It is better to focus on reforming it rather than trying to kill it.
- And the most important argument is that a reformed version of Jirga system would be more acceptable to the society/people as it evolved here and is owned by the people as compared to the Judicial System imported from the west, which is still not preferred by our people to settle their disputes.
Hence, we need to own our own centuries old traditions and build upon them rather than go for imported systems.
Now let me propose some broad reforms we may introduce in our Jirga System. Please note that these are just loud thoughts to initiate a dialogue, not final recommendations.
We need to set basic criteria for people who want to be on Jirga. The composition of Jirga should be thoroughly discussed. It should have representation of youth, women and minorities. It could vary from village to village or district to district.
The Jirga members for each village/mohallah should have a defined tenure (may be three or five years). A member should not be allowed to have two consecutive terms.
The Jirga members should be notified by the local government (union council or any equivalent forum). We would definitely need to have local governments in place. Thus whenever a problem arises, the administration would not have to find who was on the Jirga. They would already know it and act as according to the law.
The parties should have the right to appeal to the district and session judge if they are not happy with the verdict of the Jirga. Through this right to appeal before the District and Sessions Judge, the Jirga system would be integrated within the existing judicial system. It would become the lowest tier of the system.
The Jirga’s authority to give out punishments should be defined. For example, it should be clearly defined that a Jirga verdict should not affect people other than the guilty. Thus Jirga would have no right to let a guilty person off the hook and use women/girls to settle the dispute.
Other restrictions on giving out punishments could be: Jirga cannot sentence anyone to imprisonment or order demolition of a culprit’s house or confiscation of a culprit’s property. For that, Jirga will have to put up a case before the district and session judge, who would decide the case in three hearings or within one month at the maximum.
The maximum punishment a Jirga can give out for any offence is to ban a person from entering village/mohalla for 6 months.
Maximum fine a Jirga can impose is Rs 50,000. If Jirga feels the fine should be higher, it would have to put its recommendations to the District and Sessions Judge who would decide the case after hearing both the parties and the Jirga and give his/her verdict within one month.
Jirga must not use women/girls for dispute settlement. If a Jirga gives such verdicts, the verdict should stand null and void and the Jirga members should be punished with imprisonment of minimum 7 years, and should become ineligible for becoming members of Jirga for the rest of their lives.
These are some humble suggestions. I hope these generate a productive and useful dialogue on the issue. Your feedback is highly valued.