Travesty of justice

The traditional council, or ‘jirga’, is known by different names in different languages in Pakistan – ‘faislo’ in Sindh and ‘panchayat’ in Punjab.

The word ‘jirga’ is derived from the Mongolian word ‘tsarak’ which means round circle. It is generally attributed to the Pashto language. In our Dardic languages like Torwali, Shina, Khowar, etc, the alternative words for jirga are ‘yerak’, ‘biyak’ and ‘mahraka’.

Whatever the name, this tradition has existed in every society since ancient times. Initially, a jirga would usually be called during wars between tribes and nations. Over the years, the jirga took on the responsibility of administration, law and order, and justice in the Yaghistani, acephalous, societies.

Can a jirga be used as an alternative to dispute resolution? The example of the decades-old conflict between the two villages of Swat Utror and Kalam is instructive in this case. When a bloody clash broke out between the people of Kalam and Utror on July 10, 2021 the law-enforcement agencies asked the local political leaders to find a way out. One is not sure if any of these leaders told the provincial or regional heads of these institutions that the main responsibility of maintaining law and order was theirs.

Kalam and Utror are two tourist valleys in the upper Swat valley inhabited by the Dardic people who speak the Gawri language. These two main villages have been in conflict over land and forest distribution in the area since the state era in Swat. These conflicts turn into fierce feuds quite frequently. They have a dispute over a beautiful highland pasture, Desaan, on the western hills between Kalam and Utror. Similarly, they have disputes over other pastures in the two valleys. After the fierce fighting between the people of Kalam and Utror on July 10, 2021, the commissioner of Malakand division invited the parties to his office instead of taking action against those who opened fire and killed people.

In a private conversation, the then RPO/DIG Malakand division said that the chief minister did not want strict action against the people because it was peak tourist season and any police operation in the area might discourage tourists from coming to these places.

On the other hand, many political leaders and elders from different parts of Swat went to Utror and Kalam and held countless jirgas. Also, men from other areas of Swat and elders from the villages of Thal, Kalkot and Lamuti in the Upper Dir district came to the region to hold a long series of jirga meetings with people nominated by the district administration. A series of meetings continued through the year 2022 before the floods in August. These jirgas did not resolve the issue either. They have, nonetheless, stopped the parties from resorting to more armed conflicts.

In some cases, where people of both sides took the law in their hands, jirgas failed to control them. For example, when the people of Kalam stopped trucks of food items to be taken to Utror in August 2021, it was the police, not the jirga, that controlled the situation and let the trucks go to Utror.

The jirga tradition is partisan and usually the parties involved try to woo or bribe the mediators. None of the mediators can tell the truth and if somebody does, he is regarded as an ally of the opposite party. In my meeting with a local political and community leader from Kalam, he said that the conflict had been active since 1957 and often resulted in armed fighting between the people. He further said that since July 2021 there had been many rounds of jirgas with support from the administration, and yet the issue could not be resolved because of the non-serious attitude of the jirga people. When asked whether the jirgas played politics, he shared that they were very political and partisan.

In late July 2021, a jirga was held at a mosque in Bahrain, Swat related to the Kalam-Utror conflict. An influential chief of Kalam told me that the jirga was against the people of Kalam. In the jirga, some people had condemned the blockade of the road to Utror by certain people of Kalam. The same is true for political aspirants who usually exploit such situations to gain votes. However, these people cannot take just decisions because of their political affiliations.

During this conflict and the arbitration by the jirga, it was observed that even though the majority of the youth no longer wanted to have this archaic justice system, older citizens were in favour of these councils mostly because these people have the final say in them. Social activists deem these jirgas useless and a waste of time. They demand that state institutions to follow the law. The same view was also shared by the current assistant commissioner of sub-division/tehsil Bahrain, who is responsible for monitoring the situation.

In a recent report prepared on the issue, assistant commissioner Ishaq Ahmad Khan has said that even though FIRs are registered against the accused responsible for disrupting the law-and-order situation, no arrest is made. This results in the weak writ of state in the area.

Jirgas are often used to resolve feuds and disputes between families where the archaic notion of ‘honour’ is hurt. This includes cases where girls and boys marry without the consent of their families. In its 2017 report, ‘Women, violence and Jirgas: Consensus in Impunity in Pakistan’, the National Commission on the Status of Women (NCSW) highlights multiple cases of honour killing and lynching across Pakistan, involving jirga, panchayat and faislo. Jirga orders transgress the basic human rights of women in all these cases.

A few examples from the report are enough to learn the inhumanity of such traditional mechanism of dispensing justice in modern times: ‘‘In June 2011, where on jirga orders, a middle-aged woman, Shehnaz Bibi, was dragged out of her home and forced to parade naked on the street as punishment for an alleged crime of her son.

“In 2015, a jirga in the Darel Valley of Diamir district decreed that women would not be allowed to vote in elections, disenfranchising over 12,000 women voters in the constituency. The jirga included religious leaders and candidates of political parties from the area.

“In 2014, 11-year-old Amna was married to a man three times her age as compensation for her uncle having raped a girl in Grilagan, [Bahrain Swat] in northwest Pakistan. Amna was married off to the brother of the girl who had been raped. She was one of the two girls from the rapist’s family given to the aggrieved family through a jirga decision. The other girl, Zulhaj, spoke to the media saying she had accepted her fate.

“In 2013, Rubina, a 12-year-old girl appealed to the chief justice of Pakistan’s Supreme Court to provide her safety since she was being forced by a jirga to marry an older man in Doog Darra in Upper Dir district.

“In 2002, in Mianwali, Punjab, the nawab of Kalabagh played a vital role in the decision of handing over eight girls as compensation to resolve an age-old dispute.

“In 2006, five minor girls were to be handed as compensation to the rival party in Kashmore, Sindh. The decision was made with the connivance of a parliamentarian and the district nazim. Both victims were rescued by the suo-motu action of the Supreme Court of Pakistan”.

Given these examples and the case of the Utror-Kalam conflict, it can be concluded that jirgas have not only failed in their reconciliation efforts but have also violated human rights.

Giving a jirga or a panchayat the role of dispute resolution is an aberration of our constitution and rationalization for the inefficiency of our justice system.

The writer heads an independent organisation dealing with education and development in Swat. He can be reached at: ztorwali@gmail.com