THE PASHTOON JIRGA SYSTEM: VIOLATION OF FUNDAMENTAL ISLAMIC AND INTERNATIONAL RIGHTS AND THE NEED FOR A CODIFIED LAW

THE PASHTOON JIRGA SYSTEM: VIOLATION OF
FUNDAMENTAL ISLAMIC AND INTERNATIONAL RIGHTS AND THE NEED FOR A CODIFIED LAW This reaserch paper discusses the problems of the Jirga system in Pashtun society,especially how it effects women’s rights.jirgas make unfair decisions,often using women as collateral to settle disputes,which is against Islamic teachings, fundamental rights and international human rights.The supreme court of Pakistan declare Jirga illegal in 2019.Despite some legal actions,there is no proper law[codified law] to control unfair decisions of Jirga system.The Jirga system is still continue his work, despite judgement of the supreme court.This paper will be
highlight the urgent need for a new codified law to regulate jirgas decisions,ensuring justice and fairness for all. pastoonwali.jirga system,Violation of fundamental rights, judicial decisions,need of codified law. pashtoonwali is the unwritten constitution of the pashtoon people .This constitution is traditional and conventional,it can not be amended because there is no institution to temper with it.Hence like objects of nature with rigid orbits,the pastoon’s,individually as well as collectively,are obliged to abide by the code of pashtoonwali.n The Jirga system is deeply rooted in pashtunwali,the Pashtuns social code,which emphasizes honor,hospitality,and justice.In Persian, Jirga is bcalled majlis and in Panjabi and hindi panchayat.Jirga is the main meeting place for consulting and discussing different disputes in pakhtoon society.Such meetings are called as Jirga-marakh in Pashto. To elaborate ‘’jirga’’ is the board of elders who act as a member of Jirga while ‘’marakh’’ means talk and consultation.The Jirga system has faced immense criticism for discriminating against women and violating the sanctiy of womens rights during the decision making process and the implementation of those decisions.most importantly womens, are excluded from participating in jirgas,even when they are the victims,accused or witness.In 2011,a Jirga agreement in Kohistan,kpk,district prohibited 18,000 registered women from voting in by elections.Furthermore,women’s rights violations occur through practices like honour killing,swara,vanni,or sung chatti,which involves the exchange of women as settlement.In 2013,a Jirga of around 20 people from 25 surrounding villages in upper dir decided to give 12 years old rubina in swara as a form of comensation for her uncles alleged mistake.Additionaly, reports by Aurat foundation indicate that 475 women were killed in the name of honour in 2009,and 557 in 2010, with many of these decisions being made via Jirga. In response to these violations, the supreme court of Pakistan,in line with the principles of universal Declaration of human Rights,declared jirgas unlawful in 2019. [reviving the jirgs system in Pakistan tribal areas by samreen Fatima] The Jirga system in pashtoon society violates womens fundamental,Islamic,and international rights.The mashran in Jirga system consider women like their property and enforce there unfair decisions upon them.These decisions are based on there so,called custom in which always womens rights are violated and mans are given priority over womens.In blood related disputes,jirgas often use swara
[or vanni/sang chatti] as a so-called ‘’peace-making’’ practice,where young girls are forcibly married off to the opposing party as compensation for crimes like murder,honor disputes.This practice is deeply unjust because it treats women as bargaining tools intead of punishing the actual offender, the innocent women suffer by being given away like property.similarly, in the name of ghayrat [honor] and payghor[social shame] jirgas systematically violate women’s fundamental rights including right to education[25-a],right to vote[aricle;17]. The masharan in jirga have descritionary powers without limitations.Therefore it is the need of the hour to limit the powers of Jirga mashran through proper act of parliament,ensuring they do not violate fundamental rights. JIRGA SYSTEM VIOLTES FUNDAMENTAL RIGHTS OF WOMEN GRANTED BY CONSTITUTION VIOLATION OF ARTICLE 25-A [RIGHT TO EDUCATION] In 2015,a Jirga in Darel valley if diamir district decreed that women would not be allowed to vote in elections,violating the right of over twelve thousand womens voters in the consistuency.[ARTICLE ,WOMENS VOILENCE AND JIRGA BY SAMREEN FATIMA] FORCED MARRIAGES VIOLATION OF ARTICLE 9 ,14 and 25 OF CONSTITUTION In 2014,eleven years old amna was married forcibly to a man three times of her age as a form of compensation for a crime committed by her uncle in grilagan,Northwest Pakistan.The Jirga ruled that amna and another girl,zulhad,be handed over to the victims family to settle the dispute,following the custom of swara.This case highlightd the severe humanrights violations committed under the Jirga system,particularly against womens. In 2013,Rubina,a 12 years ild girl from dongdara in upper dir district,appeaed to the chief justice of Pakistan for protection after a Jirga ordered her marriage to an older man as part of a tribal settlement.
In 2005,a Jirga ruled that an eleven year old girl from mardan,kpk,was to be given as swara in compensation for her father having murdered a person. In 2000,a Jirga decision led to a six years old girl from sukkar in Sindh being married to a sixty year old man based on an unpaid debt by her family. These decisions by Jirga system violates following fundamental rights of women given in constitution of paksitan
VIOLATION OF ARTICLE;9
RIGHT TO LIFE AND LIBERTY [forcing a women to a marriage is like slavery and violation of her right of liberty.]
VIOLATION OF ARTICLE 25
RIGHT TO EQUALITY [womens are disproportionately affected by Jirga decisions,violating their constitutional right to equality.
VIOLATION OF ARTICLE 14
RIGHT TO HUMAN DIGNITY [in swara rasm the women was treated as form of compensation violating her dignity.
VIOLATION OF ISLAMIC TEACHINGS
Khansa [RA] narrated that her father gave her in marriage when she was a matron and she disliked that marriage.so she went to Allah’s Messenger and he declared that marriage invalid.[ sahih al bukhari] The Jirga sysetme violates teachings of islam,but despite that there are no legal restrictions on them.
VIOLATION OF INTRNATIONAL CONVENTIONS ON CONSENT TO MARRIAGE,MINIMUM AGE FOR
MARRIAGE AND REGISTRATION OF MARRIAGESCODE;SK272
VIOLATION OF ARTICLE 1 BY JIRGA SYSTEM [RASME SWARA]
No marriage shall be legally entered into without the full and free consent of both partires.
WOMENS RIGHTS IN ISLAM VS. THEIR TREATMENTUNDER JIRGA SYSTEM
From discussion above,it is clear that the Jirga system is unfair to women and
often violates their basic fundamental rights, treating them like they have no
rights or value in society ,making them feel inferior and unimportant in society.
On the other hand, islam values and respect women. If we look towads Islamic
teachings the prophet saww always decide imortant matters with Aisha [RA].The
companions of the prophet saww in complex issues takes advice from
Aisha[RA].Aisha[RA] was also a political leader in her own right.after death of
prophet saw,she played an active role in the leadership of muslim
community,often advocating for the rights of women.One of the most remarkabl
thingd about Aisha[RA] was her ability to hold her own in a male-dominated society.
This shows that islam gives womens a voice and a respected place in society.the
way Jirga system treats womens is against the teachings of islam and msut be stop through proper laws. JIRGA SYSTEM IN LIGHT OF JUDICIAL DECISONS SUPREME COURT JUDGMENT DECLARING JIRGA SYSTEM ILLEGAL The supreme court of Pakistan declared the traditional Jirga and panchayat systems unlawful,stating that Jirga was not given power of compromise and
decision on the basis of evidence,which is illegal because no Jirga can decide a
criminal case on the basis of evidence.The supreme court held that these jirgas
have no legal validity, are absolutely unguided in their powers and decision
making,often making arbitrary and unjust decisions.Due to ignorance of law and
Islamic injunctions by Jirga system,it violtes constitutiuonally guaranted rights.[syed alam vs the state] MUHAMMAD YOUNIS VS NAZAR AHMED[2013 YLR 139]
It has been held in that case, that ‘’so called panchayat has no legal sanctity to
declare anyone guilty or innocent’’.No person whether as a part of a body or Jirga
can act as a community appointed judge and to establish his own court.
THE NEED FOR A CODIFIED LAW TO REGULATE THE JIRGA SYSTEM AS AN ADR MECHANISM
The codification of laws is essential to prevent the misuse of power,ensure justice
for all, and uphold the rule of law.without a proper legal framework,informal
justice sysytems like jirgas continue to violates fundamental rights,particularly
those of women.The principles of natural justice require that everyone is treated
fairly under the law,and for this reason,a codified parliamentary law is necessary
to regulate the Jirga system and integrate it within a formal alternative dispute resolution[ADR] mechanism in Pakistan. The Jirga system is deeply rooted in Pashtun traditions,and completely abolishing it is not possible.instead of trying to eliminate it,the better approach is to refine and regulate it through proper legislation as a recognized ADR system.This can be
done by passing a codified law in parliament that; 1.Recognizes Jirga as an ADR system under legal supervision,ensuring fair dispute resolution while protecting fundamental rights. 2.Appoints an educated legal expert[such as a government official or lawyer] tooversee Jirga decisions. 3.Ensures Jirga decisions follow Islamic international and constitutional principles.
4.Requires Jirga decisions to be reviewed and approved by formal courts before
they are enforced. 5.Imposes strict punishments on Jirga members if they violates womens rightd or makes decisions against the law. Even though the supremecourt has declared jirgas illegal,they continue to operate in many areas.Therefore a proper codified law is needed not to abolish Jirga system ,but to regulate it as a lawful ADR mechanism. A JUST SOCIETY IS ONE WHERE EVERONE HAS EQUAL RIGHTS AND PROTECTION UNDER THE LAW.BY INTRODUCING A CODIFIED LEGAL FRAME WORK FOR JIRGAS,PAKISTAN CAN PRESERVE CULTURAL TRADITIONS WHILE ENSURING THAT NO INDIVIDUAL,ESPECIALLY WOMEN,SUFFERS INJUSTICES.
‘’A SOCIETY THAT DENIES JUSTICE TO ITS
WOMEN CANNOT CLAIM TO UPHOLD THE RULE
OF LAW.IT IS TIME FOR PAKISTAN TO REPLCE
OPPRESSION WITH TRUE JUSTICE’’