Justice Rooted in Culture, Aligned with Law: The Efficacy of the “JIRGA SYSTEM”
THEME
- The Jirga system, a time-honoured indigenous conflict resolution mechanism rooted in tribal and communal traditions, continues to function as a parallel form of justice in various regions of Pakistan, particularly in Khyber Pakhtunkhwa, Balochistan, and parts of Sindh. Historically esteemed for its swiftness, accessibility, and cultural relevance, the Jirga convenes local elders to mediate disputes ranging from property conflicts to criminal offenses. It is deeply embedded in the social fabric of many communities where access to the formal judiciary is limited or mistrusted.
- However, despite its cultural legitimacy, the Jirga system poses significant challenges to the rule of law, constitutionalism, and human rights. Numerous documented cases reveal instances where Jirgas have issued decisions that violate Pakistan’s constitution, Islamic injunctions, and international human rights norms, particularly concerning women, children, and marginalized individuals. Forced marriages, honour killings, denial of women’s voting rights, and punishments incompatible with due process are among the egregious outcomes of unrestrained traditional rulings.
- It is essential for the members of Pakistani society to critically examine the efficacy of the Jirga system within the context of the modern state. This includes understanding the systemic and sociopolitical factors that contribute to its continued prevalence. Moreover, it is crucial to evaluate how this traditional mechanism can be reformed, regulated, and potentially integrated into the formal judicial framework of the state, all while preserving its cultural relevance and ensuring alignment with the broader principles of the national legal system.
AIM
- This article aims to critically assess the role, relevance, and implications of the Jirga system as a parallel dispute resolution mechanism within the state of Pakistan. It seeks to identify the structural, legal, and ethical inconsistencies within the system and explore viable reforms that could lead to its effective regulation. Additionally, the article intends to investigate the potential for integrating the Jirga into Pakistan’s formal judicial framework, ensuring that justice remains accessible while preserving legality and human dignity.
SCOPE
- The scope of this study spans the operational landscape of Jirga-based justice systems in Khyber Pakhtunkhwa, Sindh, and Balochistan. It incorporates legal, sociocultural, and constitutional analyses, drawing from real-world case studies, Supreme Court judgments, academic research, and community perspectives. Particular emphasis is placed on the consequences of extra-constitutional decisions, especially in cases involving women, minority rights, and criminal punishments. The article explores the conflict between tradition and legality and examines how Pakistan’s judiciary, legislature, and civil society can respond. The scope also includes comparative insights from other customary justice systems and evaluates models for structured supervision, legal absorption, and accountability mechanisms that could align traditional justice practices with modern state law.
JUSTICE ROOTED IN CULTURE, ALIGNED WITH LAW: THE EFFICACY OF THE JIRGA SYSTEM IN PAKISTAN
6. Introduction
a. Pakistan’s justice landscape is marked by a duality between the formal judicial system and traditional dispute resolution mechanisms like the Jirga system1. Rooted in tribal customs and cultural traditions, the Jirga is a centuries-old institution that continues to influence community-level conflict resolution in rural and tribal areas, especially in Khyber Pakhtunkhwa (KP), Balochistan, Sindh, and parts of Gilgit-Baltistan. While the Jirga is often praised for providing swift, culturally sensitive resolutions, it has also been heavily criticized for rendering decisions that contravene constitutional guarantees, Islamic injunctions, and international human rights standards.
b. This article examines the efficacy of the Jirga system in contemporary Pakistan, identifies significant violations of law and justice stemming from its decisions, and proposes a structured framework for its monitoring, reform, and gradual integration into the state’s judicial architecture.
7. Historical and Cultural Context of the Jirga System.
a. The Jirga, derived from the Pashto word meaning “circle,” is a consultative assembly of elders that deliberates on disputes and communal issues. Historically, the Jirga served as the primary mechanism for dispute resolution in tribal societies, grounded in Pashtunwali2 (the Pashtun code of conduct) and Baloch tribal traditions.
b. Its proceedings are informal, and decisions are based on consensus, communal wisdom, and customary law.
8. Efficacy and Utility of the Jirga System
a. Speed and Accessibility. The Jirga offers a rapid and cost-effective alternative to Pakistan’s overburdened formal judicial system. It is often the only accessible forum for justice in remote regions.
b. Cultural Relevance. Jirgas reflect the socio-cultural realities of the communities they serve. Their authority is widely accepted within those societies, giving their verdicts moral and social legitimacy.
c. Restorative Justice4. Unlike adversarial legal systems5, Jirgas focus on reconciliation and compensation rather than punishment, thereby preserving community harmony.
d. Resource Efficiency. Jirgas require minimal administrative infrastructure, making them suitable for areas lacking state presence.
9. Criticism and Legal Violations by the Jirga System.
Despite their utility, Jirgas have frequently rendered decisions that violate Pakistani laws, Islamic principles, and international human rights conventions.
a. Gender Injustice and Honour-Based Violence
(1) Sindh (2017). A jirga compelled the family of a 12-year-old rape victim to accept monetary compensation instead of pursuing legal justice. In another instance, a 19-year-old woman was declared ‘kari’6 for being a rape survivor.
(2) Upper Dir, KP (2013). A young girl appealed to the Supreme Court after a jirga ordered her marriage as compensation for a male relative’s crime, a blatant violation of her constitutional and religious rights.
b. Disenfranchisement of Women
(1) Diamir, Gilgit-Baltistan (2015). A jirga barred over 12,000 women from voting, infringing upon their political rights and constitutional guarantees under Article 257.
(2) Honour Killings and ‘Swara’. Numerous jirgas across Sindh and KP have sanctioned honour killings or ordered the exchange of women (‘Swara’)8 as compensation, violating the Criminal Law sec 10 A (Amendment) Act 20049 and Islamic principles that prohibit collective punishment.
10. Unconstitutional Parallel Judicial Authority.
The Supreme Court of Pakistan, in a landmark 2019 judgment, ruled that jirgas functioning as parallel judicial entities were illegal. Their decisions, especially in criminal and civil matters, were deemed unconstitutional under Articles 4, 8, 10-A, 25, and 175(3)10.
11. Judicial and Religious Framework: A Contradiction
a. Conflict with Shariah. Islamic jurisprudence emphasizes due process, individual accountability, and protection of rights. Practices such as ‘Swara’ or denial of women’s autonomy are contrary to these principles. Surah An-Nisa (4:135)11 and Surah Al-Maida (5:8)12 emphasize the core values of fairness, justice, and individual accountability, which directly contradict practices like Swara (Vani) and honour killings that violate these principles. The following may be given due consideration: –
(1) Surah An-Nisa (4:135) – Justice and Accountability
(a) Translation. “O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves or parents and relatives. Whether one is rich or poor, Allah is more worthy of both. So follow not [personal] inclination, lest you not be just. And if you distort [justice] or decline [to do justice], then indeed Allah is ever Acquainted with what you do.” (Quran 4:135)
(b) Explanation. This verse emphasizes that justice is an absolute duty for all individuals, irrespective of personal interests, wealth, or status. The Quran commands the believers to uphold justice and truth even when it involves standing against oneself or loved ones. This principle directly conflicts with the practice of Swara, where a woman is unjustly punished or harmed based on the actions of others in the family or tribe. The concept of individual responsibility and accountability is enshrined in Islamic teachings, and practices that undermine these values, such as collective punishment, are unequivocally prohibited.
(2) Surah Al-Maida (5:8) – Impartial Justice
(a) Translation. “O you who have believed, be persistently standing firm for Allah, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just; that is nearer to righteousness. And fear Allah; indeed, Allah is Acquainted with what you do.” (Quran 5:8)
(b) Explanation. In this verse, Allah calls on the believers to uphold justice, even in circumstances where there is potential personal bias or animosity. The verse stresses that justice must be upheld without prejudice, regardless of the circumstances. This message is crucial in the context of honour killings and the practice of Swara, where societal prejudices and personal grievances often lead to the violation of an individual’s rights. The Quranic command to act justly, even against personal biases, highlights the contradiction between Islamic law and the cultural practices that allow for the punishment of an innocent person in place of someone else’s crime.
Both these verses serve as strong Islamic prohibitions against unjust practices such as honour killings and Swara (Vani). In honour killings, an individual, typically a woman, is killed in the name of protecting the family’s honour, often for reasons beyond the victim’s control, such as alleged immoral behavior. Similarly, Swara involves forcing women into marriage or servitude to settle family disputes, with the woman suffering the consequences of another’s actions. These practices contradict Islamic principles outlined in Surah An-Nisa and Surah Al-Maida, which emphasize individual accountability and the impartiality of justice, regardless of familial ties or societal pressures. The collective punishment inherent in both honour killings and Swara violates the fundamental Islamic principles that every individual is responsible for their actions and cannot be punished for the deeds of another.
12. Constitutional Protections.
The Constitution of Pakistan guarantees the right to a fair trial (Article 10-A), equality before law (Article 25), and protection from retrospective punishment (Article 12). Jirga rulings often breach these safeguards13.
13. The Primacy of Divine Law over Customary and Constitutional Systems
a. Ultimate Source of Law. Islamic teachings emphasize that the ultimate source of law and justice is the guidance revealed by Allah SWT. The Qur’an repeatedly asserts that the Deen brought by the Prophet Muhammad ﷺ is meant to prevail over all other systems of life “Indeed, it is He who sent His Messenger with guidance and the religion of truth to make it prevail over all other ways of life, even though those who associate partners with Allah may dislike it.” (Surah At-Tawbah 9:33; 14also repeated in Al-Fath (48:28)15 and As-Saff (61:9).
b. A foundational Principal. These verses establish a foundational principle: no human-devised system, whether a traditional Jirga or a formal state judiciary, can claim ultimate legitimacy unless it conforms to the system ordained by Allah. Practices like Swara, honour killings, or decisions that undermine women’s rights or violate due process are not only illegal under the Constitution but also stand in direct violation of Islamic law.
c. Need to Scrutinize. The Jirga system, despite its cultural relevance, must be scrutinized and reformed in light of Qur’anic principles. Any judgment that contradicts divine injunctions is not only unjust but spiritually invalid. This understanding provides a moral compass for aligning all dispute resolution mechanisms with the universal principles of divine justice (al-‘Adl) and human dignity (al-Karama), as commanded in the Qur’an.
14. Institutional Gaps and Challenges
a. Lack of Legal Supervision. Jirgas operate outside formal legal channels, often without oversight or accountability.
b. Inadequate State Penetration. In many tribal and rural areas, the state has a minimal presence, making the Jirga the de facto authority.
c. Cultural Resistance to Reform. Efforts to curtail the Jirga system are met with resistance from traditional power structures and local communities who view these interventions as alien impositions.
15. Case Studies.
Legal and Moral Failures of Jirgas A deeper look into some high-profile jirga decisions illustrates the dangers of unregulated parallel justice: –
a. Mukhtar Mai Case (2002). A panchayat (similar to a jirga) in Punjab ordered the gang-rape of Mukhtar Mai as retribution for her brother’s alleged misconduct15. This sparked national outrage and exposed the moral failures of customary justice systems.
b. Qandeel Baloch Case (2016). Though not directly involving a jirga, the broader acceptance of honour killings within tribal cultures, including tacit approval through communal mechanisms like jirgas, highlighted systemic issues16.
16. Towards Reform: Integrating Jirgas with the Judicial System.
Despite the legal and ethical shortcomings associated with the traditional Jirga system, its persistence and popularity, particularly in Pakistan’s tribal and rural regions, underscore its embeddedness in local culture and its practical value. The Jirga’s accessibility, speed, and social legitimacy make it an indispensable recourse for communities that often remain underserved by the formal judicial apparatus. Furthermore, with the formal court system burdened by extensive case backlogs and procedural delays, a properly reformed and regulated Jirga mechanism could serve as a complementary tier of justice, thereby reducing the caseload and expanding the outreach of dispute resolution. However, to make this feasible and just, the system must be made efficient, accountable, and legally compliant through a series of carefully structured reforms aimed at harmonizing it with Pakistan’s constitutional and Shariah principles.
a. Legal Recognition and Regulation. Legislative reforms should formally recognize and regulate Jirgas as Alternative Dispute Resolution (ADR) bodies. This formalization must include clear guidelines delineating the jurisdiction, procedural limits, and legal framework within which Jirgas can operate. All decisions should be documented and submitted to the relevant district courts for validation to ensure compliance with statutory law and fundamental rights.
b. Gender Sensitivity and Human Rights Compliance. Jirgas must be categorically barred from adjudicating cases involving women’s autonomy, criminal matters, or violations of fundamental rights. This will prevent abuse of power and discriminatory rulings that contravene both constitutional guarantees and Islamic injunctions. Independent watchdog bodies should be established to monitor the proceedings, document rulings, and intervene where necessary to uphold justice.
c. Training and Certification. A national framework should be developed to train Jirga members in constitutional law, Islamic jurisprudence, and human rights. Certification and periodic renewal of credentials would ensure that Jirga elders operate with a baseline understanding of legal and ethical standards. This reform would professionalize the informal system and align it more closely with national justice objectives.
d. Hybrid Dispute Resolution Councils (DRCs). A structured mechanism for integration can be established through District Dispute Resolution Councils comprising legal professionals, Islamic scholars, civil society members, and respected tribal elders. These hybrid councils can act as mediating bodies that retain cultural legitimacy while operating under judicial supervision.
e. Community Legal Awareness Programs. Public education campaigns should be launched to enhance legal literacy among rural populations. This will empower citizens to challenge unlawful or unjust Jirga decisions and to demand accountability and fairness in dispute resolution processes.
f. Judicial Supervision and Appellate Mechanism. Jirga decisions should be subject to judicial review through the district and session courts. Establishing an appellate mechanism would provide a legal recourse to parties aggrieved by Jirga rulings, ensuring protection against arbitrary or unjust decisions. This would also dissuade Jirgas from exceeding their mandate.
17. Institutional Framework for Integration
a. National Commission on Customary Justice (NCCJ). Create a federal body to standardize, monitor, and regulate customary justice mechanisms. Liaise with provincial authorities and human rights organizations to document and audit Jirga proceedings.
b. Collaboration with Religious Institutions. Engage Islamic scholars to align Jirga practices with Islamic principles of justice. Use religious legitimacy to counter harmful customs.
c. Technological Integration. Digitalize Jirga records and link them to local judicial databases to ensure transparency and traceability.
18. Conclusion
a. The Jirga system stands as a deeply entrenched institution within Pakistan’s socio-cultural fabric, offering accessible and expedient justice, especially in regions where the formal state apparatus remains limited. Its appeal lies in its communal legitimacy, cultural sensitivity, and restorative orientation. However, unregulated and extra-constitutional Jirgas have repeatedly been found complicit in violations of Islamic principles, constitutional safeguards, and international human rights norms, particularly in cases involving gender-based violence, collective punishment, and denial of due process.
b. This necessitates a comprehensive approach that neither discards the traditional system outright nor accepts its unregulated form. Instead, it calls for the integration of the Jirga mechanism into Pakistan’s formal judicial framework—through legal recognition, institutional supervision, training, and digitization—so that it operates within a framework of accountability, legality, and ethical justice. The establishment of national and provincial supervisory bodies, hybrid dispute resolution councils, and alignment with Islamic jurisprudence provides a pathway to ensure both cultural continuity and legal integrity.
c. More fundamentally, Islamic doctrine, as highlighted in verses such as Surah At-Tawbah (9:33), Surah Al-Fath (48:28), and Surah As-Saff (61:9)—emphatically affirms that the only acceptable system is that which is revealed by Allah SWT. All man-made systems, including customary practices and state institutions, are subservient to His law. Therefore, a Jirga system that conforms to divine principles may be retained as a tool of justice; one that deviates from it must be reformed or disbanded.
d. Ultimately, the aim is not to abolish the Jirga system but to reform and channel its potential through a legal and moral framework that serves justice, upholds dignity, and fulfills Pakistan’s constitutional and Islamic obligations. In doing so, the state can ensure that every citizen, regardless of geography, gender, or social class, has access to justice that is both fair and faithful to the values enshrined in Islam and the Constitution of Pakistan.
