Jirgas have operated in various regions of Pakistan since colonial times. A jirga is an all-male council which settles conflicts through local customs and laws. The main purpose is to restore social equilibrium instead of the provision of justice. These decisions are socially binding upon the parties and there is no forum of appeal. Even when they are the victim, accused or witness, women can not be present before the jirga.
The honor of men is a critical component of jirga customs. In fact, a single testimony from a male relative is sufficient to condemn a woman in a case of adultery. Even if a woman marries of her free will, she is still punishable by death under jirga customs as she has violated the honor of her male relatives. Most men are able to get away with murder or rape through reconciliation agreements which offer cash or a girl from their family for marriage as compensation.
In particular, there are customs called ‘swara’, ‘vanni’ or ‘sung chatti’ which involve the barter of women as settlement. These are meant to shame the family of the accused as the girl being bartered does not undergo a wedding ceremony but sits on a donkey and is handed over to the other family. Vanni applies in cases of kidnapping, murder or rape whereby the closest virgin female relative of the accused is handed over to the other family as punishment. Importantly, these decisions predominantly affect the poor as it is rarely noted that a rich and affluent family gives their daughter away as compensation. Instead, receiving a girl as compensation is seen as a status symbol by most.
In one case, a jirga ruled that two teenage lovers were to be electrocuted to death for bringing dishonor to the community. In 2015, a jirga in Diamir declared that women can not vote in elections, disenfranchising around 12,000 voters in the constituency. In another case, an 11 year old girl was married to a much older man as punishment for sexual assault committed by her uncle. These are some examples of atrocious decisions by village councils or jirgas which draw attention to their tendency for perpetuating and legitimizing discrimination and violence against women.
For far too long, Pakistan has relied on jirgas to support its heavily burdened and back logged judicial system. This has come at a huge cost. A household survey carried out by the National Commission of Status of Women (NCSW) found that 70% of the married women in areas where jirgas operate, were bartered in marriage through a jirga decision. Three fourth of these women faced domestic violence.
It was not until 2019 that jirga and panchayats were declared unlawful by the Supreme Court of Pakistan. This article discusses the landmark judgment from 2019 which declared jirgas to be illegal under the Constitution of Pakistan and the various international legal obligations it is bound by.
An important aspect of the judgment is that it heavily relies on Pakistan’s international obligations to declare jirga and panchayats as illegal. The judgment clarifies that any jirga functioning in the capacity of arbitration, mediation or negotiation is still permissible. However, where they usurp the jurisdiction of ordinary courts of law, be it civil or criminal, they function as parallel courts which are illegal.
The judgment eloquently summarizes the various international laws on the subject which bind Pakistan. Pakistan is a signatory to the Universal Declaration of Human Rights (“UDHR”). Articles 7 and 8 provide for an equal protection before the law without any discrimination, and a right to remedy by competent tribunals for any violation of fundamental rights provided by law. Pakistan is also a signatory to the International Covenant on Civil and Political Rights (“ICCPR”). The ICCPR similarly provides for equal protection under the law and places an obligation upon states to ensure the rights provided in the covenant to individuals. Additionally, if any rights are violated, individuals should have access to an effective remedy through a competent authority, and such remedy must be enforced when granted. Moreover, Pakistan has ratified the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”). Article 15 places the responsibility on state parties to afford women and men an equal legal capacity and opportunity to access that capacity in all stages of procedure in courts and tribunals.
The apex court finds that village councils are a blatant violation of the aforementioned obligations. Various rights such as due process, as enshrined in the ICCPR, are violated. There is no regard to substantive law as the members of the council make decisions arbitrarily, applying their own words and customs as law. Importantly, there is blatant discrimination since most of the country has access to courts of law and legal remedies whereas individuals coming to jirgas and panchayats do not. The state is not obligated to only protect those who are aware of their rights, but also those who are not and approach jirgas and panchayats for conflict resolution. 
The judgment goes on to qualify that such village councils are also illegal under Pakistan’s own constitutional provisions, i.e., Article 4, 8, 10-A, 25 and 175. Article 4 provides for an equal protection before law whereby no one is hindered from performing an act that is lawful, nor are they compelled to commit an unlawful act. Additionally, under Article 8, any laws, customs or usages inconsistent with fundamental rights shall be void. Article 10A provides for a right to fair trial and due process. Finally, Article 175 states that no court will have jurisdiction unless conferred so by the constitution and the law.
Summarily, the judgment holds that jirgas are illegally performing functions which are to be exclusively done by courts of law. They are not bound by any law and the finality of jirga decisions is also against the principles of natural justice. As per Pakistan’s international obligations and the constitution, jirgas violate the right to equal protection of law, and to be treated in accordance with law. These decisions by jirgas are detrimental to the ‘life, liberty, body, reputation, and property of persons’. They compel individuals to commit unlawful acts and as a result of these there is rampant discrimination over gender and status. Given that they do not follow due process or afford a fair trial, such decisions are violative of UDHR, ICCPR, CEDAW and the Constitution.
This is a welcome judgment which follows a progressive judicial trend of referring to international law in legal reasoning. However, it is important that more judges follow suit in abiding by Pakistan’s international legal obligations wherever applicable. It has long been established that in cases where it has not yet been incorporated into domestic law, international law is still applicable where no local law is in negation to it. It is time more of our judges treated international law as binding.
 National Commission on the Status of Women (NCSW). Women, Violence and Jirga Consensus and Impunity in Pakistan (“NCSW”) Pg 9 <https://ncsw.gov.pk/SiteImage/Downloads/Women,%20Violence%20and%20Jirgas%20Consensus%20and%20Impunity%20in%20Pakistan.pdf>
 NCSW p19
 NCSW p20
 NCSW p20
 Basit Mahnood, ‘Pakistan’s Jirgas and Women’s Rights’ (The Diplomat 4 Jan 2018) <https://thediplomat.com/2018/01/pakistans-jirgas-and-womens-rights/>
 NCSW p9
 NCSW, p21
 National Commission on Status of Women v Government of Pakistan PLD 2019 SC 218 (“NCSW v Government of Pakistan”)
 NCSW v Government of Pakistan, para 5
 NCSW v Government of Pakistan, para 6
 NCSW v Government of Pakistan, para 7
 NCSW v Government of Pakistan, para 38
 NCSW v Government of Pakistan, para 43
It is such a well crafted article. It shows the wide perspective of the writer, covers almost all the areas of jirga system in Pakistan. Well done