The status of citizen of Pakistan earns all the privileges, protection and guarantee for which the State is duty bound to provide necessary protection. The term State shall not stand well with its meaning unless each single organ thereof functions properly and masses feel existence of protection, safety, liberty and all other rights which have been defined as fundamental rights in our constitution. To ensure this, the State confers its authority to different offices. It is the absolute and exclusive responsibility of the State through its organs to ensure safety and enforcement of fundamental rights.
All the laws in Pakistan are subject to Article-8 of the Constitution of Pakistan 1973, which states that “Laws inconsistent with or in derogation of Fundamental rights to be void, Any law, or any Custom or Usage having the force of law, shall to the extent of such inconsistency, be Void’”. The Article-8(1) leaves nothing ambiguous, that not only the law but all the ‘custom’ having the force of law, shall be void if they are inconsistent or in derogation to fundamental rights. The custom or usage of ‘Jirga’, being in derogation to fundamental rights, particularly those of Article 10-A of the Constitution of Pakistan, is not only void but illegal. Jirga cannot dress itself up with status of a ‘Law Authority’ which is always vested with jurisdiction to enforce its verdict; therefore, holding of Jirga(s) is illegal which even has so been declared by Hon’ble Supreme Court of Pakistan in several judgments.
In the year 1963 West Pakistan Criminal Law (Amendment) Act VII of 1963 was promulgated under which tribunals were constituted. The President of the Tribunal was the Magistrate exercising powers of Additional District Magistrate or Sub‑Divisional Magistrate who was invested with powers under section 30 of the Cr.P.C. and 4 other persons to be appointed by the Magistrate from amongst the panel which was constituted by the Commissioner of the Division for each District. The said Tribunal was even authorised to decide the murder cases and other heinous cases, which were referred to them under the said act. During enforcement of the said act the trial before the tribunal was commonly known as Jirga trial. But this act was also repealed in the year 1969. In 1976 another Regulation IV of 1976 viz. Provincially Administered Tribal Areas Special Provisions (Amendment) Regulation, 1976 was promulgated under which word “Jirga” was added in Regulations Nos I and II of 1975. Under this Regulation, in section 2(1) and after clause-I the following clause was inserted. Likewise in the province of Sindh, West Pakistan Criminal Law (Amendment) Act, 1963 was enacted under which the trials were conducted by the Tribunals which were commonly known as the “Jirgas”. But the said act has been repealed.
The repeal of the act shows that even the trials by tribunals consisting of private members headed by a magistrate have been abolished. Thus, it is manifest that the legislature by repealing act, clearly demonstrates that the trial of any case with the aid of private persons cannot be conducted. If any such trial is held with the aid of the private persons, then it will be illegal and unlawful trial which will be having no protection of law and the orders cannot be executed but be void. After the repeal of acts, when no trials with the aid of private persons can be held, then how Jirgas constituted by private persons on their own can conduct the trial of any case and award any punishment and execute the decisions?
In Jirgas, no specific procedure is followed. It is the whim and choice of the Jirga people to adopt any procedure even if it is detrimental to one party. Neither the principles of natural justice are followed nor are well recognised rules of evidence adhered to. They are free to pass a verdict on personal knowledge belief and political affiliations. In Jirgas they only settle the disputes but do not do justice according to law. At the conclusion of proceedings, the decisions are announced in the shape of punishment, fine or compensation. All the above acts are the functions of the courts of law. No other authority or person has the power to settle the disputes of the cases except by the courts of law or other authorities created under the statute and punish any person: The functions, which are exclusively to be performed by the courts of law, are being performed by the Jirgas thereby usurping the powers of the courts. As such the Jirgas are parallel judicial system which itself is unlawful and illegal.
The arguments that the judicial system has failed, and thus the people are going for alternate remedy in the shape of Jirgas is without any substance. Thousands of offences have been committed which the courts of law are trying. Only few cases are being referred to Jirgas which by itself does not show that the judicial system has failed. People have faith in the judicial system therefore they are approaching the courts of law.
A reluctance or hesitation by the senior police officials, who are unfortunately politicians’ servants, in taking legal action may compel the victim of an illegality to do what he is not legally required to do or to refrain from what he is legally required to do.