The Role of Jirgas in Honor Killing Cases: An Unconstitutional Parallel Justice System?
Abstract
Honor killings are among the worst gender-based violence occurring in Pakistan and tribal injustice systems like jirgas have become the key determinant of the crimes. and even after all these legal reforms and pressure exerted by the rest of the world, honor related cases are still judged in the extrajudicial forums, and in many cases; the extrajudicial forums condone or approve murder in the name of upholding the family or tribal honor. The main character of this paper is to question the constitutional legitimacy and socio-legal impacts of jirgas as parallel systems of justice especially in the light of honor killings. It analyzes how these traditional assemblies lead only to weakening of the rule of law as well as to the weakening of fundamental rights envisaged under the Constitution of Pakistan such as the right to life, equality and to a fair trial.
The continuance of jirga decisions in honor related cases is a big challenge against the formal criminal justice. Such forums exist outside the procedural protection of the state and they in many cases support violent traditions that victimize women and disadvantaged persons. Although the Constitution establishes the model of legal conformity and judicial supremacy, application of the state laws in the tribal and rural areas where jirgas have social acceptability is uneven. This conflict between the informal power and the formal legal institutions created the situation where people who commit honor killings are treated as systematically immune and the democratic legal rules are weakened.
This article will rely on the inter-disciplinary literature, which are factual data on legal pluralism and ethnographic accounts of tribal justice as well as human rights literature. It takes a swipe at the institutional tolerance of jirgas and the socio-political reasons that prevent the state in breaking them down or controlling them. The paper does not take the concept of jirgas as a form of cultural or display of community justice, but rather as a cause of the refusal of constitutional rights to honor killings. Through this, it refers to the collusion of local politics and power structure to preserve these extra-legal systems.
The international human rights obligations to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) among others are also analyzed and the way in which the non-addressing of the issue of jirga-facilitated violence by Pakistan acts as a breach of its international commitments is also considered. In the end, the paper insists that either of the following two approaches by the state is essential; first, it should integrate such traditional systems with formal legal oversight, and second, it should abolish them altogether in order to avoid constitutional subversion and violence against women and girls. It requires a stronger legal structure that will make parallel adjudication of criminal acts a criminal act and that will allow formal judicial institutions to carry out their work unhindered by customary authority brokers. The paper shall highlight how the use of the jirga system in Pakistan lends itself to a wide array of legal, ethical, and human rights abuses and thus fill the gap in the policy debate on justice and gender equality in the country.
