Afridi Rishta

What a jirga can and cannot decide

Every community with strong councils of elders has this question somewhere in the background of a marriage negotiation, and most families have never been told where the line actually falls. It was settled clearly, and recently, and knowing it changes how a household negotiates.

The judgment

In January 2019 the Supreme Court of Pakistan decided a petition brought by the National Commission on the Status of Women together with the Government of Khyber Pakhtunkhwa, in a judgment written by the then Chief Justice. The Court held that jirgas and panchayats acting as parallel courts, adjudicating civil or criminal matters, have no basis in the Constitution or in any other law. It found the practice contrary to Articles 4, 8, 10-A, 25 and 175(3) of the Constitution, which between them guarantee the right to be dealt with in accordance with law, equality before the law, the right to a fair trial and the exclusive exercise of judicial power by the courts. It also referred to Pakistan commitments under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women.

What was declared illegal, precisely

Not the existence of a jirga. What the Court declared illegal was any order, decision or directive issued by such a body when it is acting as a court, and the assumption by anybody of the jurisdiction of a civil or criminal court without lawful authority. The Court went further on enforcement: it directed police to register cases for crimes that had gone unreported, and held that those who give effect to or assist an illegal jirga decision bear responsibility alongside the original offender.

What remains entirely lawful

A jirga or panchayat may act as a forum for arbitration, mediation, negotiation or reconciliation. That role survives, with two conditions attached by the Court: it applies to civil disputes, and it operates only where the parties willingly consent to it. Elders who bring two families to the table and help them reach an agreement both sides accept are doing something the law recognises and values. Elders who hand down a decision that binds somebody who did not agree to be bound are not.

Why this matters in a marriage negotiation

Three practical consequences, and they run in both directions.

First, consent is the whole of it. If a council is helping two willing families settle the terms of a marriage, nobody need be uneasy. If a council is deciding whether a marriage will happen, or deciding it over the objection of the woman concerned, that decision has no legal force whatever and never acquires any.

Second, a marriage can never be the remedy. Giving a woman or girl in marriage to settle a dispute, feud or compensation claim is a criminal offence in its own right under the Penal Code, punishable with three to seven years imprisonment and a fine of up to five hundred thousand rupees. The custom has several regional names and the law reaches all of them. No agreement between two families, and no decision of any council, makes it lawful.

Third, it tells you where to go. Disputes about dower, maintenance, custody, the return of dowry articles and dissolution of marriage all belong to the Family Court, which is a real court with real remedies and no requirement that anybody consent to its jurisdiction. Families who believe their only forum is a council of elders are frequently wrong about that, and the cost of the mistake falls almost entirely on the woman.