Amnesty International: Ban Tribal Jirga

MUKHTARAN MAI: Punishment of the innocent

Mukhtaran Mai was 30 years old when she was given her judgment from a tribal jirga (tribunal) in Meerwala Jatoi, Southern Punjab, Pakistan. Had the crime been hers she may have understood why she was being involved in the settlement of this dispute, yet as the accused was her younger brother it seemed that his mistake was to be borne by the whole family, particularly herself.

Mukhtaran’s 12-year-old brother, Shakur, a +member of the poorer Gujjar community, had been accused of sexual misconduct with a woman from the more influential Matsoi tribe. His family adamantly denied this claiming that the boy had been sexually abused by a member of the Matsoi tribe and that this false accusation of harassment was merely a cover up.

The guilt or innocence of the Matsoi woman or of Shakur remained unclear, however, at the decision of the tribal jirga, Mukhtaran was made to take responsibility for her brother’s deeds and was ordered to be gang raped by four men from the Matsoi tribe, one of whom was a member of the jirga. When she protested, reports indicate that her pleas were ignored and she was told that all the women of the family would be “spoilt” if she resisted the jirga’s decision.

On 22 June 2002, Mukhtaran Mai despite her cries for help was taken, in front of all the villagers, by the four men into the room of Abdul Khaliq and was raped consecutively by each of them. She screamed out for help from the room but not a single person came to help her. The verdict of the jirga was the word of justice and governed by fear, no-one had the courage to stand up to this decision that day.

After being subjected to ninety minutes of rape, Mukhtaran was thrown outside with little clothing left on her body other than a torn shirt. In her state of nudity she was made to walk home while the villagers looked upon her. As she made her way through the crowd she knew her father was also present but dared not look up in shame.

While many women suffer an ill fate at the hands of a tribal jirga Mukhtaran was able to find justice when her story leaked to the media. The uproar across Pakistan came with an intensity that made her case impossible for officials to overlook. Her case was taken up by the non-governmental Human Rights Commission of Pakistan and the perpetrators were tried and convicted in anti-terrorism courts. Death sentences were handed down to those found guilty. Appeals to their death sentences are believed to be pending before the higher judiciary.

Two years after the gang rape, two men of the Matsoi tribe were sentenced to imprisonment for sodomising Shakur

Women have for many years been used as a means settling disputes, establishing ties and paying off old debts within the alternative justice system. While the jirga or panchayat system is not endorsed under the Constitution of Pakistan as a formal mechanism for serving justice, it has been legitimised by the lack of action taken against its existence. Though many of the decisions passed down by jirgas are in direct violation of an individual’s human rights guaranteed under the constitution of Pakistan as well as in international laws, it is seen as a traditional institution that has been allowed to continue without question.

Jirgas, councils of male elders, have assumed quasi-judicial functions and passed “judgments” which have predominantly violated girls’ and women’s rights. Such have led to girls and women - and in some cases men - being killed for supposed infringements of their families’ or community’s “honour”, to women being punitively raped and to their being forcibly married to settle disputes. The non-governmental Human Rights Commission of Pakistan noted in its annual report for 2003: “The jirga system appeared to expand and grow more powerful”.

Government officials have on several occasions defended jirgas as valued “traditional” practices and no official action have so far been taken to prevent trials by these extra-judicial tribunals at a national level. Only in very rare cases have members of jirgas been held to account for the abuses perpetrated by them.

Amnesty International welcomes a ban on trials by jirga issued by the High Court of Sindh province on 23 April 2004. The High Court has directed that contravention of the ban would be prosecuted as contempt of court which is punishable with imprisonment.

The Sindh High Court announced the ban on trials by jirga during the hearing of a petition brought by a couple who had married of their own free will. They had been declared “karo-kari “ (literally ‘black man’ and ‘black woman’, where ‘blackness’ denotes their having brought ‘shame’ on family or community) by their tribe and feared that a jirga would decide that they should be killed on grounds of “honour”. The couple asked the High Court to restrain the leaders of their community from holding trial by jirga and using force against them. The High Court declared trials by jirga unlawful and in breach of provisions of the Constitution and the law. It observed that police were obliged to take action to prevent the holding of jirgas.

Over 600 women across Pakistan reportedly became victims of “honour” killings in 2003 with hundreds more cases presumed to have taken place without being reported. In many of these cases, jirgas instigated these killings.

The recent High Court judgment banning trial by jirga is a welcome first step in the direction of abolishing jirgas and ending their instigating “honour” killings, cruel punishments and ‘trading’ of women to settle disputes. The judgement, however, only applies to the province of Sindh and needs to be expanded to cover the whole country in a comprehensive piece of legislation which makes trial by jirgas a criminal offence, not a mere matter of contempt of court.

Draft legislation against “honour” crimes is being prepared in provincial assemblies and the National Assembly but no bill specifically banning and criminalizing participation in trials by jirgas is known to exist. Amnesty International is calling on legislators in Pakistan to ban the practice of trial by jirga in law and on the government to ensure the strict implementation of the law.

In the past, local officials are known to have encouraged and even participated in jirgas. The belief is widespread that jirgas are quicker, cheaper and more reliable than regular court trials. A ban on trial by jirga must therefore be accompanied by a strengthening of the criminal justice system so that the resort to jirgas to settle disputes ceases to be seen as a viable alternative.

MUMTAZ AND MUDASAN: Paying the price for another’s mistake
In the locality of Danga Naich, a suburb of the town of Kabeerwala, Punjab, Pakistan a jirga wielded their power over the fate of two girls in a verdict that mirrored what had happened to Mukhtaran Mai two years earlier.

Mumtaz and Mudsan, sister and sister-in law of Mohommed Riaz respectively found themselves paying heavily for the alleged crime of their brother.

Mohommed Riaz was accused of having illicit relations with Shahina, daughter of Ghaffar.
According to news reports on 30 April 2004, Ghaffar allegedly sent Shahina to Mumtaz’s house while her brother Muhammad Riaz was inside. Ghaffar reportedly then locked the main door of the house and called the other villagers around, accusing Riaz of having an affair with Shahina.

Ghaffar then arranged for a jirga of 50 people in his house to come to a decision on the punishment of Mohommed Riaz for allegedly violating his daughter. The jury, headed by Haji Muhammad Sultan, Haji Afzal Jeer and Ahmad Nawaz called Mumtaz and Riaz’s sister-in-law Mudasan and ordered Ghaffar to rape them as punishment. Ghaffar allegedly took them to an outhouse and raped each of them in turn. The family of Mohommed Riaz was also asked to leave the village.

This story has made media headlines and created a public outcry. Nevertheless the two girls are proof of the continued use of alternative justice systems to settle disputes that take the lives and honour of young girls into their hands and punish the innocent for alleged crimes of their relatives.

No action has apparently been taken against Mohommed Riaz- yet in the eyes of the community justice seems to have been served.

According to press reports, President Musharraf has asked the Interior Minister, Punjab Governor and Chief Minister to take notice of such a brutal incident and provide maximum relief to the affected family that was forced out of the village.

The president asked Punjab Chief Minister Chaudhry Pervaiz Elahi and Governor Khalid Maqbool to probe the matter and present the report at the earliest. He also stated that “When a proper legal system exists in the country, who allows such decisions that not only destroyed the lives of two girls but ruined an entire family.”

Welcoming key statements of the President that jirgas exist outside the criminal justice system and that he will take steps to implement one legal system in the country, Amnesty International looks forward to prompt action from the Government of Pakistan in line with the given recommendations.

Recommendations:

Amnesty International urges the Government of Pakistan to:

-Pass legislation which makes it a criminal offence to instigate or partake in trial by a jirga

-Ensure strict implementation of such legislation and bring to justice those who breach these laws

-Strengthen the criminal justice system to make recourse to jirgas unnecessary.

Related Documents:

Pakistan:Tthe tribal justice system, AI Index: ASA 33/024/2002
Pakistan: Violence against women in the name of ‘honour’, AI Index: ASA 33/17/99