Rahim’s disregard for SHC verdict on jirgas continues

he Sindh chief minister, Arbab Ghulam Rahim, continues to defy the April 2004 Sindh High Court (SHC) Sukkur Bench ruling that banned the holding of jirgas (tribal assemblies) in Sindh. Recently, Rahim presided over a jirga session in Sukkur convened to sort out differences between the Jatoi and Maher tribes. “It is my constitutional responsibility to bring about reconciliation between two warring sides,” Rahim told reporters after attending the jirga held at Sukkur’s circuit house, at a short distance from the SHC Sindh bench.

While Sindh government officials say this is the first time that Rahim has presided over a jirga session, the truth is that it was only last September when he hosted a jirga session at the Chief Minister’s House in Karachi to settle a dispute between the Maher and the Almani tribes. The dispute related to the much-publicised love marriage of Shaista Almani and Balakhsher Maher. Indeed, Rahim read out the jirga agreement after the session.

Reports suggest that the Sukkur jirga session was not the first “reconciliation meeting”. In 2003, a similar jirga was held at the circuit house, after which another 28 people were killed in tribal conflicts. So far, the Maher-Jatoi feuding has led to 250 people killed on both sides.

Rahim’s take on the jirga system is that it is the only way tribal conflicts can be resolved. This approach completely disregards Justice Rehmat Hussain Jaffery’s April 2004 verdict in which the learned judge declared the system “illegal, unlawful and against the cannons of [the] law of [the] land”. The verdict read that “private persons have no authority to execute the decision of jirgas nor do jirgas have the authority to execute their own decisions through their own sources. If such decisions are carried out and executed by killing persons, then the offence of murder will be committed and they will be liable for action as per the law…The jirgas have also usurped the powers of the executing authorities which is not permissible under the Constitution or the law.”

The SHC verdict left the local tribal chiefs seething, with many announcing that they would move the Supreme Court against the SHC ruling. That did not happen. A large number of jirgas were postponed while a significant number were relocated to Balochistan.

“Tribal chiefs continued to hold jirgas in neighbouring Balochistan for a few months until Rahim openly patronised the evil practice [jirga system] and encouraged the tribals to violate the court’s verdict,” said a source. There is evidence that the ruling had an impact and were it not for the CM himself, the practice could have been effectively checked.

Rahim is a tribal leader himself and has repeatedly justified the jirga system in the past, claiming that there should be no objection to providing legal cover to jirga judgments. In recent talks with the press, he termed it necessary to give legal cover to jirga judgments because of a “delay in the disposal of cases by [the] courts”. “The jirga is an ancient system that we have adhered to,” said Rahim. “This system has contributed greatly to the efficient delivery of justice to those who deserve it.”

Under the directives of Rahim, following the SHC ruling, the provincial government drafted an ordinance called the “Sindh Amicable Settlement of Disputes Ordinance (SASDO) 2004” which would empower tribal leaders in Sindh to decide intra- and inter-tribal disputes.

The SASDO also justifies the jirga system and is an attempt to give it legal cover. The ordinance states as its main objective ensuring the “amicable settlement of disputes and the promotion of harmony among different segments of society in Sindh”.

The document has been drafted in such a manner that if it were to be put in effect, it would render the SHC verdict totally ineffective. One of its clauses reads: “This ordinance shall have effect notwithstanding anything contained in any judgement, decree or order of any court or any law for the time being in force.”

The ordinance further states: “Notwithstanding anything contained in any law, no legal practitioner shall be permitted to appear on behalf of any party to a dispute before naikmard (a person or persons who command the respect and confidence of the people of the local area and is appointed as such by the parties with their consent to decide their dispute)…No suit, prosecution or other legal proceedings shall lie against the government, the naikmard or any person for anything which is in good faith done or intended to be done in pursuance of the provisions of this ordinance.

“Where any matter is brought to the notice of the naikmard and the naikmard is otherwise satisfied that a dispute exists which is likely to cause bloodshed, murder, breach of peace, the settlement thereof will tend to prevent or terminate the commission. The naikmard shall use his good offices - (a) to achieve amicable settlement of disputes amongst the people of the area through mediation, conciliation, arbitration or faisla (verdict); (b) to prevent the breach of peace and public tranquillity in the local area; (c) to promote harmony; (d) to eradicate enmity; and thereby create brotherhood among the persons of different segments of society.”

While the SASDO justifies the system, civil society and human rights organisations condemn the institution. Former Chief Justice of Pakistan, Syed Sajjad Ali Shah, told TFT that a parallel judicial system is not acceptable to civil society and that patronising such practises is aimed at weakening the present judicial system and perpetuating feudal brutalisation. “It is unfortunate that those who should be working towards eradicating this practice actually support it fully,” he said.

Human rights organisations have condemned the jirga for being the “main promoter of incidents of karokari” in the province and have demanded the implementation of the judicial order. “The jirga system has been functioning as a parallel judicial system in the province since it was institutionalised in 1985 by Ziaul Haq,” human rights activist Akhtar Baloch told TFT. “Since then, the system has greatly encouraged murder in the name of honour.”

Baloch believes that the popularity of the jirga system stems from the fact that “tribal chiefs enjoy their own states within a state where people are compelled to follow their judgments rather than the law of the land”. Observers agree that the Supreme Court of Pakistan should take cognisance of Rahim’s efforts to undermine the SHC. “I think there is a case here for the SC to take suo motu action on this issue,” says one.