Coexistence or Conflict? The Jirga, Legal Pluralism, and the Reform of Customary Dispute Resolution in Pakistan

Abstract

One of the oldest and the most enduring customary dispute resolution system in South Asia, the Jirga has been relying on the Pashtun moral code Pashtunwali and has been passing through different iterations of emperors and states. This article explores the tension between Jirga and the formal legal order of Pakistan with the legal pluralism lens and looks at the possibility of coexistence and/or conflict. It relies on doctrine and the comparison to study the Jirga in the context of constitutional protectors of Pakistan such as due process, equality, dignity and fair trial, and the obligations of the state in international documents such as ICCPR, CEDAW, and UDHR. The analysis confirms that some of the Jirga practices, in particular, swara (giving of girls in marriage to settle feuds), the tacit endorsement of honour killings and collective punishment are in serious derogation of norm-based constitutional and human rights.The analysis confirms that there are some aspects of Jirga which violate the constitutional and human rights based on norms seriously (swara – giving of girls in marriage to settle feuds, tacit approval for honour killings, collective punishment). The article also notes that the Jirga is easily accessible, rapid, inexpensive and culturally acceptable, continuing to use it despite the presence of formal courts, which are distant, slow and not trusted. Reviewing comparative experience from India, Malaysia and Afghanistan, and institutionalised alternative structures such as the Dispute Resolution Councils in KP, it concludes that neither abolition nor uncritical endorsement is appropriate, but rather, structured reform: A Jirga Regulation Act that limits the scope of the Jirga to consensual civil cases, incorporates women, and ensures against arbitrary action and a right of appeal; a judicial structure in which Jirga is integrated. The new Jirga, with the restored mechanisms, may help and not harm the constitutional provision of cheap and speedy justice.

Keywords: Jirga, Pashtunwali, Legal pluralism, Customary law, Human rights.