Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: National Commission on Status of Women through its Chairperson, etc VS Respondent: Government of Pakistan through its Secretary Law & Justice, etc
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Mian Saqib Nisar Title:National Commission on Status of Women through its Chairperson, etc vs
Government of Pakistan through its Secretary Law & Justice, etc Case No.: CONSTITUTION PETITION NO.24 OF 2012 AND CIVIL PETITION NO.773-P OF 2018 Date of Judgment:2019-01-16 Reported As: PLD 2019 Supreme Court 218, 2019 SCP 18 Result: N/A Judgment MIAN SAQIB NISAR, CJ.- CONSTITUTION PETITION NO.24 OF 2012:- The genesis of the issues raised in the instant matter lies in the reality that in today's day and age informal custom-driven parallel legal systems in the form of 'council of elders' or 'kangaroo courts' exist in the tribal areas, particularly in the north of the Province of Khyber Pakhtunkhwa (KPK), and in some rural areas of KPK, Punjab, Sindh and Balochistan. Petitioner No.1, the National Commission on the Status of Women (NCSW) along with the other petitioners who are members of NCSW and human rights activists have filed the present petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) seeking declarations and directions from this Court on the legality of jirgas/panchayats etc. prevalent in Pakistan, thereby challenging their operation as adjudicating bodies awarding judgments, executing punishments and deciding family, civil, criminal and other disputes. Therefore the key question arising from the instant constitution petition is that whether, to the extent that these informal village or tribal gatherings act as courts in the form of jirgas/panchayats, etc. they are illegal under the law in place read with the international commitments made by Pakistan under various treaties/conventions? 2. Learned counsel for the petitioners relied upon the cases of Mst. Shazia Vs. Station House Officer and others (PCrLJ 2004 Karachi 1523) , Mst. Rahmat Bibi and another Vs. Station House Officer , Karan Sharif (PLD 2016 Sindh 268) and Government of Balochistan Vs. Azzizullah Memon (PLD 1993 SC 341) to contend that jirgas have been declared illegal by the Courts. Reference was also made to a research report titled "Women, Violence and Jirgas - Consensus and Impunity in Pakistan" (the Report) prepared by NCSW and certain recommendations were placed before this Court. The crux of the petitioners' arguments is as follows:-1 2
---
## Page 2
i. The existence of these parallel bodies or kangaroo courts deprives the individuals involved therein of their right to enjoy their right to life, liberty and justice and equal protection of the law and the right to be treated in accordance with the law thereby constituting a violation of Articles 4, 8, 9, 10-A, 14, 25, 34 and 37 of the Constitution; ii. Efforts should be made by the State (under its obligations under Articles 33 and 37 of the Constitution) and its three pillars to eliminate the patriarchal and inhuman practices in jirgas , panchayats and other similar bodies the decisions of which, as reflected in pages 22 to 33 of the Report, are largely based on punishments wherein the women of the community are either traded as compensation or subjected to humiliating punishments for the crimes/of fenses of their male kin thereby constituting a violation of Article 25 of the Constitution; iii. Jirgas/panchayats etc. reinforce unfair social norms by implementing the decisions of notable elderly men of the village or tribe on its socially and financially weaker members (women and the impoverished) ; such bodies convene in village gatherings to resolve disputes between parties where as a matter of culture and tradition, women are a rare sight and if involved in a dispute are usually being represented by their male kin which again is a violation of the right to due process and equality under Articles 10-A and 25 of the Constitution; and iv. In light of the above mentioned widely prevalent circumstances in the rural and tribal areas, the internationally recognized principles of 'due process of law' and the 'right of access to justice to all' enshrined in different international treaties to which Pakistan is a signatory have been completely violated. The petitioners (in the constitution petition) have sought the following relief:- i. Jirga/panchayats etc., in the country ought to be declared illegal, unlawful, inhumane and grossly violative of the fundamental right to dignity; ii. In light of the violation of Articles 4, 8, 9, 10-A, 14, 25, 34 and 37 of the Constitution, jirgas/panchayats etc., be declared unconstitutional and ultra vires for assuming the powers of courts; iii. Actions, proceedings, and orders of any jirga/panchayat etc., be declared as void and action be taken against those who have participated in such illegal activities; and iv. The respondents be directed to frame, amend and implement constitutional provisions and penal laws relating to illegal practices of jirga/panchayats etc. 3. The learned Deputy Attorney General present in Court and the learned Additional Advocates General of Punjab, Balochistan, Sindh and KPK unanimously submitted that although efforts are being made by their respective Provincial Governments to eliminate any patriarchal practices prevailing in the Provinces, they are willing to extend any further support required to curb the illegal practices of honor killings, vanni , swara , karo kari, etc., that are not only violative of the fundamental rights of women under the Constitution but are also against the basic human rights guaranteed under the international conventions that Pakistan is signatory to in this regard, particularly the Convention on the Elimination of all Forms of Discrimination Against W omen (CEDA W). 4. No objection was raised as to the maintainability of the instant constitutional petition under Article 184(3) of the Constitution. Even otherwise, it fulfils the two-fold requirement in the Article ibid in that it involves a question of public importance with regards to the enforcement of the fundamental rights under the Constitution as substantiated in various judgments of this Court. In Baz Muhammad Kakar Vs. Federation of Pakistan (PLD 2012 SC 923) it was held that "The Courts are obliged to exercise their powers and jurisdiction to secure the rights of the citizens against arbitrary violations" . Thus the question of maintainability stands decided. 5. To answer the question involved, it is worthy to note at the very outset that the various terms, i.e. 'jirga', 'panchayat ' and 'faislo ', generally describe village or tribal gatherings, a common feature whereof is that one or more elderly men convene in order to settle a dispute of criminal or civil nature. While the terms used to refer to such gatherings may differ, to the extent that these act as an archaic form of informal courts that the rest of the world has long abandoned, they usurp the jurisdiction of ordinary courts of law. However it is essential to clarify that although, through the constitution petition, a general declaration with regards to the legality of informal courts such jirgas/panchayats etc. is being sought, there are certain customary and traditional sentiments attached to such terms and practices which do not necessary involve the holding of parallel courts but instead entail a gathering of village elders to resolve a dispute which can within the permissible limits of the law be settled outside of courts.3 4
---
## Page 3
Therefore, nothing in this opinion should be construed in a manner that any stigm a or ill-feeling is attached to the term jirga or panchayat which may operate within the permissible limits of the law as outlined hereinabove to the extent of acting as arbitration, mediation, negotiation or reconciliation bodies/councils. 6. Adverting to international law on the subject, it is pertinent to note that Pakista n is a signatory to the Universal Declaration of Human Rights (UDHR) since 1948, Articles 7 and 8 whereof are relevant which provide as under:- "7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by law ."[Emphasis supplied] In 2008, Pakistan became a signatory to the International Covenant on Civil and Political Rights (ICCPR), Articles 2 and 26 whereof provide for equal protection for all under the law and are reproduced below for ease of reference:- "Article 2 of the ICCPR: 1. Each State Party to the present Covena nt undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour , sex, language, religion, political or other opinion, national or social origin, property , birth or other status . 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordanc e with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant . 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy , notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy ; (c) To ensure that the competent authorities shall enforce such remedies when granted . Article 26 of the ICCPR: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour , sex, language, religion, political or other opinion, national or social origin, property , birth or other status ."[Emphasis supplied] From the above it is clear that the customarily negligible representation of women before such councils which already mirror a patriarchal and feudal/tribal set-up (a group of elderly men who subject financially weaker parties as well as the socially handicapped gender to arbitrary decisions) is a blatant violation of Article 2(1) of the ICCPR which enjoins upon all State Parties the duty to protect the human rights under the ICCPR regardless of social or national origin whereas Article 2(3) thereof particularly emphasizes on the provision of an effective legal remedy. When these bodies posing as the dispensers of justice (council of elders/jirgas/panchayats etc.) themselves become the violators of the rights to due process and other human rights under the ICCPR, having no regard of the law as their word, wisdom and customs alone are law, Article 26 thereof stands completely ignored since in permitting such jirgas/panchayats etc. in some areas while the rest of the country is entitled to seek their legal remedies through the courts of law, we allow unabashed discrimination on the account of sex, language, religion, national or social origin, property, birth and financial status. Together, Articles 2 and 26 of the ICCPR and Articles 7 and 8 of the UDHR, emphasize the importance of access to justice, which is both a right in itself and the means of protecting and restoring other basic human rights. The unchecked operation of these informal jirgas/panchayats etc. as courts creating their own barbaric punishments and unguided methods of executing sentences (as
---
## Page 4
evidenced in the Report), amounts to acquiescence to injustice. The emphasis on the equal protection of law in these Articles reflects that if the State succeeds to protect the rights of only that segment of the society that is aware of their rights and is not victim to the chains of primitive culture and patriarchal tradition as opposed to affording such protection to the whole society, then it has failed in this duty in entirety. For the deprivation of one person's rights cannot be justified by the lack of his or her own comprehension of those rights; it is the duty of the State to be conscious and vigilant of such rights on behalf of all the citizens whose rights it is obligated to protect under the Constitution and its international commitments. 7. With regard to the discrimination faced by women in jirgas/panchayats etc., Article 15 of CEDA W is relevant:- "Article 15 of CEDAW: 1. States Parties shall accord to women equality with men before the law . 2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity . In particular , they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals ."[Emphasis supplied] The foregoing Articles of UDHR, ICCPR and CEDA W places a responsibility on the State of Pakistan to ensure that all women in Pakistan have access to courts or tribunals, are treated equally before the law and that in civil matters identical legal capacity and opportunities are accorded to them as those accorded to men and they be treated equally in all stages of procedure in court s and tribunals. From the contents of the Report and the admitted modes of operation of the jirgas/panchayats etc. there remains no doubt as to the flagrant violation of Pakistan' s international commitments. 8. Adverting to the Constitution, Articles 4, 8, 10-A, 25 and 175 thereof are pertinent which read as follows:- "Article 4: Right of individuals to be dealt with in accordance with law , etc. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular:- (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law ; and (c) no person shall be compelled to do that which the law does not require him to do ." Article 8. Laws inconsistent with or in derogation of fundamental rights to be void. (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void." Article 10A. Right to fair trial: For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process ." 25. Equality of citizens. (1) All citizens are equal before law and are entitled to equal protection of law . (2) There shall be no discrimination on the basis of sex . (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. 175. Establishment and Jurisdiction of Courts. (1) There shall be a Supreme Court of Pakistan, a High Court for each Province and a High Court for the Islamabad Capital T erritory and such other courts as may be established by law . Explanation... (2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law . (3) The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day."[Emphasis supplied]
---
## Page 5
Informal jirgas/panchayats etc. on account of having no legal validity, are absolutely unguided in their powers and decision making, often making arbitrary and unjust decisions as reflected in the Report. Article 4(1) of the Constitution goes further than Article 2 of the ICCPR by extending the right to enjoy the protection of law to every citizen regardless of where he is. Furthermore, persons who are not citizens are also given this right while they are in Pakistan. The value placed by the Constitution on the inalienability of this right to protection of the law for all can be gauged from the fact that this right is further extended to every other person for the time being within Pakistan. Article 4(2)(a) to (c) of the Constitution provides for the specific right to protection from any detrimental action with regards to life, liberty, body, reputation or property and ensures that no person is compelled to do anything or forbidden from any action unless the law specifically provides for the same. Another inalienable right is found in Article 10-A of the Constitution which states that each person be accorded a fair trial and due process for the determination of any civil right or violation thereof or determination of any criminal charge against a person. Article 25 supra provides for equality of both genders before the law and equal protection of the law. In general, honor killings for retribution of the patriarchal concept of honor or compelling women to be wed without their consent as a means of settling disputes is hit by Articles 4, 10-A and 25 read with Article 8 of the Constitution which enjoins that no custom in derogation of any fundamental right can prevail under the law. 9. A perusal of the Report reflects substantial violations of the fundamental rights reproduced above; even otherwise none of the Advocates General of the Provinces objected to the purported facts in the Report or the claims in the concise statement of the petitioners. While the noted fundamental rights guaranteed under the Constitution sufficiently embody the rights of equality before the law and access to courts and the right to an effective judicial remedy for the violation of the fundamental rights, it is clear from the facts and documents before us that in terms of its practical implementation the benefit has remained limited to mostly the urban population or where tribal/village culture does not have its strongholds. This excludes a significant percentage of women and men from the inalienable right of access to justice and even where the local residents do not wish to abandon their traditional jirga/panchayat etc. culture, it is the task of the executive and the legislature to ensure that the trichotomy of power is maintained and courts of law alone are responsible for dispensation of justice as per Article 175(3) supra. Even otherwise under Article 2(2) of the ICCPR, Pakistan is obligated to brings its laws in consonance with the ICCPR, which obligation is unqualified and of immediate effect as "A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State." Thus all necessary steps must be taken by the State of Pakistan to ensure inter alia the right to be treated equally by the law without any discrimination, regardless of the geographical location, language or local customs of the citizens of Pakistan. 10. At this junction it would be worthy to note that the learned High Court of Sindh in Shazia Bibi's case (supra) has fittingly pointed out the reasons why the operation of parallel kangaroo courts/council of elders is a violation of the principles of natural justice, due process and fair trial:- "37. Generally speaking apart from the Supreme Court and High Court, there are two types of Courts: (1) Criminal Courts (2) Civil Courts. The Cr.P.C. governs procedure of trial of Criminal Courts. Whereas the C.P.C governs the procedure of trial of Civil Courts. The Courts created under any enactment of law are only authorized to deal with the matters mentioned therein and the persons to be tried. No other authority is empowered to decide such disputes or punish any offenders. A perusal of the Cr.P.C. reveals that it provides machinery for the punishment and prevention of offenses against sustentative criminal law. The object of Cr.P.C. is to ensure that an accused person gets a full and fair trial along with certain well-established and well understood lines that accord with notions of natural justice. 38. In Jirgas no specific procedure is followed. It is the whim and choice of the Jirga people to adop t any procedure even if it is detrimental to any party . Neither the principles of natural justic e are followed nor well- recognized rules of evidence are adhered to. They are free to pass a verdict on personal knowledge or hearsay . It is noticed that in Jirgas they only settle the disputes but do not do justice according to the law. At the conclusion of proceedings, the decisions are announced in the shape of punishment, fine or compensation. All5
---
## Page 6
the above acts are the functions of Courts of Law. No other authority or person has power to settle the disputes of cases except by the Courts of law or other authorities created under the statute and punish any person. The functions, which are exclusively to be performed by Courts of law, are being performed by the Jirgas thereby usurping the powers of Courts. As such the Jirgas are parallel Judicial System which by themselves are unlawful and illegal, therefore, any law do not protect them. Furthermore, no appeal is filed against the decisions of Jirgas are final which is also against the principle of natural justice ."[Emphasis supplied] The above extract amply elaborates on the dangers of tolerating the functioning of these parallel courts, stating that all that the judiciary/courts of law stand for is at stake if bodies such as jirgas/pacnhayats etc. are allowed to operate/function whimsically , arbitrarily and without due regard of any process of determination of fact, responsibility or guilt. Not only are principles of natural justice at bay but these jirgas etc. follow no precedent nor are their decisions subject to any predictability or certainty, and personal knowledge and hearsay become tools for determination of civil rights violations and criminal charges. The impending danger in allowing societal customs to override the law and jurisdiction of courts is unacceptable in a functioning democracy and as the ultimate court of dispensation of justice, this Court is duty-bound to eliminate them and reducing them to mere arbitration councils if the parties involved in a civil dispute, willingly agree to arbitration through the council of certain elders of the village or tribe. 11. The same is the position taken against such 'communal courts' in the Indian jurisdiction. In similar less- developed regions of India, the activities of the informal adjudicating bodies commonly known as panchayats or khap panchayats which are not codified in any law, have been declared to be illegal where they act as courts and overstep the boundaries laid down by the law as held in Arumugam Servai Vs. State of Tamil Nadu [(201 1) 6 SCC 405] , where the Indian Supreme Court opined that:- 12. We have in recent years heard of "Khap Panchayats" (known as "Katta Panchayats" in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalised way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. As already stated in Lata Singh case , there is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder . Other atrocities in respect of personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality . Moreover , these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal .[Emphasis supplied] Moreover , in a recent judgment reported as Shakti Vahini Vs. Union of India and others (AIR 2018 SC 1601) the Indian Supreme Court introduced preventative, remedial and punitive measures to eradicate any khap panchayat wherein honor killings have been ordered with regards to inter-caste or inter-religious marriages, on the grounds that:- "39. ...The violation of the constitutional rights is the fulcrum of the issue. The protection of rights is pivotal. Though there has been constant social advancement, yet the problem of honour killing persists in the same way as history had seen in 1750 BC under the Code…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.