For the system of justice in Pakistan, “Jirga” and “Court of Law” are two widely used and known options available to the people. The citizens consider opting between the two in order to pledge justice on the basis of the system’s effectiveness and fairness. Effectiveness, here, includes duration, financial resources needed, accessibility to the people, and the ease of re-appealing against unjust decisions. Whereas, fairness encompasses uniformity in constitutional laws and corruption.
Jirga provides an inexpensive and straight forward system of justice as compared to court of law. In jirga, elder members of the community come forward voluntarily to resolve the issues of the conflicted parties bearing all the costs themselves, in order to gain blessings of God. Victims do not have to incur any cost in order to refer their case to jirga “as each individual knows his or her rights and duties under a fully autonomous environment where the individuals have a right to identify and define their respective rights and still maintain a good system of social security” (Gohar and Yousufzai in Restorative Justice, Jirga and Local Government Institutions in Pakistan). While if people want to attain justice through court of law they have to incur a considerable amount of cost in terms of hiring lawyers who could defy their case in court.
In Jirga the problems are addressed by scrutinizing the facts of the dispute, examining the witnesses, following a thorough discussion with the parties and coming up with an adequate solution. Justice through jirga is a speedy process in contrast to court of law; as cases are resolved in few days only whereas, justice through court systems incorporates a lengthier process. Firstly, F.I.R needs to be registered at the police station. Then, the police officials investigate upon the registered F.I.R and file a charge sheet with the court so that the hearing process could start .The process in itself creates tremendous time lapses as it has to go through various stages of completion and demands a lot of patience from both the parties seeking justice. Because of this time-consuming process “over 2.5 million cases are pending in the courts at present” as admitted by the Chief Justice of Pakistan (CJP) Justice Iftikhar Muhammad Chaudhry. Moreover, accessibility to these justice systems along with the right to re appeal against unjust decisions is also significant in determining their effectiveness. Jirga system is found in the tribal areas of N.W.F.P and Baluchistan, practiced by the Pakhtoon tribes, hence, merely accessible to Pathans only. On the other hand, there is a supreme court in Pakistan, a high court in each province and session courts all over the country. The court of law is accessible to every individual disregarding the ethnicity and location one associates to. In regard to re appeal, in jirga both the parties have to abide by the decisions of jirga leaders. If one of them thinks that jirga has not done justice to them they usually cannot re appeal for the reconsideration of their case and have to abide by the original decision made by the jirga members. While in court of law according to constitution one could file petition for the re opening of his or her case if he or she could prove that the original decision was unjust.
Aristotle defined fairness as a principle that "equals should be treated equally and unequal’s unequally”. Since all humans are equal in the eyes of the law, so this implies that they have a birth right to be judged fairly. Fairness and justice have always been associated very closely as the term justice could not stand without fairness. Fairness amongst these two different justice systems could be judged on the foundations of uniformity of the declarations made for all and the impartiality while making declarations. “Jirga receives criticism for its informal nature, an informality that provides formal structure for those living under it. The laws and procedural rules of a Jirga are un-codified, unstructured, and loose enough to be easily understood and uniformly practiced by the people. Written records of Jirga do not generally exist” (Gohar and Yousufzai, 39). Per contra, court of law in Pakistan follows the Constitution of 1973 which is a well regulated, structured, elaborated and codified. These features of the constitution of the court of law make it fair and uniform so that justice is done universally on equivalent basis in all courts.
Corruption and biasness exist almost equally in both the justice systems. Accusations of being biased and taking bribe from the wealthy have been heard frequently about the jirga members. Jirga members who are accused of being corrupt because of their partiality and accepting bribes are immediately exposed before the community, putting a permanent dent on their character and their ability to lead the community any further (Gohar and Yousufzai 25). Moreover, corruption, bribery and biasness also prevail in the court systems as evidences and witnesses are altered according to one’s needs.
Hence, it can be concluded that both jirga system and court system are effective in their respective manners where jirga system has the pros of being speedy and inexpensive while court system has the advantage in terms of accessibility and right to re appeal against unjust decisions. But no matter how strong fairness is a component of justice, none of the two forms of justice system could be acknowledged as fair or ranked on the scale of fairness. However, what is important to note here is the fact that for deliverance of justice in Pakistan there is a dire need to utilize and capitalize on both forms of justice system where one should complement the other. The need of the hour is to institutionalize fairness, equality and effectiveness of justice and for that purpose both the forms of justice system should be made corruption and pressure free.
