Muhammad Usman Adil
Apropos of endemic patriarchal customary practice of the Council of Elders (Jirga) for adjudicating disputes of civil, criminal or family nature in tribal areas peculiarly in the north of KPK and some rural areas of other provinces as well, the National Commission on the Status of Women ( NCSW) sought declaration of topmost court in Constitutional Petition No. 24 of 2012 on the legality or unconstitutionality of above-said customary practice for being violative of fundamental rights enshrined in Supreme Law of the Land. The rationale for NCSW’s contention lies in the fact that proceedings of such customary practices implement unjust social norms inapt to contemporary developed politico-legal systems, deprive individuals of their basic rights provided under formal laws of the state and inflict gender-based barbaric punishments such as the trade of women as a way of compensation. “In the pretext of the petition, in today’s age when almost every state has adopted its Supreme Law, customary practices should serve only those domains which have no such socio-political cum judicial consequences detrimental to life, liberty, dignity and property etc. Due to the formal legal systems based on a Higher Law around the globe, primeval customary practices are subjected to limitations imposed by that Law which is modish to present-day society. Hence, in today’s time, customs draw their validity from the Laws of State and should be contemporaneous with Law only when are consistent with Law higher in hierarchy to them”. In primordial times, when current formal politico-legal systems hadn’t developed, customary practices were foremost and an effective way of regulating individuals’ conduct. These practices having a degree of flexibility and acceptance were fundamental to the societies but with legal developments, Law superseded customs by diminishing their validity with its appealing features of having impartiality, equality, justice, and basic human rights in its content. In Pakistan’s constitutional scheme, the text of Article 4 of the Constitution implies the right of every individual to be dealt in accordance with Law which means ‘every conduct shall be treated or regulated ultimately through Law and any else mode to regulate society is subjected to that Law’. Then Article 4 implies that no action against life, liberty, dignity, or property shall be taken except in accordance with Law which refers to the limitation upon customary practices of preserving these inviolable rights throughout their application. The most enrapturing scheme can be observed in Article 8 of 1973’s code where on one side customs are recognized as regulatory means but on the other side such informal practices are subjected to State’s Legal Order. Article 175 (2) of the Constitution, by virtue of annotation, interdicts the jurisdiction of customary practices in matters of a judicial nature where disputes are resolved with consequences for the individuals involved. Hence, in accordance with Article 75 (2), the Constitution deprives the customary practices of their judicial sort of jurisdiction required for deciding cases and then executing decisions through social norms detrimental to individual cause. This is the most significant limitation to the operation of customs which can be justified with an empirical approach that the application of Law is based upon a specific and uniform pattern or standard where the operators of Law are defined with certain mandatory qualifications but operators of customs are not defined personnel with required qualifications and lack a proper procedure to follow in subsequent cases. They are free to operate as per their whims inimical to individual’s rights, parties’ interests and essentials of justice with naught certainty or predictability. With respect to the limited scope of customary practices, the scope must be void in criminal sort of cases when there exists a formal criminal justice system because of the facile vulnerability of the area. The formal legal system has proper codes such as PPC and CrPC to deal with criminal disputes whereas customary practices lack such proper substantive or procedural codes and are highly based upon human thinking patterns incapable of ascertaining facts and applying certain codes to facts so found and are inconsistent with the principles of criminal justice system such as Innocent Until Proven Guilty, Audi Alteram Partem, and An Appropriate Relationship Between Punishment And Gravity Of The Crime. Moreover, ascertainment of cases of judicial nature by customary means as per their own settled principles against the Laws of legislature or judicature would be the infraction of ‘Power Separation Percept’ as enunciated under Article 175 (3) and as reiterated in District Bar Association Rawalpindi versus Federation of Pakistan (2015). Decisions of the customary practices detrimental to life, liberty, dignity, or property should be prevented by state from executed in any case by punishing those who encourage barbaric practices because execution of decisions based upon feudal customary rules which are ultra vires to a Higher Law would amount to danger to the very basic foundations of ‘Rule of Law and Democracy’ and same stance has been penned in Akhtar versus Justice Of Peace (2015) and Muhammad Younas versus Nazir Ahmad (2013). The abovementioned same position has been taken in Indian Jurisprudence upon the question of validity of communal courts as part of custom-driven system. Indian Supreme Court in cases Arumugam Servai versus State of Tamil Nadu (2011) and Shakti Mohan versus Union of India & Others (2018) held that customarily driven regulatory platforms that encourage odd practices in an institutionalized way through discrimination are “ Wholly Illegal and Has to be Stamped Out Ruthlessly”. Here the impressions ‘ Wholly illegal’ and ‘ Ruthlessly Stamped Out’ convey a taut authoritative notion that clearly authorizes formal legal system as regulatory mode and vanishes the whole scheme of customary practices as society-driven forces having consequences of serious nature for basic human rights. In the debate of taking into account the customs as parallel in effects and force to that of Law, one reasonable concern emerges out of discourse about the executionary mechanism of the customary pronouncements to which Indian apex court riposted in later case that “ Custom Operators Cannot Assume the Powers of Law Implementing Agencies”. They don’t have ‘State Recognition’ which means they are not authorized by State Laws as persons having executive authority. Hence, unlike Law which is sustained by an enforcement mechanism, there is no any formal mean to sustain customary rules in an authoritative and defined way. In addition to the municipal legal schemes, Int’l laws too put constraints upon customary practices by designing a criteria for their validation sometimes directly and sometimes through internal legal channels such as Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR) where the principles involved put two limitations upon the modes to regulate a society or state including customs. The limitations are ‘Equal Protection Of Law’ and ‘A Proper Forum To Seek Remedy’. Here the protection of law is extended to all human beings without any discrimination whenever arises any dispute among individuals so that life and liberty of individuals may not dependent upon each other rather there should be a proper and impartial mechanism to resolve disputes for all involved. Even this protection of law is available to everyone equally against the patriarchal or feudal customary practices depicting a limit on their scope. The other limitation is framed by International Statues by providing a remedial forum to individuals seeking remedy which asserts that there is no finality in the customary rulings and individuals are always entitled to get remedy from a formal higher forum in same case. As the Laws are transformed from time to time to draw compatibility with ongoing societal dynamics, there is a need for transformation in customary values with respect to the current advanced dynamics of a society, therefore Laws of today’s age don’t recognize old customs based upon biased practices against specific genders such as women and it can be observed in Article 15 of “CEDAW” which states the equal treatment of women such as an equal legal capacity to that of men in civil matters. A custom is an integral element of a social system which usually drives the relationship of an individual to other individuals and to society. Some societies are consistent in practicing old customary values of serious nature with critical consequences for persons involved even today when a formal legal system has developed. If we examine the text “Protection Of Law” so from another perspective, it implies the ‘access to justice’ that there must be some sort of mechanism available to parties to get a dispute adjudicated without any damage to fundamental rights such as life, liberty, dignity, or property of individuals. In areas where state couldn’t develop a proper legal system comprised of state machinery and has failed to maintain its writ due to various social, political or religious factors, customary practices there such as ‘Jirga or Panchayat’ provide that protection of law which is required under current formal legal systems to individuals by providing them a mechanism of resolving their disputes. But this mechanism ‘willingly neglects principles of equality and respect for fundamental rights’. When a state has its proper legal system under a Supreme Law then concept of customary practices without any scrutiny by that Law is such irrelevant that it cannot be allowed to operate even if there is a barricade for state to implement its legal system in customarily prevalent areas. As customs have socially deep-rooted applicability therefore it is not easy to halt their operation overnight but state can put limitations upon such practices through its machinery so that fundamental rights may not be trampled and Laws higher in hierarchy to such practices may not be violated. Limitations are healthy for securing actually desired aura and that’s why Laws also have limitations, upon their scope, of some higher code such as Supreme Law or International Statues. Unchecked operation of customs creating its own methods of regulation while ignoring higher legal scheme of state amounts to irregularities in dispensing justice to individuals. When we talk about a legal society having Rule of Law then it becomes hard to create space for informal regulatory framework based on uneven standards because on the pretext of archaic customs, a person cannot be allowed to take course of a community anointed judge or executive as expressed in Malik Muhammad Mumtaz Qadri versus The State (2016). In the synopsis of the whole discussion, it is concluded as follows: “Customs which foster the general welfare, strengthen the social relationships, and inspire the legislation by having an inerrant nature are applicable to society with perhaps fewer limitations if required but customs which are of serious nature, have politico-legal flavor in them, need an execution mechanism, and affect fundamental rights are always under strict legal constraints of state as a mechanism of check and balance on them and cannot be allowed to operate freely unless they are consistent with formal legal order specifically fundamental rights of the citizens of the state.”
