JIRGA Tribal Legal System:
The jirga assembly has existed across the Baloch and Pashtun cultures both in FATA and settled areas to resolve issues and feuds way before the advent of Islam and the western democratic system. It is similar in structure to that of a ‘town meeting’ in the United States or a ‘regional assembly’ in England.
A jirga comprises village elders who address, discuss and resolve issues of importance that matter to their community. Their decisions are based on consensus in light of Shariah law and local traditions. A jirga is based on three ethical codes namely hospitality, refuge and revenge. However, if a party declines its verdict, the jirga may resort to punitive measures such as a fine in cash to punish those who violate the decision.
In actuality, it is not the jirga system that allows for abusive practices, but some elders who in recent times have exploited the system either to forcefully impose the Shariah, speaking loosely, or to side with a particular party for political gains. The bright side of the jirga is that people have access to quick and inexpensive justice, whereas legal systems in the bigger cities are expensive and time consuming.
Where our judicial system has failed, the jirga system has been effectively resolving issues such as; murder, theft, rape and land disputes. However, in some places it has understandably been hijacked by extreme factions and exploited for their own vested interests.
The time tested jirga system - also considered by some as the bedrock of modern day judicial systems – is democratic at its most basic form which means that it is here to stay. Those who argue that jirga laws should be replaced by the mainstream western judicial laws should also know that in Pakistan, we are far from an independent judiciary.
The Ex-Chief Minister Balochistan, Dr Abdul Malik Baloch announced the formation of a Grand Jirga, comprising of influential political and tribal leaders to meet the Khan of Kalat and Brahamdagh Bugti to resolve the conflict between Baloch Liberals and Government. The Jirga would comprise of Baloch, Pashtun, Hazara tribal chieftains and other leaders. (DAWN AUG 27, 2015)
The underpinning structure of the jirga, which is the Holy Quran, allows Muslims to ‘Shoora’ consultation, in the matter of resolving issues of special importance to a community, or in the case of Loya Jirga, resolving issues of national interest.
It is affirmed in the decision making process that all layers of society are included and the jirga demonstrates unprejudiced judgment. Comprehensive and collective discussions and the thorough examination of the issues enable forming a consensus which leads to an unyielding approach of dealing with the concerning issue. Then the jirga heads, following essential procedures and extensive deliberation, table their final verdict.
The Jirga is one informal institution that has very formal effects on the Pakhtoon society in general and the tribal Pakhtoons in particular. It is dubbed the bulwark of liberty and independence in the Pashto-speaking world. "The Jirga, by which most community business, both public and private, is settled in the North West Frontier Province (and also Balochistan), is probably the closest approach to Athenian democracy that has existed since times immemorial. The Jirga represents the essence of democracy in operation under which every individual has a direct say in shaping the course of things around him. Practiced this way, democracy operates as a spiritual and moral force instead of becoming an automation of votes," writes Syed Abdul Qudus in his book, The Pathans
The Jirga is a customary judicial institution in which cases are tried and rewards and punishments are inflicted. From the outset, the use of the Jirga is limited not only to trials of major or minor crimes and civil disputes but it also assists in resolving conflicts and disputes between individuals, groups and tribes. It is the only vehicle by which the political administration in the tribal areas dispenses justice.
Because the political administration lacks the authority to enforce peace, a Jirga is constituted to make a truce and place a Tiga, literally a stone, between the warring parties. The origins of the Jirga are lost in the midst of history. It may have been indigenous to the Pakhtoon society or may have been brought over by the Central Asian invaders.
The Jirga has, however, helped to enrich the Pakhtoon culture and values. The discourse among the people in the Jirga is an effective way to teach the young ones the real meaning of Pashtoonwali, the all-encompassing code of conduct, including Nang and Siali, the codes of honor and social equality.
Sitting in a circle, the Jirga has no speaker, no president, no secretary or convener. There are no hierarchical positions and required status of the participants. All are equal and everyone has the right to speak and argue, although, regard for the elders is always there without any authoritarianism or privileged rights attached to it. The Jirga system ensures maximum participation of the people in administering justice and makes sure that justice is manifestly done. It also provides the umbrella of safety and security to the weaker sections of the tribal people from the mighty ones.
Besides settling inter-tribal disputes, the Jirga is also used to conduct the tribes' relations with the outside world. The British maintained their relations with the tribes through the Jirgas, both in the NWFP, Balochistan and across the border in Afghanistan. They offered written treaties guaranteeing non-interference in the tribal affairs, so long as the Jirgas recognized the suzerainty of the Raj. The Government of Pakistan honors these treaties and has made similar ones of its own. Thus the Jirga is a formally recognized institution in the tribally administered areas of Pakistan.
There is also the more common and informal Jirga that operates in the tribal areas, which does not have any legal administrative authority. This is known as the ‘Maraka’. Literally, Maraka stands for Opinion. It is a general assembly of people in which important collective issues are discussed, opinions sought, and decisions taken. Thus a Maraka may represent a whole tribe, a clan, a sub-clan, a section, or even a single family, depending on the nature of the issues for which it is convened. Unlike the Jirga, it does not carry a government sanction but represents the collective will of people, all the same.
There are various types of Jirgas that exist in the contemporary tribes. Most notable among these are.
Established under the Frontier Crimes Regulation (FCR) 1901, the magistrate, the political agent or his assistant can designate a group of elders to try a criminal or a civil case. The FCR authorizes settlement of quarrels by this Jirga that arise out of blood-feuds, relating to zan, zar, zamin (women, wealth and land) and all other questions affecting the Pakhtoon honor and way of life. This Jirga can inflict a maximum penalty of up to fourteen-year imprisonment.
Qaumi or Ulusi Jirga
The Ulasi Jirga is an assembly of the elders comprising each household of a certain village or community. It is convened to discuss matters such as collective property, rights and distribution of irrigation water, or common concerns, like selection of a site for a school, etc.
This Jirga is formulated in case a dispute arises between two individuals or families. The Jirga members are chosen from both the parties to arrive at a just settlement acceptable to both sides.
Selection of the Jirga
The selection of the Jirga members varies according to the type of Jirga. For Sarkari Jirgas, usually the members are selected from the notable elders or the Maliks of the area. In a Shakhsi Jirga the government selects and appoints two members from each side, whereas one member each is selected by the consent of the parties in the dispute. In case of the Ulusi Jirga, the members are usually comprised of elders of the notable families whose social standing and experience with the Pashtoonwali entitles them to a place on the council.
The size of a Jirga varies from one situation to another, based on the nature, significance and sensitivity of the dispute. It might consist of one member, although two members are more usual and often there are four or six experienced members, fully conversant with the laws of the Pashtoonwali.
How the Jirga works
The Jirga or a Maraka comprises the ‘Spin Giris’, white bearded elder men, and other members. The ‘spin giris’ act as judges and those participating as jurists. The Maraka passes a judgment after necessary investigation into the dispute. No effort is spared to reconcile the disputing parties. The decisions are of two types, one is based on the concept of Haq; the right, and the other on Waak; authority. Both sides are allowed to present their arguments before a decision is given.
In case of Haq, each party has the right to challenge the decision of the Jirga on its merit. If one of the parties is not satisfied with the verdict and feels that the Jirga has not done justice, they can quote precedents and rules (Narkh) to plead their point and reject the decision. It is interesting that different tribes may have different Narkh in similar cases. In that case, the aggrieved party has the right to bring another Maraka to re-examine the issue. In doing so, usually the decision given on the third occasion is considered to be final.
In the case of Waak, the two parties repose their full confidence in the Jirga and authorize it to decide the case according to its best judgment. The parties have to abide by the decision and cannot challenge it. However, the decision has to be unanimous.
The Jirga determines the punishment to be inflicted on the basis of Narkh (tribal rule, or precedent). Anyone who then does not abide by the decision of the Jirga is subjected to punitive measures. This practice varies from one part of the tribal areas to another. Usually, anyone who rejects collective wisdom takes a grave risk; for a Jirga can impose powerful sanctions to enforce its judgment. The sanctions can include ex-communication of the non-complying person or a group. The Jirga can confiscate rifles belonging to the non-compliant party and place them with the Jirga as ‘Gravey’ (mortgage), or impose heavy fines to be paid to the complying party in the dispute. If non-compliance persists, the Jirga can use force by sending men to burn down the party's house(s). If someone still remains defiant and does not comply with the Jirgas orders, he is considered to be ‘Kabarjan’, the arrogant one. By doing so, he loses the security promised by the Jirga, and thus may be killed without any consequence by his opponents.
The collective decisions of Qaumi or Ulusi Jirgas are carried out by a council of the tribesmen under different names: these are the Salwaikhtee (40’s) in Waziristan, the Lashkar in Afridwala and the Rapakian in Kurram. Typically, the council comprises about forty members and its effectiveness is determined by the strength and sanctions they derive from the tribal people, whom they represent. And so, the Jirga continues to be the sole judicious mechanism used to administer justice in the tribal areas of Pakistan. (CSS Forum Friday, April 08, 2016)
The Jirga exclusively enjoys the role of Judiciary, Executive and Legislature. In case if any party fails to respect the decision of Jirga called “Makh Arawal” meaning “turning of face”, than the Jirga council has the right to impose its judgment by any means. Sanctions are imposed on the rebellious party which may range from imposition of heavy fines, confiscation of weapons and ex-communication with non complying party depending upon the seriousness of matter. If still the party refuses to follow the decision of Jirga than the Jirga has the right to burn down the house of non-complying party by sending Lashkar‘ The tribal Army”. Also in disobeying the decision of Jirga, the dissident party may lose the protection right ensured by the Jirga and may be killed by his opponents.
In absence of Government Judicial system in tribal areas, Jirga system provides with an effective way of attaining cheap and speedy Justice. Moreover it enriches the very basic foundations of culture and tradition by ensuring the maintenance of peace and justice in society. It provides protection to the poor and weak from being oppressed by the rich and strong. Even when many progressed societies still lack an affective judicial system, the Jirga system has been quite successful in dispensing justice. It adheres to the principles of equality and fairness for all, an accomplishment many judicial systems are still struggling to achieve.
Muhammad Arshad Kasi.