A CRITICAL ANALYSIS OF JIRGA AS A POTENTIALLY VIABLE AND EFFECTIVE MEANS OF ALTERNATE DISPUTE RESOLUTION

Presented by: MUHAMMAD SIRAJ KHAN

LLM Scholar Session 2009-10.

LAW COLLEGE, UNIVERSITY OF PESHAWAR

ABSTRACT

This article presents an analysis of Jirga as operated in the Federally

Administered Tribal Areas (FATA) as a means to resolve the disputes and

examines its potentials as a form of Alternate Dispute Resoution (ADR). It

further suggests that the institution of Jirga shaould be given recognition

and legal protection as it has sprung from the roots of local customs and

traditions of the tribal belt. The article concludes that Jirga is an

institution and if i t has been given validity and protection under the

Constitution, it may be used an effective tool to cop with the current issue

of terrorism which has affected not only the FATA but the country as a

whole.

THE INSTITUTION OF JIRGA

Conflicts and the modes to resolve them are as older as human societies

themselves. Pathans, being a people of unique characteristics, have held

the concept of Jirgah quite sacred to them, which operates as a mechanism

of conflict resolution in a tribal society from time immemorial. The

institution of Jirgah is a viable, dynamic, and time-honoured traditional

Pashtoon institution, very much operative in the tribal belt specifically

and is woven completely into the social fabric of Pathan society. It is not

only helpful to resolve many local conflicts but is also playing its role in

settling matters at national level among tribes and is a powerful channel

of communication among the people of FATA.

DEFINITION OF JIRGAH

According to the Pashto Descriptive Dictionary, Jirga is an original

Pashto word, which in its common usage refers to the gathering of a few,

or a large number of people; it also means consultation according to this

source. 1 The word Jirgah is also used in Persian, and according to

Ghyathul-Lughat , i t is derived from word jirg, which means a 'wrestling

ring', or 'circle' , but is commonly used to refer to the gathering of people. 2

These meanings of jirg and jirga strongly reflect the rituals and processes

of the Pashtoon traditional tribal Jirga where people gather and sit in a

large circle in order to resolve disputes and make collective decisions

about important social issues. Rubin (1995), a prominent scholar,

describes the institution of Jirga in this way: ‘The Jirga includes all adult

males and rules by consensus. In theory, a Jirga can be convened at any

level of tribal organisation, from the smallest lineage to an entire

confederation. Jirgas are most commonly held at the lineage level, but

there are larger tribal or even inter-tribal Jirga as well, at least among the

eastern Pashtoons.’ 3

To a common person, Jirga is a body comprised of local, elderly, and

influential men in Pashtoon communities who undertake dispute

resolution, primarily through the process of arbitration. Compared to the

judicial system of the present day governments , Jirga ensures a fast and

cheap justice to the people. Indigenous to Pashtoon tribal communities,

Jirga is alive even in the areas now influenced by an Anglo-Saxon legal

system and is used for interpersonal dispute resolution. Prominent writer

on Pashtoons, Syed Abdul Qudus opines on Jirgah as:   "The Jirga, by

which most community business, both public and private, are settled in the

North West Frontier Province (and also Balochistan) and Afghanistan, is

probably the closest approach to Athenian democracy that has existed

since times immemorial. Syed Abdul Qudus also relates Jirga to

democracy:  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." 4 It is what

Spain(1962) also observes when he says, “the Jirga is the closest thing to

the Athenian democracy that has existed since the original.” 5

Jirga is also thought of as a customary judicial institution in which cases

are tried and rewards and punishments 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.

FORMS OF JIRGAH

Jirgah is a very flexible mechanism of conflict resolution, and can be

molded according to the circumstances. The grievousness of dispute and

the parties concerned determine the size and importance of a Jirgah.

Generally a Jirgah may be a Maraka, Shakhsi, Olusi or Qoumi, Sirkari, or

Loya Jirgah.

1. MARAKA

It is the more common and informal Jirga that operates in the tribal areas.

Literally, Maraka means consultation. It is a general assembly of people

in which important collective issues are discussed, opinions sought, and

decisions taken. It does not have any legal administrative authority. 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. It can be said that every Jirgah contains a Maraka whereas;

every Maraka does not necessarily amount to a Jirgah.

2. SHAKHSI JIRGAH

When a dispute arises between two individuals or families, the Jirgah

constituted to solve the problem is known as Shakhsi Jirgah. The members

of this Jirgah are chosen from both the parties to arrive at a just

settlement acceptable to both sides. The parties appoint two or more

arbitrators by themselves, normally respectable elders ‘masharan’ within

their family or, in some cases, within the tribe. The sanction behind the

enforcement of the decision of such Jirgah is the social pressure of the

whole tribe. Every one in a tribe respects its elders; therefore, their

decision is also respected. A person who violates a verdict of a Jirgah is

condemned in his tribe, and not trusted anymore by others for his words or

promise.

3. SARKARI JIRGAH

Sarkari means something relating to the Government. Under the Frontier

Crimes Regulations (1901), a Political Agent (PA) of an agency has got

the powers of a magistrate and can adjudicate upon matters of both civil

or criminal nature. He can also appoint a Jirgah to assist him in matters of

adjudication and may deliver his powers to such a Jirgah. Such a Jirgah is

called ‘Sarkari Jirgah’. A Jirgah appointed by the Political Agent (PA)

consists of noble men of a tribe with good character and their selection

depends upon the discretion of the PA. The Jirgah submits its report to the

Political Agent after investigating into the issues involved and debating

over them thoroughly. The Political Agent, however, is not bound to obey

their decision or findings. Under the Frontier Crimes Regulations, a Jirgah

appointed by the Political Agent may advise a maximum penalty of

fourteen years for imprisonment. 6

4. QAWMI JIRGAH

Qawm means Nation and thus a National Jirgah is known as Qawmi Jirgah.

It deals with serious and important conflicts and issues either within the

tribe or between tribes. As a Qawmi Jirgah operates at a higher level of

tribal formation, therefore, its social organization is more structured.

During the proceedings, the members of the Jirgah sit in a circle, in a

specifically designed place, which may sometimes have a flag. This

physical organization of the Jirgah helps to create a social atmosphere

where people see each other as equals. In words of Glatzer (1998),

“According to tribal equality, every free and experienced free male person

of the tribe has the right to attend, speak and to decide.” 7 Indeed, there is

no hierarchy of speakers and no chairperson in the Jirgah process. The

deliberations of the Jirgah may take days depending on the complexity of

the issue and on reaching a satisfactory decision. Throughout this period,

tribal leaders, or other well wishers host the Jirgah.

5. LOYA JIRGAH

The word ‘Loya’ means ‘Grand’ and thus Loya Jirgah, as its name shows,

means a Grand Jirgah that is composed of all tribes of FATA. Such a

Jirgah is rarely called upon when a serious and immediate national threat

or problem is confronts the whole region of FATA or the majority of

tribes. A Loya Jirgah may also be called, as it happens normally, by the

Government or after a consensus in a Maraka among the most influential

leaders of the major tribes of FATA.

SELECTION OF THE JIRGAH

There is no particular process to select or appoint the Jirgah members.

The mode of selection varies according to the type of Jirga. For a Sarkari

Jirgas, the members are usually selected among the notable elders or the

Maliks of the area. The Political Agent (PA) makes the selection of the

members of a Srkari Jirgah, however, he can not ignore influential

personalities of the area. In a Shakhsi Jirga the parties themselves select

and appoint the members through consensus in a Maraka, at least two

members from each side. In case of the Ulusi Jirga, the members are

usually comprised of elders of the notable families whose social standing

1 Pashto Descriptive Dictionary (1978), Kabul: The Academy of Sciences of Afghanistan.

2 Ghyathul-Lughat (1871) Edited by Maulana Gheyathoddin, Kanpur Press: New Delhi.

3 Rubin, B. (1995) The Fragmentation of Afghanistan: State Formation and Collapse in theInternational System. New Haven, Conn.: Yale University Press.

4 Dr. Mumtaz Bangash article on Jirgah at: www.khyber.org/pashtoculture/Jirga/Jirgas.shtml

(Retrieved on 16-03-2010)

5 Spain, J. William (1962) “The Way of the Pathans” London: Oxford University Press.

6 The Frontier Crimes Regulation 1901, Section 12.

7 Glatzer, B. (1998) ' Is Afghanistan on the Brink of Ethnic and Tribal Disintegration?' in Fundamentalism Reborn? Afghanistan and the Taliban, edited by William Maley, New York: St. Martins.

and experience with the Pashtoonwali entitles them to a place on the

council.

THE COMPOSITION AND PROCEDURE OF JIRGAH

A Jirgah is the main tool where issues of national interest are discussed

and decided. It does not only helps to resolve a conflict but also

pressurizes the parties to implement the decision of the Jirgah. The

unrivaled uniqueness of Jirga institution is its flexibility as it moulds and

adopts itself according to the nature of a matter. Therefore, it is not easy

to describe a particular structure or composition of Jirga. Like its

composition, the size of a Jirgah also varies from situation to situation,

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 (the unwritten code of pashtoon tribes).

A Jirgah can be constituted on the request of either of the parties to a

dispute or through an intervention by the elders of the tribe to which the

parties belong or any other tribe. The Jirgah proceedings may also be

initiated through an offer made by a respectable person or tribe to

arbitrate between the parties to a dispute. In case of Sarkari Jirgah, the

Government makes the initiative by calling influential persons and tribal

chiefs (Malaks) of the area, asking them to persuade the parties to

negotiate. These local mediators intervene to achieve a truce (tiga)

between parties in a criminal case, or to obtain security (Baramptha) in

cash or kind for civil disputes. Thereafter, parties must arrive at a

consensus concerning the mode of settlement—arbitration, riwaj

(customary law) or Shariah (Islamic law). Once the mode of settlement is

agreed upon, mediators arrange for the selection of a jirga with the

consent of the parties to the case.

Once the parties to the dispute agree to negotiate, then Marakzan or

Jirgah-maar are appointed in a Marakah. The appointment of ‘Mansefun’

or the arbitrators is also made in the same marakah, which, in most of

cases, are the Jirgah-mar or persons recommended by them. In the same

Marakah, a date and place is also specified through consensus for holding

the first formal proceeding of the Jirgah. All parties concerned are

summoned and the date, place and time of the Jirgah are publicized by

beating drums and by making ‘elaan’ (awareness message) in the local

mosques. The parties concerned then have their own local Maraka or

consultation in order to develop a uniform and systematic argument from

their side.

The proceedings of a Jirgah commences on the fixed date, place and time,

however, subject to the presence of all disputing parties. If any of the

parties interested is not present, the proceedings are adjourned for a next

date, on which the attendance is made mandatory. If a party does not

appear on such a date, the Jirgah is authorized to impose any penalty,

mostly in the form of fine, upon such party. It may be noted here that

there is no concept of ‘Ex-Parte Decree’ in the Jirgah procedure. A verdict

can not be given against a party in its absence. The first pre-requisite for

Jirgah proceedings to commence is the presence of all stakeholders on the

spot. After the appearance of parties concerned, the Jirgah normally asks

them to furnish a security called ‘Baramtha’, which may include guns. The

return of Baramtha is subjected to obedient behaviour of the party. If a

party does not accept the ‘Prikrra’ or decision of a Jirgah, it has to lose its

‘Baramtha’, which marks a shame upon it .

APPLICATION OF NARKH

Narkh refers to the centuries-old body of the civil and penal tribal

‘customary laws’. While these ‘laws’ are totally unwritten, they are part

of the collective consciousness of a tribe. As the famous Pashto proverb

goes that ‘De watan na wowza kho de narkh na ma waza ’, which means

that ‘you may abandon your tribe/homeland, but you can not abandon

narkh.’ This implies that these customary laws have profound existence in

the minds of local people. The Jirgamaars are normally experts in Narkh

and they assist the Jirgah to apply an appropriate Narkh over the matter in

dispute. The two famous Narkhs are Ahmadzai Narkh and Razmak Narkh,

each of them have their own characteristics, for example, the former being

strict and precise, whereas the latter one is more dynamic and flexible

enough to be applied to a variety of situations. 8 Some khels and tribes

have developed their own narkhs that are more applicable to their local

social and economic conditions. Nevertheless, the Ahmadzai and the

Razmak narkhs are generally followed as sources of reference among the

Pashtuns of FATA and Afghanistan. In fact, narkh at a more general level,

reflects the fundamental values and norms that are associated with

Pashtoonwali .

It is, however, important that a narkh has to be placed in the social

context of a specific conflict and thoroughly discussed by Jirgamaars.

After debating over the appropriate Narkh, they refer it to all the mashran

(elders), who constitute the main body of J irgah. Thus, a Jirgah may ask

experts in the Narkh for guidance as well as assistance. Thi s is to ensure

that the relevant customary laws are properly and fairly applied.

In case where the parties decide to settle their matter in accordance with

the Shari’ah Law, the matter is referred for adjudication to scholars, at

least two, appointed by consensus of the parties, who, after looking into

the matter, adjudicate upon it appropriately.

DECISION OF THE JIRGAH

After hearing, debating and consulting over the case exhaustively, the

Jirgah announces its verdict or Prikra, mostly declaratory, to the parties in

an open gathering. This decision is binding upon them as for as the code

of Pashtoonwali is concerned. However, if the disputants and khel see a

prikra as unfair it may be rejected. This often happens when a wrong

narkh is applied. This is called kog-narkh , which means the application of

a wrong narkh, or the misapplication of the prevalent narkh . In this

situation, the dissatisfied party must have the support of the khel , in order

to be able to appeal to another Jirgah . The new jirga does not hear the

case afresh but only examines the original decision to see whether it

deviates from customary law or the Shariah. Further appeal may be

referred to a third jirga and its decision is final.

8 Atayee, I. (1979) A Dictionary of the Terminology of the Pashtun Tribal Customary Law and Usages, Kabul: The Academy of Sciences of Afghanistan.

If a subsequent Jirgah proves that a kog-narkh has been applied, then

Jirgamaars lose their reputation and the right to participate in future

Jirgahs. This clearly shows that the legitimacy of both the processes and

the outcome of Jirgah is central to its institutional status as a local

mechanism of conflict resolution. Indeed, legitimacy is central to the

social order of the village or tribe and to its functioning as a social group.

But, legitimacy is often subjectively assessed in the wider context of

Pashtoon culture.

In cases where arbitration is selected, a jirga is nominated by consensus

and given an open mandate (waak), with the understanding that its

decision will be accepted by all parties. Here, the decision of the jirga

cannot be challenged.

SELECTION AND PROCEDURE OF JIRGAH UNDER THE FCR

The Federally Administered Tribal Areas are divided into two

administrative categories: ‘protected’ areas are regions under the direct

control of the government, while ‘non-protected’ areas are administered

indirectly through local tribes.

In protected areas, Political Agents, vested with judicial powers, decide

criminal and civil cases. After completing the necessary inquiries and

investigations, cognizance of the case is taken and a jirga is constituted

with the consent of the disputing parties. The case is then referred to the

jirga, accompanied by terms of reference. The jirga hears the parties,

examines evidence, conducts further inquiries where needed, and issues a

verdict which may be split or unanimous. The political agent, or an

official appointed by the political agent for this purpose, examines the

verdict in the presence of parties to the case and members of the jirga. If

the verdict is found to be contrary to customary law or tainted with any

irregularity, the case may be remanded to the same jirga for re-

examination or the verdict may be rejected and a fresh jirga constituted.

Where the verdict is held to be in accordance with customary law and free

of irregularities, it is accepted and a decree is issued accordingly. An

aggrieved party may challenge the decree before an appellate court, and a

further appeal may be lodged with a tribunal consisting of the home

secretary and law secretary of the federal or provincial government. Once

appeals are exhausted, execution of the verdict is the responsibility of the

political administration. The verdict of the Jirgah might be based on

Rewaj or custom and, in some cases, Islamic shari’ah. However, during

such proceedings, the Shari’ah is rarely applied, and the rewaj dominates

the decisions Jirgah.

SANCTION BEHIND THE VERDICT OF A JIRGAH

Implementation of jirga decisions in non-protected areas is the

responsibility of the tribe. The jirga may mete out punishment to an

offender, imposing a heavy fine. Occasionally, more serious measures may

be taken such as expelling an individual or a family from the area, and

confiscating, destroying or setting fire to homes and property. In such

cases, the entire tribe bands together as a lashkar (army) to enforce the

decision. While most disputes are settled internally, more serious matters

may require the calling of a larger jirga made up of maliks, elders, the

political agent, members of the National Assembly and Senate, and

occasionally even representatives from neighbouring agencies or FRs.

 

THE POTENTIAL OF JIRGA AS AN ADR (Alternative Disputes

Resolution)

Jirga is the traditional Pathan institution, very much operative in the tribal

belt specifically and is closely bound up with the social and economic

realities of the people of the region. It is important to note that while

devising modern methods and techniques of ADR (Alternative Dispute

Resolution), the treasure of our traditional wisdom can be of greater help.

Jirga is one of such viable, dynamic and, time-honoured institution which

does not only resolve many local, tribal, and national conflicts efficiently

and in cost-effective way but also acts as a powerful channel of

communication among the people. Although it is a child of traditional

wisdom, but has played a very important role in resolving disputes in

tribal belt both at micro and macro level. Oliver (1890) has noted the

importance of Jirgah in a Pathan society as, “Nevertheless, necessity, has

forced the Pathan, like the rest of the world, to recognize the need for

some form of government, some system that shall enforce even the rudest

customary law, some tribal organization to fall back on at a pinch. And

his tribal jirgah, or council of elders, does all this for him and more.

Composed of elders, mullahs and headsmen, it combines his House of

Lords, bench of Bishops, and Legislative Assembly; it discharges the

functions of all the divisions of the Queen’s Bench, the Probate and

Divorce, the Board of Trade and War Office. It is at once his Convocaion

and his country court.” 9

The term "alternative dispute resolution" or "ADR" is often used to

describe a wide variety of dispute resolution mechanisms that are

alternative to full-scale court processes. According to Blak’s Law

Dictionary, ADR is “a procedure for settling a dispute by means other

than litigation, such as arbitration, meditation, or minitrial.” 1 0 The term

can refer to everything  from facilitated settlement negotiations in which  

disputants are encouraged to negotiate directly   with each other prior to

some other legal   process, to arbitration systems or mini-trials that   look

and feel very much like a courtroom   process. Processes designed to

manage community tension or facilitate community development issues

can also be included within the rubric of community based ADR.

In a recent report published by Afridi, Shah and Minallah Legal

Consultants, a leading lawyers firm based in Lahore, shows that in our

society, only 10% cases go to the courts, the rest are settled through

alternative matters. The figures can vary a lit bit as people to people but

in Pathan communities, it can be said for sure that most of the disputes are

resolved outside courts. And for resolving their disputes, Pathans refer

them to a Jirga. It shows their trust over the time-honoured institution

which operates but in accordance to their own culture and traditions. The

other reasons for why Jirga is preferred over the formal litigation include

less economic burden, more participation in the process as compared to

9 Edward E. Oliver (1890) “Across the Border or Pathan and Biloch” London: Champan and Hall Limited.

10 Garner, B. A. (1999) “Black’s Law Dictionary” 17th Ed: West Group.

litigation, speedy justice and a win-win situation for both parties as the

decision is often announced after a developing a consensus over it .

Another characteristic of Jirga is its simplicity. It does not involve

complicated procedures and therefore remains always attractive for

common prudence. The parties elect their jirga by mutual agreement and

securities are submitted to the Jirga members. After a few rounds of

negotiations supplied with sufficient evidence produced by both sides, the

matter is decided. Thus the parties get rid of lengthy procedures and

adjournments which has unfortunately become practice of the day in

formal judicial system. That is what Mr. Shah Jehan Khan, an Hon’ able

Judge of High Court has noted by saying that, “Prolonged litigation not

only causes prolonged agony and suffering of litigants, it also adversely

affects economic activity. In many cases, genuine litigants cannot obtain

relief promptly, and the delay in justice would amount to denial of justice.

If a genuine litigant gets redressal of his grievances promptly, he would

be able to pursue his business actively, which may otherwise suffer. It is

well known that civil litigation may last for decades and involve many

generations. Prolonged proceedings also result in multiplicity of litigation

due to offshoots from the basic dispute. With a view to avoiding lengthy

litigation and heavy expense, parties to a business deal generally provide

for resolution of disputes through an arbitrator or mediator in their

contracts. To save time and money, sensible people make efforts to

resolve disputes through ADR before approaching courts of law.” 1 1

CONCLUSION

Although the jirga mechanism enjoys widespread favour, corruption has

begun to enter the system. It is reported that the poor and more vulnerable

segments of society cannot afford to convene a jirga. There are a number

of requirements for a jirga to be held, including hospitality, which are

increasingly beyond the reach of most ordinary people. There is also the

grievance, now voiced more frequently, that in most cases jirga decisions

favour the richer or more influential party.

11 www.supremecourt.gov.pk/web/subsites/scp50/Articles/7/9.pdf (Retrieved on 16-03-2010)

However, in order to ensure the viability and effectiveness of Jirgah, it is

necessary to introduce its concept in the legislature. It is further

imperative that appropriate steps should be taken to substantialize the

Jirgah mechanism in the law and to empower the courts to make the

decisions of a Jirgah binding upon all parties to the dispute. The Common

Law of England is mostly unwritten, so is the tribal law in FATA which

also transcends borders and is operative almost in the whole of

Afghanistan. Taking the incorporation of the Common Law in English

Legal system as a precedent, the Jirgah mechanism of conflict resolution

can also be made more accurate, effective and just, which would not only

ensure but enhance peace and stability in the Tribal Areas.

REFERENCES