: A CONFLICT RESOLUTION INSTITUTION IN PUKHTOON SOCIETY

1Fakhr-ul-, 2Khan Faqir & Malik Amer Atta3 1Pakistan Study Centre, University of Peshawar, 2University of Science and Technology , Pakistan 3Institute of Education and Research, Gomal University, D.I.

ABSTRACT Jirga is a unique institution that exists in Pukhtoons social organization. It is a Pashtu word which means circle. (Gankoski and Malik, 2006). It is difficult to trace exact origin of Jirga. Nevertheless, it is as old as the community itself. In this paper the writer has dwelt upon origin and evolution of Jirga. How did and Pakistan adopt and accommodate the concept of Jirga as state institution has also been taken into consideration. Apart from consulting published material, the writer reached out to a number of people belonging to FATA (Federally Administered tribal Areas) and settled districts of Khyber Pakhtoonkhwa province of Pakistan for ascertaining their views on the subject. In this way, the paper contains up-to-date information and communal critique rather than review by a single writer. Key Word: Jirga, Pukhtoons, Tribe(s), disputes, verdict.

INTRODUCTION off and on. Hassan and Gohar opine that Pukhtoons or Pathans (as called by other Pukhtoonwali not only provides equal races) are the significant and major ethnic opportunities to the community to settle group living in most parts of Afghanistan their squabbles but also generates self- and tribal belt of Pakistan. They are in confidence in Pukhtoons. Some elements majority in Afghanistan, Khyber of Pukhtoonwali may sound strange to rest Pakhtoonkhwa; second biggest ethnic of the world but Pukhtoons follow them group in Sindh’s capital Karachi and religiously. (Yousafzai & Gohar, 2005) occupy the most populous part of Different reasons responsible for conflict Balochistan. In , they are settled in may be summarized as: Mianwali and parts of Attock districts. In • Animosity , they are scattered in various parts of • Badal(revenge) that vast country. They migrated to India • Taunt th during different points and times since 11 • Honour killing Century AD. Pukhtoons possess • Swara tremendous quality of adaptableness to • Chagha alien environment, they are therefore • Property disputes dispersed in various parts the world. • Other social evils The Pukhtoons social organization, tribal If on one hand, some traditions of structure and peculiar customs and Pukhtoons cause conflict, on the other traditions sometimes lead to disputes. In hand they have in their midst institutions fact, the age-old Pukhtoon code of life or which remove the strife. Of these Pukhtoonwali responds to situation arising institutions, Jirga is unique and distinctive Islam & Faqir, Jirga: A Conflict

to Pukhtoons society. Jirga is a council of precarious situation, the Jirga ask the elders that intervenes in disputes arising of parties to give them Waak/ikhtiar intra-tribal clashes. It listens to parties and (mandate) which means they will accept passes judgments which are binding on all the verdict wholeheartedly. Finally the stakeholders. Although one may not case is decided on merit strictly define Jirga but few writers have Interestingly, no state or non-state given their own definitions. James authority is available to execute verdict of W.Spain characterizes it “a group of this non-official Jirga. For effective members of a particular sub-group of implementation of Jirga decision, surety Pathans considering a matter of common in cash or kind (weapon, moveable or interest”. (Spain, 1990) Qayum Afridi immovable property) by parties is considers it a court whose judges are deposited with Jirga. Any party found nominated in equal number by the guilty of violating the verdict may lose disputing parties from amongst the elders their surety which may be confiscated by of repute. (Afridi, 2003) The type, power the Jirga.(Wazir, 2010) and function Jirga vary depending on In Khyber Agency in particular and other nature of cases before it. There are four tribal areas in general a specific types of Jirga namely: methodology is adopted for resolving disputes arising out of murder. In case of Koranay or Shakhsi Jirga: murder, both the aggrieved and assassin In this type of Jirga, cases between parties confine to their houses. The Jirga, individuals or families are disposed of. first of all, tries to make both the parties Members of this Jirga are selected with agree on Tigga. Tigga is a Pashtu word mutual consent of the parties concerned. which means stone. Symbolically, a stone As mentioned, its scope and function is is fixed which means that the disputing limited. How the Jirga proceeds? Here a parties have agreed to decide their case sequence followed by koranay Jirga in through Jirga and cease fire will exist till North Waziristan tribal area is given verdict(Afridi,2003). which, with minor variations, may be true of the whole FATA and Khyber Olasi or Qami Jirga: Pakhtoonkhwa. The proceedings go like Unlike the koranay/Shakhsi Jirga, the the following: olasi/qami Jirga is constituted for taking The parties approach influential elders of up issues or cases of collective importance the tribe and seek their intervention in the of a community or tribe. The basic unit of case in question. this Jirga is every house hold which may Upon consent of Jirga members, the send one member to it. Numerous cases of process is kick-started. The Jirga members collective nature such as settling disputes establish contacts with the parties and with other tribes, community share in record their statements. forests and other natural resources, After examining the statements, the next distribution of irrigation water, launching stage is announcing verdict. Normally the of developmental projects, and dealing Jirga gives its verdict at this stage, with outlaws in the area etcetera are put however, sometimes serious problems before the Jirga. After selection of arise. For instance, both the parties stick to members, the holding of Jirga their stated positions and urge upon the congregation or assembly is announced. Jirga to decide in their favour. In that During deliberations, every participant is

Gomal University Journal of Research, 29(1). June 2013 Islam & Faqir, Jirga: A Conflict given the right to speak. Decision may Frontier Crimes Regulations 1901, where arrive in one or more than one sessions community was involved in disposal of depending on the nature of dispute. The cases. That was the beginning of Sarkari most accurate sequence of proceeding Jirga. adopted in Olasi/qami Jirga is given In the Frontier Crimes Regulations, all below: details about the Council of Elders ( Jirga “In this kind of an assembly, all ) have been given in Chapter III( section 8 participants have a right to speak but most to 20). In the same regulations, the prefer to observe only. Without any formal Council of Elders ( Jirga ) has been facilitator, each one offers the other, defined as: opportunity to start the talk. In the end, “…a Council of three or more persons someone begins with a tale or a narrative, whether official or otherwise convened by setting the stage for discussion on the the Deputey Commissioner and presided issue. Various parameters of the issue are over by a magistrate invested with powers discussed by addressing concern from under section 30 of the Code of Criminal each individual from the community, Procedure 1898” (Ali I, 2003) while the leadership listens and facilitates further. Finally a common ground is The Provincially Administered Tribal identified and announced for agreement by Areas (PATA) Regulations also provided all”(Yousafzai & Ali, 2005) for Jirga system. PATA include six Both Koranay and Olasi are districts of Malakand Division viz Buner, unofficial in nature; therefore, people Chitral, Dir Upper, Dir Lower, Malakand, prefer them over Sarkari (State-controlled Shangla, Swat and some parts Hazara Jirga). However it does not mean that Division. In these areas, a special law people are fully satisfied with them. When namely PATA Regulations was enforced this writer asked Pukhtoons to identify in 1975. Sections 5-11 of PATA shortcomings of unofficial Jirgas, they Regulations, describe formation and listed many. These defects have been procedure of Jirga. As per Section 6, given in the survey section of the article. Jirga, to be appointed by the Deputy Commissioner, shall consist of five Sarkari (State-controlled) Jirga: members, one of them its President and The evolution of Pukhtoon society from four ordinary members. The President state-less stage to emergence of state has must be a government official, not below affected the institution of Jirga as well. In the rank of Tehsildar or Naib Tehsildar. 1849, after replacing in the present The ordinary members are from the day Khyber Pakhtoonkhwa and community appointed after consultation subsequently pursuing their Forward with the parties concerned.(Ibid) In 1994, Policy.(Spain, 1985) towards Afghanistan, when PATARs were declared the British Indian government faced the unconstitutional by Supreme Court of wrath Pukhtoons. The latters were averse Pakistan,(Bangash A, 2010) the to British occupations of Afghanistan. government promulgated the following From 1849 to 1908, the British Indian regulations at different times: government conducted almost 49 (i) The Provincially Administered Tribal expeditions against the Pukhtoon tribes. Areas (Nafaz-e-Nizam-e-Shariah) (Nevill, 1912) Finally they introduced a Regulation1994. hybrid administrative system under (ii) The Sharia’I Nizm-e-Adl Act 1999

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(iii)The Nizm-e-Adl Act 2009 Musalahati Anjuman shall be in in the A glance at the above three regulations following manner: reveals that people from the community Any court of competent jurisdiction may, were included in the judicial system with in a case where it deems appropriate, refer different titles and responsibilities, the a matterto the Musalihat Anjuman through spirit of Jirga, however, existed one way the Union Nazim for settlement. or the other. In Section 6 of the The court making a reference to Provincially Administered Tribal Areas Musalihat Anjuman for settlement (Nafaz-e-Nizam-e-Shariah) of a dispute may lay down the procedure Regulation1994 and subsequent rules for summoning the parties to the dispute, framed thereunder, 30 Muavinen-i-Qazi the terms of reference, the period during ( People assisting Qaziis) were provided in which settlementis to be made, the manner every district of Malaknad Division. They in which report of the settlement is to be were appointed for one year and supposed submitted and such other matters as it may to associate themselves with courts in the deem appropriate for resolution of the disposal of cases. (Nafaz-e-Nizam-e- dispute. Shariah Regulation, 1994) iii) Where on a reference made by the In the Sharia’h Nizm-e-Adl Act 1999, court, the dispute is settled between the three categories of community leaders, parties, the court may make such mostly ulama, are, Muavineen-e- settlement as rule of the court. Qzi(People assisting Qazis), A’alim iv)The Musalihat Anjuman shall inform Wakeel(Religious Solicitor) and the court if the dispute is not settled within Musliheen(conciliators)are appointed. the time fixed by the court or, may ask for (Gazzette of Government of NWFP, extension in time for settlement of the Extraordinary, 1999) Similarly in the dispute. (Article 104, LGO, 2001) Sharia’I Nizm-e-Adl Act 2009, the role of The LGO remained enforced in Pakistan Musliheen(conciliators) has been for nine years, but the institution of retained.(Jang, 21 April 2009) Musalihati Anjuman could not take its Another official form of Jirga was roots and it remained confined to statutes provided in the Local Government book. Ordinance 2001. Chapter XI of LGO 2001 The recent constitution of Afghanistan consists of five articles (Article 102-106). provides for two houses of parliament, This chapter provides for Musalihat which have been named as Jirgas. As per Anjuman(Council of Conciliation). article 82 (Ch. 5, Art. 2), the parliament is Musalihat Anjuman consists of three to consist of two houses: Wolesi Jirga (the members(conciliators) headed by a House of People) and Meshrano Jirga convener amongst them. These members (House of Elders). (Article 82 (Ch. 5, Art. will not be amongst the members of union 2), Constitution of Islamic Republic of council but will be drawn from the Afghanistan) community for a term of three years, on On the whole Pukhtoons do not like the basis of their conduct and reputation. Sarkari or official Jirga . During the The authority for constituting Musalihat course of this research, this writer asked Anjuman is called as Insaf (Justice) about choice between Sarkari and Olasi Committee of a Union Council. (Article Jirga, from people belonging to different 102 of Local Government Ordinance parts of Khyber Pakhtoonkhwa. (LGO, 2001: 111) The referring of case to

Gomal University Journal of Research, 29(1). June 2013 Islam & Faqir, Jirga: A Conflict

Interestingly, 90% of them opted for olasi Jirga. Advantages of Jirga System The institution of Jirga has come to the Loya (grand) Jirga: rescue of Pukhtoons as and when they Loi or Loya is a word which means came to blows against each other. Few big. is the biggest of all advantages are given below: categories. It is convened when the whole (i) Jirga administers swift justice. In Pukhtoon race confronts with inter racial view of peculiar Pukhtoon social structure, or inter tribal dispute. This term originated one can not afford to wait for snail-sped from Afghanistan and the first Loya Jirga disposal of cases by state judiciary. For was convened by Mirwais. Nevertheless instance, some times a small dispute may king lead to blood shed. Here a case is cited to strengthened it. The composition of Loya understand that role of Jirga. In the Jirga is such that members of ruling class, Miranshah area of North Waziristan ulama and tribal chieftains represented in Agency, two families led by Azan Gul and it. In modern times, Loya Jirga was Younas Khan clashed over matrimonial convened by King Amanullah Khan( issue. The daughter of Azan Gul was r.1919- ), Shah Zahir Shah(r. 1933-1973), engaged to the son of Younas Khan. Sardar Daud(r. 1973-78) and Hamid However, after a year or so, Azan Gul Karzai(r. 2002 onwards). The session of changed his mind and decided to break the Loya Jirga is convened on need basis.With engagement as in his opinion his promulgation of new constitution of daughter’s fiancé was not having good Afghanistan, Loya Jirga has also been moral character. Younas Khan and his made state organ. In chapter 6, Article family took serious note of it which 110, (Ch. 6. Art. 1) of that constitution, the resulted into gun battle between the two composition and other details of Loya sides. The case was heading towards Jirga are entirely different from the non- bloodshed when Jirrga intervened and state racial/cultural body mentioned resolved the dispute amicably(Ahmad S, above. Its members include Members of 2010). both chambers of parliament, heads of (ii) Besides petty family disputes, Jirga provincial and district councils, cabinet helps in resolving community-wide issues ministers, Chief Justice and judges and saves the community from surge of Supreme Court. Of these, heads of intra-tribal clash. provincial and district councils, cabinet Jirga is an institution which imparts ministers, Chief Justice and judges positive norms of social responsibility, Supreme can only participate in the reconciliation, protection rights of the sessions the Jirga without exercising right oppressed, freedom of speech and respect to vote.(Ibid, Article 110) As per article for justice and fair play to the upcoming 111, Loya Jirga may be convened to take generation. up issues such as: (iii)Jirga dispenses justice to all and Amendment in constitution, Impeachment sundry irrespective of their social status, of President as per relevant provisions of influence and wealth.(Beg A, 2000) the constitution. (iv) Jirga is custodian of religious Any other issues pertaining to injunctions and Pukhtoons’ code of life i.e. independence, national sovereignty, Pukhtoonwali. territorial integrity

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Disadvantages of Jirga System: Khan coming from Sharikaera village in Besides its conflict resolution role, Jirga the vicinity of Peshawar recorded been suffered from many diseases, which statement before Peshawar High Court that are briefly discussed below: he worked abroad. In his absence, his The members of Jirga have been relatives unilaterally declared marriage of performing their duties without receiving their sons with his(Nawaz Khan’s) any fee or emoluments from parties teenager daughters named Shaista and concerned. However, in the recent years, Zenab.(Ajj, 22July 2012) Jirga members in tribal areas have started The Peshawar High Court, in its receiving money from parties in the form preliminary hearing asked the provincial of fee and in some cases as bribe. The government to frame laws for eradication amount of fee and bribery varies from case of that bad custom. Though the Khyber to case.(F. Islam with A. Nawaz, 2010) Pakhtoonkhwa provincial assembly was The role of Jirga dealing with Chagha has functioning but it did not take any step not only been criticized by people but towards that end. Resultantly, the courts have also taken their cognizance. Governor promulgated Ordinance “Khyber Chagha is a strange tradition among Pakhtoonkhwa Elimination of Custom of Pukhtoons in the settled areas and adjacent Ghag 2012” which declared the custom of tribal areas of Khyber Pakhtoonkhwa. ghag as cognizable crime. (Jang 22 Chagha is a Pashto word which means November, 2012) Later on, the provincial yell. According to its family of a boy assembly converted the ordinance into act. unilaterally declare his nuptial ties with a girl without seeking her or her family’s Community’s view about Jirga: consent. This declaration is done publicly In order to ascertain views of the with loud voice, that is why it is called as community, a survey was conducted Chagha. The girl’s family cannot deny the among selected respondents of Federally engagement else they will be presented Administered Tribal Areas (FATA) and before a Jirga whose decision in similar settled districts of Khyber Pakhtoonkhwa cases is final. In South Wazirstan, this province. The FATA respondents custom with a slightly different detail is belonged to political agencies/regions such called as Zhagh. Akhtarullah Mehsud as Khyber, Kurrum, Mohmmand, North explains it as: Waziristan, Orakzai, South Waziristan, “A person who has enmity may make a and Frontier Region(FR) Bannu. The Zhagh announcing that nobody should settled districts where survey was carried marry the sister or daughter of his out included Bannu, Buner, Chitral, opponent till his claim is settled. This in Charsadda, Dir Lower, Dir Upper, fact places ban on anybody claiming the Malakand, Mardan, Nowshehra, Peshawar, girl’s marriage and this ban continues till Sawabi and Swat. In the questionnaire the the person making the Zhagh is satisfied. following close and open ended questions In case he fails to prove his case, the were asked: Zhagh is withdrawn.” (Mehsud A, 2004) (1) Is Jirga inevitable for Pukhtoons Chagha phenomenon was brought to lime society? Yes/no light in mid 2012, when verdicts of jirgas (2) Do you support continuation of Jirga in Chagha cases were challenged in system? Yes/no Peshawar High Court. According to (3) Which type of Jirga you support, details of one case, Muhammad Nawaz official or olasi?

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(4) Which type of Jirga is functional in respondents could not understand the your area? question. 8.75% people said that they have (5) Identify merits of Jirga system in your both types of Jirga in their area. An area. overwhelming majority i.e. 87.5 % (6) Identify demerits of Jirga system in informed that Olasi Jirga functioned in your area their areas of domicile. (7) How far Jirga is relevant after 9/11 5. There were several positive points and rise of ? presented by the respondents when they were asked to identify merits of Jirga 1.Is Jirga inevitable for Pukhtoons system in their area. The merits are society? summarized as follow: Everyone can express his opinion in Jirga Response Frequency Percentage • Jirga administers speedy justice Yes 78 97.5 • It works as an effective conflict No 2 2.5 resolution tool Total 80 100 • It comes up with solution to problems Of the two respondents who said, no, one • It resolves disputes peacefully male belongs to Chitral and the other • It transforms enmity into friendship female hails from Swabi • It is an inexpensive justice system • It is a collective approach to dispute 2. Do you support continuation of Jirga resolution system? • It brings about durable solution Response Frequency Percentage • It protects people from intricacies Yes 78 97.5 • Jirga announces verdict in the light of No 2 2.5 local culture, customs and traditions Total 80 100 • There is real democracy in the Jirga system 3. Which type of Jirga you support, • It punishes oppressor and helps the official or olasi? oppressed Response Frequency Percentage • Besides local culture, customs and official 2 2.5 traditions, it gives weight to the Olasi 72 90 teachings of Quran and Sunnah Other 6 7.5 • Justice is not delayed in Jirga system Total 80 100 • Everyone is equal before Jirga law Interestingly in the other category, 7.5% • Structurally, Jirga is quite a simple respondents opted for both types of Jirga. body

• It promotes social harmony, peace and 4. In response to a question as to tranquility which type of Jirga is functional in their respective areas, 3.75% said there was no 6. If the respondents were showering system of Jirga existed in their respective praises on Jirga on one hand, on the other area. Interestingly respondents of this hand they also highlighted its demerits of category belonged to Chitral, Mardan and the system. Majority of them (22.5 %) South Waziristan. The nonexistence of alleged that corruption has permeated into Jirga System in Mardan and South the jarga system. (72.2 %) of the Waziristan is unbelievable. May be the

Gomal University Journal of Research, 29(1). June 2013 Islam & Faqir, Jirga: A Conflict

respondents listed variety of defects, while forces. So answers to question as to how (5%) opined that the system is free from far Jirga is relevant after 9/11 and rise of errors. Their views are summarized below: Taliban, were interesting and numerous. • The amount or weapon kept a surety 62.5% are of the view that Taliban have bond is misused. fully controlled the system and Jirga has • Normally the jarga members are vanished from the tribal society. illiterate. As such their decisions are Nevertheless, there is still a sizable influenced by ignorance. number of people (37.5) who do not • In some cases, decisions are influenced believe in reducing Jirga institution to a by politics. dead horse. They are of the view that the • In many instances, verdicts of Jirga volatile situation of the area and are not in consonance with modern domination of non-state actors has made days trends. Jirga more relevant. • Jirga has always promoted inhuman traditions like Swara, Wani, and forced CONCLUSION expulsion of culprits from his area. Jirga is integral part of pukhtoon social • Rich and resourceful people dominate organization. Although state institutions proceedings of jirga. (formal) have replaced this informal body to a great extent, but it’s vitality did not • Force is used in execution of Jirga vanish. Jirga system has been a success verdic story that is why the concept has been • Jirga members are generally ignorant incorporated into state institutions of of law Pakistan and Afghanistan. With the • Sometimes Jirga fails to execute its passage of time, some negative trends like verdict conservatism, male chauvinism, plitical • No fixed criterion exists for and factional bises and corruption have nomination of Jirga members permeated into the institution of which • Members fleece money in return of human rights organizations and their favour with one party or the Government have taken notice. However other. its merits are more than the demerits. The • Since Jirga members belong to administraction of speedy and inexpensive different tribes or different sections of justice, proficient conflict resolution, the same tribe, therefore their intra tranformation of enimity into friendship, tribal friction adversely affects effective execution and regard for moral decisions of jirga. and cultural values; are positive attributes • Jirga members have been performing of jirga. Interestingly, the tribal duty voluntarily, but in recent days community is fervent backer of some of them have started asking for continuation the institution of Jirga. compensation. Pukhtoon is general and tribesmen in • The biased approach of Jirga members particular opine that olution to the current promotes social evils and lawlessness crisis in FATA and rest of the country, lies in the society. in reactivation of Jirga system. 7. Needless to say, in the post-9/11 scenario, Jirga has been adversely REFERENCES affected. The tribal areas where Jirga Afridi, A. Q. (2003) The Hill Tribes Along reigned supreme, has now been replaced the . Peshawar: IRIS. either by Taliban insurgents or security

Gomal University Journal of Research, 29(1). June 2013 Islam & Faqir, Jirga: A Conflict

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