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Jirga As ADR
Jirga As ADR
Jirga As ADR
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
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
3. SARKARI JIRGAH
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.
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).
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.
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.
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
CONCLUSION
REFERENCES
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 the
International 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.
8
Atayee, I. (1979) A Dictionary of the Terminology of the Pashtun Tribal Customary Law and Usages,
Kabul: The Academy of Sciences of Afghanistan.
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.
11
www.supremecourt.gov.pk/web/subsites/scp50/Articles/7/9.pdf (Retrieved on 16-03-2010)