(Justice Interpreted, Regulated, and Guaranteed Amicably)

"A mass meeting of the elders (of the whole of the Afridi tribe, for instance), would correspond very much to the old `Shiremote' of the Saxon heptarchy; and, indeed, there is more in the simile than one would expect at first glance, for the democratic spirit that is so characteristic a feature in the gradual growth of English customs finds its counterpart in the spirit of liberty and right of free action that is one of the most cherished prerogatives of the Pathan tribesmen, be he ever so humble" (The Hon. Arnold Keppel) [1].

On hearing the word “Jirga”, the first question that comes to mind is what is Jirga? There are many different views on the nature and scope of the term Jirga. Most would describe it as an indigenous institution for dispute resolution in the Pukhtoon communities. Yes, it is, but is it more than this as well?

Frozen in the history as the Pukhtoon nation froze, Jirga is an old custom with unmatched potentials for conflict resolution in the Pukhtoon belt of Pakistan and Afghanistan.  It is a name given to the model, in which a Pukhtoon society operates, to undertake issues between individuals and between communities, to address concerns, and look for solutions acceptable to all stakeholders.

As a blueprint of Pukhtoon life, Jirga is best summarized as a strategic exchange between two or more people to address an issue through verbal communication. The exchange may or may not result in an agreement on the issue, but the process itself leads the parties, including the interveners, to maintain a certain level of formal communication, thus ensuring peace.

To a common person, Jirga is a body comprised of local, elderly, and influential men in Pukhtoon 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 Pukhtoon tribal communities, Jirga is alive even in the areas now influenced by an Anglo-Saxon legal system and is used for interpersonal dispute resolution. In the tribal areas, Jirga is the only vehicle through which the political administration dispenses justice.

According to the modern understanding, Jirga may be noted as an informal institution as there is little documentation involved, and its processes are flexible, delicate and little understood by the outside world. At the same time it is noted that Jirga has enormous impact on the lives of Pukhtoons, particularly those living in the tribal areas, mountains or inaccessible areas where government’s influence is low. When seen in practice in those independent areas of Pukhtoon belt, writers have identified its operation as a reflection of state of liberty and independence present in the Pushto-speaking world. Author Syed Abdul Qudus describes it in this way:  "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[2] 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[3]."

The 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[4].

From these and many other definitions of Jirga, one can see that Jirga is not only a dispute resolution body, but it has many faces depending on the purpose and nature of these Jirgas. There is, however, little distinction in name between these different Jirgas. To Pukhtoons, the context in which a specific Jirga operates gives a clear and undoubted understanding of the role and responsibilities of that particular Jirga. The only place where distinction is drawn clearly is with the Loya Jirga, a process through which representatives of various areas are organized to discuss and vote on issues at national level. 

A common thread for all Jirgas is their operation within an environment of common understanding among the concerned community members.  The representatives comprising the Jirga are answerable to the community and cannot afford to betray their trust.  

The origins of the Jirga are unclear.   Jirga may have been indigenous to the Pukhtoon society or may have come to the area from adjoining Iran[5], but Jirga has helped to enrich the Pukhtoon culture and values. One way it does this is through its influence on the youth. “The discourse among the people in the Jirga is an effective way to teach young ones the real meaning of Pukhtoonwali, the all-encompassing Pukhtoon code of conduct, including Nang and Siali, the codes of honor and social equality”[6].

The operation of Jirga involves a public session where male members of the community gather to deliberate upon an important issue concerning the whole community. There is very little hierarchy evident in its structure. “Sitting in a circle, Jirga has 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[7].” In addition, there is no specific quorum for this kind of an assembly. It is expected that the elder members of the Jirga will see that all the stakeholders are duly represented and comments are publicly placed for those missing from the session. People occupy space at random—those more active in public life in the front and those less visible or concerned in public life are at the back. The Jirga system ensures maximum participation of the participants during deliberation of a specific issue as everyone has a right to speak. An issue is examined from point to point till all aspects of the issue are fairly deliberated upon, all concerns heard, and a transparent and uniform understanding of the issue is agreed upon—all the while the Jirga members may keep playing mysteriously with sets of small stones lying before them like a chess board. This apparent mind mapping (of some of the Jirga members) is said to be one of the techniques to record comments and analyze the situation. 

In Afghanistan, a Maraka is a kind of Jirga in which the parties themselves agree to refer the issue to interveners for amicable settlement of the dispute[8]. Literally, Maraka means “opinion” and refers to the opinion of experts sought for clarifying the issues between the parties. Maraka as such does not have any legal or administrative authority to undertake arbitration or other quasi-judicial proceedings. It is a general assembly of people in which important collective issues are discussed, opinions sought, and decisions taken. In case of a conflict involving a murder, parties would go straight for a Jirga rather than Maraka. Maraka is done only with the consent of the parties, initiated by the parties themselves, and only at the preliminary stage of the conflict.

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 Traditional Jirga process is very straightforward and simple in its manner.  The Jirga or Maraka is comprised of the ‘Spingiris,’ or white bearded elder men, and other male members. The ‘Spingiris’ act as judges and other participants are like jurists. All the parties involved are required to respect the Jirga members.  If the parties have any reservation, those need to be shared in the pre-mediation process and stage.

During the Jirga proceedings, all the parties will address the members of the Jirga and not the rival parties directly. Members of the Jirga have a very strong authority to stop parties from speaking if necessary and no offence is taken.

Jirga hears and examines the parties and witnesses to discover the facts of the dispute.  Following a thorough discussion with the parties, Jirga members analyze the dispute, keeping in mind the traditional, religious, socio–economic, and geo-political circumstances.  After probing inquiries, the Jirga makes every feasible effort to find an unbiased and adequate solution of the problem. The Jirga's pronouncement is usually based on local traditions and /or Shariat[9].

In crucial cases, the Jirga asks parties to clear themselves of the charges by swearing upon the Holy Quraan, which aids in bringing closure to the conflict.  At that point, the dispute stands resolved.  This is prevalent throughout the Pukhtoon region, but its practice and applications varies slightly from area to area. 

The Jirga proceedings generally last for a few days depending on the gravity and complexity of the conflict or dispute and the number of parties involved. Jirga endeavors to find an agreeable and acceptable solution to the conflict as early as possible and strives for its enforcement.

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 The Jirga or 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, Haq or the right, and Waak, which means authority, and 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 the case of Haq, the aggrieved party has the right to bring another Maraka or Jirga to re-examine the issue. In doing so, the decision given on the third occasion is usually considered 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. The decision the Jirga members reach, however, is unanimous. 

In most situations, Jirga seeks to obtain approval of the parties before announcing a verdict, even in arbitration cases. Implementation of a Jirga decision is crucial to the credibility of Jirga. When the decision seems reasonable to both the parties, it can be effectively implemented; however, when one of the parties has serious objections to the outcome of the Jirga, the implementation process becomes difficult, if not impossible.

Anyone who then does not abide by the decision of the Jirga is subject to punitive measures. The Jirga determines the type of punishment based on Narkh (tribal rule, or precedent). This practice varies from one part of the tribal areas to another. Anyone who rejects collective wisdom takes a grave risk—a Jirga can impose powerful sanctions to enforce its judgment. The sanctions can include ex-communication of the non-compliant person or group.

Additional punishments can include the confiscation of rifles belonging to the non-compliant party, placing them with the Jirga as ‘Gravey’ (bond or guarantee).   The Jirga can also impose heavy fines for the non-compliant party to pay 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 by his opponents without any consequence.

A council of the tribesmen (under different names) implements the collective decisions of Qaumi or Ulusi Jirgas (see the description in the next section): these are the Salwaikhtee (40’s) in Waziristan, the Lashkar in Afridi areas, and the Rapakian in Kurram Agency. Typically, this body is comprised of about forty members and its effectiveness is determined by the strength and sanctions they derive from the tribal people, whom they volunteer to serve.

The practice of Jirga is not uniform throughout the Pukhtoon belt, however, the above description relates to a fairly ideal form of practice prevalent in most parts of the Pukhtoon belt where Jirga dominates the lives of its people without any external influences. Where there is some form of governmental system in place, the processes of Jirga and its credibility will vary. Nevertheless, the people of the Pushto speaking world place enormous confidence in Jirga.

Jirga operates within a context.  Outside of that context, Jirga would be impossible. The context of Jirga is based on a shared understanding of history, values, traditions, culture, local environment, and above all the Pushto language. These local practices are more popularly known as “Pukhtoonwali”, the code of Pukhtoon life!

The Pukhtoon worldview represents a group of proud people who have a visible cliché to relate their history and past practices of their forefathers and to draw deductions for their future course. In the coming chapters we will review various aspects of Pukhtoon history and traditions to find out the context in which Jirga operates. Subsequently we will try to explore more aspects of Jirga. The relationship between Jirga and the Pukhtoon culture and their interdependence or otherwise, will remain the focus of our study.