TYPES OF JIRGA

 Jirga is done at all levels of the society for different purposes and different objectives. For an outsider, the dynamics of Jirga may appear overwhelmingly complex, but upon deeper examination it is clear that a common understanding exists among Pukhtoons regarding these complexities. 

The composition of a Jirga may be categorized in two ways. One is the representative level of a Jirga where the Jirga may represent a party, a village, or an area or region. In the second level, the Jirga serves a particular role, which can vary depending on the circumstances.  Some examples of these roles are diplomatic missions, peacebuilding interventions, or small juries.

Locals use the term Jirga for many meanings. Some of these are:

Each of these terms is used for a variety of meanings related to the organization of the local community life, indicating the relevance and importance of Jirga as an integral institution to Pukhtoon culture.

The nature and scope of a specific Jirga can vary and there is generally no clear distinction between types of Jirga.  Even the locals will talk about Jirga as the type they best understand, but when questioned, they smile and agree that their definition or understanding of a Jirga is a narrow one. Most writers have delineated Jirga into four general types:  Sarkari, Qaumi/ Ulusi, Shakhsi, and Loya Jirga.

Sarkari or Governmental Jirga

Sarkari Jirga refers to a Jirga sponsored by the government. In the tribal areas of NWFP, the British established a contract with the locals allowing them to settle all issues between themselves and the government through a local Jirga. This contract was pronounced through the “Frontier Crimes Regulation of 1901 Act” allowing a representative of the government to regulate the formation and reformation of Jirga(s).

Under Frontier Crimes Regulation (FCR) 1901, the magistrate, the political agent or his assistant can designate a group of elders to try a criminal or civil case. The FCR authorizes settlement of quarrels by this Jirga. Jirga members, two or more depending on the nature and importance of the case, are nominated arbitrarily by the concerned government official. The Jirga calls the parties, analyzes the evidence, and recommends a verdict to be considered for approval by the government authority. There is an appellate tribunal of the government that then examines the Jirga decision. This Jirga can recommend a maximum penalty of up to fourteen years imprisonment and pass awards based on the local traditions.  The political agent can approve such recommendation and enforce the decision.

The main components of the Sarkari Jirga are:

·         A government representative

·         A case registered by one of the parties or cognizance of a situation by the government

·         Written referral of the case to the Jirga nominated by the government official

·         Recording of statements of the parties by the Jirga

·         Visits to the disputed sites by the Jirga members

·         Recording of further evidence by the Jirga members

·         Presentation of recommendations to the government agent

·         Consideration, approval, or disapproval of the recommendations

·         Reference back to the same Jirga for reconsideration in light of new facts

·         Announcement of the award

·         Right of parties to appeal

·         Implementation of the award

In this case, nomination of the Jirga members is the most sensitive element because selection of such members who lack the confidence of the community can put the whole process of Jirga at risk. Jirga members are selected from a panel of Malaks or liaison people maintained by the government. To maintain transparency, the government officials may ask the parties to mutually agree to nominate the members themselves. In case of a disagreement, parties are asked to nominate an equal number of Jirga members to represent their respective sides, and the government has the right to nominate the referee among them. In all cases, however, the decision of the Jirga members is unanimous. In case of a dissent by one of the members, the same is noted on records similar to the proceedings of a jury.

Qaumi/ Ulusi or Local-Representative Jirga

Ulas means people and Qaum[1] means community. Thus, 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 the selection of a site for a school, etc. Ulasi Jirga is announced after initial consultations of a few elderly leaders of the community, and it is announced through a Naqqara or band beat. The venue and time of such an assembly is also given. It is an open assembly in which each person is allowed to speak and all opinions are given space. The decision may be taken in one or more sessions if the issue needs private deliberations by different stakeholders. 

The jurisdiction of this type of Jirga is much wider than any other type of Jirga. The Qaumi Jirga can take up any issue of national or community interest.  A Qaumi Jirga can:

• Hold as many sessions as needed
• Undertake any issue of interest or concern to the community
• Announce any interim decisions
• Make new laws or rules for the tribe, like grazing rights, water rights, etc.
• Call for other ideas
• Invite volunteers as a work force
• Raise taxes for community work
• Go as a delegation or
• Send delegations to parties or
• Send delegations to the neighboring tribes (in case of an intertribal issue)
• Raise an Army (Lashkar) to punish an outlaw
• Declare war and peace with a neighboring tribe.

Attended by all males and, in some cases witnessed by women, this kind of a Jirga is led by different cadres of representatives. These may include a combination of the following:

• Spinczirie or the white bearded, meaning the elderly wise people of the village
• Jirgamar(s) [2] or professional intermediaries popular for their lifelong roles and experiences as peacebuilders
• Mahsar/Masharan or Leader/Leaders, usually a person of independent means, known for his leadership in the community
• Khan, or the noble, generally a landlord aristocrat known for his hospitality and magnanimity
• Religious leader or Clergy—much used as a consultant on family laws

In this kind of an assembly, all participants have a right to speak, but most prefer to observe only. Without any formal facilitator each one offers the other the opportunity to start the talk. In the end, someone begins with a tale or a narrative, setting the stage for a discussion on the issue. Various parameters of the issue are discussed by addressing the concerns of each individual from the community, while the leadership listens and facilitates further talk. Finally, a common ground is identified and announced for agreement by all.

Shakhsi or Third-Party Jirga

This Jirga is formulated in the case of a dispute that arises between two individuals or families. The Jirga members are chosen from both of the parties or both parties agree to the nomination of neutral members. Balance and neutrality are important in order for the members to arrive at a just settlement that is acceptable to both sides. Failure of one party or the other to accept the verdict of the Jirga puts the credibility of the Jirga at stake, creating a situation where the original Jirga becomes a party in a second or even third Jirga.  Until both parties voluntarily agree to accept such a verdict, or until the Jirga has the powers and resources to mobilize a Badraga[3] for implementation of their decision, a misjudgment by the Jirga will not stand the test of Justice. Again raising the Badraga brings the Jirga’s decision to the awareness of the whole community, thus keeping the process in check.  Because the process of Shakhsi Jirga involves adjudication of the dispute through a process similar to arbitration, credibility is crucial. 

The following steps are involved in Shakhsi Jirga:

• One of the parties approaches certain members of the community known as “Jirgamar,” states an issue and asks for intervention, or
• Both the parties agree to settle their dispute through third party intervention.
• The Jirgamar approached by the parties gives an initial hearing and advises the party or the parties on an appropriate direction.
• The Jirgamars may advise the party or parties to involve other people more appropriate for the case. 
• Jirga members establish a channel of communication with and between the parties.
• On minor issues, the Jirga establishes a face saving norm to settle the matter publicly
• If the issue is complex and involves due judgment by the Jirga, parties are asked to delegate powers to the Jirga to decide the issue (This is also known as “Waak” or consent of the parties).
• Parties give unconditional powers to the interveners to decide the issue between them.
• Parties are asked to deposit surety or bond[4], which can be confiscated later if one of the parties decides to withdraw from the consent given earlier.
• Jirga hears the parties, sometimes face to face, at other times one after the other.
• The situation is placed openly before both the parties at all stages of negotiation, or
• The parties are told only the good side of the story, while the Jirgamars search for common ground.
• After clarifying the issues with both the parties, taking all possible evidence and applying the local traditional laws, Jirga gives a verdict, which both parties must accept.
• In case a party does not publicly accept such a verdict on grounds of injustice, the same party must convince a more credible Jirga to intervene and reconsider the issue.
• When the Jirga members and the community are convinced of malice by one party, such a party is socially cornered and the victim gets the legitimacy to engage in self-defense.
• In such a situation, the Jirga might even call for raising a militia (Badraga) from the community to enforce such a decision.

Loya or Grand Jirga

Loya Jirga, or the grand assembly, is a process through which representatives of various areas organize to discuss and vote on issues at the national level. A question about the representative status of these participants is usually quite sensitive and, if the Jirga is even slightly mishandled, the credibility of this national level process quickly looses its efficacy. As discussed earlier, representation or selection of members of the Jirga is a delicate process. Each representative must have the unquestionable confidence of the community he represents and each community must be duly represented at such a Jirga. Each member must be heard at the conference and concerns raised by a member must be taken into account while collective decisions are being made.  All decisions of a Jirga must be unanimous.

The institution of Loya Jirga in Afghanistan has gained legitimacy as a constitution-making body because of the frequency of its practice. There is no fixed size for this kind of a Jirga. The framework for representation is defined by the convening authority, where each administrative unit is allowed to bring forward a representative.  Major tribes are also given rights to send representatives and similarly special representation may be allowed for women and minorities.  This is a one off assembly convened to address a specific issue or situation of highest national interest. 

The process of selection of the representatives is often tedious, as there must be a universal agreement to the framework through which the nominations are made. Different methods of selection are applied by the central government, but rarely has the government been able to find an undisputed formula to represent the whole width and breadth of its population. As such, each geographical district and each major and minor tribe must be judiciously represented.

Outside Afghanistan, the concept of Loya Jirga is applied at the geographical agency[5] level in the Federally Administered Tribal Areas (FATA) as well. The Loya Jirga of a particular agency might be formed to discuss an issue with an adjoining agency. Subsequently a Loya Jirga of all the tribal districts (agencies) may be formed to raise an issue collectively with the government or to set up a new law for the collective tribal life.    

The selection of the members of a Loya Jirga is also done through the process of Jirga. Small and mid-level Jirgas representing communities choose their representatives for a higher level Jirga.

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Process of selection of Jirga is quite delicate as credibility of the entire process of Jirga depends on the nature of selection of Jirga members. This “selection of the Jirga members varies according to the type of Jirga”[6]. Under the FCR 1901, the Political Agent or his assistant is empowered to nominate members who comprise a Jirga. These members of Sarkari Jirga are usually selected from the notable elders or the Malaks of the area who are registered as people loyal to the government. In a Shakhsi Jirga, parties select or approve selection of members of Jirga who may be totally neutral towards the parties or the parties may nominate their respective members to represent their interests. In this case, the parties also mutually agree to nominate an odd number of neutral members such that the Jirga is expected to reach a judicious decision in the light of the code of Pukhtoonwali.  In the case of the Ulusi Jirga, the members are usually comprised of elders of the notable families whose social standing and experience with the Pukhtoonwali entitles them to a place on the council. This is a more popular process of nomination in which status of Jirga members is representative of the people they speak for. There is no limit on the size of the Jirga as it 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 Pukhtoonwali”[7].

We have observed that selection of the Jirga can happen in four ways:  by the parties, due to personal aptitude, by the community, and by the government.  The next four sections expand on dimensions of each selection process.

Selection by the Parties

In a particular case, one of the parties can approach a person of repute to help the situation from worsening. This could be a plea, a complaint, a warning, or all of the above.  At this point, one or both parties feel that if intervention does not occur soon, things may get complicated for either of the parties and for the community as well.  The person so approached is bound to analyze the issue and strategize to present the case before an appropriate group of people. Such a group may be comprised of the immediate relatives, friends, neighbors, Khan, religious leadership or professional Jirgamars (peace builders).   Depending on what is best for the situation, the matter may be taken up with the appropriate number and cadre of people who should consider this party’s plea. At that point a case is instituted before a Jirga. It should be noted that in Pukhtoon society, each male member is almost equally qualified for his role as an intervener, as there are hardly any hierarchies among the men in this system.

The case may be moved from level to level in the Pukhtoon social structure, i.e., from less professional to more professional members of society. Depending upon who can effectively handle the situation, an appropriate tier takes the cognizance, and an approach to the opposite party is appropriately made to obtain a defense plea or plea in reply. This approach to the other party is a very calculated move. Carefully selected words are used so that the party is not offended at the outset.  As mentioned earlier, refusal to entertain a Jirga is a disgraceful act by a party and puts the party in a situation of social isolation, which few people can afford, particularly when confronted with a conflict situation.

Personal Aptitude

Unlike in the case of interpersonal disputes, the community accepts a few men known for their passion, interest, and skills to practice professional peacebuilding through Jirga.  With an aptitude for professional peacebuilding, these Jirgamars are highly proactive masters of strategizing, fluent in the use of proverbs and idioms, and fully committed to the cause of peacebuilding.

Such freelance professionals win the confidence of their respective communities, as well as the neighboring people, obtaining the status of trusted representatives of the people. Without any formal elections, they are often called by the government or outside agencies to represent the society and negotiate on their behalf. Although allowed to make decisions independently, they rarely fail the communities at various forums, thus assuring the continued support of the community. Although they have the confidence of the community, Jirgamars may not make critical decisions regarding the stake of the communities they represent unless they obtain the approval of the community. 

Selection by the Community

The community allows a few professionals or other “white bearded” to form a Jirga when an issue arises. The nature of issue may relate to an individual (including a female in this case), a family or the whole community. Such stakeholders approach the known elders for intervention. These Jirga members thus become representatives of the stakeholders and are accountable to them as well as the community (for their role) in a true democratic spirit. The composition and size then depends on the nature of the issue and the stakes of the community.

Selection by Khan or the Government

The government official or an influential person of the area may also nominate people to address a specific question. A call for Jirga by the government or by a Khan is not a classical form of Jirga. However, when the stakes are high this process is keenly attended by the genuine community representatives who form the Jirga.  This kind of a Jirga does not enjoy the level of credibility with the parties that the indigenous Jirga has. Despite this drawback, such a Jirga can play a vital role in supporting the parties to reach an amicable settlement of their dispute, based on the level of sincerity of the Government or Khan and the character of the Jirgamars

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Community members observe the qualities of individual men, starting from their youth, to see who may emerge as a promising professional.  These people generally have the following characteristics:

• Visible attendance in social events
• Regular presence in Hujra
• Regular attendance in the company of elders in Hujra
• A good knowledge of history
• A good knowledge of Pukhtoonwali
• Little “loose” talk used ever in life
• Proactive intervention in situations demanding attention
• Good sense of humility, sympathy, respect, and understanding 
• Particular attendance to offer condolences
• Reaching out to farther villages at marriage and birth ceremonies
• Maintaining contact with the community
• Maintaining an upright character
• Belonging to reasonably better off and better known families
• Making correct choices when taking sides with victims at different times in their lives
• Sacrificing their time, energy, and money for the sake of peacebuilding
• A spotless history of honesty, integrity and uprightness

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 Without any specific knowledge as to its place and time of origin, Jirga remains an effective institution for peaceful communications and resolution of disputes among individuals, communities, and tribes. 

The system of Jirga is passed down from generation to generation without any written protocols or written form of terms and conditions. It is considered a vital customary judicial institution where all people are considered equal before the process. In most cases, conflicts are resolved in an acceptable manner and everybody respects the results of the Jirga. However, stronger enforcement may also be needed to bring justice.

Jirga offers a medium of communication between rival groups and tribes, as well as mediators, but beyond that Jirga is a means for creating a structure and venue to address differences between groups in conflict. In addition, the Jirga may be thought of as a jury because of its nature of composition and involvement. The Jirga system ensures effective participation of the people in administering justice and makes sure that justice is manifestly done. Jirga also gives protection and security to the weaker party in a conflict.