In between voting yes or no for Jirga, one can find similarities and differences between this age-old tribal system and the contemporary systems

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The modern justice system in this region is based on a few distinguishable elements that combine to form the whole system. These can be identified as:

• A Prosecution System—Police, Magistrates, and similar bodies
• A Legal Framework—Sets of laws enforced in the country
• An Adjudicating Body—Various tiers of the judiciary
• An Implementation Body—Law enforcement agencies

The legal framework is further divided into the following:

• The Criminal Procedure—adopted to process the cases involving crimes specified in the code, such as robbery, murder, assault, etc.
• The Civil Procedure—adopted to process the cases involving civil disputes between citizens and institutions.
• The Penal Code—defines the extent and nature of punishments for violation of each law.
• Evidence Laws—the process and method of recording and evaluating evidence in a certain case before a verdict is reached.
• Local and Special Laws—adopted periodically, i.e. the Traffic Laws, Industry, and Labor Laws, etc.

In comparative ways, the Jirga exercises both executive and judicial roles and settles all disputes pertaining to the distribution of land, property, blood feuds, blood money, and other important inter-tribal affairs based on tribal conventions, traditions, and principles of justice. It performs judicial functions while settling a dispute and discharges police functions when a threat to peace and tranquility exists or when there is danger to the life and property of any person in the community.

Pukhtoon Jirga usually deals with local matters and follows a mechanism for dispensing speedy and inexpensive justice. After careful consideration, the Jirga decides the disputes based on available evidence and, for the community, the process and decision hold similar weight and respect as court decisions do in a western legal framework.  If needed, the community raises a force called a Badraga[1] to implement the decision.

On the penal side, local traditions known as Rewaj set the standards of punishments for different types of crimes. The punishment can vary from monetary fines to expulsion of individuals from the area, legitimizing murders of revenge, exchange of girls for marriages, or house burning.

Penal laws may vary from place to place and only a few areas have written laws.  One example of this is in Kurram agency, which has a charter of laws written in 1944.  The laws and precedents of adjoining tribes may influence a particular region, but the suitability of such laws is thoroughly discussed before being adopted. 

The tribal laws and tribal systems are complex but workable. They are complex because they are not as uniform as the settled and written laws are, but they work because they are indigenous to the communities and societies who have been practicing them for centuries. Within the complexity, however, it is possible to find ways in which the tribal justice system can be effectively compared to the components of the modern judicial systems. 

One distinctive difference between the tribal legal system and the governmental or Anglo-Saxon Legal system is the emphasis on the victim.  In the Jirga system, the victim is the focus of any proceeding taken against the offender, whereas in the formal legal system, the state adopts the role of the victim in the proceedings against the offender.   Actual victim of the offence is not duly represented in the proceeding and the needs of the victim, including physical rehabilitation, are ignored by the formal judicial systems. Jirga keeps the focus of all proceedings on the victim and his or her needs. 

Another distinctive difference is how the systems view punishment.  For the criminal justice system, punishment is a primary outcome.  Tribal Jirga, on the other hand, continues to maintain its focus on the needs of the victim:  the aspect of punishment is considered secondary.

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Local laws, like in most traditional systems, change every few miles, but it is claimed that Pukhtoonwali remains the same throughout the Pukhtoon areas. Since there is no codified form of the laws and rules of Jirga or Pukhtoonwali, it is difficult to comprehensively articulate the laws at this stage.  Most writers who have written about the code of Pukhtoonwali have written with reference to the penal laws only, while the processes have been noted as indigenous patterns of dispute resolution and adjudication of justice.

In fact, in the face of a desire to institute uniform laws through a system of central governance, the laws prevalent in tribal and traditional societies of the Pukhtoon belt have been undermined in the recent past, identifying the laws of Pukhtoonwali as only the personal and family laws.  The code of Pukhtoonwali, however, remained an all-encompassing framework to regulate life in a loose confederation of independent tribal Pukhtoons before the idea of turning the Pukhtoon belt into a nation-state transpired.  For this reason, the areas of the Pukhtoon belt under the influence of the British got special statuses as “Federally Administered Tribal Areas” or “Provincially Administered Tribal Areas,” which allowed Jirga to play a dominant role in the social regulation and adjudication of justice. Other areas, like Peshawar and its surrounding districts, were merged with mainstream Pakistan at the outset. Since Afghanistan didn’t see a fully functional system of government until late, Jirga and the code of Pukhtoonwali remained quite functional there. 

In the following sections, we will compare the code of Pukhtoonwali with reference to the legal code prevalent in Pakistan to see how different processes identified under Pukhtoonwali adjust to the fields of a modern legal framework.

Civil Code and Criminal Code

In Pakistan, the Civil Procedure Code (CPC) deals with civil matters only, while the Criminal Procedure Code (CrPC) deals with crimes. As is clear from the names, they both are procedural laws while the Pakistan Penal Code or PPC is a substantial law imposing punishments on violations of laws. In the Pukhtoonwali, which is generally referred to as the “Pukhtoon Code of Ethics”, elements of legal distinctions can be identified as follows.

As “Dushmani” or enmity is a distinctively established institution of the Pukhtoonwali, all interpersonal disputes, other than professional theft or robbery, are considered civil in nature.

In the Pukhtoon code, there is little distinction between the civil matters and the criminal matters because it presumes that all civil disputes would lead to criminal offenses. Since the meaning and interpretation of justice is vastly left to the individuals in a Pukhtoon society, it is up to the victim and not the state or society to define the harm done to him, and in turn demand undoing of the harm by the offender. The term “Badal” therefore refers to return, exchange or a reply and not vengeance or strictly revenge. Therefore, a civil offence, if not dealt with justly or diligently will inevitably lead to violence by one or the other party.

Theft and robbery that appear to be done by professionals are considered as crimes against society. It is presumed here that the offender would not have a previous relationship with the victim and the offence would be done in exclusion. Penalties for such crimes are severe in Pukhtoonwali as no mercy is granted the offender.

The judicial system of the state is based on a “crime and punishment syndrome.” In this case police apprehends the accused under the law, evidence is produced before a judge, and punishment is announced to the offender. The state becomes the victim in this case and the law forgets the actual victim. The legal system should actually be based on the correction of problems, but that is not happening. The needs of the victim and those of the offender in the aftermath of an offence are lost during the process of adjudication of justice.

In the tribal system, although there is a concept of exemplary punishments for the offenders, there is also an overwhelming concept of meeting the needs of the victim as well as the offender. The practices of restorative justice, though little visible, are very much a part of the tribal judicial system under a purer form of Jirga.

Laws of Evidence and Truth-Telling

Laws of evidence in the Jirga system vary from place to place. Evidence of a person is taken on the face of the statement so given before the Jirga.

Each party has the right to produce evidence, and state before the Jirga what is considered right by that party. The Jirga examines such evidence and puts cross-questions to the witnesses, more like in a case of an inquiry rather than a judicial proceeding. Witnesses are rarely brought up against the other party. False evidence puts the witness in a direct controversy not only with the Jirga but also with the opposing party.

At times specific types of evidence are declared inadmissible for a particular case. For example, in some areas, evidence from a nighttime murder is not taken into consideration for the accusation of a person. This is probably because these places did not have electric lights in the past, thus making the identification of the accused doubtful.  As people settled scores in the nighttime while shifting the blame onto someone else, the communities decided that all individuals and families would be responsible for their personal security during the night.

Taking an oath, or “Qasam,” in the name of God or on Quraan[2] is a common form of evidence usually taken as a proof of the statement of one party or the other. When the dispute is about a certain issue in which little proof can be found, such as when the person holding evidence has died, an oath by the claimant party is enough assurance to the community of the firm belief by the claimant in their rights. In some cases when such claims of one party are contested zealously by the defending party, the same oath can be served to the defending party. Generally, there is hardly any scope for a contrasting oath by both the parties.

The demand of an oath or the offer of a counter oath is the final proof after which the matter can go only for a full-scale enmity. Even after taking the oath, the parties may not be ready to refer the matter for arbitration because of a fear of losing the case. In case an oath is demanded by one party and taken by the other, the matter must then be settled immediately.

An aspect of the cultural paradigm of Pukhtoonwali is the sanctity of the spoken word.  Most businesses are run on verbal assurances as opposed to written records. Trust in spoken agreements is considered a great virtue of Pukhtoons. Coupled with a reference of religion, it should serve as an ultimate assurance.

Interestingly, a more credible oath than the oath involving God is the oath a man takes on his wife. Again, the cultural paradigm binds husbands with their respective wives in an extraordinary personal relationship, such that a man would be pained to say, if I am false, my wife may become illegal to me.  This kind of oath is rarely taken but is absolutely trusted among the contesting parties.

Throwing an oath is another phenomena practiced during dispute resolution. When finding no other clues, one of the parties or the Jirga may throw three stones on the ground and declare that anyone telling lies would have his marriage dissolved. Such a practice can play wonders. Here each stone is considered as a one time announcement of divorce by the person who is expected to say the truth to keep his marriage secured from a social divorce. It may be noted that in Islam, a thrice-made public announcement of divorce by a man dissolves the marriage permanently.

Penal Laws

There is a lot of criticism regarding the penal laws of the tribal system as well as the Islamic laws. The system of punishments in the tribal laws is not as comprehensive and uniform as one would expect. The punishments prescribed by the Jirga fall in two categories: death, exile and house burning, or reparations.

A death sentence, which is quite common in the purely tribal places, is not permissible where there is an external governmental control over the tribal laws. Even in the tribal areas associated with an external government, however, killing or murder is taken as a right of a party seeking “Badal”, a form of revenge based on justice. In the purely tribal areas, a death penalty can be announced for a variety of crimes including robbery, kidnapping for ransom, deliberate murder of an innocent person, and adultery. Other than a death sentence, a Jirga can announce the forced exile of a person and burn the house of a proclaimed offender.

The second category of punishments is that of compensatory nature where the party at fault is expected to undo the harm done to the victim, or monetary fines are imposed on the parties. Among the compensatory punishments is the much-criticized tradition of “Sawara,” extending a girl in marriage to the victim family.

Interestingly, in the purely tribal setup, there is no scope for announcing jail to an offender, as there are no jails in the tribal communities. In the tribal areas associated with the government, the concept of jail is present, and there the Jirga does not have any powers to announce a death penalty to any kind of offender.

Decisions and Treaties

It may be noted again that in the basic legal system of Pukhtoons, there is hardly any correct translation for the word “decision” as most of the outcomes of external interventions in a dispute must reach an agreement between the parties. Thereafter such decisions are self-sustainable and the onus of their implementation lies mostly upon the parties.

Parties carrying enmity in the Pukhtoon areas can only conclude their enmity through “Rogha”. Lexically Rogha means a healthy agreement. The word “decision” is not found in the popular Pushto rhetoric. The term used for a decision is called “Faisala” which is original to Arabic language[3].

An interim decision by the parties regarding their issue can become a truce or a treaty, usually a verbal agreement well known to the whole community and equally respected by all.

Remedial and Compensatory Jurisdiction of Jirga  

One of the distinguishing features of Jirga as a court or jury is its extraordinary jurisdiction. This power to address the basic questions arising out of a conflict situation is not enjoyed by any other legal institution so clearly. The modern legal code is based on the legal framework where the judges cannot go out of the bounds of law, while Jirga has no such limitations. The focus of Jirga, therefore, is to address the harms done as a result of an offence or conflict by both the parties. Jirga then proposes to undo such harms as much as possible. This undoing of harms could be symbolic as well as substantial, but the natural endeavor of the Jirga process is to look at the harms done during a conflict situation so that the offending parties can take remedial measures.

In symbolic ways, Jirga imposes upon the offender party a public apology, a Nanawatay or a voluntary offering by the offender to the victim party for doing “justice under sympathy”. The offender party doing a Nanawatay thus offers itself in the humble sense of justice to the victim party, restoring the powers of victim party to take revenge and expressing an apology for the wrongs done. Mostly this is a symbolic gesture, but it actually is acted out such that the victim party at each step is assured the restoration of honor and dignity as equal human beings.

Secondly, besides the symbolic compensation, Jirga also enjoys the jurisdiction of requiring material compensation to the victim party. Jirga can allow a financial penalty to be imposed upon the offender party, the money going to the victim party. It can also take care of the rehabilitation process of the victim, like sanctioning social security money to the heirs of someone killed. The offender party thus takes the responsibility to raise the children of such victim, sponsor their food and livelihood needs, including schooling. Taking the widow in marriage would be considered a more sustainable rehabilitation.

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 The Pukhtoon code of life, Pukhtoonwali, is considered to have almost uniform meaning throughout the Pukhtoon belt of Afghanistan and Pakistan, but local laws vary from place to place according to the differences in geography, climate, and patterns or structures of living. Therefore, the decisions of Jirga also change depending on the local customs and tradition. Each tribe has its own Rewaj, even though the basic characteristics of Pukhtoonwali remain the same across the Pukhtoon belt. The following sections discuss some of the local factors that influence the variations in local laws and the minute aspects of Pukhtoonwali.

 Religion and Laws

 Pukhtoons are known to be hard core Muslims of their own kind. They are known to strictly adhere to the five times prayers and the annual thirty days fasting, more than any other Islamic group. Their unconditional allegiance to religious practices, frequent references to Islam and religion give them a distinctive place in the religious circles. However, Pukhtoons are equally loyal to their traditions, which form the basis of their legal code. Therefore, it is perceived that whatever is practiced in the Pukhtoon societies would be strictly in accordance with the teachings of Islam. On the ground, however, that is not true. Many Pukhtoon traditions, particularly those related to the family laws, are in stark contrast to the Islamic teachings. Laws of Inheritance, for example, are the most controversial aspect of the code of Pukhtoonwali, because on the one hand Pukhtoonwali conforms to the concept of supremacy of religious laws, and on the other, for various reasons, it blatantly defies the Islamic injunction regarding inheritance rights to women. Efforts of correction of these perceptions lead to the arguments that stagger between religion, culture, and the relationship of the two.

Additionally, there is no evidence that in the recent history conscious efforts were made to address this question of contradictions between the traditional and Islamic laws.

Precedents

 Precedent becomes law or a part of Rewaj in many cases. One good judgment of a Jirga or a practice of a tribe can be easily adopted by others, if it is deemed appropriate for another situation. Similarly, under a difficult legal scenario, a precedent of an adjoining tribe may be adopted if it is found suitable.

 Structures and Influences

 One factor affecting the code of Pukhtoon life in some areas is the presence of feudal structures. The concept of Khan is thought among the tribal societies to be non-existent; however, it is in fact a reality in the society. A Khan means an aristocrat of the area, usually one representing its entire people. The Khan is not always a ruthless ruler of the medieval times, but is mostly a benevolent lord, depending and promoting the code of Pukhtoonwali in order to protect his estate and status.

Clergy play an important role in expression of Pukhtoonwali in a local area. One well known religious leader of the area might be successful in promoting a specific school of thought.  Many rules of Pukhtoonwali can be modified due to the specific teachings of religious leadership of that area.

Malaks are known to be the historical guardians of Pukhtoonwali and torchbearers of Pukhtoon traditions. These Malaks are usually the Jirga members as well. Due to the influence of foreign governments, like the British, the Russians, and also Pakistanis, the institution of Malaks is patronized by these foreign governments. On one hand they protect and promote Pukhtoonwali, on the other they assure the external governments of their fullest cooperation. Masters of diplomacy, they are regularly paid even by the present government of Pakistan and Afghanistan, a legacy of the British times. Again, like other structures, the factor of Malak is stronger and more dominant in some places than the others.

External Influences on Jirga

External laws or national statutes have affected the institution of Jirga from time to time. One such national statute is the Frontier Crimes Regulation 1901 (FCR).  Federally Administered Tribal Areas presently falling under the administration of the Government of Pakistan were created by demarcating the boundaries between Afghanistan and India, popularly known as Durand Line[4] and are governed through the Frontier Crimes Regulations 1901. The law was introduced as part of the scheme of self-governance extended to these people who insisted that any legal framework must be consistent with the local tribal laws. FCR therefore was designed as a procedural law, empowering the representative magistrate to nominate a team of elders to resolve a dispute by whatever possible means. The magistrate in turn has the powers to alter, modify, or quash a decision if proper procedures are not followed. However, all disputes are referred to the local Jirgas, being the cornerstone of the tribal system.

The FCR 1901 was promulgated to regularize and control the working of Jirga. Its practice for the last one hundred years may be a matter of debate, because some would say that the FCR gave protection to Jirga and institutionalized this exploitative system, while others would say that it is the Jirga, which has enabled the Pukhtoon societies to regulate and move their social lives.  However, it is clear that these external statutes like the FCR did have an effect on the nature and outcome of Jirga, for good or for worse.

The concept of Jirga, however, is independent of these national or external statutes but flexible enough to settle with the external environment.

Jirga and Contemporary Local Institutions

 Before the inception of the modern governmental system, communities had indigenous institutions to regulate their community lives. These institutions evolved on a social contract, which fulfilled the needs of that particular society at different points in time. In many parts of India, the practice of Panchayat[5] and the system of Salisi[6] are still in practice. In Pakistan, laws were enacted to regulate the working of Panchayat at the local government level. The practice of the “circle process”[7], “Gacaca[8]”, and “family group conferencing[9]” are a few examples of traditional mechanisms used to resolve disputes that are still alive today. Similarly, in the Arab world, the practice of “Sulha” is quite similar to the Jirga of Pukhtoons.

These indigenous practices share a few common threads. One is that most of these practices are old in nature and have been in practice since time immemorial. Second, they suit the local environment and, third, they are applicable only in the local context. Above all these reasons, these traditional practices represent a unique principle of justice, now popularly known as restorative justice. Restorative justice presents a framework in which the needs of the victim, the needs of the offender, and the needs of the society all are taken care of in the aftermath of violence. Restorative justice insists upon repairing the harm done to the victim, rather than focusing on awarding punishment to the offender. This non-retributive and unique characteristic is a factor missing from the modern systems of justice. 

Today, the fact that these indigenous practices are kept alive can be attributed to two main factors:  the absence of alternative institutions for justice, and the efficacy of the local practice. 

 Absence of Alternate Institutions   

 The nation-state system is based on the premise that the state is responsible for the life, security, and development of the society. The modern legal system was built to take care of the issues of peace and security, but more and more countries are realizing the fact that these judicial systems only partially take care of the needs that arise out of a conflict situation. The biggest gap in the modern systems is the absence of a mechanism to look after the needs of the victim in the aftermath of violence. Similarly, governments of underdeveloped countries may not have the resources to take care of the issues of good governance in the rural areas.  Local and traditional practices often fill in the gaps that the government cannot fill. 

 Efficacy of Local Institutions           

 These local institutions have been working for the benefit of the people for many centuries. They have, at times, functioned under a quasi-legal framework because they best suited the aspirations of the people. The notification of FCR 1901 by the British, the Panchayat Laws, and tribal laws in other countries are examples of the fact that various governments realized the importance and good use of the traditional systems. In addition, these governments observed the positive influence that grass-roots participation has on development.  Local practices are highly participatory at that level and, thus, contribute to the overall development of a society.  Jirga, as a traditional, local practice, has influenced the more modern institutions in the region and is thought by some to be one of the most comprehensive, well practiced, and useful institutions among the non-governmental traditional institutions.

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 One aspect of Jirga is that of an opinion making body for community level issues. The Jirga can call for a village level meeting and introduce an issue related to a new situation. The Jirga then organizes the community to address that situation, distributes the work responsibilities among the people, and oversees the implementation of the collective work of the community. An example of such a situation is a Jirga giving the call to people to reinforce the riverbanks for the flood season. This kind of decision-making that happens through the Jirga gives it an important role in community organization.

Can Jirga, in its role as a social organizer, be compared to a modern day concept of a non-governmental organization (NGO)?  Some believe that it can. Because Jirga works to organize the community voluntarily, it can be thought of as non-governmental body supplementing the efforts of the government in streamlining civil society. There are, however, some differences between the two.

The concept of Jirga is based on offering voluntary leadership to the community. It is a group of organized people, firmly rooted in their understanding of peace and justice issues in the society, and fully dedicated to the welfare of their people. Because of this commitment and dedication, Jirga often becomes involved in politics as well. On the contrary, community based organizations (CBOs) and NGOs find their strengths in their non-political nature. Unlike Jirga, NGOs and CBOs are formed for specific purposes like health, education, etc.

An NGO or CBO will find financial support from a variety of resources, ranging from local donations, government funds, and the international funds, but in the case of Jirga, the funding has to come from a local pool in the form of a local tax, until the government of some external body offers funding for a special purpose.

Jirga works more like a local government. CBOs and NGOs are subject specific, while Jirga is a quasi-judicial, quasi–executive, and quasi-legislative body striving for the betterment of the society. In comparison to a CBO or an NGO, Jirga at the community level can be seen as a local government that can duly accommodate and support the efforts of NGOs and CBOs. With support of a local Jirga, an NGO can find better reception, more acceptability and zealous participation from the locals as compared to a situation where Jirga might be ignored. Support of Jirga can be obtained by first engaging the Jirga members in activities related to information sharing and capacity building, followed by the process design of the project. Hard and tedious as it might be, there seems to be no better mechanism of a productive social sector intervention than engaging Jirga and its capacity building for sustainable development.