During the colonial period, in an “us versus them” scenario, people recognized governance as the system of other side, designed and implemented for the benefit of the colonizers only. Newly independent countries of the present day third world inherited these systems of governance, which were alien to their people. Despite the fact that the new governments were mostly democratic in nature and people were duly represented in governments, there remained a gap between the traditional understanding of society and the one presented by the modern systems. People were faced with the following choices in the postcolonial era:

1.    Forget about the past practices and embrace the new system despite the fact that it was designed by alien people. It is now the most viable way of developing into a responsible nation-state. This was a difficult choice because of deep-seated resentment and hatred for the colonizers. In addition, the loss of past practices and traditions rubs up against issues of identity, language, religion, and culture—aspects of a society that cannot be replaced or buried without pain and, often, resistance. 

2.     Forget about the new system given by the colonizers, and let us get back to our old traditional system.                This choice again was a difficult one. During the colonial times societies often preserved their traditional practices. These traditions, however, were not given much natural space to grow and change and, because of this, began to look remote and backwards. The new times also brought science and technology, a development that became difficult for the old systems to adopt and integrate.

3.     Merge the good traditional practices with the modern times and develop systems best suited for our needs as a responsible nation-state. Some societies could do this easier than the others because of the cultural resonance they had with their colonial masters. However, in other cases, the gap between the masters and the people was so big that it was difficult to merge the two systems. In addition, the people had little capacity to adopt the modern system or improve the traditional systems to match the modern times. Thus, the deficiency of human capacity prevented the merger of the two systems.

In some parts of the Indian sub-continent, people were able to adapt to the modern system with little difficulty or reluctance. In the case of Pukhtoons, who mostly lived a more remote and independent life in Afghanistan and the adjoining tribal areas, this factor of dissonance was fiercely present.  As a result, in the post World War II[1] era, the gap between the modern and traditional systems did not close as it should have.

Pukhtoons retained and practiced their centuries old traditional systems, Jirga being the most vital one.  The status of Jirga was further consolidated by the fact that the British had formally recognized this mechanism as early as in 1901 when the FCR was introduced in the Tribal Areas, buffering the boundaries between British India and present day Afghanistan. This recognition by the British, even today, is seen as a sign of victory for an indigenous system of society. The legitimacy gave the Pushto-speaking people the confidence to continue their practice of Jirga and to insist upon maintaining their indigenous system, rather than converting to a new British or Russian model of governance.

Of course, the system of Jirga both at the community as well as the governmental level did not improve as much as it needed to in order to compete with the requirements of the modern governmental systems. Rather than allowing itself to decay, Jirga kept itself as a useful tool for sustaining a bare minimum standard of social contract. The formation of Loya Jirga at Bonn in 2002 proves the point that indigenous local systems can be more sustainable than the fragile modern systems of the present day, particularly for developing countries.

As pointed out above, traditionally Pukhtoon society has been averse to change. Based on the past practices and precedents, Pukhtoon culture or Pukhtoonwali is dominated by references to the past. Other than the traditional folklores of valor or love, there is hardly any scope for a future looking narratives in the Pukhtoon vernacular. References to Masharan[2] and their times, becomes the dominant argument to justify any particular situation.

However, it is a fact that things change! Change can be seen in Pukhtoon society, particularly in the urban areas. There is a remarkable difference between the urban elites and the rural poor of the region. The forward-looking people of Kabul share only the language with the rural people of Kunar, for example. Even the language of the urbanites is more sophisticated than the rural ones. Similarly, the culture of Pukhtoons residing in the settled areas of North-West Frontier Provinces, particularly, Peshawar, Mardan, Swabi and Kohat is quite different from the people of adjoining tribal areas of NWFP.

One area of change is around the exclusion of women.  The veil for women can be seen as a yardstick to gauge if there has been any departure from the old approach of gender exclusion. Peshawar and Kabul are two major cases where Pushto speaking people have not only reconciled with the idea of schooling for girls, but they are the flag bearers in advocacy for female emancipation. One can even hear reference to the Honor Killing issue. Some critics might argue that the pace of this change is too slow. The fact remains, however, that in the capitals of these Pukhtoon societies, there is enough space now to highlight this human plight and argue for social change in a non-violent manner.

In contrast, in the rural areas, it is still difficult to negotiate with people to change their ways of living. In the recent past, after the overthrow of the Taliban in Afghanistan, this question was repeatedly asked, why are the women in Afghanistan still wearing veils? We found many women jealously guarding their right to veil, and others who hated the ones without a veil. To them, the veil is a means of security and respect, an aspect of status quo that is always so difficult to break.

Improvement in education and economic growth are said to contribute positively to social change. Unfortunately, both these things are missing from the Pukhtoon social structures, particularly, the rural ones. With one of the world’s largest refugee populations[3], Afghanistan has been in civil war for the last three decades. Most of the present generation of Afghans is not literate and the economy remains practically non-existent. The situation in NWFP is somewhat different, as the region has seen comparative stability in the recent past. Change and progress therefore are easier for the Pukhtoons of NWFP and the tribal areas than for the vast majority of rural Pukhtoons in Afghanistan.

Another factor hindering the process of social change is the state of feudalism in developing societies. Feudal structures keep the social order as remote and backward as possible, for the benefit of those in power. Fortunately, in the Pukhtoon societies, the element of feudalism is much less present than in neighboring areas, specifically in Punjab and Sindh provinces of Pakistan. One reason for this could be that, due to mountainous areas, the land holdings are not as large as the ones in the plains areas. Another possible reason is that the high esteemed, independent, and arrogant nature of Pukhtoon individuals has resisted expansion of feudal attitudes in the Pukhtoon societies.

What then is Jirga’s role in the process of social change? Jirga, the dominant social institution that guides the lives of Pukhtoons, comprehensively defines all dimensions of life such that individuals can live only within the framework defined by the traditional Pukhtoon culture, i.e. Pukhtoonwali through the Jirga. Even a religion like Islam is subjected to confirmation by the culture and traditions. The famous saying of Wali Khan[4] describes the deeply rooted culture of that region: “we are Muslims since last 1400 years and Pukhtoons since thousands of years and human beings even before that”. Relying on this Pukhtoon narrative of history, it implies that we are human beings first, Pukhtoons second, and lastly Muslims. For Pukhtoons, attachment to the past is the norm, as opposed to looking to the future. Jirga then will challenge any move towards social change unless necessitated by circumstances.

Fortunately, the process of Jirga relies wholly on the establishment of communications, a medium that binds the Pukhtoons to continue talking, even to their worst foes. It is the mastery of this art that Jirga upholds, offering a culture of peace and tolerance. Negotiation is the Jirgamars hobby and pleasure and they will always appreciate good negotiators. Jirga, therefore, can be engaged for any kind of topic attractive to the outside world. Beyond negotiation, Jirga would recognize only a war as a natural compulsion forced upon them, obliging them to fight it out. Forcible occupation to them would remain a temporary phenomenon, an opportunity to get back to their traditional system.

As a traditional institution, Jirga has been tested over the centuries in the culture’s exposure to alternative systems and pressures to change.  What is the path for Jirga amidst these unavoidable dynamics?  In this chapter we will discuss some of the critical issues facing the practice of Jirga and suggest a path of reinvigoration and change.

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 Those who are disenchanted with Jirga often regard it as an old tribal institution that has outlived its utility in modern times.  Critics cite Jirga members’ turning against the innocent and vulnerable particularly where the Jirga system, applied in combination with the governmental legal system, becomes a tool for manipulation.  Or, Jirga is wholly discredited with stories of Jirga members receiving bribes.  However, concrete arguments against Jirga and the Jirga system do emerge from the broadly negative stories.  These arguments can be broken down into four general themes:  unwritten nature, an outdated institution in the modern nation-state system, violation of fundamental human rights, and abuses of contemporary institutions.  The following sections will explore the basis of these arguments.

Jirga's Unwritten Nature

Jirga receives criticism for its informal nature, an informality that provides formal structure for those living under it. The laws and procedural rules of a Jirga are un-codified, unstructured, and loose enough to be easily understood and uniformly practiced by the people.

Written records of Jirga do not generally exist.  One can find some of the written records of Jirga processes and the local criminal, civil, and penal laws in the tribal belt, but even this documentation is not as credible as one would want it to be. For example, the local laws of Kurram Agency in the NWFP were compiled by an English Political Agent[5].  These laws are still referred to by various Jirgas undertaking dispute resolution.  The documents are available to a few of the upholders of Pukhtoonwali and are referred to occasionally, but they have never been recognized as a credible basis for local laws.

In general, there is an absence of written references and records for Jirgas to uniformly determine how to deal with issues.  This is in contrast to the court system that is based on legal evidence and executed according to written legal procedures and decisions.  Clearly, pros and cons exist for both systems.  The unwritten nature of Jirga law provides enough for the jury to keep in sight the end product, which is an expansive view of social justice.  Its looseness also provides flexibility in the socio-legal framework and gives opportunities for growth and improvement.  The court systems, on the other hand, while having clarity in design and procedure may become hampered by its own rigidity and lose sight of its original purpose of justice. 

As much as a source of richness, the unwritten nature of Jirga laws is one big setback to the Jirga in the eyes of the outside world. How can the Jirga system be formalized? We believe this is possible to some extent and will address the codification of Jirga later in the chapter.

An Outdated Institution in the Modern Nation-State System

The present day nation-state system has done two things to societies around the world. It has demarcated the national boundaries and it has encouraged some form of democratic or semi-democratic system to run societies’ internal affairs. So far there is evidence that the nation-state system, earlier in the multi-polar and bipolar world and now in the unipolar world, has successfully reduced and almost eliminated boundary disputes between nations. On the economic and commercial front, innumerable treaties and associations have facilitated a rules-based relationship between people.

Internally, countries have developed legal frameworks to suit the needs of local people. These internal systems have helped societies streamline many complex issues and systems required to establish a social order in a modern, industrialized, and increasingly global, society. We have also seen a sharp increase in conflicts within countries and societies in the last fifty years. This internal conflict situation can be seen as a direct result of systems of governance or the lack thereof. These systems of governance may be seen as somewhat democratic, but in practice, most of these systems are criticized as being autocratic, dictatorial, bureaucratic, imperial, and aristocratic.

To support the local systems, more and more efforts are being made to promote social organization at the grass-roots level. Most of the international donor agencies are supporting the creation of NGOs, CBOs (Community based organizations), WOs (Women Organizations) and VOs (Village Organizations), forming a base for community organizations to empower the people and organize social groups.

Jirga, in such an advanced age, is introduced as an outdated institution. Side by side, some governments in the past have made efforts to streamline local informal institutions and merge them with the regular local order. These efforts, however, did not prove to be very fruitful. Two reasons are noted for this. Firstly there are no clear and uniform definitions of the terms used in relation to Jirga. Even the term Jirga itself can mean different things to different people under different situations. The use of such terms in legal papers means more confusions rather than clarity. Secondly, although the law making process involves final approval of laws by the elected representatives of people, it does not take into account due process of stakeholders’ consultations. The laws are drafted through desk reviews by technocrats who find little time to apply reality checks to their proposals. To design a law meant to facilitate social change, rather than force it, a relatively long-term process needs to be initiated, which can take care of many needs of the subject of such a law.

Fundamental Human Rights and Jirga

Jirga is also criticized for laws that violate certain areas of human rights. One criticism comes from the legal community that insists that the accused must be given enough rights to defend him or herself. The Jirga process does not take care of this aspect as seriously as the national legal system. However, this argument is countered by the claim that most legal proceedings do not do enough to punish or create justice because the laws are too lenient with offenders. Members of the legal community also posit that legal practitioners argue cases based on law, whereas in the local tribal set up, there is no scope for a qualified legal council.

The second criticism of the Jirga system comes from advocates of fundamental human rights as enshrined by the United Nations Charter. While similar criticisms could also be levied at the contemporary legal and policing systems where cases of torture and judicial killings are frequent, there is no doubt that traditional Jirga laws violate human rights as defined by the international community. One example is the Jirgas recognition of traditions like Sawara, where a girl is offered from one family to another as a way to reach conciliation.  This occurs whether or not the consent of the girl is obtained.  Even if the girl consents, there is little room for free choice due to strict adherence to the norms of society.  This will be an important practice to examine as Pukhtoons look to preserve the Jirga tradition. 

As integral a source of communication as Jirga is seen by some, we will have to learn to negotiate this source of frustration from the outside world, if we want to avoid enforcement of an equally flawed system based on a legal framework as is practiced elsewhere.

Abuses of Contemporary Institutions and Jirga

 Local traditional systems like Jirga do exist in almost all societies in one form or the other. Examples of Panchayat in Punjab and India, Salisi system in India, Sulha in Arabs and similar such systems of central Asia, keep coming to our notice. The critics of Jirga sometimes try to compare and ridicule all of these local systems for want of a more logical and understandable legal system. On closer examination, however, one realizes that not all of these systems are uniform in any way. Each local system has its own distinctive characteristics and each has its own base of acceptability within the communities in which it is practiced. For example, the Panchayat system of Punjab can be identified as a typical jury of five people who do not undertake mediation in any sense, but rather conduct their proceedings like a court and announce punishments in a more sovereign manner. Jirga, in contrast, is much more versatile in its role and responsibilities. As a representative institution of the people, Jirga is much more than a jury, and is much more answerable to the community.

Similarly, a local practice in the province of Sindh has recently caught the attention of media in which cases of moral turpitude like adultery are decided by a group of people from within the community[6].  As a result of an accusation by someone, a panel of local elders decides the fate of a girl and a boy involved in an illicit relationship, either to acquit or convict. The only punishment for this kind of an act is a death penalty implemented by the same panel of people, more popularly known as Karo-kari. This panel is called a Jirga, a misnomer by all standards. It is not clear how and from where the Sindhi language adopted this term of Jirga, which is purely a Pushto language term. 

More recently, this kind of a “Jirga” is being opposed by civil society organizations and a federal law is being implemented to discourage this practice. The term is again confused with the practice of honor killing, a norm present in tribal and local settings all over the region.

This raises the question of how Jirga can distinguish itself and also avoid being manipulated by the bad press other traditional, indigenous practices receive.  Certainly its unwritten nature contributes to the tendency for misrepresentation and negative publicity.  As Jirga becomes more documented and formalized, Pukhtoons will have firmer grounds on which to argue and negotiate for the continuation of Jirga in their communities. 

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Known for its roots in the Jirga headed by Qais Abdul Rashid during the early days of Islam, or the era of Mir Wais or Ahmed Shah Abdali in the recent times (18^th century), Loya Jirga is believed to be a long tradition of Pukhtoon culture.

The Bonn conference of the Afghan Loya Jirga was a gathering to discuss and finalize the framework for an Afghan national government. This conference brought to the limelight the word Loya Jirga for the first time as all the major news networks carried web pages giving information on the history, composition, and role of Loya Jirga as an indigenous Afghan national institution.

A strong argument in favor of the Loya Jirga was aired saying that after three decades of civil war, Afghanistan was still in ownership of an indigenous and workable institution for bringing their national aspirations on a single platform. Some recent studies have also documented that from time to time the Afghan Loya Jirga has worked as a constitution making body[7].

Loya Jirga is a representative body at the highest level of the area, or region. It is not a permanent body as some might think but may be called from time to time, when larger issues of supreme national interest are to be looked into.   

The term Loya Jirga is not restricted to the Afghan national context, as many regional groups of Pukhtoon tribes use the term with their respective prefixes (in Pushto). A grand Jirga of Swabi district for example is called as a “Loya Jirga of Swabi”, or when all the tribal agencies in the FATA get together to consider an issue of their collective interest, they call themselves “The Tribal Loya Jirga”.

Unlike a Jirga for local level dispute resolution, this kind of a Jirga has a different domain and different objectives.  It is always difficult to form a Loya Jirga as one requires a relatively larger logistic base to call such a grand assembly, however, it is best to ask people to send their respective representatives on a date and time fixed to take care of some issue, thereby generating debates at local levels for representation selection matters. Not only is the selection process done from the bottom up, the agenda is also well debated at the local level to give a mandate to the newly formed Jirga to represent the aspirations of these local tribes or clans at the larger platform.

In Afghanistan, under the new constitution, there is a provision for a bicameral legislature consisting of Wolesi Jirga or House of Commons, and the Meshrano Jirga or House of Elders. The Wolesi Jirga comprises of 250 seats directly elected for a term of five years and the Meshrano Jirga is composed of one representative from each provincial council, one representative from each district council, and a number of presidential nominees; including two representatives of Kuchis (nomads) and two representatives of the disabled; half of the presidential nominees are to be women.

Under this constitution, the government may convene a Loya Jirga on issues of independence, national sovereignty, and territorial integrity. It is comprised of the members of the national Assembly and chairpersons of the provincial and district councils who have the power to amend the provisions of the constitution and prosecute the president.

The Pukhtoon cultural system, as explained earlier, has always been based on local as well as personal autonomy. This codification of Afghan Loya Jirga by the government therefore has become a subject of much debate in Afghanistan as the new law has restricted the process of representation from an autonomous, bottom up manner to a top down process. This will definitely affect the efficacy and popular legitimacy of the institution. However, this also gives an opportunity to try to test codification of certain other laws as well. Care must be taken to keep the processes of stakeholder consultations at the heart of any such step. The more we empower the stakeholders, the more sustainable and credible our efforts are likely to be.

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 At the community level, if we distinguish between different types of Jirgas, we find that there are three distinct shades of Jirga.

First is the practice of Jirga as a dispute resolution body in urban areas where the governmental systems are well in place, people are well educated, and yet they somehow associate with Jirgas voluntarily or otherwise. In the urban areas, the market disputes in the transport business class, the vendor class, or the real estate class make use of this institution quite normally. Side by side, one can find other options of dispute resolution due to the legal and administrative framework of the government. The legal framework, including the police and lower judiciary, recognizes the efforts of such Jirgas only as an informal institution with little legal value. True as it is, the government agencies do not honor anything like this unless the case is built under the regular law of arbitration or an agreement is turned into a consent degree through a court of law. Therefore, all such activities of the Jirga are finally registered with the government on prescribed stamp papers to get legal protection.

This kind of urban Jirga lacks a uniform, understandable, and logical process from which to operate, and has been largely taken over by the inflexibility and lack of creativity of people leading such Jirgas. To the consumers, as stakeholders, this kind of a Jirga may become coercive with the only available recourse being the mainstream judicial bodies, a process more expensive and painful than the Jirga option. The urban class, already encumbered by a faster pace of life, has little time to deal with unresponsive and rigid associations, so they learn to live with exploitation.

The second practice of Jirga is done in the tribal areas and those places where the influence of the government is relatively low. Jirga in such areas is recognized legally as a dispute resolution body at the community level. Under the FCR 1901, Jirga has the powers to try all kinds of cases, whether civil or criminal and announce punishments. This Jirga law has been under heavy criticism by the urban class. However, for the last one hundred years, this law has been practice and many shortcomings of the processes involved in the operation of FCR 1901 are already clearly identifiable. A correction of these shortcomings will help improve this law and bring definite improvement in the situation.

In these areas, all development activities should receive consent of the concerned influentials titled as Malaks, before being launched by the government. Usually these Malaks also carry the torch of Jirga to work as a medium between the government and the people. The title of Malak is associated with the Lungi or financial allowance that governments in the past fixed for the elder Malaks whose titles stand inherited by the present generation of Malaks, some of whom are well-respected Jirga people even today. Introduction of adult franchise in the tribal areas and now the planned elections will definitely introduce new stakeholders and empower the people, but the government is hardly expected to fully respond to the needs of common people in the medium term. Even if bypassed by the legislative actions of the government, Jirga will remain an effective tool for people to regulate their day-to-day business for a long time. To introduce a more sustainable social change, the government of Pakistan will need to invest more energy to understand the dynamics of social change, and to make the change valuable both for the government as well as the people of tribal areas. Government will have to allow, rather than the stereo type legislation for the tribal areas, a more innovative strategy to engage the tribal people and their leaders to explore and adopt options which can prove sustainable in the long term.

A third kind of a Jirga is at those places which are still not open to governmental controls either due to inability of the government to offer services such as roads, education, and water supply to the people of these areas or because of the issues of territorial jurisdiction. Areas like Tora Bora in the southern Afghanistan and Teera Valley in the northern Pakistan can be cited as examples. In the absence of the government’s regulatory mechanism, people of such areas rely completely on the processes of Jirga as a form of self-government.

Force is an easy tool to use when the problems appear very specific and identifiable, but when the problems are with our own understanding of the complexities of life; it becomes our duty to understand others’ worldviews.  Any intervention of the government in these areas will definitely require the support and agreement of concerned Jirgas. It is therefore essential that the governments understand the worldview of the people supporting Jirgas. Jirga is not a simple phenomena; it is complex, tricky, and involves detailed processes. Any future plan to introduce governmental controls for the areas practicing Jirga will require detailed studies of the subject and consultation with the stakeholders before launching any plans.  If this does not happen, the dissonance we experience between the laws introduced by the British and local customs will be repeated in this case as well.

The Government of Pakistan under its “Devolution of Power Plan 2001” has introduced a body named “Musalihat Anjumans” or “Musalihat Jirga” at the union councils’ level with a mandate to undertake dispute resolution through the processes of “Alternate Dispute Resolution” including mediation, arbitration, and conciliation.  This initiative is applicable to the regular government controlled area only, but the processes identified in the law have been left for communities to put in practice without any further institutional arrangements for its proper implementation. In most cases, these bodies are not even notified, and where they exist they are doing peacebuilding interventions at their whims. Even the government officials undermine these efforts because of their lack of understanding of the subject. Such initiatives of the government need to be supported by expert bodies so that our experience of regulating community-based processes is turned into a success.

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 Jirga at different levels can be codified. As seen in the above cases, the law for the Afghan grand Jirga has been somewhat codified and the bicameral legislature has also been given the name of Jirga with prefixes. Similarly, the prefixes used for the district level Jirgas and region wide Jirgas are examples of its codification. The dispute resolution Jirga has also been codified in many instances. The FCR 1901[8] is one example. Similarly, in many places local laws are well known and accepted by the communities as substantive laws of the area.

Different Jirga processes can be codified through different stages. In the first stage, we need to agree on uniform definitions of terms understood by people from different areas and regions. In case of a difference of definition, there must be different names given to each definition. For example, the Sindh High Court, after observing many cases of honor killing, banned the institution of Jirga. As a result, now in Sindh it is illegal to use the term Jirga. No one knows how a jury system with a predominantly feudal structure came to be called a Jirga. If specific kinds of Jirgas are codified after a well considered and researched argument such definitions can help the external institutions understand and respect the centuries old tradition of Pukhtoons, owned by a large mass of communities.

Fortunately, because of its practice in more advanced times and societies, many weak sides of Jirga stand exposed. Findings of fair and objective researches can allow us to promote the good side of the picture and correct the weaker ones. The various tiers of Jirga and various levels of its operations, the different domains it enjoys, all need to be given authenticity and confirmation by the outside world so as to make the best use of this traditional practice.

Two things must be done to kick-start this process. First the various shapes of Jirga must be named in order to distinguish one from another, as in the case of the names given to the two houses of the Afghan legislature, both suffixed by the term Jirga. Secondly, a dialogue must start with the Pukhtoons regarding the rationalization of Pukhtoonwali, which serves as an unwritten constitution for the Pukhtoon societies. Perhaps as Pukhtoonwali evolved, those maintaining the social institution had no concept of things like education for girls.  Now the ideals of many advocacy groups have already started to make inroads into Pukhtoon societies. If changes are brought to the social order, then those changes must merge with the larger social picture. We saw that, in many cases, tribal elders now stand convinced on the issue of education for girls or for allowing outside women access to Pukhtoon women on health care issues, but still such taboos of Pukhtoons remain, creating gaps in the understanding of common Pukhtoons.

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 “It depends upon people and integrity of the members of the Jirga, if the Jirga handles the cases with justice and honesty, then it is successful and its future is bright.”

Muhammad Rasool

In the fast growing age of globalization, the worldview expressed above, and shared by a majority of our interviewees represents a well-meaning wish and some hope. This statement, however leaves many questions of “how”, “what” and “why” of the Jirga system. The worldviews of the outside world expect the code of Pukhtoonwali and the institution of Jirga to articulate, define and debate on many issues, which might look strange to them. What is it then that Pukhtoons need to do to address concerns of the outsiders; and what in turn outsiders need to do to facilitate constructive change of a long neglected traditional society towards development with dignity?

Jirga cannot survive just on good intentions. Jirga will have to recreate its due space if it wants to survive the challenges of the modern world. This will be a process of consolidation of what it already has and a rationalization of the aspects criticized by others providing space for bridging the gap between a traditional and more modern systems. Growth of this will automatically follow.

The proponents of Jirga will be required to bring a better-reasoned case before the outside world in order to be taken seriously. At the same time, keeping aside the question of a viable substitute of Jirga, the opponents of Jirga will need to undertake a cost-benefit analysis before simply discarding a centuries old social practice.

In our discussion, we have tried to see what Jirga is and why it is so. We have also examined how it is practiced now. We saw many roles Jirga plays in simple and still unique ways. We also saw how vulnerable a local system can be when in confrontation with the present day complex issues of social justice. So where do we go from here? Do we want to scrap this centuries old practice, credited for guarding the social fabric, enabling us to survive and allowing us to move on; or do we want to try to modify and improve it to suit present day structures?

In between a ‘yes’ and a ‘no’ for Jirga, one can see many options more viable than a surgical insertion of a new legal system.  The British overlaid a foreign system on us many decades ago and we are still uncomfortable with that.

Linkages Building

If the Jirga wants to keep itself alive, it will have to come out of seclusion, which has so far been responsible for its protection and growth, but now, this exclusiveness might prove to be a source of decay for the Jirga.

In the fast growing global village, there are many questions and issues that will need to be well addressed before Jirga can find a place in an open and more competitive world.  Building linkages with other organizations and agencies will require proper understanding of what Jirga is capable of and how it can collaborate with others.

In the years to come, this unique and effective tribal institution will be operating alongside many new institutions in the shape of NGOs, CBOs and professional organizations. In addition, governments will be gradually extending their controls and government bodies will be formed at the local level. The government will also bring the formation of police and judicial bodies. Jirga will not be able to afford to ignore these challenges or it will bring its own death.

Jirga has seen itself crossing many stages. Once the Jirga was quite independent when it ruled the independent comminutes of Pukhtoon. After sometime different governments of the time started interfering with the Jirga system so as to allow local and cultural practices to find space and adjust into the mainstream legal system. In some cases, the experiment was successful, while in others it failed.

It is clear that all legal systems must take into account the local cultures and practices so that the law suits the temperaments of its people and meets their aspirations. In doing that, we also need to see how Jirga can play a role.

Institutionalizing Jirga

To allow reinvigoration of Jirga, it will need to formally associate with other organizations and bodies in a collaborative manner. To adopt a regular institutional role, to improve its present status, and to be trusted by outside world, Jirga members will have to agree on some basic rules and regulations for the conduct of their business.  A formal recognition will take away some of the flexibility and dynamic nature of the Jirga, but at the same time, it will facilitate Jirga to keep playing a constructive role in the development of their societies.

Jirga remained a ruling body in the past and carried its people through the thick and thin of life. In the present times, no organization or body can be as inclusive as Jirga once was. It will therefore have to split itself into compartments and fragments based on the nature of the work it can undertake. The case of the “Wolesi Jirga and Meshrano Jirga” in the Afghan governmental system is a good example of Jirga letting itself break into specialized areas of work. Development of a standard vocabulary with uniform definitions would help Jirga to grow in a more logical manner. The same can be done to the Jirga at the grass-roots level. For example, the peacebuilding Jirga can be given a specialized name and its jurisdiction can be defined to distinguish it from a Jirga involved in development work.

Re-examination of Pukhtoonwali

Pukhtoonwali, the code of the Pukhtoon way of life will have to be re-examined to adjust it to the needs of the present day nation-state system. The ideas and concepts of fundamental human rights of the modern world will have to be given space in the code of Pukhtoonwali. The transition from one system to another is of course a difficult issue, but rather than letting it go to anarchy, Jirga will have to take a lead and negotiate with the outside world so that a voluntary correction is made without much distortion to the core of Pukhtoonwali. Some of the distinguishable elements of Pukhtoonwali will need to be codified to make it a more trustworthy and reliable idea.

Future Role of Women

Pukhtoons are a patriarchal society and, therefore, the role of women is kept invisible. It is interesting to note that in the past, particularly in Pukhtoon rural societies, women did not observe the Purdah in the strict sense as is prevalent in the present times. Women still work in the fields and take the cattle to pasture in the mountains in many areas. Nevertheless, in the urban and semi urban areas, women are subjected to a strict code of seclusion, having their lives limited to the four walls of the house.

The understanding of the insider-outsider dynamics of social sector interventions need to be made more understandable to the Pukhtoon culture so that it is comfortable working on this more challenging social ground.

The importance of women and their role in society truly came to the limelight in the Afghan civil war, when women were the worst victims of a war fought by men. These women took their children from place to place in the Afghan refugee camps and survived the traumas of that time.

Now in the Afghan national legislature there is a provision for a substantial inclusion of women in the assembly. Similarly, under the local government ordinance in Pakistan, one third of the seats stand reserved for women. The code of Pukhtoonwali will have to explain why it wants to keep a specific segment of women from living a fuller life. What can it do towards this end and what steps should it follow to allow enough space to women so that their due rights are assured. This will also include a deeper examination of Islamic laws and their application in the Pukhtoon belt, where Pukhtoons are called to be loyal Muslims just as the rest of the Islamic world is.

In addition to addressing questions regarding the practice of the old time traditions like Sawara, the society will require to allow women for training and education on many areas including “Women and Child Health”, Population Control, and Education Sectors etc.

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 Jirga has proven to be an excellent platform to negotiate change. It plays a leadership role in society and is seen by those who are a part of the culture to be a socially responsible institution.  It has the power to legitimize or delegitimize the direction of the society.  Ignoring the Jirga would mean creating a definite rift and dissonance within the society that would be dangerous to the healthy sustainability of change.

The strength of Jirga emanates from its ability to negotiate under all circumstances and maintain the link of communication. Tough as it may be, it also has enormous potential to influence society in a substantive way. As a channel of communication, Jirga provides many indigenous tools and processes to allow a smooth social change in a direction considered better than before.

If empowered through capacity building, Jirga can help move people in directions well prescribed for people for whom so far, due to coming from a state of fear, the best course was to remain averse to change.

Change it must, if it wants to look beyond the lingering threats of assimilation by an invading culture and understand what development can mean. To the development world, this will be a challenge as well as an opportunity to help the long neglected segment of people find a reasonable place in the world community. 

For engineering a sustainable process of social change we recommend taking help from John Paul Lederach’s framework presented below[9].

In this Time of Activity- Level of Response framework, John Paul suggests distinction between immediate issues, relationship building and challenges presented by structures. A proper timeframe is duly required to achieve what cannot be achieved in a short term.   The idea is to first categorize the issues in proper contexts and then develop processes and strategies to address needs according to the context in which the subject is under study. In contrast to a reaction based response, this model suggests a proactive approach to a healthy social change; a process which should allow due participation of stake holders, address immediate causes, identify root causes, provide a vision and facilitate transformation in a continuous and sustainable manner. Therefore, beyond troubleshooting, efforts for sustainable social change need to be based on a web of peacebuilding activities to be carried out by a variety of civil society actors as well as the government agencies operating in different time frames.  

To allow Pukhtoons full-scale empowerment for participation in the struggle for development and to alter Jirga’s collision course, we recommend following John Paul’s framework in three ways.

A short-term strategy is prescribed to work with the immediate issues of viewing Jirga as a valuable partner in development. The NGO community and outside interveners can find two kinds of support from Jirga in the immediate term. One is the role of Jirga as a dispute resolution body at the community level. The other is to launch Jirga for the purpose of social change and development. To take a start, the outside world will have to review their notion of considering Jirga as an outdated and useless entity in contrast to their loved concept of Village Organizations (VOs).

Whereas introduction of the concepts of VOs in the Pukhtoon areas are likely to exacerbate the gap between the natives and the outside world in the long run, a strategic collaboration with Jirga will definitely fill this gap in a sustainable way. In fact, a little bit of tailoring of the VO concept can suit well for an already established form of Jirga. The sensitivity to local nomenclature and stakeholder participation is a must for reorganizing the Pukhtoon society for a long-term strategy. Starting a dialogue may be difficult but when a positive relationship is established, it is likely to pay off more than the current models in practice by social sector organizations. The onus of responsibility in the short term lies with the CSOs and NGOs and foreign donors to build a model of intervention through Jirgas. The work of NRDF[10], a local NGO working with Clergy as a forum of intervention, can be made use of while formulating the model of intervention for Jirga. The acceptance of this idea will require detailed studies by the NGO staff and officials. The NGOs will have to challenge their natural biases and realize that their efforts can prove more effective if their channels of operation (Jirga) have historical roots in the society.

The second phase, a mid term strategy is likely to be tougher than the first, as this will involve doing some extensive and strategic capacity building for the people of Jirga. Again, the onus of responsibility for this activity will lie on the outside world. It is observed that the international bodies, while launching their programs, have pre-designed output and outcome indicators, but the rules do not allow, in most cases, their interventions a life of more than one year. With such a short-term life span, it is difficult to achieve a target of capacity building for such a vast segment of Pukhtoon society. Perhaps a district or area-based strategy to consolidate and test the model and to be subsequently followed by a massive roll out of the program will be a more useful idea.

In the long term, Jirga needs to see if it wants to become associated with the outside world and link itself to the external environment in a constructive way. This will involve the process of institutionalization of Jirga at structural levels. Jirga laws at different levels and for different types of Jirgas will need to be drafted, tested, and implemented such that Jirgas are allowed to evolve and societies are allowed a safe transit from a backward and closed social system to a more forward-looking and scientific one. This long-term strategy is again suggested as an outreach activity by the supposedly more enlightened class of modern civil society organizations. These organizations need to realize that social change, although a positive and much desired outcome of our struggle must follow a pace suitable to the local environment or the outcome of surgical procedures may further confuse the long-traumatized generations of Pukhtoons.

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·       AttaUllah, Qazi, Da Pukhtano Tareekh (History of Pukhtoons), Idara-e-Ishaat Sarhad Peshawar, 1962.

·       Bellew, H.W.. The General Report on the Yusufzais. Lahore: Sang-E-Meel Publications, 1994.

·       Caroe, Olaf Kirpatrick, Sir. The Pathans, 550 B.C.-A.D. 1957. Karachi, Pakistan: Union Book Stall,1980.

·       Easwaran, Eknath. The Man to Match His Mountains: Badsha Khan, Nonviolent Soldier of Islam. Petaluma, Calif.: Nilgiri Press, 1985.

·       Grima, Benedicte. The Performance of Emotion Among Paxtun Women. Karachi: Oxford University Press, 1993.

·       Hart, David M., Guardians of the Khaibar Pass: The Social Organization and History of the Afridis of Pakistan. Lahore: Vanguard Books, 1985.

·       Misal Zada Professor, “The Role of Afghan Jirga in Law Making”, PhD thesis presented to Faculty of Law University of Peshawar

·       Obhrai, Diwan Chand. The Evolution of North-West Frontier Province: Being a Survey and Constitutional Development of N.-W.F. Province, In India. Peshawar: Saeed Book Bank, 1983.

·       Schofield, Victoria. Every Rock Every Hill: A Plain Tail of the North West Frontier and Afghanistan. London: Buchan &Enright, 1984.

·       Singer, Andre. Lords Of The Khyber: The Story of the North-West Frontier. Boston: Faber & Faber, 1984.

·       Spain, James W. The Way of the Pathans.  Karachi: Oxford University Press, 1972.

·       Winson, Arthur. North-West Frontier. Hutchinson  & Co. (publisher) Limited, 1969.

·       Younas S. Fida, Afghanistan (Jirgas & Loya Jirgas the Afghan Traditions), 1997

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Qualitative Research Methodology

·       Kvale,  Steinar. InterViews:  An Introduction to Qualitative Research Interviewing. Thousand Oaks, CA:  Sage, 1996.

·       Robson, Colin. Real World Research:  A Resource for Social Scientists and Practitioner-Researchers. Cambridge, MA: Blackwell, 1993. 

·       Rubin, Herbert and Irene Rubin,  Qualitative Interviewing:  The Art of Hearing Data.  Thousand Oaks, CA: Sage, 1995. 

·       Slim, Hugo and Paul Thompson. Listening for a Change:  Oral Testimony and Development.  Panos, 1993.  Philadelphia: New Society Publishers, 1995.

·       Smith, Carolyn and William Kornblum (eds). In the Field:  Readings on the Field Experience.  Westport, CN: Praeger, 1996. 

·       Stringer, Ernest.  Action Research:  A Handbook for Practitioners.  Thousand Oaks, CA: Sage, 1996

·       Weiss, Robert S. Learning From Strangers:  The Art and Method of Qualitative Interview Studies.  New York: Free Press, 1994.

Web links

Many of the web links identified at footnotes in the main body have expired since we noted them first. However the domain names of the websites carrying the links remain same. Therefore more information on the subject can be accessed from the following links

http://www.geocities.com/khyber007

http://www.meenaswat.com

http://www.peshawar1.com

http://dsal.uchicago.edu/dictionaries/raverty/

http://news.bbc.co.uk/1/hi/world/south_asia/1782079.stm

http://www.afghanland.com

http://www.khyber.org

http://www.jirga.net

http://www.parachinar.com

http://www.nwfp.gov.pk

http://www.khyberwatch.com

http://www.institute-for-afghan-studies.org

www.pakhtun.com