Traditional and Introduced Approaches
to Conflict Resolution
By Ali Gohar
Introduction
Leo Tolstoy rightly asserted that “the seed of every crime [is] in each of us.” Crime is not an outside phenomenon. Dependingupon the opportunities, or perhaps more specifically the circumstancesat hand, crime may all too easily become the expectedaction.
‘Power corrupts’, ‘the needy are not respectable’ are but two familiar notions used by the strong , and the weak, to legitimize actions. While such excuses, such criminal thinking, change shape from place to place and individual to individual, the evil
remains constant.
Weak law gives ample opportunity for the strong to take the Law into their own hands in order to quench their thirst for power.
Strong law leads to social bondage for all but the very few at the hierarchical top of any system. In the case of the Pukhtoon community, divine law is the most important as it best serves to prevent community members from committing crime toward one another in the first place. If divine law is not practiced, then the state run and the traditional systems of justice will come to challenge each other’s existence.
What I mean by Law
Crime brings fear directly to the victim, their family, friends and community. The criminal law is considered to be useful in achieving the following ends: to restrain and reform the offender, to deter others, to revive communion symbolically, and to define the rights and duties of each as they pertain to the social contract.
The definitive question is always to discern whether the prevailing judicial system is presently and sufficiently meeting these requirements. If the answer is ‘no’, then we should, must, find ways to make the system work by incorporating other resources.
In today’s climate, incorporating Restorative Justice is one example.
The prevailing system of criminal justice mostly focuses on the following three questions:
1. What law has been broken?
2. Who broke the law?
3. What punishment do they deserve?
States become victim in every case of criminal offence simply because, crime by definition, is an offence against the state; a violation of the existing law. The real victims, (the individual(s) who where themselves hurt along with their communities), are swept aside when it comes to dealing with an offender who has been found guilty.
Does this practice serve the purpose of fulfilling the needs of the victim and community? Does this practice offer the offender an avenue to make right the wrong? In the vast majority of cases, the answer is ‘no’. This situation, the almost universal answer of ‘no’, has given credence to the rise of the Restorative Justice movement from out of the ashes of traditional, indigenous, systems of justice.
Traditional System of Justice
The world community followed divine law from before the dawn of civilization. With the passage of time, as human beings became more knowledgeable, and settled, people started practicing their own traditional way of interacting. Each community developed
its own system of rules. Some of these community systems are still preserved in one way of another; a fact that speaks volumes. The most visible structure of such systems are Circles in North America, Gachacha in Africa, Sulha in the Middle East, Family Group Conferencing in New Zealand and Jirga in the Pukhtoon belt of Afghanistan-Pakistan.
When the concept of a state run system of criminal justice came to fruition, both victim and local community lost their right of decision making, as the state became the victim when a law was broken. With this, the victim and their community, apart form their initial involvement, were kept aside and direct action between the state and victim was started. The state system not only kept the parties separated, it served to slow the process
down while driving costs/accessibility of justice up. Additionally, States tended to do everything within their power, once they assumed control over the justice system, to influence traditional systems, in one-way or another, in order to further their own
interests; in the Pukhtoon ‘the’ example is the FCR (Frontier Crimes Regulations 1901) which is still in practice.
The FCR was introduced by the British Empire in order to control the Jirga system as it is practiced. Traditionally, Jirga was community based, speedy and accessible to everyone. It did not lose its importance and to this day remains intact in the Pukhtoon belt of Afghanistan-Pakistan.
Jirga is a name given to the model, in which a Pukhtoon society operates, to undertake issues between individuals and communities, to address concerns and look for solutions acceptable to all the parties having a stake. As such, as a blueprint of Pukhtoon life, Jirga is best summarized as a strategic exchange between two or more people to address an issue through verbal communication. The exchange may, or may not, result in an agreement being reached on an issue, but the process itself leads the parties, including the interveners, to maintain a certain level of formal communication. This promotes a situation whereby peace may be kept.
Jirga and the State System
The modern justice system as it is practiced in the Pukhtoon region is based on a few distinguishable parameters, which combine to form the whole system. This can be identified as:
• A Prosecution System, comprising Police, Magistrates
and similar bodies
• A Legal Framework, comprising the laws of the country
• An Adjudicating Body, comprising various tiers of judiciary
• An Implementation Body, including the Police and Corrections (jails).
The legal framework is further divided into:
• The Criminal Procedure, the procedure adopted to process the cases involving crimes specified in the criminal code.
• The Civil Procedure, procedure adopted to process the cases involving civil disputes between citizens and institutions
• The Penal Code, defining the extent and nature of punishments for violations of each law
• Evidence Laws, the process and method of recording evidence in a certain case and the value of such evidence
• Local and Special Laws adopted from time to time, such as Traffic or Industry and Labor Laws.
Jirga has the capability to deal with issues pertaining to justice as its more formalized state run counterpart. The Jirga exercises both executive and judicial roles. Jirga is capable of settling disputes pertaining to the distribution of land, property, blood feuds, blood money and other important inter-tribal affairs on the basis of tribal conventions, traditions and principles of justice.
Police functions can be discharged upon a perceived threat to the peace and tranquility of communal life, or when there exists a danger to the life and property of any person within the community.
Pukhtoon Jirga usually deals with local matters and operates as a mechanism for dispensing speedy and low cost justice. After careful consideration, the Jirga decides disputes on the basis of available evidence. Pukhtoon society considers the decisions
of a Jirga in the same light as Western societies consider court decisions. If required, the community is capable of raising a force called a Lashkar in order to ensure the implementation of Jirga decisions. On the penal side, local traditions, Rawaj, set the
standards of punishments for different types of crimes. Examples range from monetary fines to the expulsion of individuals for the area. Rawaj may also serve to legitimize murders for revenge or call for the giving of a daughter/sister for marriage as
payment for a crime.
Some tribes within the Pukhtoon have written penal laws. In the Kurram Agency of Pakistan, for example, there exists a charter of laws written in 1944. Generally, laws are unwritten and vary from place to place. Precedents from adjoining tribes may be adopted, based upon suitability, but only after thorough discussion.
The tribal laws and systems are complex but very workable.
They are complex because they are not as uniform as are the settled, and written, laws of the state. They work because they are indigenous to the communities, and societies, who have been practicing them for a millennia.
While it is possible, after a detailed study, to find patterns and manners in which the tribal laws can be effectively compared to the components of modern judicial systems, one distinctive difference remains blatant. In the Jirga system the victim is the focus of any proceeding taken against the culprit.
Community development is very much a part of the Jirga system. Jirga works to organize the community voluntarily. In fact, the concept of Jirga is based on offering voluntary leadership to the community. A Jirga is comprised of individuals who organize out of a firm belief in their understanding of, and for, peace and justice issues. A Jirga is fully dedicated to the welfare of its people. In this way Jirga, unlike NGO’s and CBO’s which are formed to fulfill specific purposes such as health or educational needs, function more like a local government.
ADR and the Jirga System
There are many different perceptions of what Jirga is and is not within the Pukhtoon. This is due to the fact that the Jirga is a process based upon local understandings and dependent upon the social leadership. While this is a reason for caution, it would be erroneous to believe that Jirga is a slapstick process that is easily hijacked by the influential in order to accrue undue benefits by exploiting the weak. It is possible to categorize the inner workings of Jirga as comprising the following:
1. Spirituality: The spiritual nature of Jirga is one of the binding forces of the Jirga decision and contributes to the effectiveness of its implementation. The Elders who make up the Jirga are considered the guest of God and to refuse their decision is considered an invitation to the curse of God. Elders start the process with special prayers and announce the decision again with prayer. The final agreement is culminated by bringing the Holy Koran into the middle of the Circle, having the parties place their hands upon it, while swearing to be faithful to the decision of the Jirga for the rest of their lives.
2. Volunteerism: All Elders who take part within a Jirga are volunteers who have come forward to resolve the issue/ conflict in order to gain God’s blessing and to alleviate strife/ violence within the community. The Elders bear all the cost on their own, without any outside help or assistance. It is important that the Elders keep their neutrality at all times during the Jirga which will, at different times, call upon them to facilitate, mediate and arbitrate.
3. Pre-mediation: If, after getting adequate information from the community or the parties themselves, the Elders get into a violent situation they will immediately start a process of pre-mediation in small groups. Their job, at this stage, is to motivate, advocate and deescalate the situation. Members of the Jirga, who know the parties, can take the initiative, on their own, with due consultation of the Jirga as a whole, to see and convince the parties separately to settle the situation. These individuals will facilitate between the parties in order to reach a peaceful resolution of the conflict.
4. Med-Arb: In the most common example of Jirga, the parties in conflict are approached for mediation in advance so that their emotions may be lowered in order to ready them for negotiation. The parties give permission, commonly known as waq, to the Jirga to resolve the dispute.
When the Elders of the Jirga obtain waq, from both parties, the parties are then bound to accept the Jirgas decision whatever it may be.
5. Community based: Within the tribal belt of Pakistan there is one type of Jirga which is sponsored by the government under the FRC; British made law. For the rest of the
region, located for the most part outside the reach of governmental institutions, Jirgas are community-based. In the majority of the cases Jirga is not given any legal coverage
by government, however, the authorities accept Jirga decisions.
6. Preventive measures: In the Jirga process, Jirga members (Jirgamar) make the decision to solve the problem, by involving the victim, the offender and the community
directly. With give and take, the desired outcome leads to victims being compensated for losses while steps are taken to put into place measures that will stop similar crimes from
occurring again with the help of the entire community.
Nanawatay (repentance over past hostility or inimical attitudes and the granting of asylum), Teega (a truce declared by the parties, and represented by a Jirga, in order to avoid further bloodshed between two rival factions), Melmastiya (openhearted ospitality) and Paighaur (sarcastic remarks by peers that drive a person to follow the tenants of Pukhtoonwali – the Pukhtoon unwritten code of life) are examples of measures which serve to make the community safe from violence.
7. Offender responsibility for wrongdoing: In the Jirga process, the offender takes responsibility for their wrongdoing and commits to make things right, according to the
decision of the Jirga. Sometimes offenders go the house of a victim, with Elders of the Jirga in tow, in order to ask for Nanawati (sanctuary). The victim may forgive the
offender their wrongdoing in honor of the Jirga.
8. Healing: The healing stage is unique in its nature. Not only is the issue resolved, but the Jirga further lays the groundwork for friendship to take hold. The goal is reconciliation.
The family and friends of both parties become so close to each other that the enmities change to friendship and sometimes to ongoing relationship.
9. Reconciliation: Jirga members over time follow the process of reconciliation in hopes of bringing the parties closer to each other. Sometimes people forget the damages or
losses and become close friends – even relatives.
10. Circle: Jirga members sit in a circle on the ground without any discrimination and discuss the issues at hand one at a time. The Jirga reaches its decision only after thoroughly and impartially discussing each and every aspect of the issues. The circle of a Jirga is similar to other types of Restorative Justice circles; it covers all aspects of decision-making, healing, restitution and so on.
11. Follow-up and after-care: Jirga members take proper follow-up and after-care seriously. The idea behind bringing resolution to a dispute is to make the relationship
strong and to prohibit the interference of third party ‘pot stirrers’. As Jirga is working toward the resolution of the conflict, ‘pot stirrers’ can make the process more difficult
for their own interests/benefits. This behaviour is not tolerated.
12. Speedy and easy access to justice: Jirga is an inexpensive and easy way to resolve disputes on any level in the Pukhtoon community. Even murder cases are resolved in days. It is standard practice, where the criminal justice system comes into play in punishing offenders, that a Jirga is called for when that punishment is fulfilled.
This is because the state system does nothing to end the animosities.
13. Involvement of the parties for further dispute
resolution: There is a Pushto saying that goes ‘one is a good Jirga member who has practically gone through all the steps of the Jirga process themselves’. A beneficial
byproduct of Jirga is that its process trains those going threw it to help others later on after their particular issues have been successfully dealt with. The Jirgamar are regarded as role models. They are listened to and have their decisions, within the Jirga process, respected.
14. Democratic: Jirga is very much a democratic process. The Jirgamar sit on the ground without any individual social identity. Respect is gained by the level of direct
knowledge of the cultural traditions and wisdom one is able to show. While there are differences of opinion within the Jirga, the decision reached by the Jirga is
always unanimous.
Traditional/Non-Restorative Element of Jirga
Jirga is a typical example of a traditional tribal system working toward resolving disputes. Within the tribal belt, a special volunteer force called Lashkar implements the Jirga decision, while in the settled district social boycott and taking a stand with the opposite parties are common enforcement behaviors. The following are the key traditional non-restorative elements of Jirga:
1. Punishment: Punishment can include burning/demolishing houses, heavy compensation of cash money, giving Swara (giving of a girl to the victims relatives for the purpose of marriage), and banishment are some of the punishments that may be handed down. Punishment, when it is drawn upon, is designed to make not only the offender, but also the offenders family miserable. The next generation of the offender’s family may become more vulnerable to crime due to the financial constraints placed upon them.
2. Force implementation: The decision made by the Jirga is so strong that it is implemented by force within the tribal areas. Once a Jirga receives waq from both sides, all parties are bound to face the Jirga decision in any case without much say. There is no appeal.
3. Arbitration: After receiving waq, Jirga members decide according to the prevailing traditions and customs of Pukhtoonwali. Again, the parties have no right to refuse the decision of the Jirga.
4. Verbal decision: Most decisions of Jirga, at least within the tribal belt, are verbal. This may become problematic if, over the course of time, a number of the Jirga die, and
one of the parties decides to take advantage of this fact and no longer accept the decisions of the Jirga as passed.
Another problem area is created if the conflict is prolonged and ends in the courts. Unwritten agreements may, in the end, be worth the paper they were written on.
5. No role for women: since the Pukhtoon community is highly paternal, there exists no avenue for direct female representation within any Jirga process. Even though the Pukhtoon community is not ready to give women their proper role in the decision making process of Jirga, women do actively exercise their power behind the scene within the family; especially when a woman is the victim. There has been movement toward addressing this situation. In the recent past women were given a representational share
within the Loya Jirga (Grand Assembly) of Afghanistan.
This is, hopefully, a positive sign pointing toward further involvement of women in the Jirga system at the grass root level in rural areas.
Recommendation
Within the Pukhtoon district of Afghanistan and Pakistan the Jirga is a viable system of justice. As such, this indigenous system should be fostered with the following recommendations:
1. Training: Training means change. Jirga needs to maintain and/or include the concept of restorative justice. The training of Jirga members is of utmost importance in order to up-date their knowledge about the use of restorative justice and to minimize the element of punishment while aiming for community cohesion. Stronger communities, not stronger punishments must be called for.
2. Government support: Although governments use the Jirga when needed on both sides of the Afghan/Pakistan border, Jirga is still without formal status in the tribal belt.
Jirga must be given full-fledged governmental support in order to provide easy, cheap and above all effective access to justice for the masses who reside within the rural tribal belt of the Pukhtoon.
3. Legal coverage: The courts, in many cases without any constitutional coverage, accept legally Jirga decisions.
Since Jirga is such an integral part of Pukhtoon society, decisions made by the Jirga should be written into constitutional coverage so that these decisions gain legal standing.
4. Female participation: Women represent the majority of the population of the Pukhtoon community. Without female representation, at the grass root level, in the Jirga
structure, that structure will remain incomplete. Again, women have become involved within the Loya Jirga of Afghanistan, so there is movement in this direction.
5. Documentation: The verbal decisions of the Jirga are not accepted in the
modern legal system. This practice needs to be addressed as it is detrimental on a variety of
plains.
In addition to the negative legal ramifications, verbal decisions serve to keep the doors closed, especially for the coming generation, about the decisions taken by Jirga members in the past. Proper documentation of the Jirga is important in order to address this shortcoming. Records of all the decisions of Jirga would make decisions available to the coming generation for their guidance and further research.
Conclusion
All indigenous decision-making processes of the world are similar in nature. There is a strong case to be made for easy and speedy access to the justice system. Justice delayed is justice denied. Jirga is one of the oldest justice systems that respond to the needs of victims. Yet, there is a strong need to include modern and scientific knowledge in order to foster, or incorporate, notions of human rights and Restorative Justice into Jirga.
In Jirga, the element of punishment needs to be changed, while the concept of community work, on the part of the offender, needs attention. The suffering of the offender’s family also needs more exposure to the victim, their family and the
community as such family members later on become, again, offenders in one way or another in their struggle for survival.
While victim healing is quite visible in the whole decision-making process, trauma healing and mental health aspects of the victim are but ignored by the Jirga due to lack of awareness and ignorance.
Elderly men enjoy the benefit of their wisdom and age, but younger men also need to come forward, as they are more aware of the human rights aspect of life in the present day. Apart from the traditional Jirga meeting and story telling, youth also need proper training to equip them in resolving community disputes efficiently.
Ali Gohar works as a Program Officer with Oxfam
GB on ending honour killings with the Pukhtoon
region of Afghanistan/Pakistan. He has a degree
in International Relations from Quaid-e-
Azam Univeristy, Pakistan. Recently Ali completed
a Master’s degree in Conflict Transformation
as a Fulbright Scholar from Eastern
Mennonite University in Harrisonburg, Virginia,
USA where he studied under Prof. Howard Zehr.
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