Jirga
An Indigenous Way of Peacebuilding and more . . . . .
What is Jirga?
Jirga is best summarized as a strategic exchange, between two or more people, to address an issue through verbal communication. The exchange may or may not result in an agreement on the issue, but the process itself leads the parties, including the interveners, to maintain a certain level of formal communication, thus ensuring peace.
To a common person, Jirga is a body comprised of local, elderly, and influential men in Pukhtoon communities, who undertake dispute resolution, primarily through the process of arbitration. Compared to the judicial system of the present day governments, Jirga ensures a fast and cheap justice to the people. Indigenous to Pukhtoon tribal communities, Jirga is alive even in the areas now influenced by an Anglo-Saxon legal system, and is used for inter-personal dispute resolution. In the tribal areas, Jirga is the only vehicle through which the political administration dispenses justice.
Jirga is an assembly of tribal elders called for various purposes whether waging war or composing peace, tribal or inter-tribal relationship. The meeting of elders may leads to a decision or not the process of developing communication and netting the community for durable solution of the issues starts.
"A mass meeting of the elders of the whole of the Afridi tribe, for instance, would correspond very much to the old `Shiremote' of the Saxon heptarchy; and, indeed, there is more in the simile than one would expect at first glance, for the democratic spirit that is so characteristic a feature in the gradual growth of English customs finds its counterpart in the spirit of liberty and right of free action that is one of the most respected prerogative of the Pathan tribesmen, be he ever so humble".
(The Hon. Arnold Kepple)
Democracy is not alien to the brilliance of the Pukhtoons, as they are carrying on their typical and elementary form of government on democratic principles since times immemorial. A unique feature of tribal life is the Jirga system, a council or assembly of tribal elders, which closely resembles the Athenian democracy of the City States of ancient Greece. Jirga is considered more forward institution than democratic one as in democracy opposition remain for ever while with in Jirga process there is difference of opinion but the decision is unanimous and each individual is responsible to respect the verdict even if they have different opinion with in Jirga process. The Pukhtoons practiced this participatory sort of democracy long before Locke, Rousseau and other eminent philosophers expounded their theories about democracy.
Pukhtoonwali is the code of ethics of the Pukhtoons, Hujra the parliament building and the Jirga their Parliament or National Assembly and intrepidity and frankness an essential trait of their character. An atmosphere of equality pervades in tribal area and even a poor man dressed in rags considers himself equal to his adversary or his rich neighbor. This spirit is well reflected in their Jirga system, which, like the ancient Greek democratic institutions signifies their love for democracy.
The Jirga of today also plays an important and constructive role in solving the tribal matters. It is an authority for settling disputes and dispensing justice to all irrespective of their social status, influence and wealth. All matters including the question of peace and war within tribal limits fall within the purview of the Jirga. It consists of the leading Maliks, khan, religious scholar and tribal elders. There are no hard and fast rules for the selection of Jirga members. All tribal elders Speen Geeri or (gray-beards) are considered eligible for its membership and each one of them has a right to speak and freely express his opinion. However, Jirga’s generally consist of persons known for their honesty and integrity. 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 on the basis of 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 or danger to the life and property exists within tribal limits.
The Jirga usually deals with inter-tribal affairs and serves as an instrument for dispensing speedy and cheap and at doorstep justice. After careful consideration, the Jirga decides the disputes on the basis of available evidence.
Jirga have different meaning, one is a place where one can express his/her feeling openly with out any fear or threat. Jir-jar with open voice ga-gah-place. The Jirga assembles in a Hujra or a village mosque or in an open field outside the village under a shady tree. The Jirga members usually sit in a circle without any keeper. This Round Table Conference like a meeting without a chairman clearly reflects their love of democracy and principle of equality irrespective of, wealth status or family background etc. The main criteria are knowledge of Pukhtoonwali, wisdom, and skill for problem solution.
The Jirga conducts its proceedings in a simple manner. It has two methods, parachute diplomacy when they enter the warring fictions and beg for peace, or one or another approaches them party and then start shuttle diplomacy. They use in the process all modern technique in traditional way, i.e. facilitation, mediation, arbitration, and reconciliation. Interview parties, gives them a patient hearing and examines witnesses to ascertain the facts of the case. After searching enquiries, the Jirga makes every possible endeavor to find an impartial and acceptable solution of the problem. The Jirga's decision is generally based on Shariat, Islamic Law, local traditions, justice and fair play. In serious cases the Jirga asks a party to clear itself of the imputed charge by an oath on the Holy Quran. This seals the issue once for all, as the religion and social bounds of Pukhtoonwali are extremely strong forces. It announces its decision only when the majority of its members reach an agreement. But Jirga members deem it careful to obtain the consent of both parties before making its verdict public. This practice is known as WAAQ or IKHTIAR (Power of attorney). It is through the instrument of Waaq or Ikhtiar that the Jirga commits both the parties to abide by its decision. The Waaq also gives a binding force or some sort of legal cover to the Jirga's verdict and it becomes incumbent upon the parties concerned to honour its verdict.
Jirga approaches to the parties concerned:
Pre mediation;
In this process the elders first start pre-mediation with in the Jirga to reach to a common strategy. Then they approach the parties at stake elders and ask for their consent. Here the parties involved put their options to the Jirga. Jirga members mediate according to the prevailing custom and traditions to fix the demand of the parties.
Mid Arab;
In this process the elders of the family and tribe discuss the options fixed among themselves and later with the Jirga members. The customary and religious laws both are put in front by the Jirga members while dealing with the parties at stake. They change their role from mediator to arbitrator
Mediation;
Mediation mostly takes place with in the party at stake with Jirga member’s active involvement. Each party first invites each member, friends and relatives while Jirga members help them in the consensus development and run the mediation process. Here their customary and religious knowledge, volunteer role, experience and wisdom of the community issues play crucial role.
When both the parties fix their demand then the Jirga members do indirect arbitration between the parties to reach a common understanding. They also arrange the final event, disarm the parties; bring them together with a big community event.
Reconciliation
After face-to-face meeting Jirga member also follow the parties to make the relationship more intact and clean the heart and minds of the parties in all respect. Such practices lead to forgive and forget. The Jirga also follow the process of friend far some time, especially when the friends and family members invite them. This further makes the friendship more intact. Parties become now jirgmar and go to the other conflicting parties for peaceful solution of their conflict. They become role model and if you ask any jirgamar who is the good Jirga member they will answer that those who have gone through it.
The Jirga reprimands the party, which refuses to accept its award. In popular parlance this refusal to abide by the verdict of Jirga is called MAKH ARAWAL (let, turning of face) or expression of disapproval over by the party's the decision of Jirga. In such a case the Jirga also resorts to punitive measures for enforcement of its decision, which includes fine in money and burning of the houses of the disobedient members. It is because of such severe action that no one to dares violate a Jirga's decision after customary approval in the form of Waak or Ikhtiar. The Jirga does not interfere in small and petty family disputes until a formal request is made by a party to intercede on its behalf. Moreover in cases of grave concern and serious nature, the Jirga assembles on its own and persuades the parties concerned to submit to its award.
The Jirga meeting usually lasts for a day or two, but in some complicated cases, its deliberations are prolonged to three or four days. It remains, however, the utmost endeavor of the Jirga to settle the dispute amicably as early as possible.
Jirga decision is far better than courts. A court can punish the parties but can’t provide sustainable solution. While Jirga not only solve the issue in limited time, with out much expenses, at the doorstep, but also finish the enmities once for all. In Jirga decision the solution is not durable, the enmities finish once for all and the as compared to other justice system of the even restorative justice system, forgive but not forget, here it is forgiveness and forget- ness both take place at a time when the holy Koran is brought to the middle as a tradition and the member takes oath on it. The social bound unite with the divine blessing to intact the decision of the Jirga further.
Modern concept of ADR and the Jirga system
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. Elders are considered the guest of God and to refuse their decision is considered an invitation to the curse of God. With the elders of the community, religious elders also sit in on the decision-making process. They start the process with special prayers and announce the decision again with prayer. With traditional arguments they also help the elders, along with their religious practice, to make the process easy, acceptable and more binding. The elders also describe to the parties the worldly and spiritual consequences of not following the agreement. The final agreement is reached mostly by bringing the holy Koran in the middle and the parties put their hands on it and swear to be faithful to the decision of the Jirga for the rest of their lives.
2. Volunteerism:
All the elders are volunteer, who come forward to resolve the issue/conflict in order to gain God’s blessing and to make the lives easy for the parties with less violence. They bear all the cost on their own, without any outside help or assistance. They keep their neutrality at all times during the Jirga process and try to resolve the conflict impartially, in a manner acceptable to all parties. Jirga members play different roles at different times in the Jirga, They facilitate, mediate and arbitrate and present their good office at the same time.
3. Pre-mediation:
If, after getting adequate information from the community members, the parties or the elders themselves get into a violent situation, they start pre-mediation in small groups. Their job at this stage is to motivate, to advocate, and to de-escalate emotions. The people from the Jirga who know the parties can take the initiative on their own with due consultation of the Jirga members, to see and convince the parties separately. They also facilitate the individual process with the party concerned and talk on behalf of the other party for a peaceful resolution of the conflict.
4. Med-Arb:
In the most common example of Jirga, the parties are approached for mediation in advance; their emotions are lowered to make them ready for negotiation. The parties in conflict give permission, commonly known as waq, to resolve the dispute. When the Jirga elders get permission from the parties for arbitration, then the parties are also bound to accept the Jirga elders’ decision whatever it is.
5: Community based:
There is only one type of Jirga in the tribal belt of Pakistan sponsored by the government under the British made law, FCR (frontier crime regulation), the rest of the Jirga are community-based in which only participate. In majority of the cases Jirga is not given any legal coverage by the governments. However, the government authorities accept Jirga decisions
6. Preventive measures:
In the Jirga process Jirga members make the decision to solve the problem, by involving the victim and offender directly or indirectly. With give and take, they compensate the victim’s losses and also take preventive measures to stop similar crimes in the future with the help of community. Jirga members look into any situation within the community that creates further violence and take remedial action to make the community safer for the community. Tiga, Nanawati, Nagha etc are all such measure which make the community safe from any violence
7. Offender taking responsibility of wrongdoing:
In the Jirga process the offender takes the responsibility for his wrongdoing and commits him to make the thing right, according to the decision of the Jirga. Sometimes offenders go to the victim’s house with the Jirga elders called Nanawati (sanctuary) in Pukhtoonwali (Pukhtoon unwritten code of life). The victim forgives the offender for his wrongdoing in honor of the Jirga.
8. Healing:
The healing stage is unique in its nature. Not only is the issue resolved, but also Jirga further lays the groundwork for friendship. This even leads to the process of reconciliation. The family and friends of both parties become so close to each others that the enmities change to friendship and sometimes to ongoing relationship.
9. Forgive and forget:
”Forgive and forget” is another important aspect of the Jirga decision. 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 issue one at a time. They reach a decision only after thoroughly discussing each and every aspect of the issue and finally coming to a conclusion. The circle of Jirga is similar to all types of Restorative Justice System circles. It covers all aspect of decision-making, healing, restitution and so on.
11. Follow-up and after care:
Jirga member also do proper follow up and after care following the resolution of the dispute. The idea behind that 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.
12. Speedy and easy access to justice:
It is an inexpensive and easy way to resolve disputes on any level in the Pukhtoon community. Big issues, even enmities and murder cases, are resolved in days. The criminal justice system punishes the offender but does nothing to end the animosities. Even after a prolonged criminal justice punishment process, the parties again request the Jirga for intervention for ending the enmities.
13. Involvement of the parties for further dispute resolution:
There is a Pushto saying that, one is a good Jirga member who has practically gone through all the steps of a Jirga process. The Jirga resolves the conflict and also makes the parties ready to help others to resolve their conflicts peacefully. They tell their own past stories and make the parties ready to resolve the issue peacefully. People respect them for being a role model for them, to listen to them carefully and to respect their decision within the Jirga process.
Differences
14. Democratic:
Jirga is more democratic in the sense that the Jargamar (Jirga members) set on the ground with out any social identity. Respectable among them is the one having cultural traditional knowledge and wisdom. In the Jirga process there is difference of opinion but the decision is always unanimous with out any opposition. That’s why Jirga is considered more advance system than the present day democratic system of the world.
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