Dispensing justice in a timely and orderly manner is vital for the prosperity of any nation. However, in a country like Pakistan where various conduits of justice exist- often within the rural and tribal belt- confusion occurs as these mechanisms may end up contradicting the country’s recognised legal practices and constitutional rights. Hence, these unrecognized mechanisms for conflict resolution may end up perpetuating the very biases and injustices it had once sought to prevent. One such notable system of conflict resolution and justice dispension in Pakistan is the Jirga system also known as ‘assembly’ or ‘gathering’. However, while many voice their critique of this system, it is equally important to understand reasons for its prominence within the region, particularly among Pashtuns.
Since time immemorial, resolving disputes has existed in various forms in different cultures with the jirga system dating back to practices in some Indian villages that were run by a form of council or the Arabian equivalent of the ‘Shura’ . In ancient Greece, jirga was practiced and referred to as ‘Agora’ where people would sit to discuss matters of importance similar to Persia’s ‘Majlis’ and the Punjabi variant of ‘Panchayats’. Historically, Aryan tribes dating back to 5000 BC who migrated from Central Asia to the subcontinent practiced this system till it was adopted as a national framework of dispute resolution under the regime of Afghan ruler Sultan Bahlol Khan Lodhi and Mughal empire’s Sher Shah Suri. Eventually, the system trickled down the ages till it was adopted by various regions of Pakistan. This included among the Pashtuns where tribal elders would sit to exact judgement on personal matters and deliberations invoking Badal (tribal revenge), Khoon-Baha (blood money), Bonga (abduction), Matiza (honour killing over female elopement), Walvar (bridal price), Baramta (recovery of claimed money) and many more.
Some of the more mainstream forms of jirgas include the ‘Sarkari Jirga’ that was mandated by the government and was introduced under the ‘Frontier Crimes Regulation Act’ (FCR), the communal form of ‘Ulusi jirga’ that is presided over by tribal elders, ‘Shahsi jirga’ that is formulated when a feud occurs between two families. ‘Loya jirga’ is practiced not only in Pakistan but also Afghanistan where equal opportunity for representation of all different tribes occurs is practiced.
Given the prevalence of the century old system imbedded in Pashtun culture, the KPK government also decided to take it upon itself to form a government based jirga called ‘Dispute Resolution Council’ to facilitate local people under police supervision. This is because the provincial government came to recognise that the cultural relevance of the jirga system cannot be overlooked given that this system of dispensing justice aligns with the Pashtun code of conduct especially in a community that values the principles of honour, justice and hospitality. This recognition was furthermore cemented after the 2017 ‘Alternative Dispute Resolution Act’ (ADR) was recognized as another form of arrangement by the National Assembly where feuds and disputes could be settled outside the bounds of the traditional courtroom setting. While the jirga system is prevalent across all provinces including Sindh and Balochistan, it stands out in KPK owing to the fact that it promotes equality as it allows everyone the opportunity to participate in the jirga besides the tribal elders and communal religious scholars.
Methods of arbitration and mediation via a jirga becomes a source of securing social harmony and ensuring joint consensus especially between Pashtun warring tribes where a sense of tribal loyalty prevails over adhering to the rule of law. By devising objective solutions that comply with local customs and the Shariah law, the legitimacy and verdicts of the Jirga proves binding. It is only through such forms of ADR that high-stake conflicts in the tribal belt including regions of FATA and Kurram can be resolved. This is seen by the example of how the long-standing land dispute spanning thirty years between the Tidowlal and Ali-Sherzai tribes that initially resulted in a blood bath and significant loss of lives was resolved based on the resolution and verdict given by the Tori Bangash jirga in Kurram region. With the Kurram region having been in the recent spotlight due to the sectarian crisis that erupted over the Parachinar land dispute, it is worth noting that such mechanisms can be seen as alternative methods for resolving such disputes. In a way, the jirga system focuses on restoring social balance rather than seeking to maintain punishment as it is seen as means of reducing future violence.
The cost-effective nature of Jirgas is also seen as reason for the prominence and acceptance of jirgas in the region given that these systems are informal processes that avoid the legal costs and fees associated with formal court mechanisms. The fees of hiring a skilled lawyer and falling victim to the corruptions of the formal courts and political influences governing it is avoidable. Often the Jirga system aims to seek justice given the decisions carried out by these institutions carry significant social weight in a society governed by traditional customs and elders. Furthemore, what stands to reason is that within Pakistan, existing judicial architecture faces pressing obstacles with an outstanding backlog of 2.4 million legal cases pending as noted by Justice Mansoor Ali Shah. Furthermore, the nation ranks 130th out of 142 countries on the Rule of Law Index, therefore a quicker, accessible albeit unconventional mechanism towards dispensing justice in contrast to the ‘formal’ legal courts appears more promising.
In particular, within the remote areas of KPK, individuals prefer to resolve disputes quickly without having to travel long distances towards formal courts. In a study conducted by Nawaz and Aman titled ‘Dispute Resolution Councils in Khyber Pakhtunkwa’ (2022), it is revealed that 47.6% individuals prefer the jirga system over the civil system. The UN’s 2010 ‘World Governance Survey’ ratified reasons for the lack of trust in judiciary’s autonomy being attributed to high degrees of corruption within the system and police overlooking registration of First information Reports (FIRs). This has left many respondents disillusioned with the formal legal system. This often forces the hand of citizens in rural and tribal regions to turn towards the jirga system for justice.
However, critics of the jirga system should not be overlooked given that legal standing of jirgas is questionable and often breaches existing legal parameters of constitutional law. Many of the key decisions made by jirgas are not legally binding or sanctioned especially if one party refuses to comply. Since jirga systems are based on customary law, many of the decisions are widely unregulated with unwritten rules and are often arbitrary differing form each other with decisions being subjective and easily influenced by varying local customs, biases and elderly opinions. However, many do point out that state formalization of the jirga process could help resolve these redundancies within the system. This can easily be applicable post the 2018 merger of the FATA region with KPK. This has raised questions over the credibility of local jirgas given the poor law and order situation in the federally administered tribal region. Often FATA’s conservative approach involves violating national and international human right laws. Even the Supreme Court of Pakistan made a prior statement that the existing jirga and panchayat system violates the ‘Universal Declaration of Human Rights’ (UNDHR).
With the exclusion of women from the decision-making process and the presence of a male dominated jirga, questions over gender bias are also raised. Many arbitrary decisions by the Jirga to resolve feuds involve forced marriage between the feuding families where the women’s autonomy is sacrificed as per the claims of women rights activists. In 2013 alone, twelve-year-old Rubina was forced by a Jirga in Upper Dir to marry an older man that violated the sanctity of international law and human rights. Similar instances of female right to voting has also been curbed by arbitrary decisions made by Jirgas. Initially, in 2011, a jirga decision was undertaken by poltical parties that prohibited 18,000 registered women from voting while later in 2015, 12,000 women were disenfranchised from voting in Diamer district after a Jirga ruling against female voting. This not only violates female right to poltical participation but in turn is a breach of Pakistan’s penal code that enshrines female right to voting. To modify the jirga system requires overturning many of the patriarchal customs and gender-biased beliefs that override female poltical, social and economic participation.
In conclusion, the jirga system remains a significant yet controversial mechanism for conflict resolution in Pakistan, particularly among the Pashtuns. While it offers cost-effective, culturally relevant, and timely justice, it is marred by gender bias, lack of legal regulation, and potential human rights violations. For the system to coexist with formal legal frameworks, reforms ensuring inclusivity, accountability, and adherence to constitutional and international laws are essential.
The writer is international affairs and political economy analyst.
