has both merits and demerits'
Jirgas have been with us for as long as we can remember. An assembly of elders that works by consensus for dispute resolution seems like a neutral, harmless arrangement that must have been adopted because there was a rationale to do so. Therefore, we have Jirgas in Frontier, Sindh, Balochistan and an equivalent that goes by the name of Panchayat in Punjab.
Though one must concede that the news of Jirgas of one kind or another in recent days have emanated more from the tribal areas where any political solution that involves most stakeholders is called a Jirga. We have been hearing a lot about peace jirgas. The law that governs these tribal areas -- Frontier Crimes Regulation or FCR -- recognises Jirgas as lawfully established judicial tribunals.
But we have also heard Jirga news coming from Sindh where some unresolved disputes led to scores of killings between various tribes over generations.
So Jirgas have not always offered the quick speedy justice as is often presumed. As a matter of fact, they have come in conflict with the penal code for a variety of reasons. Jirga does not just advise; it tries, punishes, executes and yet no appeal is possible against a jirga or a panchayat verdict. It has promoted regressive tribal customs like Vani and Swara that have hit and hurt women specifically. The Qisas and Diyat laws compounded the problem because of the possibility of compromise with the victim's family. The all-male composition of this body of elders has only served to further strengthen the powerful tribal sardars and feudal lords.
Decidedly, Jirga in its present shape and form cannot guarantee the accepted norms of justice. Reports from all over the country confirm that this institution needs to go a long way before it becomes more equitable and less regressive. Here are some facts and suggestions and an interview with a Sindh High Court judge who declared it illegal and imposed a ban on Jirga in 2004.
Jirga in the Frontier enjoys the complete backing of government and its agencies for the very fact that it has yielded good results
Jirga is the most powerful social forum in a Pakhtun society that settles disputes between two individuals, groups or tribes well before the government agencies have interfered. Jirga is a customary judicial institution in which cases are tried and rewards and punishments are inflicted. The forum enjoys enormous powers and hardly any party has ever defied the decision made by a jirga.
The structure of the body is different in different parts of the North West Frontier Province (NWFP), the federally administered tribal areas (FATA) and Afghanistan. However, one thing common to them is that everywhere the forum aims at settling disputes before these are brought into courts. Right from ordinary disputes between two individuals to clashes between two states, Jirga has always worked for ensuring peace. The forum has the complete backing of the government and its agencies everywhere, for the very reason that it has always yielded good results. The forum enjoys the status of a parliament at the local level. This is the reason that the Afghan parliament is also called Loya Jirga.
Normally seated in a circle, the jirga has no speaker, no president, no secretary or convener. There are no hierarchical positions and required status for the participants. All are equal and every one has the right to speak and argue; although, regard for elders is always there without any sense of authoritarianism or privileged rights attached to it.
Since the emergence of the militants in tribal areas and other parts of the Frontier, the word 'jirga' is being frequently used in the media. As people have a sense of respect for the forum, the government while nominating any committee to restore peace in any part of the province or FATA named it Jirga. For instance, a jirga was formed by the caretaker government led by Shamsul Mulk to restore peace in Swat by taking the elders of the valley into confidence. Though it could not provide fruitful results, the forum got a warm welcome wherever it went to hold talks with the militants.
The same happened in two Waziristan agencies where the jirgas of local elders had to be engaged to ensure ceasefire between militants and the government.
A historical jirga was held in the presence of several thousand tribesmen, with the then Corps Commander Lt-Gen Safdar Hussain and some of the most wanted men in South Waziristan both embracing each other to formalise an unwritten agreement that promised amnesty to Islamic militants in return for a pledge not to indulge in military activities. The militants also gave gifts to Corps Commander. Nek Mohammad, barely 30 years' old, besides presenting a made-in-Waziristan dagger to him. Sharif gave a Kalashnikov rifle, Maulana Abbas offered a copy of the Holy Qur'an and Nur Islam gifted a pistol.
Recently, jirgas were engaged in Khyber Agency when Mangal Bagh-led Lashkar-e-Islam attacked the tribesmen of Jamrud, allegedly involved in the ugly business of drugs and arms selling. The jirgas mediated between the Lashkar and the Jamrud tribesmen and, after putting certain conditions, the Mangal Bagh forces were withdrawn from the area. Elders are still in talks with the two sides so that nothing untoward should happen in the area, located so close to the provincial capital.
The regional coordination officer of Kohat had to engage another jirga when the two tribes of Kohat and Hangu clashed with each other. Over 50 persons were killed from both parties and peace could be restored only when the jirga interfered.
The forum has also played a key role in averting sectarian clashes in Kurram and Hangu in the past.
There are different kinds of jirga. A group of elders, called 'Speen geery' or white-bearded men, immediately involves itself without any invitation whenever a dispute erupts in a village or town. Both the parties and a bunch of elders nominated by both sides are listened to, after which a verdict is issued in the presence of both parties and their representative elders.
In NWFP, a Jirga member is not an ordinary man. He must be the most influential individual who will have his say because of his wisdom, wealth, property or influence in the government. The reason for involving the influential lot in jirga is that both the parties will not defy the verdict. And, if anything happens like that, the jirga members seize the guarantees that they had submitted with the body prior to the decision. In most of such cases, a fine is imposed on the party which is held responsible for initiating a clash or a fight. The party is also directed to bring rams to slaughter on the spot as a gesture of confessing his crime. It is not necessary that a dispute is settled in one session. It can take a long time. However, the involvement of jirga means that nothing wrong would happen between the two parties. The jirga places a 'Teega', a term used for ceasefire, which ensures peace until the elders reach a decision.
There is another jirga which has been formed by the government in order to implement the writ of the state. This jirga reports to the authorities after every meeting and informs them about the progress in settling a dispute. Normally such jirgas are formed by representatives among elders who are loyal to the administration. In FATA, these elders are called Maliks, who also get 'Majab' or honoraria from the government. It is interesting to note that this majab could be a mere Rs 10 per month. However, this does not mean that the Malik will get this amount only against his loyalty. These Maliks also help the government in supervising development-related activities and in implementing the writ of the government in their respective areas. Established under the Frontier Crimes Regulation (FCR) 1901, the political agent or his assistants designate a group of elders to try a criminal or a civil case.
Jirga is seen as a continuation of feudalistic mindset and approach -- through which the local sardars can reinforce their hegemony
By Yasir Babbar
In April 2004, responding to a petition by a lay citizen, Sindh High Court imposed a ban on Jirga in the province. But the ban has been blatantly violated eversince.
Soon after the SHC decision, the then chief minister of Sindh Dr Arbab Ghulam Rahim came to Sukkur and held a jirga in his 'Sarpanchi' at Circuit House. This was in direct conflict with the order of the SHC, but nothing was done about it.
The CM's move was hugely criticised by the civil society which regarded Jirga as a continuation of feudalistic mindset and approach -- through which the Sardars could reinforce their hegemony.
According to a research, in District Sukkur alone, as many as 22 Jirgas were held in the year 2007 in which 14 innocent girls -- namely Ajeeban, 8; Shahzadi, 4; Shagufta, 8; Abida, 6; Sajul, 8; Gulistan, 6; Neelam, 8; Shamshad, 5; Rahamdi, 8; Deebul, 10; and four other, little girls of Jatoi tribe became victims of the 'Sang-chatti' fine whereby a girl from the aggressor's party is handed over to the affected party for keeps. This 'fine' is intact not only in Sukkur but in all districts of interior Sindh -- Shikarpur, Jacobabad, Kashmore, Larkana, Ghotki, Khairpur and Qambar-Shahdadkot. Specially, in cases of 'Karo kari' (honour killing), a sardar gets to keep the alleged woman/girl in his haveli -- which obviously means that she will be at his mercy -- till the sardar fixes a date for Jirga that can decide the fate of the poor woman/girl. In many such cases, women are killed. Shaista Aalmani's is a popular case in point. Shaista was declared 'Kari' and Sardar Khuda Bux Aalmani ordered to kill her. As luck would have it, her case was picked by the media. Shaista survived the sentence awarded to her by the Jirga and has been leading a happy life abroad with her husband Balakhsher Meher since.
DIG Police, Larkana, Dr Sanaullah Abbasi terms the Jirga system as an "illegal solution to cases because when formal courts are available to the people why do the sardars and sarpanchs try to impose their own own methods of resolving disputes and conflicts." He was talking to TNS.
Abbasi added that the sardars were actually promoting tribal clashes.
He also wondered from where the latest weapons were being brought into the interior Sindh? "There are sardars who are involved in one black business or another. I will take firm action against them," he declared.
On the other hand, Vice President Supreme Court Bar Association, Advocate Imdad Awan seems to favour the Jirga system. Talking exclusively to TNS, he said, "There are piles and piles of cases in our courts that are forever pending but solved in a matter of a few hours thanks to Jirga."
He admitted that the Jirga decisions did not always favour the victims and the sardars managed to use their clout to their advantage. "But, this happens rarely," he added.
Awan further said that the sardars should hold a jirga after seeking permission from the Court.
Ashfaq Ahmed Mirani is regarded as the 'Nek Mard' (noble man) in the Mirani tribe of Sukkur. He told TNS about how he became a victim of a jirga decision in June 2006, losing his only vocation because he had been nominated in FIR.
As the story goes, Ashfaq was a clerk in the Irrigation department of the provincial government. Following a dispute between the Mirani and the Jatoi tribes circa Juna 2006, the accused nominated him in the FIR. As a result, Ashfaq lost his job. The dispute is still going on in Sukkur's Bachal Shah Miani Union Council. The situation is such that firing from both sides has become a common phenomenon in the area and even the police can't stop the two rival parties. Mir Manzoor Panhwar held a jirga to resolve the dispute. He imposed a fine of Rs 7 million on both tribes but a month later, armed men of Jatoi tribe attacked him, killing seven people and badly hurting many. According to Ashfaq, the police in connivance with the sardars started a clash of tribes -- called 'Takrar'.
Till date, Ashfaq is without a job that was his only source of earning bread and butter. He says that the clash destroyed his children's education.
Human rights activist Shakir Jamali comes down hard on the jirgas, calling the tribal sardars as "black sheep who are pushing the nation backwards."
Talking to TNS, Jamali said that as many as 28 tribes were involved in feuds in Kashmore district alone. Over 215 people have lost their lives over the last six months. In District Jacobabad, more than 15 tribes were fighting each other, resulting in killings of 65 people. In Ghotki, more than 25 tribes are involved in clashes in which over 128 innocents have been murdered in the last six months. In Shikarpur district, a weapon war between 15 tribes has killed more than 108 people.
Jamali said that sardars were involved in this system because it means more power to their elbow!
The century-old panchayat system has increasingly come under fire for perpetuating class discrimination and working mostly to suppress the womenfolk
By Hamid Waleed
What we have today as the system of Panchayat took birth as a statutory and elected body that enjoyed the mandate of village development at the rural level. This statutory recognition was extended by the colonial rulers in early 1888 in the presidency of Madras, when the Village Counts Act of 1888 was passed.
1907 was the year when The Royal Commission on Decentralisation recommended the setting up of panchayats in the backdrop of its useful functions in settling criminal and civil cases of petty nature at the village level. Eventually, the Panchayat Act of 1912 was passed, extending civil powers to the panchayats, which had earlier been performing only as arbitration committees. Since the jurisdiction of this Act was limited to suits where both parties agreed to take their cases to the panchayats, it virtually proved ineffective. This situation led to the passing of another Act called The Punjab Village Panchayat Act of 1922 (Punjab Act III of 1922) to restore the old authority of the panchayat This Act was further amended in 1939 with a threefold strategy including a)to act as a judicial body for the decision of petty civil and criminal cases; b)to act as an administrative body for the performance of certain duties with regard to sanitation; and c)to act as a legislative body, and was given the right to impose taxes and to pass general orders, requiring the inhabitants of the area to abide by certain rules to improve the general standard of life within the jurisdiction of the panchayat.
No particular literature is available on the workings of the panchayat in its present form. In general, the panchayat members, usually village elders, are chosen on the basis of their respectability on behalf of various biradris or on the basis of their influential positions in terms of wealth and influence to intercede with the government officials and the ability to extend hospitality to guests.
The panchayat at the village level meets as and when required in order to settle disputes or attend to communal issues. The disputes and communal issues range from disagreements over water, women, boundaries, and the division of crops with labourers during harvest, to campaigns to secure electricity supply for the village.
Women, interestingly, are total strangers to the panchayat composition and they seldom impress upon the panchayat decisions by virtue of their powers of persuasion and influence. One reason behind the phenomenon of the absence of women from this rural institution may be the fact that the panchayat system evolved from the caste system of Hinduism, facilitating entirely the upper-class Hindus (landowners and wealthy businessmen) by controlling the liberty of the lower-caste people of the village. The panchayat system, by the way, was meant to serve and maintain the status quo by denying justice to the lower-cast people in any of their effort to challenge the prevailing social norms.
Nevertheless, the panchayat still earned respectability for its democratic approach towards the rural folk to some extent, as it has not only been following the code of ethics observed by the community at large but also respected other democratic rights in general. For example, the right of the accused to appear and defend himself before the panchayat is observed in true spirit, although the justice meted out by the panchayat is only that conceived and seen through the eyes of the upper class. This phenomenon can by understood by the simple fact that the landless labour class stood debarred from buying land in the village until the agriculture reforms were introduced to the sub-continent, as this was considered to be the sole prerogative of the upper class. Any intention against this social norm was fearlessly crushed by the panchayat's way of justice until then.
Similarly, in case of a 'siakari' or 'karo kari' murder, the panchayat's 'justice' would be arrogantly be sympathising with the murderer.
The panchayat system has lost its credibility in recent past and the awareness regarding formal judicial system has increased manifold. Also, since the panchayat system still follows the old tradition of supporting the influential and the wealthy from among the community, therefore, the faith of the masses is diminishing with every passing day.
Furthermore, with the active role played by the media in highlighting the curse of the panchayat system, especially against womenfolk, serves to drive the last nail in the coffin of the century-old panchayat system. Masses are not in favour of any further continuity in a system that perpetuates class distinctions/discrimination. Easy money, changing social mores, and higher mobility of population are other factors that have contributed to the loss of credibility of the panchayat system.
Today, the trend of approaching the regular courts instead of trying one's luck at the panchayat is becoming popular. The panchayats, as a matter of fact, are considered to be the hub of oppressors, and cases like Mukhtaran Mai have enough evidence to prove that women are most vulnerable to the situation at the rural level. Factors such as class disparity and keeping women at a disadvantage have put the panchayat system on the verge of collapse, and both the media and the human rights activists have established the point that panchayats cannot act as substitutes for judicial forums. The only role they play, if required, is to revive them as forums for discussions, debate for local government issues and perhaps as a locus for conciliation/mediation between hostile parties.
Reconciliation Councils or Musalihat Anjumans address disputes among communities at the Union Council levels and attempt to resolve them
By Aziz Omar
An alternative system to the mainstream judicial courts (Kutcheries) has been established for quite some time now. These Reconciliation Councils or Musalihat Anjumans have been constituted at the Union Council Level under the provision of the Local Government Ordinance 2001.
However, it took some time for these entities to make their presence felt. Hence they were first piloted in two districts of each province from 2005 and 2006 and then later the pilot phase was extended for another 5 years from 2007 through 2011. In this second phase, the Musalihat Councils are going to be active in five districts of each province.
According to Muhammmad Akram who is a Program Assistant and working in the Department of Local Government for Punjab, one of the main functions of these Anjumans is to address disputes that have arisen in communities at the Union Council level and to attempt to resolve them.
He goes on to elaborate that their significance is to expedite dispute resolution pertaining to vulnerable groups that otherwise is a costly and drawn-out process in conventional courts. The key role players in this regards are the concerned Nazims, influential community leaders, ulema and respective members of parliaments if need be.
Usually, a panel comprising three members or Musaleheen, which also includes a woman, has the authority to settle conflicts and disputes centring on issues such as domestic abuse of women and children, forced labour and marriages and sexual harassment. Police stations which have such disputes in their jurisdiction are also conferred with, whereby reducing their caseload of having to directly deal with the parties involved.
What further sets these Musalihat Anjuman apart is that their services can be availed free of cost besides having them at a close proximity to the localities of the victims of the related crimes. The complicated documentation and procedure followed by mainstream courts is also bypassed and the concept is to incorporate local norms and cultural values in arbitrating. However, what remains to be seen is whether the corrupt practices and criminal elements that are already impeding the meting out of justice would also compromise the free-functioning of these decision making bodies.
The institution of Jirga, particularly Shahi Jirga, exists as a means to resolving intricate disputes between individuals and tribes
By Muhammad Ejaz Khan
In Balochistan -- which is home to Pashtoons, Balochs and others -- the Jirga system has its own importance in parts of the province where the system still exists and every minor or major disputes are resolved with the help of discussions by an assembly of tribal elders.
The institution of Jirga, particularly Shahi Jirga, has existed as a means to resolving intricate disputes between individuals and tribes for a long time. "It is one of the best systems the locals could have, but it was badly damaged by the British in pre-partition times. Otherwise it has worked well in Balochistan," says Abdul Rahim Khan Mandokhel, talking to TNS.
In Baloch-dominated areas, Jirga remained an independent tool of making important decisions during the Kalat Confederacy until 1876, and it was held regularly. But later on, the system underwent changes at the hands of the British rulers who replaced it with Shahi Jirga that largely comprised Baloch chiefs but included Pashtoons as its members. It was the Shahi Jirga which decided in favour of Pakistan. It included the members of Quetta Municipal Committee.
The structure of the Baloch Grand Jirga comprised chiefs of the tribes headed by a Khan of Kalat as the head of the confederacy with two sardars -- chiefs of Jhalawan and Sarawan of Zehri and Raisani tribes -- on his right and left sides. Under him were the chiefs of the 19 tribes including Rind, Bugti, Mengal, Muhammad Hasni etc. The Jirga included numerous sub-sardars and other notables. The notables of different tribes exercised their role as the think tank and their suggestions were honoured.
The method of Jirga was traditionally based on a proposal for which a unanimous decision was sought, based on arguments. The forwarding of proposals, as was highlighted in the present Grand Jirga, was imperative to convincing the participants to reach an agreement.
The Kalat Grand Jirga 2006 was the ultimate result of the situation that arose after the death of Nawab Akbar Khan Bugti and the public retaliation to the government policies in the major cities in Balochistan. The Kalat Jirga was convened by Prince Suleman Daud, the grandson of Ahmed Yar Khan, the last ruler of the Kalat Confederacy, in consultation with other chiefs, to support a unified action against government for their rights.
The Kalat Jirga, the first of its kind that brought together so many chieftains under one platform after more than 100 years, was attended by 85 tribal chiefs and about 300 elders. The major resolutions of the Jirga are to table its 60-year-old case of Kalat State as an independent unit after partition, about which the ICJ can give only advisory opinion and not judgment.
It is generally believed that where development is initiated, the tribal system is weakening. "Yes, it's 21st century already, and the jirga system is losing its importance," declares Mir Hasil Khan Bizenjo, who himself is a part of a tribal set-up.
--Justice (retd) Rahmat Hussain Jafferi, Sindh High Court, who imposed a ban on Jirga in 2004
By Usman Ghafoor
The News on Sunday: What was the basis of your decision to ban Jirga in Sindh?
Justice (r) Rahmat Hussain Jafferi: As a matter of fact, it was based on a constitutional petition that had been filed against a jirga decision whereby a girl had to be killed. The petitioner sought the court's intervention. So, I invited amicus curiae (friends of the court) from different bar associations, because it was a very important question to argue. Those against whom the petition had been filed were also issued notices to appear before the court with their advocates. It was a full-fledged hearing. We felt that the jirga's decision was against the constitution.
TNS: What are the drawbacks that you find in the Jirga system, as it were? Do you also believe that it imparts speedy justice when the formal courts take ages settling cases?
RHJ: See, Jirga has both merits and demerits. The foremost negative thing about it is the fact that Jirga is not according to the constitution. Clinically speaking, whatever is illegal is illegal, even if you try to give it some sort of a legal cover.
The system evolved in the times of the Britishers who invested the local sardars with certain powers in decision making. In 1972, the Abolition of Sardari System Act was enforced that sought to withdraw these powers from the sardars. The violators of the law were to be sentenced to three-year imprisonment. But it (the Act) was done away with. Later, another law was introduced to change the Jirga system, but it was also removed.
When the jirga members assemble, they try, they punish and they execute. All these powers are with the court of law. So this is totally unconstitutional, illegal.
Secondly, whenever a murder case is decided, it has legal heirs. Legal heirs means women also, but the women aren't let into the jirgas. Their viewpoint is not listened to. Condemning somebody without listening to his side of the story is against natural justice.
I agree that certain cases lie pending in the courts, but at least they are open to discussion.
TNS: Why do you think the ban was blatantly violated?
RHJ: Because people had vested interests. They had political and other reasons. They didn't want that the sardars and the waderas should be divested of these privileges. After all, in their areas, they (sardars and waderas) are looked after by the police and dreaded by the locals. This is a kind of a parallel system that had been developed to control the masses in a given area.
TNS: What are the kind of inhuman laws that are directed against women?
RHJ: Well, without listening to her you libel a woman 'kari' and punish her. Isn't that criminal? In Sanghar recently, they actually killed a girl in such a case, which was when the Supreme Court took notice of it.
Then there are cases of inheritence. In interior Sindh, for instance, a woman is given a small amount of money at the time of her marriage and she is told that she will not have any claim to inheritence. This is against the Shariah. Unfortunately, this infamous tradition is common in all influential and affluent families of interior Sindh.
The ladies, when they are brought into the court, say whatever they are forced to say. But, one can tell from their body language that they are being forced. Their resentment shows in the way they are crying.
TNS: How does the Jirga system vary from province to province?
RHJ: It is common in districts like Jacobabad and Sukkur but it is not very commonly found in Hyderabad and Sanghar. Punjab has its Panchayat which is basically an offshoot of the same. Their decisions are equally cruel and harsh. You know of Mukhtaran Mai's case.
TNS: How does the jirga come into conflict with the penal code?
RHJ: Well, if a jirga orders a murder, Section 302 applies there, immediately.
See, an assembly of people that has gathered to discuss a dispute is not unlawful. But it assumes an unlawful form as just as it passes a verdict and imposes a decision. No one can be allowed to impose their decisions on others unless permitted by the law.