Customs and Traditions
Customs and traditions play a vital role in the social life of any community. The culture of the members of a community and their way of life is identified by their customs and traditions. Customs, from birth to death and even after the death are of an integral part of the life of Pakistani people. But Pushtoons, as having firm and stern nature, are particularly strict in observing their customs and traditions, which has come down to them through centuries.
Pashtunwali refers to the traditional lifestyle of the Pashtun people, which is also regarded as an ancient honor code or a non-written law for its people. Though Pashtunwali is believed to date back to pre-Islamic period, its usage or practice does not contravene basic Islamic principles.
Pashtunwali is literally translated as "the way of the Pashtun". It has no meaning in the West or in most other parts of the globe, but in the villages and clans along the border it means everything. It defines them from birth. It also has meaning to the foreign soldiers that have entered to tame and control this region for generations before they were pushed out of the Pashtuns homelands. Pushtunwali, a legal and moral code that determines social order and responsibilities. It contains sets of values pertaining to honor (namuz), solidarity (nang), hospitality, mutual support, shame and revenge which determines social order and individual responsibility. The defense of namuz, even unto death, is obligatory for every Pashtun. Elements in this code of behavior are often in opposition to the Shariah law, but it is their code that sets precedent over any other law. The Pashtun are an ethnic group with an estimated 15 million people located in Southeastern Afghanistan and Northwestern Pakistan.They have a complex organization of over 60 tribes broken down into clans and even into sub-clans.
Pakhtunwali manages all social and internal affairs of the Pakhtun society manifest in Melmastia (hospitality), Nanawatai (sanctuary), nang (Honour), ghairat (self respect), panahwarkawal (providing shelter), azizwaeei/ khpelwulee (regard for relationships), kher-khegara (welfare), gwanditob (regard for neighbour), ashar (collective, cooperative work), ooga-warkawal (helping persons in need), and saree-tob (Manhood/chivalry), etc. it also represents a democratic structure through jirga (council of elders), sialy (competition) and brabaree (equality). It ia dense system in terms of serrishta, lashka, badragga (tribal escort), chalweshti (tribal force), mlatar (patrons), chagha (call for action), soolah (concilaition), rogha (reconciliation), and others. It is legal syatem in terms of jirga, nerkh (precedent, customary law), riwaj (body of traditional law), teega (truce), nagha (tribal fine), etc.
It governs, guides and balances the form, character, and discipline of the Pathans’ way of life. It is an all embracing social code which encompasses the laws, customs, traditions and ethos of the Pakhtun society. This explains the crucial importance of Pakhtunwali in the lives of the Pakhtuns. A tapah says that:
Pa Pukhtu ting Puhktun walaar day
Bey Pukhtu nah mani Pukhtun merah Pukhtunah
Translation: The Pukhtun stands firmly on Pukhtu
The Pukhtun wife does not accept a Pukhtun husband who has no Pukhtu
In the life there are many occasions when seems bound to follow these traditions. Some of the prominent traditions of the main tribes in Waziristan are listed below.
To my mind death is better than life
when life can no longer be held with honour
(Khushal Khan Khattak)
Self-respect and sensitivity to insult is another essential trait of Pukhtoon character. The poorest among them has his own sense of dignity and honour and he vehemently refuses to submit to any insult. In fact every Pukhtoon considers himself equal if not better than his fellow tribesmen and an insult is, therefore, taken as scurrilous reflection on his character. An insult is sure to evoke insult and murder is likely to lead to a murder.
Badal (retaliation) and blood feuds generally emanate from intrigue with women, murder of one of the family members or their hamsayas, violation of Badragga, slight personal injury or insult or damage to property. Any insult is generally resented and retaliation is exacted in such cases.
A Pukhtoon believes and acts in accordance with the principles of Islamic Law i.e. an eye for an eye, a tooth for a tooth and blood for blood. He wipes out insult with insult regardless of cost or consequence and vindicates his honour by wiping out disgrace with a suitable action. But the urge for Badal does not mean that he is savage, blood thirsty or devoid of humane qualities. He is kind, affectionate, friendly and magnanimous and forgives any one who kills his relatives by a mistake but he will not allow any intentional murder go unavenged. Proud of his descent, he becomes offensive only when an insult is hurled at him or some injury is done to him deliberately. He goes in search of his enemy, scans the surrounding area and hills, lies in wait for months and years, undergoes all hardships but does not feel content till his efforts of wreaking vengeance on his enemy are crowned with success. Those who fail to fulfil the obligations of Pukhto (self-respect) by wiping out insult with insult, lose their prestige in the eyes of their compatriots, render themselves liable to Paighore (reproach) and earn an unfair name. According to Nang-e-Pakhto or code of honour an unavenged injury is the deepest shame and the honour of the person can be redeemed only by a similar action. It may, however, be noted that "there is little if any random crime or violence" in the tribal areas as the stakes are too high and the retribution too certain to follow.
Sometimes a Pukhtoon becomes so sentimental that he vows not to take a meal with his right hand and sleep on ground instead of a charpaee (bedstead) until he has avenged the wrong done to him. Pukhtoon history is replete with many examples of Badal and there are instances where a child born a few months even after the murder of his father has, wreaked vengeance on his enemy after patiently waiting for many years.
The obligation of Badal rests with the aggrieved party and it can be discharged only by action against the aggressor or his family. In most cases the aggressor is paid in the same coin. If no opportunity presents itself "he may defer his revenge for years, but it is disgraceful to neglect or abandon it entirely, and it is incumbent on his relations, and sometimes on his tribe, to assist him in his retaliation". When a Pukhtoon discovers that his dishonour is generally known, he prefers to die an honourable death rather than live a life of disgrace. He exercises the right of retribution with scant regard for hanging and transportation and only feels contented after avenging the insult. Badal resulted in blood feuds and vendetta in the past, but now due to the prevalent peaceful conditions in the tribal area and with the spread of education, the incidence of Badal are few and far between.
However, the system is not without safety valves. Conciliatory forces like the jirga make efforts to tone down the reprisal or reparations trough jirga or nanwatay and such other quid pro quos as swara.
As stated earlier badal is one of the foremost codes, rules, regulations and commandments of Pukhtu and under badal beside other things, the wrong done or the murder committed is to be avenged. A negative aspect of this is that it leads to unending bloodshed. As stated earlier there are certain ways and means or codes of Pukhtu under which conciliation can be effected and the would-be bloodshed could be avoided in peaceful manner. One of such ways and means or rules of Pukhtu is nanawatay.
The word nanawatay literally means” going in” or entering into someone’s house or Hujra. It is supplication for mercy and forgiveness through surrender before the other party. In case the guilty party or the one who did the wrong, wants to bring an end to the bloodshed and dispute in peaceful way before the badal is taken the party or individual has to go to the enemy, admit the guilt, express shame and unlikeness for, throw themselves/himself or the guilty one on the mercy of the enemy and seek pardon. This is known as nanawatay. It is a sort of repentance. To express more regret on the wrong done and to give great esteem to the aggrieved side, the party who resorts to nanawatay can also send or bring with them their women; the women could also be unveiled called sartor sar; can bring Holy Quran; and also have a rope in the neck called "paray pah ghaarah tlal (going with the rope in the neck).
If the aggrieved party accepts the repentance and agrees to renounce the right of badal, nanawatay is thus honoured, a jargah is held, conciliation effected, and the matter settles peacefully. Although nanawatay, "is surrender rather than sanctuary", as also stated by James W. Spain, it is required of the aggrieved party to honour and accept it James Spain asserts that "it is a 'going in' or a 'giving in' to an enemy, carrying with it a connotation of great shame for the one who undertakes it and no obligation to accept it on the part of the one to whom it is offered." Moreover, it is certainly considered an obligation "on the part of the one to whom it is offered" to honour the nanawatay, and there is no doubt that "the honour of the party solicited . . . incur a stain" if it fails to honour the nanawatay.
Nang means honour, but the English word honour does not give the meaning and sense the Pukhtu word nang has. Being an important component of Pukhtu, nang has played vital role in the lives of the Pukhtuns in various shapes, but its foremost important role is in preserving the national honour and independence. It is nang that has compelled the Pukhtuns to take up arms for the protection of the homeland and national honour, when they are at stake; and also to retain personal, family's, beloved's, friends', sub-tribe's and tribe's esteem. It is required of a Pukhtun to be nangyaalay, meaning to possess nang, and to behave in a manner that is required of him in different circumstances and occasions. Khushal Khan Khattak says that:
Pah jahaan da nangyaali di daa dwah kaarah
Yaa bah ukhri kakarai yaa bah kaamraan shi
Although Nang is basically a personal matter, it has also assumed various ancillary form including Tor and Speen (meaning black and white i.e. guilty or not guilty). The term Tor is often applied to a woman suspected of illicit relations with a man and they both may be killed.
A nangyaalay is honoured and esteemed. Whereas ignoring and keeping aside nang is regarded beynangi, and is looked down upon. A person who has no nang is considered worthless. A tapah says that:
Pah Hindustan dey saley joor shah
Da bey nangai awaaz dey raa mah shah mayanah
The above quoted and such other verses and tapahs show how nang is regarded as playing a very important role in the lives of Pukhtuns.
Ghairat means zeal. To keep on one's own and his tribe's prestige, one has to be zealous, courageous and somewhat heedless. The one who is not zealous and courageous may come under the chapaw of others. Ghairat is a part of namus and it is said that if one has no ghairat he cannot keep his namus. Calling one Beghairat (unzealous) is insult equal to calling names. Nobody has the right to call other one as Beghairat. Ghairat does not only concern men;women also must have Ghairat. Ghairat is often tinged with fanaticism yet it helps to preserve the tribal system and is an integralcomponent of Pakhtunwali.
Literally, namus means chatity but in common usage it means 'woman'. Guarding the chastity of women is guarding namus. Wife, mother, sister and daughter froms the sequence in the order of namus. Even a new born girl, still in the cradle, is included in the namus. Disrespect for someone's namus is a grave crime and cannot be paradoned at all. The oral insult to someone's namus brings charges of nagha and sharam. In the westerntribes the agricitural land is also considered namus. In this case namus implies great patriotism. All women of a Khel khana (plarina) are common namus;a cerntral point of tribal grade. Pashtuns say' maal de sara zar au sar da namusa' meaning ' scrifice wealth to save the head, sacrifice head to save namus'.
Another important component of Pukhtu is melmastya meaning hospitality. Melmastya is an obligation, which could not be avoided. In melmastya the guests are served with food and provided with boarding and lodging if required or asked for. Melmastya is not only offered to guests who are relatives, friends and acquaintances of the host but also to strangers and those who ask for it. James W. Spain observes that melmastya "is exercised by the tribesmen to a degree frequently embarrassing to the guest - whether he be foreigner who knows he will never be in a position to return it, or fellow-tribesman who may fear that he will not be in a position to return it adequately when the occasion demands.”
It is noteworthy that an important thing counted in melmastya is the warmness with which the guest is received and the manner in which he is served, and not the foodstuff served. That is why there are a number of Pukhtu sayings in this respect. One of the sayings states not to look at the foodstuff I offer but see the warmth and joy in my eyes; and another one says that the delicious foodstuff served with a frowns on the forehead of the host is not worthy to have.
Another thing connected with melmastya is protection of the guest. If the guest had enmity or he needs protection due to some other reason, his protection is regarded responsibility of the host till the time he remains guest with him or in the limits of his house or in his territorial limits.. The 'protection of a guest is considered obligatory to such an extent by the Pukhtuns that a "British administrator, who had' no good opinion about the Pukhtuns, had stated in his report that "for gold, they will do almost anything except betray a guest." James W. Spain observes that: On occasions, protection may be extended into a wider sphere by proclaiming the visitor the guest of a particular chieftain or clan as long as he remains within the Pathan community. This is traditionally symbolized by giving of a possession of the sponsoring chieftain, perhaps a dagger or a garment, which the guest wears as a symbol of the protection he is under. . . . Violence or hurt of any kind is almost never offered to a bonafide guest, regardless of how poor or distasteful he may be - both because of the high regard in which the obligation of melmastia is held and because of the obligation to take badal which would automatically be placed upon the host.
The most important body of customs, social and legal precepts, next to Pakhtunwali, is riwaj. It means a body of customs which has over time assumed the status of usage, and frequently, the prevailing l;aw. It is basically a body of social customs. Sometimes the term riwaj is used in contardictio with Shari’ah (Islamic Law). It has more in use than the Islamic law. Riwaj is a set of micro-social practices. While, Pakhtunwali has a universal nature, social practices dictated by the riwaj vary from tribe to tribe and place to place.
It is required of every Pukhtun to abide by riwaj meaning to observe the norms and values of the society in any case or in other words to 'do in Rome, what the Romans do.' Although riwaj varies from tribe to tribe or from locality to locality, in respect of various matters, abiding by riwaj is considered obligatory. That is why a Pukhtu saying is that 'da kali uzah khu da narkhah yi mah uzah meaning that leave the village if you are not happy in it but abide by its prevalent custom whether you like it or not.
Riwaj in this context means custom and customary law. In Pukhtu, riwaj governs the conduct, lives and behaviour of the Pukhtuns to a greater extent. The parties to a dispute usually refer the matter to be decided according to riwaj or shariah, depending from area to area. There is often a divergence or clash between riwaj and shari’at in some matters, e.g. giving share of inheritance to the daughters. Shari’ah strongly ordains giving share in 9inheritance to the daughters, while under the pretext of riwaj the female are deprives of their share. A widow is entitled to a second marriage according to shari’ah but the riwaj does not allow it. A vast majority of Pakhtuns give precedence to riwaj over the shari’at and there is a saying that there ias an appeal against a decision under the shari’at but not under the riwaj.
A jirga holds a central position in the Pakhtun society. Jargah means: consultative assembly; forum; council; council of the tribal chiefs. It is a body or council of elders and is the central forum with many purposes.
Hujra is a common sitting or sleeping place for males in the village. Visitors and unmarried young men sleep in the hujra. Expenses are usually shared by the village.Almost every hujra has a mosque adjacent to it in the village structure.
The Hujra, which represents the sociable character of the Pukhtoons, is a useful institution and it plays a pivotal role in their daily life. It serves as a club, "dormitory, guest house and a place for ritual and feastings". It is a center for social activities as well as a Council Hall for the settlement of family and inter-tribal disputes. It is used as a male dormitory where bachelors of the village sleep. It is a guesthouse where guests are jointly entertained by village folk and a community center for betrothals, marriages and social functions. Even condolences are offered in the Hujra on the demise of a person and here sympathy is expressed with the bereaved family. It is a place of public resort where village elders and youngsters get-together in their leisure hours to discuss tribal, national and international affairs and matters of mutual interest. "The guests and strangers are fed and sheltered free of all charges in the village Hujras".
The Hujra and Jirga are interring related. It is not only a meeting place of the villagers but it is also used as a platform for the Jirga's meetings where important decisions are made and family quarrels and tribal disputes are amicably resolved. In some places the Hujra happens to be the property of one man but in tribal areas it is a common property. Hujra, Hubble bubble (Cheelam) and Rabab (String instrument) and an earthen pitcher are inseparable and are considered its part and parcel. Though the hubble-bubble still retains its old place yet the music of Rabab with the accompaniment of the pitcher is vanishing and their place is being taken up by radio, transistor and television sets.
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, by which most community business, both public and private, is settled in the North West Frontier Province (and also Balochistan), is probably the closest approach to Athenian democracy that has existed since times immemorial. The Jirga represents the essence of democracy in operation under which every individual has a direct say in shaping the course of things around him. It provides the umbrella of safety and security to the weaker sections of the tribal people from the mighty ones.
It is the only vehicle by which the political administration in the tribal areas dispenses justice. Because the political administration lacks the authority to enforce peace, a Jirga is constituted to make a truce and place a Tiga, literally a stone, between the warring parties.
Sitting in a circle, the Jirga has no speaker, no president, no secretary or convener. There are no hierarchical positions and required status of the participants. All are equal and everyone has the right to speak and argue, although, regard for the elders is always there without any authoritarianism or privileged rights attached to it. The Jirga system ensures maximum participation of the people in administering justice and makes sure that justice is manifestly done.
The composition of a Jirga may be categorized in two ways. One is the representative level of a Jirga where the Jirga may represent a party, a village, or an area or region. In the second level, the Jirga serves a particular role, which can vary depending on the circumstances. Some examples of these roles are diplomatic missions, peacebuilding interventions, or small juries.
The nature and scope of a specific Jirga can vary and there is generally no clear distinction between types of Jirga. However, most writers have delineated Jirga into four general types: Sarkari, Qaumi/ Ulusi, Shakhsi, and Loya Jirga.
Sarkari or Governmental Jirga
Sarkari Jirga refers to a Jirga sponsored by the government. In the tribal areas of NWFP, the British established a contract with the locals allowing them to settle all issues between themselves and the government through a local Jirga. This contract was pronounced through the Frontier Crimes Regulation of 1901 Act allowing a representative of the government to regulate the formation and reformation of Jirga(s).
Under Frontier Crimes Regulation (FCR) 1901, the magistrate, the political agent or his assistant can designate a group of elders to try a criminal or civil case. The FCR authorizes settlement of quarrels by this Jirga. Jirga members, two or more depending on the nature and importance of the case, are nominated arbitrarily by the concerned government official. The Jirga calls the parties, analyzes the evidence, and recommends a verdict to be considered for approval by the government authority. There is an appellate tribunal of the government that then examines the Jirga decision. This Jirga can recommend a maximum penalty of up to fourteen years imprisonment and pass awards based on the local traditions. The political agent can approve such recommendation and enforce the decision.
The main components of the Sarkari Jirga are:
- A government representative
- A case registered by one of the parties or cognizance of a situation by the government
- Written referral of the case to the Jirga nominated by the government official
- Recording of statements of the parties by the Jirga
- Visits to the disputed sites by the Jirga members
- Recording of further evidence by the Jirga members
- Presentation of recommendations to the government agent
- Consideration, approval, or disapproval of the recommendations
- Reference back to the same Jirga for reconsideration in light of new facts
- Announcement of the award
- Right of parties to appeal
- Implementation of the award
In this case, nomination of the Jirga members is the most sensitive element because selection of such members who lack the confidence of the community can put the whole process of Jirga at risk. Jirga members are selected from a panel of Malaks or liaison people maintained by the government. To maintain transparency, the government officials may ask the parties to mutually agree to nominate the members themselves. In case of a disagreement, parties are asked to nominate an equal number of Jirga members to represent their respective sides, and the government has the right to nominate the referee among them. In all cases, however, the decision of the Jirga members is unanimous. In case of a dissent by one of the members, the same is noted on records similar to the proceedings of a jury.
Qaumi/ Ulusi or Local-Representative Jirga
Ulas means people and Qaum means community. Thus, Ulasi Jirga is an assembly of the elders comprising each household of a certain village or community. It is convened to discuss matters such as collective property, rights and distribution of irrigation water, or common concerns, like the selection of a site for a school, etc. Ulasi Jirga is announced after initial consultations of a few elderly leaders of the community. The venue and time of such an assembly is also given. It is an open assembly in which each person is allowed to speak and all opinions are given space. The decision may be taken in one or more sessions if the issue needs private deliberations by different stakeholders.
The jurisdiction of this type of Jirga is much wider than any other type of Jirga. The Qaumi Jirga can take up any issue of national or community interest. A Qaumi Jirga can:
- Hold as many sessions as needed
- Undertake any issue of interest or concern to the community
- Announce any interim decisions
- Make new laws or rules for the tribe, like grazing rights, water rights, etc.
- Invite volunteers as a work force
- Raise taxes for community work
- Go as a delegation or
- Send delegations to parties or
- Send delegations to the neighboring tribes (in case of an intertribal issue)
- Declare war and peace with a neighboring tribe.
In this kind of an assembly, all participants have a right to speak, but most prefer to observe only. Without any formal facilitator each one offers the other the opportunity to start the talk. In the end, someone begins with a tale or a narrative, setting the stage for a discussion on the issue. Various parameters of the issue are discussed by addressing the concerns of each individual from the community, while the leadership listens and facilitates further talk. Finally, a common ground is identified and announced for agreement by all.
Shakhsi or Third-Party Jirga
This Jirga is formulated in the case of a dispute that arises between two individuals or families. The Jirga members are chosen from both of the parties or both parties agree to the nomination of neutral members. Balance and neutrality are important in order for the members to arrive at a just settlement that is acceptable to both sides. Failure of one party or the other to accept the verdict of the Jirga puts the credibility of the Jirga at stake, creating a situation where the original Jirga becomes a party in a second or even third Jirga. Until both parties voluntarily agree to accept such a verdict, or until the Jirga has the powers and resources to mobilize a Badraga for implementation of their decision, a misjudgment by the Jirga will not stand the test of Justice. Again raising the Badraga brings the Jirga’s decision to the awareness of the whole community, thus keeping the process in check. Because the process of Shakhsi Jirga involves adjudication of the dispute through a process similar to arbitration, credibility is crucial. The following steps are involved in Shakhsi Jirga:
- One of the parties approaches certain members of the community known as Jirgamar, states an issue and asks for intervention, or
- Both the parties agree to settle their dispute through third party intervention.
- The Jirgamar approached by the parties gives an initial hearing and advises the party or the parties on an appropriate direction.
- The Jirgamars may advise the party or parties to involve other people more appropriate for the case.
- Jirga members establish a channel of communication with and between the parties.
- On minor issues, the Jirga establishes a face saving norm to settle the matter publicly
- If the issue is complex and involves due judgment by the Jirga, parties are asked to delegate powers to the Jirga to decide the issue (This is also known as Waak or consent of the parties).
- Parties give unconditional powers to the interveners to decide the issue between them.
- Parties are asked to deposit surety or bond, which can be confiscated later if one of the parties decides to withdraw from the consent given earlier.
- Jirga hears the parties, sometimes face to face, at other times one after the other.
- The situation is placed openly before both the parties at all stages of negotiation, or
- The parties are told only the good side of the story, while the Jirgamars search for common ground.
- After clarifying the issues with both the parties, taking all possible evidence and applying the local traditional laws, Jirga gives a verdict, which both parties must accept.
- In case a party does not publicly accept such a verdict on grounds of injustice, the same party must convince a more credible Jirga to intervene and reconsider the issue.
- When the Jirga members and the community are convinced of malice by one party, such a party is socially cornered and the victim gets the legitimacy to engage in self-defense.
- In such a situation, the Jirga might even call for raising a militia (Badraga) from the community to enforce such a decision.
Loya or Grand Jirga
Loya Jirga, or the grand assembly, is a process through which representatives of various areas organize to discuss and vote on issues at the national level. A question about the representative status of these participants is usually quite sensitive and, if the Jirga is even slightly mishandled, the credibility of this national level process quickly looses its efficacy. As discussed earlier, representation or selection of members of the Jirga is a delicate process. Each representative must have the unquestionable confidence of the community he represents and each community must be duly represented at such a Jirga. Each member must be heard at the conference and concerns raised by a member must be taken into account while collective decisions are being made. All decisions of a Jirga must be unanimous.
The institution of Loya Jirga in Afghanistan has gained legitimacy as a constitution-making body because of the frequency of its practice. There is no fixed size for this kind of a Jirga. The framework for representation is defined by the convening authority, where each administrative unit is allowed to bring forward a representative. Major tribes are also given rights to send representatives and similarly special representation may be allowed for women and minorities. This is a one off assembly convened to address a specific issue or situation of highest national interest.
The process of selection of the representatives is often tedious, as there must be a universal agreement to the framework through which the nominations are made. Different methods of selection are applied by the central government, but rarely has the government been able to find an undisputed formula to represent the whole width and breadth of its population. As such, each geographical district and each major and minor tribe must be judiciously represented.
Outside Afghanistan, the concept of Loya Jirga is applied at the geographical agency level in the Federally Administered Tribal Areas (FATA) as well. The Loya Jirga of a particular agency might be formed to discuss an issue with an adjoining agency. Subsequently a Loya Jirga of all the tribal districts (agencies) may be formed to raise an issue collectively with the government or to set up a new law for the collective tribal life. The selection of the members of a Loya Jirga is also done through the process of Jirga. Small and mid-level Jirgas representing communities choose their representatives for a higher level Jirga.
Selection of the Jirga
The selection of the Jirga members varies according to the type of Jirga. For Sarkari Jirgas, usually the members are selected from the notable elders or the Maliks of the area. In a Shakhsi Jirga the government selects and appoints two members from each side, whereas one member each is selected by the consent of the parties in the dispute. In case of the Ulusi Jirga, the members are usually comprised of elders of the notable families whose social standing and experience with the Pashtoonwali entitles them to a place on the council.
The size of a Jirga varies from one situation to another, based on the nature, significance and sensitivity of the dispute. It might consist of one member, although two members are more usual and often there are four or six experienced members, fully conversant with the laws of the Pashtoonwali.
How the Jirga works
The Jirga or a Maraka comprises the ‘Spin Giris’, white bearded elder men, and other members. The ‘spin giris’ act as judges and those participating as jurists. The Maraka passes a judgment after necessary investigation into the dispute. No effort is spared to reconcile the disputing parties. The decisions are of two types, one is based on the concept of Haq; the right, and the other on Waak; authority. Both sides are allowed to present their arguments before a decision is given.
In case of Haq, each party has the right to challenge the decision of the Jirga on its merit. If one of the parties is not satisfied with the verdict and feels that the Jirga has not done justice, they can quote precedents and rules (Narkh) to plead their point and reject the decision. It is interesting that different tribes may have different Narkh in similar cases. In that case, the aggrieved party has the right to bring another Maraka to re-examine the issue. In doing so, usually the decision given on the third occasion is considered to be final.
In the case of Waak, the two parties repose their full confidence in the Jirga and authorize it to decide the case according to its best judgment. The parties have to abide by the decision and cannot challenge it. However, the decision has to be unanimous.
The Jirga determines the punishment to be inflicted on the basis of Narkh (tribal rule, or precedent). Anyone who then does not abide by the decision of the Jirga is subjected to punitive measures. This practice varies from one part of the tribal areas to another. Usually, anyone who rejects collective wisdom takes a grave risk; for a Jirga can impose powerful sanctions to enforce its judgment. The sanctions can include ex-communication of the non-complying person or a group. The Jirga can confiscate rifles belonging to the non-compliant party and place them with the Jirga as ‘Gravey’ (mortgage), or impose heavy fines to be paid to the complying party in the dispute. If non-compliance persists, the Jirga can use force by sending men to burn down the party's house(s). If someone still remains defiant and does not comply with the Jirgas orders, he is considered to be ‘Kabarjan’, the arrogant one. By doing so, he loses the security promised by the Jirga, and thus may be killed without any consequence by his opponents.
The collective decisions of Qaumi or Ulusi Jirgas are carried out by a council of the tribesmen under different names: these are the Salwaikhtee (40’s) in Waziristan, the Lashkar in Afridwala and the Rapakian in Kurram. Typically, the council comprises about forty members and its effectiveness is determined by the strength and sanctions they derive from the tribal people, whom they represent.And so, the Jirga continues to be the sole judicious mechanism used to administer justice in the tribal areas of Pakistan.
Role of jirga
A jirga has both a horizontal and a vertical role. Horizontally, its main role is dispute resolution whereby it adjudicates over crimes and infringements as a jury. Vertically, jirgas are involved in establishing upward and downward linkages to and from the government, interface with other tribes, diplomatic, legislative, peace building, developmental and arbitration roles. It reflects the Pakhtun worldview and also gives both a voice and effect to Pakhtunwali, with which it is inexorably tied.
The jirga addresses issues between individuals and between communities, and hence carries out the important assignment of consensus building among the various competing stakeholders. Therefore, it has both a tactical and a strategic role. Due to its inherent simplicity, it ensure quick, cheap and certain justice compared with country’s judicial system which is very complex, time consuming, costly and elusive by comparison. The jirga is flexible and operates in close inter-personal contact with parties.
It is multi-purpose assembly headed by the mashers (elders) or Maliks or Spingireh with a social purpse of dispute settlements and conflict resolution whereby the elders decide a problem, dispute or conflict whether it is individual or communal. It has been the forum and assembly where issues of common interest have been discussed and decided. Unlike the modern Western democracy, the decisions are not made by majority votes but by consensus or in other words unanimously after the deliberations. As such, the binding force of these decisions is greatly strong. It was due to institution of jargah that in absence of a central authority, government, governmental departments and machinery both the personal and communal disputes were settled and the common and communal matters were conducted and dispensed in Pukhtu. This age-old institution still functions successfully in many ways.
Thus, it is the institution and system of jargah which meets the need of solving and deciding common, communal, tribal and inter-tribal problems, issues and disputes etc. as well as personal, domestic, inimical affairs between families, and so forth.