THE INSTITUTION OF JIRGAH
AND ITS ROLE IN CONFLICT RESOLUTION
In Persian it is
called majlis and in Punjabi and Hindi panchayat. The Aryan tribes, which came
down in intermittent waves from Central Asia to present Afghanistan and then
moved to India (5000 – 1500 BC), tribes practiced a sort of jirgah-system with
two types of councils – simite and sabha. The simite (the summit) comprised
elders and tribal chiefs. The king also joined sessions of the simite. Sabha
was a sort of rural council. Jirgah
means ‘an assembly, a party meets for consultation, a sort of democratic
council amongst the Yusufzi’s.’ However,
it is not limited to Yusufzai. It is the important judicial institution of
Pukhtunwali.
With the passage
of time, the jirgah widened its scope. However, in Afghanistan, it was
manipulated successfully by rulers as a forum of consultations on vital
national issues or a sort of referendum on a matter of policy. Such a jirgah,
representing all sections, sectarian, tribal and regional groups, and convened
by the ruler was termed Loya Jirgah. On the eastern side of the Durand Line,
the then British rule, and now the government of Pakistan, controls the
situation in tribal areas through the jirgah-system. In case of inter-tribal
disputes, joint jirgahs are formed for their settlement.
Various forms of jirgahs
Majlis or shura
Majlis is Persian
and Shura is Arabic, both standing for meaning similar to that of the jirgah.
In order to give the anti-Communist struggles an Islamic touch the term Shura
was applied exclusively to councils at various levels among the mujahideen and
muhajireen in Pakistan since 1978.
Local jirgah
the local jirgah/shura in a tribal setup is
called by an elder of a tribe for settling local affairs within the family,
clan, sub-tribe, tribe. This term was used in the Law of Local Organs of State
Power and Administration (1981) also with a view in exercising control by the
government on the decisions of the local jirgah.
The High Tribal Jirgah of Afghanistan
Milli Shura
The Milli Shura
is the legislature of Afghanistan where the will of the people is manifested,
and it represents the whole nation.
Wolosi Jirgah
the Lower House
or the House of Peoples of the bi-cameral parliament of the Afghanistan
Mesharano Jirgah
the Upper House
or the House of Elders of the bi-cameral parliament of Afghanistan.
Loya Jirgah
It is the supreme
manifestation of the power and will of the people of Afghanistan. The Loya
Jirgah of Afghanistan can almost be considered equivalent to the assembly of
founders in other countries but with a difference that the Loya Jirgahs are not
called in Afghanistan for promulgation and endorsing a constitution only but
can also be called as the highest manifestation of national unity and the will
of the Afghan people and as the highest gathering for conducting discussions
and making decisions on vital and significant national issues, particularly, in
hard moments of crisis and danger. The Loya Jirgah can discuss nationally vital
issues, general guide lines, domestic and foreign policies of the state and
elect leadership of the country.
Jirgah-e-Momassila
A replica of Loya
Jirgah held outside Afghanistan for unavoidable reasons. The first such a
jirgah was held in Peshawar, Pakistan, on 11-12 May 1980 which defined itself
as: “This is that important representative boy of the people of Afghanistan,
fighting for their independence, which has come forward in the extraordinary
conditions, prevailing at present, and this body, in actuality, expresses the
genuine will of the Loya Jirgah.” The second was held in Quetta, Pakistan, on
24-25 September 1981. In case of a national issue, all tribal, social, regional
and other units are supposed to be represented in what is called Loya Jirgah.
As the history of Afghanistan reveals, the Loya Jirgah has played effective
role in the economic, social and political spheres.
Composition
The jirgah
comprises two or more persons; they are normally family elders or their
representatives. Religious elders also attend jirgahs. Authority and competence
of the jirgah member depend on the nature of the problems the jirgah has to
tackle.
Powers
The jirgah
exercises both judicial and executive roles to settle all disputes pertaining
to the distribution of land, properties, blood feuds, blood money and other
important inter-tribal affairs.
Laws of Jirgah
Jirgah decide
disputes on the basis of Shariah, Pakhtunwali, tribal conventions, traditions
and principles of justice.
Qualifications
There are no hard
and fast rules for the selection of jirgah members. All reputable elders -
Speen Geeri (grey-beards) - are considered eligible for its membership.
However, for effective enforcement of the decision taken by the jirgah, the
jirgah members should have social status with sound economic position and
sufficient manpower at home. The jirgah assembles in a hujra or a village
mosque or in an open field outside the village. The jirgah members usually sit
in a circle without any presiding figure. This meeting, like the round-table
conference, without a chairman reflects their love of democracy and principle
of equality irrespective of birth, wealth etc.
Sultan Bahlol Lodhi (1451-1489), a famous Afghan ruler in India, had
formed a jirgah of elders to decide important issues. Whenever it was convened,
the Sultan used to sit among them in the circle as a member. The Lodi sultans established an efficient
administrative system in their king dom’s central provinces that served as a
model for later rulers. Bahlol and Sikander survived in part because they
distributed estates to their Afghan supporters and interfered little with their
tribal or personal independence. Similar practice was followed by Sher Shah
Suri, another famous Afghan ruler in India. He also kept a jirgah of elders and
used to sit among them in the circle.
When their descendants behaved as rulers and tried to suppress the
tribal elders, the tribes switched over to their rivals – the Mughals – to end their
rules.
Procedure
The jirgah conducts
its proceedings in a simple manner. It interviews both the parties, gives them
patient hearing and examines witnesses to ascertain the facts of the case,
although the jirgah members may know well about the facts. After searching
enquiries, the jirgah makes every possible endeavour to find an impartial and
acceptable solution of the problem. The decision is generally based on shariat
and local traditions. In serious cases the jirgah asks a party to clear itself
of the imputed charge by taking oath on the Holy Quran. This seals the issue
once for all, as the religion is the extremely strong force. The jirgah
announces its decision only when the majority of its members reach an
agreement. But jirgah members deem it prudent to obtain the consent of both the
parties before making its verdict public. This practice is known as waak or
ikhtiar (power of attorney). It is through the instrument of waak or ikhtiar
that the jirgah commits both the parties to abide by its decision. The waak
also gives a binding force or some sort of legal cover to the jirgah’s verdict
and it becomes incumbent upon the parties concerned to honour its verdict. The
jirgah warns the party, which declines its award. In such a case the jirgah may
resort to punitive actions for enforcement of its decision, which includes fine
in cash, burning of the house of the recalcitrant members. In a serious case,
when a dissident party violates the jirgah’s decision and threatens peace in
the area, tribal lashkar (irregular force) is raised to punish the violator.
Because of such stringent action no one dares violate a jirgah’s decision. The
jirgah 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 jirgah assembles on its own and persuades
the parties concerned to submit to its award. The jirgah meetings usually last
for a day or two, but in complicated cases, its deliberations are prolonged to
three or four days. It remains, however, the utmost endeavour of the jirgah to
settle the dispute amicably as early as possible.
Advantages of Jirgah System
·
Jirga administers speedy
justice
·
It works as an effective
conflict resolution tool
·
It comes up with solution to
problems
·
It resolves disputes
peacefully
·
It transforms enmity into
friendship
·
It is an inexpensive justice
system
·
It is a collective approach
to dispute resolution
·
It brings about durable
solution
·
It protects people from
complexities
·
Jirga announces verdict in
the light of local culture, customs and traditions
·
There is real democracy in
the Jirga system
·
It punishes oppressor and
helps the oppressed
·
Besides local culture,
customs and traditions, it gives weight to the teachings of Quran and Sunnah
·
Justice is not delayed in
Jirga system
·
Everyone is equal before
Jirga law
·
Structurally, Jirga is quite
a simple body
·
It promotes social harmony,
peace and tranquili
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