In a jirga, designated honourable men arbitrate conflicts, focusing on restoring societal equilibrium
irga is an all-male institution where designated honourable men - mostly family headmen, village elders, tribal chieftains and landholders - arbitrate conflicts and come up with solutions that focus on restoring societal equilibrium rather than justice and human rights. The collective decisions are socially binding. A 2017 National Commission on the Status of Women report, Women, Violence, and Jirgas: Consensus in Impunity in Pakistan, elaborates: “Jirgas are instituted and led by men who are the dominant local elite and who participate as either a hereditary privilege or are nominated because of their social or economic status. As the apex body on conflict mediation at the community level, the jirga is composed of tribal or clan chiefs as well as elite men of the community who are deputed as judges; the elders are not elected, nor do they have any legal or adjudicatory training, but consist of landholding members of the tribe who exercise considerable political power.”
Jirga’s are unpopular in the areas of Pakistan where they exist. However, in some other areas of the country there is quite a romanticism about them. According to an international study last year, 80 percent of the people in the former FATA region opposed jirgas, while 50 percent of the people in Khyber Pakhtunkhwa supported them.
Jirgas and panchayats were declared illegal and unconstitutional in a judgement by the Supreme Court of Pakistan in January 2019. The court held that “Jirgas/ Panchayats etc reinforce unfair social norms by implementing the decisions of notable elderly men of the village or tribe on its socially and financially weaker members (women and the impoverished); such bodies convene in village gatherings to resolve disputes between parties where as a matter of culture and tradition, women are a rare sight. If involved in a dispute, they are usually represented by their male kin which again is a violation of the right to due process and equality under Articles 10-A and 25 of the Constitution. Jirga/ Panchayats etc ought to be declared illegal, unlawful, inhumane and grossly violative of the fundamental right to dignity.”
Previously, in 2017, the government of Pakistan had tried to legalise these jirgas and panchayats through the Alternative Dispute Resolution Act 2017.
When a violent confrontation broke out between the inhabitants of Kalam and Utror on July 10, 2021, law enforcement agencies summoned local political leaders and asked them to find a solution. Kalam and Utror are two valleys in upper Swat inhabited by Dardic people who speak the Gawri language. The two villages have long been in a conflict over land and forest distribution in the area that occasionally turns violent.
Instead of taking action against those who had opened fire and killed some people, the Malakand commissioner invited the parties to his office. In a private conversation, the then RPO/ DIG of the Malakand division said that the chief minister did not want strict action taken against the people because it was the tourist season, and a police operation in the area might discourage tourists from visiting Kalam and Utror.
In June 2011, a woman was paraded naked as a punishment for her son’s alleged crime. In 2015, a jirga in Diamir district denied voting rights to over 12,000 women. In 2014, a jirga forced an 11-year-old girl into marriage as compensation for her uncle’s crime.
Political leaders and elders from various parts of Swat as well as Thal, Kalkot, and Lamuti in Upper Dir district, held scores of jirgas in Utror and Kalam that continued throughout 2022 until the floods in August. These jirgas did not resolve the issue either. Malak Amir Said, a local political and community leader from Kalam, stated that since July 2021, there have been many rounds of jirgas with the administration support, yet the issue has not be resolved because of the lack of “seriousness” on the part of the jirga members. In some cases, people from both sides took the law into their own hands, and the jirga failed to control them. When the people of Kalam blocked trucks containing food from being taken to Utror in August 2021, it was the police, not the jirga, that provided safe passage.
The parties involved in a conflict often try to woo or bribe the mediators. If a mediator disagrees with a party, they are seen as an ally of the rival party. Asked whether the jirgas played politics or not, Amir Said says that they are very political and partisan.
During the conflict and the arbitration by the jirga, it was observed that a majority of the youth no longer wanted the archaic justice system to continue. However, elderly men were in favour of these councils. Social activists, asking for anonymity, said these jirgas are useless and a waste of time. They say that state institutions should follow the law instead of arranging jirgas. In a recent report, the Bahrain assistant commissioner, Ishaq Ahmad Khan, stated: “It is pertinent to mention here that FIRs have been registered against the accused, but no arrest has been made so far. This has resulted in a very weak writ of the state in the area.”
Women are totally excluded from jirgas. Sabra Shakir, a lawyer in Swat, says the jirgas often violate women’s rights. She recalls that when a woman was divorced in Ayeen village, she was not given her full mehr (dower). Instead of the promised five tolas of gold, she was awarded three by the Jirga; that, too, was taken by her brother. Ms Shakir says that the government has constituted District Reconciliation Committees that have women on them. These committees are meant to resolve “minor conflicts” in a speedy manner, as people want speedy justice.
The 2017 report by the National Commission on the Status of Women in Pakistan cites numerous instances of jirgas ordering cruel punishments, disenfranchising women and forcing them into marriages as compensation. In June 2011, a woman was paraded naked as punishment for her son’s alleged crime. In 2015, a jirga in Diamir district denied voting rights to over 12,000 women. In 2014, a jirga forced an 11-year-old girl into marriage as compensation for her uncle’s crime.
On the one hand, people worry about the jirga tradition becoming extinct, while on the other, most jirga chiefs have in one way or another entered politics of the modern state and are involved in party politics. Apparently, the real reason behind this is the power that goes with it. Previously, they had exercised power through coercive force; now they seek to achieve it through electoral politics. Also, jirgas, composed of men only, can be highly misogynistic. Some of these councils treat women like commodities.
The writer is a community activist, linguist and educator based in Bahrain, Pakistan