11.08.2013 Jirga justice
If informal Jirga is converted into a state-supported institution, it would likely become as ineffective and defamed as other state institutions are
By Prof Dr Muhammad Taieb
As the provincial government intends to empower informal Jirga in Khyber Pakhtunkhwa (KP), therefore, the following lines are an attempt to highlight the local perspective and the complications likely to arise out of the decision? In the Fata, Jirga functions as a formal state supported institution. However, in other areas of KP, the Jirga is an informal system of conflict resolution.
Principally, KP is a modern state society but practically it hasn’t attained the characteristic features required for a modern state society. It’s still going through the stage of tribal society. The purpose of this discussion is to address the role of informal Jirga in conflict resolution in areas of KP other than Fata.
Informal system for conflict resolution which exists in Pakhtun society is Jirga and Sharia. Jirga is an egalitarian body of influential persons plus other individuals who are known for their skills in negotiation and reconciliation to come together for consultation and find out a solution to a given problem. The influential and neutral local people comprising the Jirga are normally known to all in the area for their honesty, decency, generosity, and piousness.
The basic purpose of the Jirga is to discuss the issue so as to reach a solution to a problem. Jirga is normally organised to plan an activity, to chalk out the strategy of offence and defense against enemy. The purpose of debates at Jirga is to explore the possibilities of agreement and arrive at compromises. The mediation process takes place in community places such as hujra (men house) or jumaat (mosque) and in a manner open to public.
Sharia means to resolve disputes in the light of Islamic Jurisprudence. To opt for sharia is subject to the willingness of the disputants. When disputants agree to resolve the conflict by sharia laws, the case is submitted to a sharia expert for arbitration. The expert is selected on the mutual consensus of the parties. Jirga also plays an important role in the selection of sharia expert, venue, time and date. The sharia expert discusses the case in the presence of eye witnesses. A decision made is brought in writing duly singed by the sharia expert(s), witnesses as well as the disputants. Consensus between parties beforehand over the mode of arbitration itself reflects the binding nature of decisions made by the arbitrators. Informal system of conflict resolution functions in the presence of formal state system.
Formal state system is controlled by formal courts and executives. They are generally responsible to administer official justice system in KP (Pakistan). According to peoples’ perceptions there are different causes of the inefficacy of the formal justice system which include the nature of the law that govern the official justice system and which was imposed by the British Colonial government. Other causes are related to corruption among those running the system. Therefore, justice is accessible only to the influential and those who can pay to buy justice.
As reported by Transparency International (TI) “the other sector in Pakistan which is seen as notoriously inefficient and corrupt is the judiciary. According to TI Pakistan’s 2006 survey, 96 per cent of the people who came in contact with the judiciary encountered corruption and 44 per cent of them reported having to pay a bribe to a court official.”
The decisions made by the formal system are not consensual, hence, are not fit to the psyche of the disputants. Therefore, the decisions of the formal courts are not durable to resolve conflicts permanently. The people then precisely look for an alternative system that should deliver justice in a transparent manner. The alternative system is traditional one which the disputants psychologically own because of their participation in the process and also because it ensures autonomy and shows respect to their social status and glory.
Pakhtuns believe in social equality but the formal laws are not found consistent with the tradition of social equality because in a given dispute formal court, on the basis of evidences, emphatically declare one party as a winner and another as a loser and it did not leave space for collaborative or integrative solution to the problem. Hence, the formal system of conflict resolution needs to be looked in this perspective where one litigant is declared winner and the other as loser.
Traditional system will only break down if state institutions deliver more effectively than a traditional system. But formal court does not operate in cultural framework and studies a case in isolation and does not involve disputants while formulating a judgmental decision. Hence, this nonconformity of people to formal legal system was never resolved and formal justice system has never achieved a level truly reflecting people’s satisfaction.
If we look at the proverbial saying of “the rule of law”, it is inappropriate because there is no rule of law given by the state since the law giver needs to fulfill other prerequisites that make the citizens law abiding. It is because the state institutions do not perform to the satisfaction of people, hence, the weaker role of the state forces the people to look for alternative mechanism.
Hence, instead of relying on the government, people feel secure to get organised on the basis of consanguinity. Murder cases, a prime responsibility of the modern state to resolve, are also negotiated through informal system which depicts no confidence of people in the process and procedure of formal courts. Therefore, people abide by the decision of Jirga and verdict of Sharia which ensures their socio-psychological needs as well as security which they administer themselves.
The efficacy of traditional system is rooted in cultural values because it works in a manner to satisfy the disputants in cultural context emphasising social equality, autonomy and participation.
Formal legal system is fully operational in KP. In case it works and delivers properly, people would need no additional supportive institution like informal Jirga? However, if informal Jirga is converted into a state-supported institution, it would lose its present effectiveness because state supported Jirga would likely become as ineffective and defamed as other state institutions are.