A CRITICAL ANALYSIS OF JIRGA AS A POTENTIALLY VIABLE AND EFFECTIVE MEANS OF ALTERNATE DISPUTE RESOLUTION

Presented by: MUHAMMAD SIRAJ KHAN

LLM Scholar Session 200 !"0#

LAW COLLEGE, UNIVERSITY OF PESHAWAR

A$S%RA&%
This article presents an analysis of Jirga as operated in the Federally Administered Tribal Areas (FATA) as a means to resolve the disputes and examines its potentials as a form of Alternate Dispute Resoution (ADR). t further suggests that the institution of Jirga shaould be given recognition and legal protection as it has sprung from the roots of local customs and traditions of the tribal belt. The article concludes that Jirga is an institution and if it has been given validity and protection under the !onstitution" it may be used an effective tool to cop #ith the current issue of terrorism #hich has affected not only the FATA but the country as a #hole.

%H' INS%I%U%I(N () JIR*A

&on+licts and the ,odes to resol-e the, are as older as h.,an societies the,sel-es# Pathans/ bein0 a 1eo1le o+ .ni2.e characteristics/ ha-e held the conce1t o+ Jir0ah 2.ite sacred to the,/ 3hich o1erates as a ,echanis, o+ con+lict resol.tion in a tribal society +ro, ti,e i,,e,orial# %he instit.tion o+ Jir0ah is a -iable/ dyna,ic/ and ti,e!hono.red traditional Pashtoon instit.tion/ -ery ,.ch o1erati-e in the tribal belt s1eci+ically and is 3o-en co,1letely into the social +abric o+ Pathan society# It is not only hel1+.l to resol-e ,any local con+licts b.t is also 1layin0 its role in settlin0 ,atters at national le-el a,on0 tribes and is a 1o3er+.l channel o+ co,,.nication a,on0 the 1eo1le o+ )A%A#

D')INI%I(N () JIR*AH
Accordin0 to the Pashto Descri1ti-e Dictionary/ Jir0a is an ori0inal Pashto 3ord/ 3hich in its co,,on .sa0e re+ers to the 0atherin0 o+ a +e3/ or a lar0e n.,ber o+ 1eo1le4 it also ,eans cons.ltation accordin0 to this so.rce# " %he 3ord Jir0ah is also .sed in Persian/ and accordin0 to

$hyathul%&ughat / it is deri-ed +ro, 3ord 'irg" 3hich ,eans a 53restlin0 rin05/ or 5circle5/ b.t is co,,only .sed to re+er to the 0atherin0 o+ 1eo1le# 2 %hese ,eanin0s o+ 'irg and 'irga stron0ly re+lect the rit.als and 1rocesses o+ the Pashtoon traditional tribal Jir0a 3here 1eo1le 0ather and sit in a lar0e circle in order to resol-e dis1.tes and ,a6e collecti-e decisions abo.t i,1ortant social iss.es# R.bin 7" 89/ a 1ro,inent scholar/ describes the instit.tion o+ Jir0a in this 3ay: :%he Jir0a incl.des all ad.lt ,ales and r.les by consens.s# In theory/ a Jir0a can be con-ened at any le-el o+ tribal or0anisation/ +ro, the s,allest linea0e to an entire con+ederation# Jir0as are ,ost co,,only held at the linea0e le-el/ b.t there are lar0er tribal or e-en inter!tribal Jir0a as 3ell/ at least a,on0 the eastern Pashtoons#; < %o a co,,on 1erson/ Jir0a is a body co,1rised o+ local/ elderly/ and in+l.ential ,en in Pashtoon co,,.nities 3ho .nderta6e dis1.te resol.tion/ 1ri,arily thro.0h the 1rocess o+ arbitration# &o,1ared to the =.dicial syste, o+ the 1resent day 0o-ern,ents , Jir0a ens.res a +ast and chea1 =.stice to the 1eo1le# Indi0eno.s to Pashtoon tribal co,,.nities/ Jir0a is ali-e e-en in the areas no3 in+l.enced by an An0lo!Sa>on le0al syste, and is .sed +or inter1ersonal dis1.te resol.tion# Pro,inent 3riter on Pashtoons/ Syed Abd.l ?.d.s o1ines on Jir0ah as: @%he Jir0a/ by 3hich ,ost co,,.nity b.siness/ both 1.blic and 1ri-ate/ are settled in the North Aest )rontier Pro-ince 7and also $alochistan9 and A+0hanistan/ is 1robably the closest a11roach to Athenian de,ocracy that has e>isted since ti,es i,,e,orial# Syed Abd.l ?.d.s also relates Jir0a to de,ocracy: %he Jir0a re1resents the essence o+ de,ocracy in o1eration .nder 3hich e-ery indi-id.al has a direct say in sha1in0 the co.rse o+ thin0s aro.nd hi,# Practiced this 3ay/ de,ocracy o1erates as a s1irit.al and ,oral +orce instead o+ beco,in0 an a.to,ation o+ -otes#@ B It is 3hat S1ain7" C29 also obser-es 3hen he says/ Dthe Jir0a is the closest thin0 to the Athenian de,ocracy that has e>isted since the ori0inal#E 8 Jir0a is also tho.0ht o+ as a c.sto,ary =.dicial instit.tion in 3hich cases are tried and re3ards and 1.nish,ents in+licted# )ro, the o.tset/ the .se o+ the Jir0a is li,ited not only to trials o+ ,a=or or ,inor cri,es and ci-il dis1.tes/ b.t it also assists in resol-in0 con+licts and dis1.tes bet3een indi-id.als/ 0ro.1s/ and tribes#

)(RMS () JIR*AH
Jir0ah is a -ery +le>ible ,echanis, o+ con+lict resol.tion/ and can be ,olded accordin0 to the circ.,stances# %he 0rie-o.sness o+ dis1.te and the 1arties concerned deter,ine the siFe and i,1ortance o+ a Jir0ah# *enerally a Jir0ah ,ay be a Mara6a/ Sha6hsi/ (l.si or ?o.,i/ Sir6ari/ or Loya Jir0ah#

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MARAKA

It is the ,ore co,,on and in+or,al Jir0a that o1erates in the tribal areas# Literally/ Mara6a ,eans cons.ltation# It is a 0eneral asse,bly o+ 1eo1le in 3hich i,1ortant collecti-e iss.es are disc.ssed/ o1inions so.0ht/ and decisions ta6en# It does not ha-e any le0al ad,inistrati-e a.thority# %h.s/ a Mara6a ,ay re1resent a 3hole tribe/ a clan/ a s.b!clan/ a section/ or e-en a sin0le +a,ily/ de1endin0 on the nat.re o+ the iss.es +or 3hich it is con-ened# It can be said that e-ery Jir0ah contains a Mara6a 3hereas4 e-ery Mara6a does not necessarily a,o.nt to a Jir0ah#

2#

SHAKHSI JIR*AH

Ahen a dis1.te arises bet3een t3o indi-id.als or +a,ilies/ the Jir0ah constit.ted to sol-e the 1roble, is 6no3n as Sha6hsi Jir0ah# %he ,e,bers o+ this Jir0ah are chosen +ro, both the 1arties to arri-e at a =.st settle,ent acce1table to both sides# %he 1arties a11oint t3o or ,ore arbitrators by the,sel-es/ nor,ally res1ectable elders :,asharan; 3ithin their +a,ily or/ in so,e cases/ 3ithin the tribe# %he sanction behind the en+orce,ent o+ the decision o+ s.ch Jir0ah is the social 1ress.re o+ the 3hole tribe# '-ery one in a tribe res1ects its elders4 there+ore/ their decision is also res1ected# A 1erson 3ho -iolates a -erdict o+ a Jir0ah is conde,ned in his tribe/ and not tr.sted any,ore by others +or his 3ords or 1ro,ise#

<#

SARKARI JIR*AH

Sar6ari ,eans so,ethin0 relatin0 to the *o-ern,ent# Under the )rontier &ri,es Re0.lations 7" 0"9/ a Political A0ent 7PA9 o+ an a0ency has 0ot the 1o3ers o+ a ,a0istrate and can ad=.dicate .1on ,atters o+ both ci-il or cri,inal nat.re# He can also a11oint a Jir0ah to assist hi, in ,atters o+ ad=.dication and ,ay deli-er his 1o3ers to s.ch a Jir0ah# S.ch a Jir0ah is called :Sar6ari Jir0ah;# A Jir0ah a11ointed by the Political A0ent 7PA9 consists o+ noble ,en o+ a tribe 3ith 0ood character and their selection de1ends .1on the discretion o+ the PA# %he Jir0ah s.b,its its re1ort to the Political A0ent a+ter in-esti0atin0 into the iss.es in-ol-ed and debatin0 o-er the, thoro.0hly# %he Political A0ent/ ho3e-er/ is not bo.nd to obey their decision or +indin0s# Under the )rontier &ri,es Re0.lations/ a Jir0ah a11ointed by the Political A0ent ,ay ad-ise a ,a>i,., 1enalty o+ +o.rteen years +or i,1rison,ent# C

B#

?AAMI JIR*AH

?a3, ,eans Nation and th.s a National Jir0ah is 6no3n as ?a3,i Jir0ah# It deals 3ith serio.s and i,1ortant con+licts and iss.es either 3ithin the tribe or bet3een tribes# As a ?a3,i Jir0ah o1erates at a hi0her le-el o+ tribal +or,ation/ there+ore/ its social or0aniFation is ,ore str.ct.red# D.rin0 the 1roceedin0s/ the ,e,bers o+ the Jir0ah sit in a circle/ in a s1eci+ically desi0ned 1lace/ 3hich ,ay so,eti,es ha-e a +la0# %his 1hysical or0aniFation o+ the Jir0ah hel1s to create a social at,os1here 3here 1eo1le see each other as e2.als# In 3ords o+ *latFer 7" G9/ DAccordin0 to tribal e2.ality/ e-ery +ree and e>1erienced +ree ,ale 1erson o+ the tribe has the ri0ht to attend/ s1ea6 and to decide#E H Indeed/ there is no hierarchy o+ s1ea6ers and no chair1erson in the Jir0ah 1rocess# %he deliberations o+ the Jir0ah ,ay ta6e days de1endin0 on the co,1le>ity o+ the iss.e and on reachin0 a satis+actory decision# %hro.0ho.t this 1eriod/ tribal leaders/ or other 3ell 3ishers host the Jir0ah#

8#

L(IA JIR*AH

%he 3ord :Loya; ,eans :*rand; and th.s Loya Jir0ah/ as its na,e sho3s/ ,eans a *rand Jir0ah that is co,1osed o+ all tribes o+ )A%A# S.ch a Jir0ah is rarely called .1on 3hen a serio.s and i,,ediate national threat

or 1roble, is con+ronts the 3hole re0ion o+ )A%A or the ,a=ority o+ tribes# A Loya Jir0ah ,ay also be called/ as it ha11ens nor,ally/ by the *o-ern,ent or a+ter a consens.s in a Mara6a a,on0 the ,ost in+l.ential leaders o+ the ,a=or tribes o+ )A%A#

S'L'&%I(N () %H' JIR*AH

%here is no 1artic.lar 1rocess to select or a11oint the Jir0ah ,e,bers# %he ,ode o+ selection -aries accordin0 to the ty1e o+ Jir0a# )or a Sar6ari Jir0as/ the ,e,bers are .s.ally selected a,on0 the notable elders or the Mali6s o+ the area# %he Political A0ent 7PA9 ,a6es the selection o+ the ,e,bers o+ a Sr6ari Jir0ah/ ho3e-er/ he can not i0nore in+l.ential 1ersonalities o+ the area# In a Sha6hsi Jir0a the 1arties the,sel-es select and a11oint the ,e,bers thro.0h consens.s in a Mara6a/ at least t3o ,e,bers +ro, each side# In case o+ the Ul.si Jir0a/ the ,e,bers are .s.ally co,1rised o+ elders o+ the notable +a,ilies 3hose social standin0 and e>1erience 3ith the Pashtoon3ali entitles the, to a 1lace on the co.ncil#

%H' &(MP(SI%I(N AND PR(&'DUR' () JIR*AH

A Jir0ah is the ,ain tool 3here iss.es o+ national interest are disc.ssed and decided# It does not only hel1s to resol-e a con+lict b.t also 1ress.riFes the 1arties to i,1le,ent the decision o+ the Jir0ah# %he .nri-aled .ni2.eness o+ Jir0a instit.tion is its +le>ibility as it ,o.lds and ado1ts itsel+ accordin0 to the nat.re o+ a ,atter# %here+ore/ it is not easy to describe a 1artic.lar str.ct.re or co,1osition o+ Jir0a# Li6e its co,1osition/ the siFe o+ a Jir0ah also -aries +ro, sit.ation to sit.ation/ based on the nat.re/ si0ni+icance and sensiti-ity o+ the dis1.te# It ,i0ht consist o+ one ,e,ber/ altho.0h t3o ,e,bers are ,ore .s.al and o+ten there are +o.r or si> e>1erienced ,e,bers/ +.lly con-ersant 3ith the la3s o+ the Pashtoon3ali 7the .n3ritten code o+ 1ashtoon tribes9# A Jir0ah can be constit.ted on the re2.est o+ either o+ the 1arties to a dis1.te or thro.0h an inter-ention by the elders o+ the tribe to 3hich the 1arties belon0 or any other tribe# %he Jir0ah 1roceedin0s ,ay also be

initiated thro.0h an o++er ,ade by a res1ectable 1erson or tribe to arbitrate bet3een the 1arties to a dis1.te# In case o+ Sar6ari Jir0ah/ the *o-ern,ent ,a6es the initiati-e by callin0 in+l.ential 1ersons and tribal chie+s 7Mala6s9 o+ the area/ as6in0 the, to 1ers.ade the 1arties to ne0otiate# %hese local ,ediators inter-ene to achie-e a tr.ce 7ti0a9 bet3een 1arties in a cri,inal case/ or to obtain sec.rity 7$ara,1tha9 in cash or 6ind +or ci-il dis1.tes# %herea+ter/ 1arties ,.st arri-e at a consens.s concernin0 the ,ode o+ settle,entJarbitration/ ri3a= 7c.sto,ary la39 or Shariah 7Isla,ic la39# (nce the ,ode o+ settle,ent is a0reed .1on/ ,ediators arran0e +or the selection o+ a =ir0a 3ith the consent o+ the 1arties to the case# (nce the 1arties to the dis1.te a0ree to ne0otiate/ then Mara6Fan or Jir0ah!,aar are a11ointed in a Mara6ah# %he a11oint,ent o+ :Manse+.n; or the arbitrators is also ,ade in the sa,e ,ara6ah/ 3hich/ in ,ost o+ cases/ are the Jir0ah!,ar or 1ersons reco,,ended by the,# In the sa,e Mara6ah/ a date and 1lace is also s1eci+ied thro.0h consens.s +or holdin0 the +irst +or,al 1roceedin0 o+ the Jir0ah# All 1arties concerned are s.,,oned and the date/ 1lace and ti,e o+ the Jir0ah are 1.bliciFed by beatin0 dr.,s and by ,a6in0 :elaan; 7a3areness ,essa0e9 in the local ,os2.es# %he 1arties concerned then ha-e their o3n local Mara6a or cons.ltation in order to de-elo1 a .ni+or, and syste,atic ar0.,ent +ro, their side# %he 1roceedin0s o+ a Jir0ah co,,ences on the +i>ed date/ 1lace and ti,e/ ho3e-er/ s.b=ect to the 1resence o+ all dis1.tin0 1arties# I+ any o+ the 1arties interested is not 1resent/ the 1roceedin0s are ad=o.rned +or a ne>t date/ on 3hich the attendance is ,ade ,andatory# I+ a 1arty does not a11ear on s.ch a date/ the Jir0ah is a.thoriFed to i,1ose any 1enalty/ ,ostly in the +or, o+ +ine/ .1on s.ch 1arty# It ,ay be noted here that there is no conce1t o+ :'>!Parte Decree; in the Jir0ah 1roced.re# A -erdict can not be 0i-en a0ainst a 1arty in its absence# %he +irst 1re!re2.isite +or Jir0ah 1roceedin0s to co,,ence is the 1resence o+ all sta6eholders on the s1ot# A+ter the a11earance o+ 1arties concerned/ the Jir0ah nor,ally as6s the, to +.rnish a sec.rity called :$ara,tha;/ 3hich ,ay incl.de 0.ns# %he ret.rn o+ $ara,tha is s.b=ected to obedient beha-io.r o+ the 1arty# I+ a

1arty does not acce1t the :Pri6rra; or decision o+ a Jir0ah/ it has to lose its :$ara,tha;/ 3hich ,ar6s a sha,e .1on it#

APPLI&A%I(N () NARKH
(ar)h re+ers to the cent.ries!old body o+ the ci-il and 1enal tribal :c.sto,ary la3s;# Ahile these :la3s; are totally .n3ritten/ they are 1art o+ the collecti-e conscio.sness o+ a tribe# As the +a,o.s Pashto 1ro-erb 0oes that : De #atan na #o#*a )ho de nar)h na ma #a*a ;/ 3hich ,eans that :yo. ,ay abandon yo.r tribeKho,eland/ b.t yo. can not abandon nar)h. ; %his i,1lies that these c.sto,ary la3s ha-e 1ro+o.nd e>istence in the ,inds o+ local 1eo1le# %he Jir0a,aars are nor,ally e>1erts in Nar6h and they assist the Jir0ah to a11ly an a11ro1riate Nar6h o-er the ,atter in dis1.te# %he t3o +a,o.s Nar6hs are Ah,adFai Nar6h and RaF,a6 Nar6h/ each o+ the, ha-e their o3n characteristics/ +or e>a,1le/ the +or,er bein0 strict and 1recise/ 3hereas the latter one is ,ore dyna,ic and +le>ible eno.0h to be a11lied to a -ariety o+ sit.ations# G So,e )hels and tribes ha-e de-elo1ed their o3n nar)hs that are ,ore a11licable to their local social and econo,ic conditions# Ne-ertheless/ the Ahmad*ai and the Ra*ma) nar)hs are 0enerally +ollo3ed as so.rces o+ re+erence a,on0 the Pasht.ns o+ )A%A and A+0hanistan# In +act/ nar)h at a ,ore 0eneral le-el/ re+lects the +.nda,ental -al.es and nor,s that are associated 3ith +ashtoon#ali # It is/ ho3e-er/ i,1ortant that a nar)h has to be 1laced in the social conte>t o+ a s1eci+ic con+lict and thoro.0hly disc.ssed by Jirgamaars. A+ter debatin0 o-er the a11ro1riate Nar6h/ they re+er it to all the mashran 7elders9/ 3ho constit.te the ,ain body o+ J irgah. %h.s/ a Jir0ah ,ay as6 e>1erts in the Nar6h +or 0.idance as 3ell as assistance# %hi s is to ens.re that the rele-ant c.sto,ary la3s are 1ro1erly and +airly a11lied# In case 3here the 1arties decide to settle their ,atter in accordance 3ith the Shari;ah La3/ the ,atter is re+erred +or ad=.dication to scholars/ at least t3o/ a11ointed by consens.s o+ the 1arties/ 3ho/ a+ter loo6in0 into the ,atter/ ad=.dicate .1on it a11ro1riately#

D'&ISI(N () %H' JIR*AH

A+ter hearin0/ debatin0 and cons.ltin0 o-er the case e>ha.sti-ely/ the Jir0ah anno.nces its -erdict or Pri6ra/ ,ostly declaratory/ to the 1arties in an o1en 0atherin0# %his decision is bindin0 .1on the, as +or as the code o+ Pashtoon3ali is concerned# Ho3e-er/ i+ the dis1.tants and )hel see a pri)ra as .n+air it ,ay be re=ected# %his o+ten ha11ens 3hen a 3ron0 nar)h is a11lied# %his is called )og%nar)h / 3hich ,eans the a11lication o+ a 3ron0 nar)h" or the ,isa11lication o+ the 1re-alent nar)h # In this sit.ation/ the dissatis+ied 1arty ,.st ha-e the s.11ort o+ the )hel / in order to be able to a11eal to another Jir0ah . %he ne3 =ir0a does not hear the case a+resh b.t only e>a,ines the ori0inal decision to see 3hether it de-iates +ro, c.sto,ary la3 or the Shariah# ).rther a11eal ,ay be re+erred to a third =ir0a and its decision is +inal# I+ a s.bse2.ent Jir0ah 1ro-es that a )og%nar)h has been a11lied/ then Jir0a,aars lose their re1.tation and the ri0ht to 1artici1ate in +.t.re Jir0ahs# %his clearly sho3s that the le0iti,acy o+ both the 1rocesses and the o.tco,e o+ Jir0ah is central to its instit.tional stat.s as a local ,echanis, o+ con+lict resol.tion# Indeed/ le0iti,acy is central to the social order o+ the -illa0e or tribe and to its +.nctionin0 as a social 0ro.1# $.t/ le0iti,acy is o+ten s.b=ecti-ely assessed in the 3ider conte>t o+ Pashtoon c.lt.re# In cases 3here arbitration is selected/ a =ir0a is no,inated by consens.s and 0i-en an o1en ,andate 73aa69/ 3ith the .nderstandin0 that its decision 3ill be acce1ted by all 1arties# Here/ the decision o+ the =ir0a cannot be challen0ed#

S'L'&%I(N AND PR(&'DUR' () JIR*AH UND'R %H' )&R

%he )ederally Ad,inistered %ribal Areas are di-ided into t3o ad,inistrati-e cate0ories: :1rotected; areas are re0ions .nder the direct control o+ the 0o-ern,ent/ 3hile :non!1rotected; areas are ad,inistered indirectly thro.0h local tribes# In 1rotected areas/ Political A0ents/ -ested 3ith =.dicial 1o3ers/ decide cri,inal and ci-il cases# A+ter co,1letin0 the necessary in2.iries and in-esti0ations/ co0niFance o+ the case is ta6en and a =ir0a is constit.ted

3ith the consent o+ the dis1.tin0 1arties# %he case is then re+erred to the =ir0a/ acco,1anied by ter,s o+ re+erence# %he =ir0a hears the 1arties/ e>a,ines e-idence/ cond.cts +.rther in2.iries 3here needed/ and iss.es a -erdict 3hich ,ay be s1lit or .nani,o.s# %he 1olitical a0ent/ or an o++icial a11ointed by the 1olitical a0ent +or this 1.r1ose/ e>a,ines the -erdict in the 1resence o+ 1arties to the case and ,e,bers o+ the =ir0a# I+ the -erdict is +o.nd to be contrary to c.sto,ary la3 or tainted 3ith any irre0.larity/ the case ,ay be re,anded to the sa,e =ir0a +or re! e>a,ination or the -erdict ,ay be re=ected and a +resh =ir0a constit.ted# Ahere the -erdict is held to be in accordance 3ith c.sto,ary la3 and +ree o+ irre0.larities/ it is acce1ted and a decree is iss.ed accordin0ly# An a00rie-ed 1arty ,ay challen0e the decree be+ore an a11ellate co.rt/ and a +.rther a11eal ,ay be lod0ed 3ith a trib.nal consistin0 o+ the ho,e secretary and la3 secretary o+ the +ederal or 1ro-incial 0o-ern,ent# (nce a11eals are e>ha.sted/ e>ec.tion o+ the -erdict is the res1onsibility o+ the 1olitical ad,inistration# %he -erdict o+ the Jir0ah ,i0ht be based on Re3a= or c.sto, and/ in so,e cases/ Isla,ic shari;ah# Ho3e-er/ d.rin0 s.ch 1roceedin0s/ the Shari;ah is rarely a11lied/ and the re3a= do,inates the decisions Jir0ah#

SAN&%I(N $'HIND %H' L'RDI&% () A JIR*AH

I,1le,entation o+ =ir0a decisions in non!1rotected areas is the res1onsibility o+ the tribe# %he =ir0a ,ay ,ete o.t 1.nish,ent to an o++ender/ i,1osin0 a hea-y +ine# (ccasionally/ ,ore serio.s ,eas.res ,ay be ta6en s.ch as e>1ellin0 an indi-id.al or a +a,ily +ro, the area/ and con+iscatin0/ destroyin0 or settin0 +ire to ho,es and 1ro1erty# In s.ch cases/ the entire tribe bands to0ether as a lash6ar 7ar,y9 to en+orce the decision# Ahile ,ost dis1.tes are settled internally/ ,ore serio.s ,atters ,ay re2.ire the callin0 o+ a lar0er =ir0a ,ade .1 o+ ,ali6s/ elders/ the 1olitical a0ent/ ,e,bers o+ the National Asse,bly and Senate/ and occasionally e-en re1resentati-es +ro, nei0hbo.rin0 a0encies or )Rs#

%H' P(%'N%IAL () JIR*A AS AN ADR 7Alternati-e Dis1.tes Resol.tion9

Jir0a is the traditional Pathan instit.tion/ -ery ,.ch o1erati-e in the tribal belt s1eci+ically and is closely bo.nd .1 3ith the social and econo,ic realities o+ the 1eo1le o+ the re0ion# It is i,1ortant to note that 3hile de-isin0 ,odern ,ethods and techni2.es o+ ADR 7Alternati-e Dis1.te Resol.tion9/ the treas.re o+ o.r traditional 3isdo, can be o+ 0reater hel1# Jir0a is one o+ s.ch -iable/ dyna,ic and/ ti,e!hono.red instit.tion 3hich does not only resol-e ,any local/ tribal/ and national con+licts e++iciently and in cost!e++ecti-e 3ay b.t also acts as a 1o3er+.l channel o+ co,,.nication a,on0 the 1eo1le# Altho.0h it is a child o+ traditional 3isdo,/ b.t has 1layed a -ery i,1ortant role in resol-in0 dis1.tes in tribal belt both at ,icro and ,acro le-el# (li-er 7"G 09 has noted the i,1ortance o+ Jir0ah in a Pathan society as/ DNe-ertheless/ necessity/ has +orced the Pathan/ li6e the rest o+ the 3orld/ to reco0niFe the need +or so,e +or, o+ 0o-ern,ent/ so,e syste, that shall en+orce e-en the r.dest c.sto,ary la3/ so,e tribal or0aniFation to +all bac6 on at a 1inch# And his tribal =ir0ah/ or co.ncil o+ elders/ does all this +or hi, and ,ore# &o,1osed o+ elders/ ,.llahs and heads,en/ it co,bines his Ho.se o+ Lords/ bench o+ $isho1s/ and Le0islati-e Asse,bly4 it dischar0es the +.nctions o+ all the di-isions o+ the ?.een;s $ench/ the Probate and Di-orce/ the $oard o+ %rade and Aar (++ice# It is at once his &on-ocaion and his co.ntry co.rt#E %he ter, @alternati-e dis1.te resol.tion@ or @ADR@ is o+ten .sed to describe a 3ide -ariety o+ dis1.te resol.tion ,echanis,s that are alternati-e to +.ll!scale co.rt 1rocesses# Accordin0 to $la6;s La3 Dictionary/ ADR is Da 1roced.re +or settlin0 a dis1.te by ,eans other than liti0ation/ s.ch as arbitration/ ,editation/ or ,initrial#E " 0 %he ter, can re+er to e-erythin0 +ro, +acilitated settle,ent ne0otiations in 3hich dis1.tants are enco.ra0ed to ne0otiate directly 3ith each other 1rior to so,e other le0al 1rocess/ to arbitration syste,s or ,ini!trials that loo6 and +eel -ery ,.ch li6e a co.rtroo, 1rocess# Processes desi0ned to ,ana0e co,,.nity tension or +acilitate co,,.nity de-elo1,ent iss.es can also be incl.ded 3ithin the r.bric o+ co,,.nity based ADR# In a recent re1ort 1.blished by A+ridi/ Shah and Minallah Le0al &ons.ltants/ a leadin0 la3yers +ir, based in Lahore/ sho3s that in o.r

society/ only "0M cases 0o to the co.rts/ the rest are settled thro.0h alternati-e ,atters# %he +i0.res can -ary a lit bit as 1eo1le to 1eo1le b.t in Pathan co,,.nities/ it can be said +or s.re that ,ost o+ the dis1.tes are resol-ed o.tside co.rts# And +or resol-in0 their dis1.tes/ Pathans re+er the, to a Jir0a# It sho3s their tr.st o-er the ti,e!hono.red instit.tion 3hich o1erates b.t in accordance to their o3n c.lt.re and traditions# %he other reasons +or 3hy Jir0a is 1re+erred o-er the +or,al liti0ation incl.de less econo,ic b.rden/ ,ore 1artici1ation in the 1rocess as co,1ared to liti0ation/ s1eedy =.stice and a 3in!3in sit.ation +or both 1arties as the decision is o+ten anno.nced a+ter a de-elo1in0 a consens.s o-er it# Another characteristic o+ Jir0a is its si,1licity# It does not in-ol-e co,1licated 1roced.res and there+ore re,ains al3ays attracti-e +or co,,on 1r.dence# %he 1arties elect their =ir0a by ,.t.al a0ree,ent and sec.rities are s.b,itted to the Jir0a ,e,bers# A+ter a +e3 ro.nds o+ ne0otiations s.11lied 3ith s.++icient e-idence 1rod.ced by both sides/ the ,atter is decided# %h.s the 1arties 0et rid o+ len0thy 1roced.res and ad=o.rn,ents 3hich has .n+ort.nately beco,e 1ractice o+ the day in +or,al =.dicial syste,# %hat is 3hat Mr# Shah Jehan Khan/ an Hon; able J.d0e o+ Hi0h &o.rt has noted by sayin0 that/ DProlon0ed liti0ation not only ca.ses 1rolon0ed a0ony and s.++erin0 o+ liti0ants/ it also ad-ersely a++ects econo,ic acti-ity# In ,any cases/ 0en.ine liti0ants cannot obtain relie+ 1ro,1tly/ and the delay in =.stice 3o.ld a,o.nt to denial o+ =.stice# I+ a 0en.ine liti0ant 0ets redressal o+ his 0rie-ances 1ro,1tly/ he 3o.ld be able to 1.rs.e his b.siness acti-ely/ 3hich ,ay other3ise s.++er# It is 3ell 6no3n that ci-il liti0ation ,ay last +or decades and in-ol-e ,any 0enerations# Prolon0ed 1roceedin0s also res.lt in ,.lti1licity o+ liti0ation d.e to o++shoots +ro, the basic dis1.te# Aith a -ie3 to a-oidin0 len0thy liti0ation and hea-y e>1ense/ 1arties to a b.siness deal 0enerally 1ro-ide +or resol.tion o+ dis1.tes thro.0h an arbitrator or ,ediator in their contracts# %o sa-e ti,e and ,oney/ sensible 1eo1le ,a6e e++orts to resol-e dis1.tes thro.0h ADR be+ore a11roachin0 co.rts o+ la3#E " "

&(N&LUSI(N Altho.0h the =ir0a ,echanis, en=oys 3ides1read +a-o.r/ corr.1tion has be0.n to enter the syste,# It is re1orted that the 1oor and ,ore -.lnerable

se0,ents o+ society cannot a++ord to con-ene a =ir0a# %here are a n.,ber o+ re2.ire,ents +or a =ir0a to be held/ incl.din0 hos1itality/ 3hich are increasin0ly beyond the reach o+ ,ost ordinary 1eo1le# %here is also the 0rie-ance/ no3 -oiced ,ore +re2.ently/ that in ,ost cases =ir0a decisions +a-o.r the richer or ,ore in+l.ential 1arty# Ho3e-er/ in order to ens.re the -iability and e++ecti-eness o+ Jir0ah/ it is necessary to introd.ce its conce1t in the le0islat.re# It is +.rther i,1erati-e that a11ro1riate ste1s sho.ld be ta6en to s.bstantialiFe the Jir0ah ,echanis, in the la3 and to e,1o3er the co.rts to ,a6e the decisions o+ a Jir0ah bindin0 .1on all 1arties to the dis1.te# %he &o,,on La3 o+ 'n0land is ,ostly .n3ritten/ so is the tribal la3 in )A%A 3hich also transcends borders and is o1erati-e al,ost in the 3hole o+ A+0hanistan# %a6in0 the incor1oration o+ the &o,,on La3 in 'n0lish Le0al syste, as a 1recedent/ the Jir0ah ,echanis, o+ con+lict resol.tion can also be ,ade ,ore acc.rate/ e++ecti-e and =.st/ 3hich 3o.ld not only ens.re b.t enhance 1eace and stability in the %ribal Areas#

R')'R'N&'S

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Pashto Descriptive Dictionary (1978), Kabul: The Academy of Sciences of Afghanistan. Ghyathul-Lughat (1871) dited by !aulana "heyathoddin, Kan#u$ %$ess: &e' (elhi.

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)ubin, *. (199+) The Fragmentation of Afghanistan: State Formation and Collapse in the nternational System. &e' ,a-en, .onn.: /ale 0ni-e$sity %$ess. on 2i$gah at:

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S#ain, 2. :illiam (1959) ;The :ay of the %athans< =ondon: >?fo$d 0ni-e$sity %$ess. The @$ontie$ .$imes )egulation 1971, Section 19.

"lat1e$, *. (1998) A Bs Afghanistan on the *$in3 of thnic and T$ibal (isinteg$ationCA in Fundamentalism !e"orn# Afghanistan and the Tali"an$ edited by :illiam !aley, &e' /o$3: St. !a$tins.
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Atayee, B. (1979) A (ictiona$y of the Te$minology of the %ashtun T$ibal .ustoma$y =a' and 0sages, Kabul: The Academy of Sciences of Afghanistan. d'a$d . >li-e$ (1897) ;Ac$oss the *o$de$ o$ %athan and *iloch< =ondon: .ham#an and ,all =imited.
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"a$ne$, *. A. (1999) ;*lac3Ds =a' (ictiona$y< 17th d: :est "$ou#. %!etrieved on &'-()-

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