Briefly, the jirga system, in essence, is conflict resolution. Its basic function is the settlement of disputes. A formal legal system has roots in Gilgit’s society and it is not preceded by any jirga system (as a cohesive force) in its political history.
It is a fact that Gilgit’s society is no more a status-based society in the traditional sense. It is almost a contract society, based on territorial and contractual obligations and has given up most ties to the land. The jirga system is a kind of political system that exists in status societies based on kinship or other positions within the group. It has been argued by some, however, that a jirga setup as a means of ‘mutual counsel’ could help to resolve, say, the problem of religious/sectarian tensions in Gilgit, which have in the past spilled over into violence. But in such a society, it would make sense to ask: how can it be possible for mere mutual counsel to resolve the conflict which resulted in murders, injuries and significant migration of thousands of families to safe areas – not to mention losses of billions of rupees?
In Pakistan, the Jirga system often overlaps with the government system
It is evident that now this conflict has acquired unfortunately deep roots, and the enmity created amongst dozens of families has structured unconscious principles which manifest in behaviour and attitudes.
However, it would still be useful to briefly look at how the jirga works. To put the matter in a clearer context, I present a sketch of the jirga system, with particular reference to any regional forms that it acquires. Then I turn to explaining the particular background of this system in different tribes.
Disputes generally involve the exercise of authority. An individual or sub-group which possesses influence causes others to conform to their decisions is an authority. Who settles disputes? On what basis? Is their authority recognised universally? Is such authority institutionalized? All these are valid questions. There will be variations in recognition of authority which will correspond more or less closely to the type of political organisation.
The first form would be ‘generalised influence’. An example would be the malak of Kohistan – a hereditary position whose authority over a clan is recognised in clan decisions only. His word is generally accepted in a dispute, but he has little coercive power and cannot prevent fighting between two parties. Here, the most significant source of social control is the general appreciation of clan members of the danger to group solidarity from hostility and conflict.
A second form would be temporary non-coercive authority: for example lineage systems where interaction between lineages is necessary, where authority figures are chosen to settle disputes. The power of such men ends when the dispute is settled. Such men may be functioning at various levels for various purposes at the same time. There is no one centralised figure.
A third form would be coercive authority: power is concentrated in the hands of a single group or an individual whose authority is usually stable and permanent, (for instance the Jirga system of Diamer and Kohistan in the Northern Areas of Pakistan).
Disputes are settled according to precedent. There is a body of ideas, more or less overtly understood and expressed which constitutes the law of any society. Thus settlements are not arbitrary, but are consistent and based on former decisions.
Moreover, disputes are settled in terms of the rights and obligations of the parties involved. The rights of the plaintiff are upheld consistently and the defendant must take some statutory payments, for instance compensation, giving up of life or freedom, returning stolen goods, undergoing various punishments, etc. The point is that not only is the defendant punished but the plaintiff is compensated.
Disputes are settled according to institutionalised sanctions. Sanction is the positive infliction of pain or denial of good as a result of breaching the rules of good conduct. It is, of course, a means of social control to encourage conformity.
It can take a corporal form, i.e. execution, beating or banishment; an economic form, i.e. payment of blood money, restitution or confiscation of authority; and finally, a psychological form, for instance a reprimand or warning.
The methods through which disputes are settled can be broadly three. One is self-redress, where the person wronged takes appropriate revenge which is acceptable to the society. Another possibility is that of a go-between – one person acts as intermediary and asks for compromises until they can satisfy both parties. The third possibility, of course, is that of any court: from the family conclave to the highest court in the country.
So to whom do you complain about what kind of offense? Let us take a few examples.
The Kalash of Nuristan had their own tribal elders, law enforcers and Jirgas, while the government of Afghanistan had ultimate authority over their lives.
Sometimes there is an overlap between the political and the religious authority figures. Sometimes multiple legal cultures operate, i.e. a distinction may be made between people within one authority system.
In Pakistan, the Jirga system often overlaps with the government system when a family dispute gets taken to court, or when a Jirga ruling brings about government prosecution, e.g. the horrific gang rape of a young girl by members of Jirga as punishment for her brother eloping.
At the end of the day, it must be remembered that disputes take an extra-legal direction mainly when the legal system is not powerful enough to deal with the situation. Examples might include street-gang fights, feuds, war or terrorism. Any conflict resolution mechanisms, whether in Gilgit or elsewhere, have to take this into account.
The author is a researcher based in Gilgit-Baltistan