Noor Hamid Khan Mahsud
Jirga is centuries old institute in Pashtun culture. It has been the most important mechanism for resolving disputes in Pashtun society. Those who serve on Jirgas enjoy considerable respect and happen to be men of integrity and character. While acting on Jirga, impartiality and neutrality is thought to be the primary unwritten condition for jurors. The strict criteria for acting as Jirga member, however, does not necessarily mean that everyone adheres to it. Some people, for different reasons, violate the sanctity of Jirga and tender partial decisions. However, this is done at the expense of personal credibility and such behavior also invites condemnation from the society. It was this prestigious Pashtun social institution which the Britishers manipulated and exploited for furthering their interests in the region.
In the beginning, British colonialists, like in the rest of sub-continent, introduced Indian Penal Code to the North-west frontier. This law badly failed to curb resistance from Pashtuns towards the imperial power. Thus, British India revised its policy options and introduced Punjab Frontier Crimes Regulation in 1872. This special Regulation was amended on several occasions, its scope was extended to include new crimes and punishments, and Frontier Crimes Regulation of 1901 was the final version which Pakistan inherited in 1947. It is the Frontier Crimes Regulation of 1901 which is still in operation in FATA.
Through FCR, The British combined administrative, executive and judicial powers in the same hands. The main purpose of this legal code was to increase conviction rate without fulfilling the requirements needed in regular courts. In order to protect administrative and legal actions taken under this code from judicial scrutiny, a section of the FCR excluded all lower courts from taking cognizance of an act the origin of which was in FATA.
As stated above, the main objective behind introducing FCR was increase in conviction rate without due process of law. To achieve this aim, the colonialists gave legal protection to Jirga in FCR under the title of Council of Elders (CoE). In order to make this Regulation acceptable to Pashtuns, the administrators actually gave the impression that FCR is something which is based on Pashtun cultural values. For instance, the FCR Committee 1899 observed, “the normal or indigenous Jirga is a tribal assembly acting unanimously. No doubt we have modified the primitive institution in adopting it to our requirements.”
The members of CoE were to be appointed by Deputy Commissioner and thus were under the control of the administration. The Regulation did not provide for any specific procedure of FCR Jirga and the only requirements were conducting an inquiry and that the accused should be heard. Under the FCR, the Jirga was to tender its opinion and the DC was to take decision. The Regulation empowered the DC to (a) accept the opinion of the Jirga, (B) to ask it to further deliberate over the case or (C) to refer the case to another Jirga. This shows that Jirga was a toothless judicial body. The legalization of Jirga under FCR actually enabled the administrators to bring under their influence the influential elders who in return tried to exploit FCR for personal interests and settling scores with their rivals.
As the Britishers wanted to get decisions of their own choice through FCR, they would do so through CoE. They would appoint such persons on the Jirga who were ready to tender opinion as desired by their masters.
A letter addressed to Commissioner and Superintendent Peshawar by Chief Secretary to Government Punjab and its Dependencies in 1894 puts a question mark over the fairness of the FCR Jirga proceedings. The letter states, ” In several cases of convictions which the Lieutenant-Governor has had before him since he came to the Punjab there was no definite finding by the Jirga of any facts constituting an offence. What they meant to find could only be collected by a process of reasoning from their rambling remarks and in some instances, there was room for arguing that those remarks gave but an uncertain sound. The presiding officer in those cases had omitted to do that which it was his obvious duty to do, namely, to ask the Jirga to state categorically whether they found this way or that way or the other way”.
” Then again in several cases of conviction His Honour found that the presiding officer had endeavored by questioning the Jirga and otherwise to arrive at an independent finding of his own against the accused with the result that he could not get more than half way towards such a finding and could do no more than declare that the accused was ”probably” guilty, a declaration which though it may be intended to support the finding of the Jirga is very apt to have the opposite effect’.
Similarly, another letter written by H. C. Fanshawe, Chief Secretary to Government Punjab and its Dependencies, to the Commissioner and Superintendent Derajat Divisions on August 15, 1896 states, “In one case which came up on revision, the Magistrate had appointed the whole of the witnesses for the prosecution as Jirga, who, needless to add, convicted the accused. On recently holding temporary charge of the Peshawar Division, I found Magistrates appointing time after time the same men to serve on Jirgas….”
Though the colonial masters have gone long ago but the situation is still the same. Sarkari (FCR) Jirga seems to be under complete control of political administration. During my interaction with Maliks, retired and serving officials of political administration, social activists, former inmates, and media persons, I realized that the FCR Jirga is still a tool in the hands of political administration. A senior advocate of Peshawar High Court said that he used to act on FCR Jirgas but when he refused to act on administration’s directives, he was sidelined for future Jirgas. When enquired about the exact status of FCR Jirga, a senior petition writer at South Waziristan PA compound said that maliks are bound to abide by administration’s directives as the interests of the two are closely linked with each other.
One of the most common objection against FCR Jirga has been that its members fix their signatures/thumb impressions on blank papers on which the administration officials later on write the decision of their choice. For example, Selab Mahsud, a senior journalist who has worked with BBC Pashtu service, Voice of America and Mashaal radio, said that the maliks appointed on Jirga for his case asked him to sign blank papers. On his refusal, the maliks signed the blank papers first and then again asked him to follow them. He was ultimately forced to sign blank paper. I tried to independently reach at some conclusion as far as the allegation is concerned. I asked several maliks whether it is true that administration get signed blank papers from maliks. Interestingly, not a single malik absolutely denied the existence of the practice. However, they would say that not all maliks sign blank papers but “some maliks,’ “few maliks” “selfish maliks” and “certain maliks” do not hesitate to sign blank papers. Some maliks said that this practice was common in the past but now situation has changed. I also tried to know official version of the story. Officials claimed that proceedings under FCR are transparent and independent. However, a retired bureaucrat who has served as Political Agent in three agencies and as Assistant Political Agent in one agency, told that maliks can do nothing without the will of administration. He confirmed the practice of signing blank papers.
In 2014, a two-member bench of Peshawar High Court comprising Justice Qaiser Rashid Khan and Justice Ikramullah Khan summoned PA Kurram Agency to appear in person before the court for illegally detaining 19 Jirga members. The legal counsels for the arrested jurors informed the court that political administration called a Jirga on 19th January 2014 to resolve a dispute between two tribes. The Jirga was informed to resolve the issue within three hours or face detention. When the Jirga failed to settle the issue, its members, who were between 60 and 80 years of age, were put behind the bars. Earlier, MNA Sajjid Hussain Turi and the Frontier Corps Commandant had assured the administration they will settle the issue within one month. However, administration did not agree to release the jurors.
According to a survey conducted by Community Appraisal & Motivation Programme (CAMP), out of 1050 people surveyed 835 (80%) approved of Olasi Jirga (traditional Jirga) while 160 (15%) disapproved of it. On the other hand, 757 (72%) said they did not trust FCR Jirga with only 141(13.4%) saying they believe in credibility of FCR Jirga.
To conclude, it can be said that the FCR Jirga is widely considered as partial and under state influence. For example, a former member of the FCR Tribunal remarked that he could tell about the verdict of Jirga by only looking at the names of the maliks nominated on the Jirga.
The author is a PhD candidate at Dept. of Politics and IR, IIU, Islamabad.