In tribal Pakhtun society, the Jirga is a male congregation that deals with criminal, civil and family related cases. Most of the cases are determined with consensus and this has often been hailed as a cost efficient mechanism for solving every type of dispute. Unfortunately, the informal institution is also tied to social and economic realities of everyday life in Fata, which is rooted deeply in the culture and history of the people. Ironically, many declare this ill-equipped and patriarchal structure as a custodian of local culture and much more efficient than the regular courts of Pakistan. It is also misconceived as an egalitarian mechanism of resolving disputes that is above class and status. However, as an insider and a part of the tribal structure, the class question and tribe is very much entrenched and is reflected in the decisions of the Jirga. The family and tribe holding more shares in shamilaat (combined property) have more influence on the Jirga. In addition, such assembly requires funds and clout, the rich and men mostly get their way around it.

As far as tribal Pakhtun women are concerned, they are absent from the so-called classless and democratic tribal structure of the Jirga. It offers them nothing except a mechanism to enforce certain patriarchal customs and traditions that sometimes robbed them of life. It legalises and accepts domestic violence meted out on the woman by her fathers, brothers and when married, by her husband and his family. Although, a symbol of honour and ghairat of the family, she is offered and used in a very dishonourable manner to settle disputes by the revered speedy Jirga. She is also a source of revenue for families, her bride price is decided according to the status ie virgin, widow, or divorced and in certain cases of eloped women or the local prevailing customs by the wise and respected Jirga. The tribal woman is not allowed to be a part of the Jirga or decision-making process but she is the main protagonist and around her, all the cultural practices are at play.  

The so-called cost-effective justice of solving the problems by the Jirga reeks of normative social hypocrisy of the Pakhtun tribal structure. The recent burn victim from a poor tribe of Central Kurram Para-Chamkani, Zahida Bibi is one such prime example of cultural oppression and poverty. She is a victim of class, tribe and the state’s structure that left her at the mercy of the Jirga. Zahida Bibi, coming from a poor tribe, admitted in the Khyber Teaching Hospital, is being treated for 80% brunt wounds; she was married off under the tribal Pakhtun tradition of Badala (exchanged bride for her brother’s bride). It is tribal practice, common amongst the poor tribals, as they are unable to pay bride prices. She was widowed in mysterious circumstances and then moved to her parent’s house. However, her in-laws from a powerful tribe, influenced the Jirga, thus forced her back to their house and she was later burnt in strange circumstances along with her two-year-old daughter. 

No case could be registered against her in-laws despite her brother Karim Gul’s efforts. The tribal women network Qabailee Khor, under the umbrella of KHOR organisation, was able to extend legal and financial help to Zahida Bibi. In another case, 13-year-old mentally disturbed Naghma from Khyber Agency was killed on the decision of a Jirga. The minor was killed in the name of saving honour of the family; her crime was an alleged attempt to run away with two young boys. A Jirga that has no understanding of medical sciences or psychiatry, murdered a physically challenged daughter of a poor man. Khyber Agency is hardly at a distance of thirty-one kilometres from Peshawar High Court but it has no jurisdiction over FATA. The all-wise, speedy and cost-effective Jirga’s decision took physically challenged child Naghma’s life while Zahida bibi awaits an uncertain future. There are so many Zahidas and Naghmas in FATA with unreported stories and left at the mercy of men in Jirgas and their interpretation of justice.

The people outside the structure justify the Jirga on the pretext that both tribal men and women agreed to such cultural, social and religious perceptions of gender roles. Hence, the abstract concepts of equality and human rights are unacceptable to the people living in FATA.

The absentee state in FATA has invariably colluded with patriarchy to oppress women and this has been done through codification of cultural identities in the most barbaric way. The proposed Riwaj Act under the FATA reforms is one such step, which will legalise the Jirga and its mechanism. Another debate that is generated in response to the protection of women in FATA is that crimes like honour killing, domestic violence and oppressions are rare. The supporters of the Jirga start comparing it to the other parts of Pakistan without realising that in FATA, there are no shelter homes, crisis centres or any reporting bodies that can assess the figures and stats. In response to the recent wave of tribal women movement for their rights, Jirga supporters called them fantastic stories made up by Pakhtun urbanities women and NGO aunties. Such debates and criticism of social media-savvy Pakhtun men have not only isolated the urban, educated tribal woman’s struggle for rights but has also dehumanised the tribal woman living in FATA. The hypocrisy and justification behind such debates are obvious and nothing more than cultural chauvinism and cultural separatism. As an insider in the tribal structure, I have not only come across (dis)honour killings but also observed domestic violence in several forms. It is high time that certain changes should be done in an honest and open environment because cultures cannot exist on their own. They exist between human beings and have many participants, who are constantly renegotiating the terms of their participation.  Pakhtun women need to renegotiate these terms along with the state support. The state needs to change the patriarchal structures that are an extension and continuation of colonial laws, devoid of rights and do not extend into the private or domestic sphere terming tribal areas as so-called independent zones. The Jirga, no matter how effective, needs to be a more inclusive institution and sensitive to the universally accepted principles of human rights.

The writer is a freelance columnist.