The main difference between the Jirga system and the criminal justice system is that where the criminal justice system punishes, leaving the enmities as they were, the Jirga resolves the enmity at its roots and adopts certain rules for prevention.
Some people argue that the Jirga is an outdated institution. There may be some truth in this, yet it is also true that there is no credible substitute available in the Pukhtoon societies with which to replace the Jirga. The Governmental systems in both Afghanistan and the Federally Administered Tribal Area (FATA) part of Pakistan are as weak as the Jirga, if not more. The institution of Jirga in Pakistan and Afghanistan is still a strong community based process of peacebuilding. It is practiced widely at the community level, where it is used as a social organization preparing communities for much needed social change. The Jirga thus involves itself in all aspects of collective decision-making, as well as being used as a forum for the settlement of all kinds of disputes and conflicts.
Some accuse the Jirga of being a parallel system to state-endorsed justice, but this need not be the case: the Jirga supports the criminal justice system by providing a forum through which settlements handed down by the court can be properly facilitated. The Pukhtoon code by which families live is based on revenge. Even after a decision taken in a court of law by which guilt is attributed and a penalty assigned, parties to the conflict will seek to punish the enemy in order to make the social norms of Badal (revenge) equal. However if the court decides to reconcile the parties, they are compelled to approach a Jirga since techniques to facilitate reconciliation do not exist in the criminal justice system. For a durable solution Jirga is the only tool with which to end enmity once and for all.
….Since the modern vocabulary of human rights is not known to the people, the old traditional system of moral codes is still exists, and in some cases supports the violation of the rights of children and women. The displacement of the community-based institution known as Hujra to the individual drawing room completely stopped the informal learning of the Pukhtoon code of life, closing one channel through which moral codes can be developed within the community. Without reinvigorating the Pukhtoon Jirga, it is difficult to convince people to accept social and cultural change.
Recently, community elders and members of Jirgas have become victims of targeted killings. It is estimated that in the last two years, some 200 professional community elders have been killed by unknown elements. Many have thus migrated to safer places. Another set back to the institution of Jirga has come through the use of this word by other traditions, like Fasilo of Sindh, Mair of Baluchistan, Punchayat of Punjab. These local traditional practices of other areas are sometimes involved in violations of fundamental human rights especially in cases of honor killing, exchange of marriages or early marriages.
President Karzaiâ€™s approach to jirga for peace building is the right way to bring all stakeholders to the table for further peace negotiation and restoration of peace and harmony in Afghanistan.
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