Dating back to the pre-Islamic era, Pashtunwali is the code of conduct every proud Pathan follows, may he live in Afghanistan, Pakistan, or as a refugee anywhere in the world. The native Pashtun is fiercely independent and loyal. In the backdrop of the importance of FATA, owing to its geographical location to Afghanistan, it is important to understand the code of the Pathans. "Pashtuns believe that their social code produces men who are superior to those produced under the Western model, and they have no desire to have a new social system imposed on them by outsiders." (Thomas H. Johnson and M. Chris Mason, "No Sign Until the Burst of Fire", 61.)
"Melmastia" (hospitality) is a key component of Pashtunwali. Melma means a guest. However, hospitality is not to be interpreted in the manner a westerner would interpret it. It means offering hospitality to a guest; transcending race, religion, and economic status. It also means once under the roof of the host, a guest should neither be harmed nor surrendered to an enemy. This will be regardless of the relationship between the guest and the host enjoyed previously. In this regard Melmasthia takes precedence over Badal (yet another principle of Pashtunwali) so even the enemy who comes seeking refuge must be granted it and defended against his pursuers. Elphinstone in 1815 observed: "The most remarkable characteristic of the Afghans is their hospitality. The practice of this virtue is so much a point of national honor, that their reproach to an inhospitable man is that he has no Pushtunwali' (Elphinstone 1969: 226).
Simply put, "Badal" means "to seek justice or take revenge against the wrongdoer." There is no time limit to when the injustice can be avenged. If Badal is not exercised, the offended man or his family will be considered stripped of honor. The exercise of this principle can lead to generations of bloodshed, feuds, hundreds of lives lost for one insult. It requires a violent reaction to the insult or death or injury inflicted. A Badal usually ends with a Badal. An action elicits or demands an equivalent response--and the cycle goes on. Khushal Khan Khattak, the great Pashto poet, warrior, and soldier, was not far off the mark when he said, "Let the head be gone, wealth be gone but the honor must not go, because the whole of dignity of a man is due to this honor."
"Nanawatai" (sanctuary) is another pillar of the Pashtunwali code. It allows a person to seek refuge in the house of another, seeking asylum against his enemies. The host Pashtun is honor-bound to offer that protection, may it be at the cost of his own family or fortune. Traditionally, the protection is extended only through such time as the refuge-seeker is on the property of the person whose refuge he seeks. The protection will be considered withdrawn once he is off the host's property. William Mastrosimone, witnessing a team of mujahedeen capturing and executing a Soviet tank crew in 1986, wrote a stage play Nanawatai, about a tank driver captured in the Soviet invasion of Afghanistan and his resulting plea for sanctuary from those who find him. The story was later adapted into the 1988 film "The Beast of War."
A Pashtun at all times is expected to defend his land, family, women, and property against invaders. Honor of his name must be defended. Lives are laid down to defend the honor associated. This is "Tureh" (bravery) that is another component of the Pastunwali. Other tenets include Sabat (loyalty) towards one friends and family and members of the tribe. Imandari (righteousness); striving for goodness both in word and in deed. Respect towards all. Ghayrat (courage/honor); at all times a Pashtun must display courage. If he has no "ghairat" or honor, he fails to make the grade as a Pathan. Namus (sexual honor of women) for a man and his family; namus means sexual integrity and chastity of women in the family. The Pashtun must defend the namus of the women of his household. This extends to the namus of his extended family as well. Nang (honour); a Pashtun must protect the honor of those around him.
By no means is the list exhausted. However, it gives a good insight to the values that govern the Proud Pathan. Pashtunwali is not a legal code as we see. It is more a code of honor by which a Pathan will live by--and die for!
The Jirga is obeyed without question by the Pashtuns. A Jirga is an assembly of tribal elders who take decision on issues based on consensus. Disputes between two or more people are heard by this Council of Elders. In tribal regions the Jirga is still used as a court for criminal offences.The respect awarded to tribal elders is phenomenal. When Mullah Nazir Ahmed moved away from the loose construction of Taliban Movement in 2007, one reason was because of the Uzbeks in the region. They undermined the tradition of showing respect to the tribal elder, an unforgivable sin to the Pashtun. With the spread of Talibanization, layers of authority were however later scraped off the Jirga authority in many instances. In Khyber Agency example of Mufti Shakir from Lashkar-e-Islam, setting up its own sharia court to dispense vigilante justice being one.
The Pashtuns have relied on a code as old as time itself to conduct themselves as individuals and as a society in their dealings between themselves and with others. Even stateless societies need certain laws to conduct the affairs of the state. To this date, Frontier Crimes Regulation, a body of law based on six chapters, sixty-four sections in three schedules governs FATA, a British-era colonial Act that empowers a Political Agent to take all actions on behalf of the Pakistan Government and decisions once taken cannot be appealed against or questioned under any law.
Pashtunwali has struggled and succeeded in establishing a uniform code of conduct in a society where justice is not easy and in reach of most people. State laws have minimal reach and the Frontier Crimes Regulation is a unique set of laws as opposed to law governing the rest of Pakistan. In contradiction; norms of honor may create situations where eruption of conflicts may be more frequent. It also makes outsiders completely at sea when dealing with the Pashtun. Understanding Pashtunwali does not offer the map to control Pashtun tribes. It is no such magic potion. It does however help to understand the Pashtun culture. Once understood, the framework can help in formulating a strategy for engaging with the tribals.
The writer is a lawyer, academic, and political analyst. She has authored a book, "A Comparative Analysis of Media and Media Laws in Pakistan.'