2:21pm , Sunday 5th December 2021

Tribal Customs Form a Parallel Legal Framework to the Judicial System

8 November 2013

Amman – Alghad Newspaper – 15 years had passed since his father was killed by one of the villagers over a small dispute. But that did not detract from his obsession with avenging his father’s death.  With the support of his mother, he took revenge.

“Diyya” – Blood Money

At the time of his father’s murder back in 1999, the crime had been dealt with at a tribal hearing between the tribes of the killer and the victim. The tribal court hearings had concluded in a settlement that the widow of the deceased should have JOD 50.000 as “diyya” – blood money.  Unhappy with this agreement, she put the money away until her son was old and strong enough to take revenge.  When the day came, he shot the man that killed his father and threw the “diyya” money on top of his dead body.

M.A., a young man in his thirties, was forced in 2005 to leave his village in the Madaba Governorate south of Amman with more than 400 of his relatives including women and children.  They left their homes, land and their livelihoods within what tribes call a “jalwa”, a forced displacement. The “jalwa” was mandated after his cousin killed a young man from another tribe in their village.

M.A. says: “I was about to get married and had built a house and furnished it, but I woke up the day after the murder to find myself and my family of eight having to leave our home.”

The family moved to a small apartment in one of the suburbs of the capital where the rent now eats up half of his and his father’s combined income. The family used to live in a four-story house in the village.

Tribal Agreements Versus Judicial System

The two cases summarise the implications of resorting to tribal laws, which in most cases form a parallel framework to the judicial system in the country.

The author of this report concludes that such tribal “agreements” or “settlements” actually contribute to the rise in the number of murders because one of the two sides to the reconciliation process ends up dissatisfied with the verdict or because the reduced sentences that are inherent in these tribal “deals” work to the advantage of the offenders and result in recurrent attacks after their release.

In the absence of police statistics and court records, the author gathered estimations from 15 “tribal judges” in different parts of the country indicating that “40% of cases settled within a tribal system end up in crimes of vengeance because the victims’ families are not content with the tribal rulings, seeing them as reducing sentences and protecting the offenders.”

This investigation also reveals that the “tribal court” system generates money for the arbitrators and that officials, in order to maintain their own status in a society where one’s power and influence depend heavily on the “weight” of one’s tribe, do little to help change the system.

Most of the tribal “judges” contacted by the writer did not wish their identity to be revealed to the readers. Six of them live in the southern governorates, four in the north and five in the centre of the Kingdom.

Most of them believe they are somehow infallible and morally superior and irrepressible because of the experience they have amassed in using tribal customs and traditions to mediate disputes and resolve problems.

Most of the tribal ‘sheikhs’ or chieftains we met embraced this logic. They consider their customs to be more effective than civil justice, maintaining that they act as a “better deterrent than any other kind of judicial system”, especially when it comes to murder cases.

Sheikh J.D from the governorate of Karak – whose tribal adjudication role was passed on from father to son – asserts that “the official security apparatus is unable to control the tribes when a crime takes place in the way that tribal customs do, adding that once the “sheikhs” intervene, the problem is immediately contained”.

One Crime Leads to Another

Sheikh M.Y., a lawyer as well as a tribal mediator, disagrees. He maintains that “many  of the elderly people in the tribe and arbitrators force the victim’s relatives to give up their “civic” legal rights and agree to a reduced sentence for the offender.” He believes that this “encourages more crimes”.

Sheikh M.Y. cites the example of an offender’s relatives paying a “diyya” (blood money) to the victim’s family. The “diyya” is usually collected from members of the offender’s tribe after the agreement is reached.  The sum is raised from individuals who fall within the circle of the perpetrator’s fifth ancestor.

The sheikh sees this “mechanism” as facilitating the commitment of further crimes in view of how light the punishment is on the one hand and how easy it is to collect the blood money on the other.

In responding to this investigation, around 10 tribal sheikhs and judges from different parts of the Kingdom concurred that four out of ten cases settled in tribal courts end up in acts of vengeance, when the family of the victim believes that tribal arbitration denied them justice, or that the settlement agreement was influenced by the personal interests of the tribal judges. The writer concludes that this rate varies from one area to another, depending on how much influence and control the sheikhs wield over the members of their tribe.

The spokesman for the Public Security Directorate, Lieutenant Colonel Mohammad Al-Khatib, simply responds by confirming the ability of the police force to contain any disputes in any area where a crime is committed although he does approve of resorting to the sheikhs of the area “to avoid any further violence from erupting immediately after the crime is committed, especially during the first few days”.

The Chief Justice of the Major Crimes Court, Dr. Nayef Al Samarat, says that the court is struggling with the number of registered murder cases rising at a rate never witnessed before in the country: a surge of up to 24 cases a month during certain months of the year and no less than 12 a month. This leaves the country with an average of around one murder every second day.

Laws that are impossible to implement

Tribal law has been revoked by Royal Decree more than once.  In 1976, the late King Hussein bin Talal signed law article 34 of the civil code which “abolishes tribal laws and courts”, and brought all Jordanians under the jurisdiction of civilian law except in cases of murder, rape and sexual offences as well as “face cutting”, a term used when a member of one tribe breaks the terms of a settlement with another tribe by assaulting one of its members. “Face” refers to disrespect shown to one individual denoting disrespect for the entire tribe.

Yet the Royal Court maintained the post of ‘Advisor to the King for Tribal Affairs’. To that, Sheikh Adel Al Rafay’a – an elder from the Governorate of Maan – responds by saying that this is unrelated to the issue of tribal laws, saying: “The post reflects nothing more than the need to maintain communications between the King and the tribes and to follow up on their affairs and problems.”

Responding to this authors’s email asking about the nature of its current role, the Tribal Council stated that it “is considered a vital link between the different segments of Jordanian society of which the tribes form a majority, on the one hand, and the Royal Hashemite Court and other state institutions on the other. The Council has other roles associated with health and educational services offered to tribes in remote areas. It also acts in coordination with the Interior Ministry and the security apparatus to contain big disputes between tribes which can lead to public disorder.  It does so by coordinating with the tribal “sheikhs” and elders as well as pundits and by acting in conformity with the prevailing tribal customs, in dealing with problems and their ramifications to social security.”

The Council reaffirms that “this does not conflict with the implementation of the rule of law or the judicial system”, pointing out that a tribal settlement deed is “not accepted in court nor is the case closed until such time as the person involved presents himself and waives his right to pursue the issue in a court of law”.

In addition, “This particular role does not have any impact on the course of justice.  It works side by side with administrative governors and local administrators to help solve and contain problems. It does not seek to reduce sentences for criminals.  It focuses on helping the families affected in the case and comes up with solutions that fit the accepted norms which tribal society insists are part of its customs and traditions”.

Most of the tribal judges the writer met refused to comply with any decision to abolish the adoption of tribal laws in resolving disputes because they believe that they are “a part of the legacy of our fathers and grandfathers and it is unimaginable to give them up”.

Sheikh M.A from the Governorate of Karak says, “No one can abolish the tribal laws our fathers passed down to us as they are the best means of regulating dealings amongst the tribes”. M.A also reminds us that the tribes in Jordan form the “backbone of the state and both they and their laws are untouchable”.  Paradoxically, every one of the tribal “judges” the author of this article met, whose fathers and grandfathers had arbitrated before them and a number of whom hold post-graduate degrees, believe that tribal law adjudication now “includes a big number of newcomers who have entered the profession in an attempt to make money, in response to the rising costs of living. Some of them are making around JOD 1.500 per “case” while “authentic judges” do not get paid for their services.

Tribal Jurisdiction 

There were a number of attempts to annul tribal laws during the reign of the third and fourth King of Jordan and yet there was a total lack of response not only from the tribes and their sheikhs but even from a number of state officials.

Former deputy Ali Al Dala’ein sees that officials in high positions rely on the tribal adjudication system, pointing to the “participation of certain ministers, deputies and senators – while still in their official positions – in “atwa” visits, where a group of dignitaries from one tribe, with well placed and influential friends, visit another tribe to make amends for a transgression against it and negotiate on a settlement”.

The former deputy comments on this phenomenon saying that “it is unacceptable to maintain such old customs of governing in the Jordanian society when it at the same time is seeking to lay the foundations of a modern civil state”. He considers the participation of these ministers and deputies in tribal adjudication as a “factor that contributes to the rise in the number of crimes in those communities”.

Of the ten former and current ministers and deputies with whom the author met, seven confirmed the attendance of state officials at tribal hearings that involved their own tribes, using their political status to convince the victim’s family to waive its civil law “rights” or reduce the amount of the “diyya” (blood money) they are demanding”.

Former deputy Mohammad Al-Qudah says that the reason for his personal involvement in tribal cases is to “lower the amount of money asked by the victim’s family because they often ask for very large sums from the offender’s family”.

Deputy Mahmoud Al-Kharabsheh is one of the deputies who frequently takes part in tribal hearings despite the fact that he is a lawyer and used to head the Legal Committee in the former Parliament. Mahmoud Al-Kharabsheh justifies his involvement in the hearings as an attempt at “peace-making” and he disregards the claim that tribal adjudication contributes to a rise in crime rates. Al Kharabsheh finds that the civil judicial system is unable to resolve many of the tribal issues and he maintains that the customary tribal methods of solving disputes always provide “better and faster solutions than the official judicial system”.

Civil lawyer Mahmoud Kokaza asserts that “civil courts still take into account tribal settlements when it comes to sentencing murderers. The civil judge bases the sentence on the settlement reached between the families of the victim and the offender and may accordingly reduce the sentence, sometimes to less than half the original prison term (between 7 to 12 years) while the same kind of crime where tribal adjudication is not sought might receive a 25 year sentence”.

Kokaza finds that “enforcing the decision to annul tribal laws will help strengthen and uphold the authority of the judiciary”, asserting that the civil judicial system “is the only guarantee of a civil life relatively free of crime, in which all members of the society are equal before the law, with rulings made on the basis of evidence rather than the dictates of tribal customs that fail in so many cases to provide justice to both parties in dispute”.

As for M.A, there doesn’t seem to be light at the end of the dark tunnel into which he and his family were pushed – the forced displacement or “jalwa” – for a crime none of them committed but which has radically changed their lives: having had to move from their livelihood, their land as well as the homes where they lived surrounded by family, to go to the capital Amman where they now struggle, working to pay for rent and transportation.

The thirty-something year old man now hopes for a miracle which would give him and his family their old life back and end the displacement they have to endure as a result of tribal customs and laws which they consider unfair.


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