From the unwritten comes the law which is sanctioned by use, because long-lasting customs, which are approved of by agreement of those who are used to them, resemble laws.
(Code of Justinian)1
A visit to the Mohmand Tribal Agency in September 2008 (described further in Chapter 11) summed up for me the attitudes of most ordinary Pakistanis to the official judicial system, and how the Pakistani Taleban have been able to exploit this to their advantage. As Tazmir Khan, a farmer, told me, to the approval of the other local men sitting with him,
Taleban justice is better than that of the Pakistani state. If you have any problem, you can go to the Taleban and they will solve it without you having to pay anything – not like the courts and police, who will take your money and do nothing.2
Strikingly, his views were supported by the steward and the mullah of the local malik landowning family whom I was visiting, and in whose dusty, sun-drenched yard we were sitting – men who were, if by no means members of the elite, then not part of the truly downtrodden masses either. The steward, Shehzad, spoke approvingly of a recent case of Taleban justice:
Last week, a woman and her husband from Shapqadar were killed. She was a prostitute and he was selling her. So the Taleban warned her twice, then arrested them, killed the husband, cut off her nose, gouged out her eyes and drove a car over her.
The mullah, Zewar, retorted that,
I agree that she should have been killed, because she had committed crimes, and after all hundreds of people are being killed in this fighting every day. But not the way they did it, by cutting her nose and eyes. That is against the Koran and the Shariah.
However, he added that he too supported the Taleban because they bring quick and fair justice, even if it is often rough:
The Taleban’s work in our area has been good. If you have a problem you can go to them and they will decide your case justly in three days. If you go to the police station, they will take all your money and decide the case in twenty years. In Pakistan, only the rich get justice. So people are coming here from Charsadda and even further to get justice from the Taleban.3
From this, it can be gathered that the harshness of Taleban justice, so often denounced in the West and by Pakistani liberals, does not necessarily repel local people, whose local traditions of justice are themselves often very harsh indeed, especially as far as women are concerned. As the mullah pointed out, the punishment of the prostitute and her husband was closer to the pashtunwali (the traditional ethnic code of the Pathans) than to the Shariah. Even clearer was the entire local population’s absolute loathing for the state judicial system; and this was an attitude which I found among ordinary people across Pakistan.
However, it would be wrong to see the Pakistani population simply as innocent victims of a vicious judicial system run from above for the benefit of the elites. Rather, justice in Pakistan is an extension of politics by other means, and everyone with the slightest power to do so tries to corrupt and twist the judicial system to their advantage in every way possible.
Thus cases brought before the state judicial system are key weapons in the hands of individuals and groups fighting for national and local power; and in both the state and the traditional systems of justice, outcomes are determined largely by political considerations. That means kinship, wealth, influence and armed force, but also sometimes and to some extent the ability to win over public opinion in general. The means to do this have changed over time, with the modern media now playing an important role in some cases.
In the various traditional systems of justice, the powerful always had colossal advantages, albeit occasionally qualified by considerations of religious morality expressed through the influence of the Shariah. In the Pakistani state judicial system derived from the British, to this builtin bias against the poor and weak is added the appalling slowness and complexity of the system, and the ruinous costs extracted by a largely predatory judiciary and police.
All of this is well known to every Pakistani, and fear and even hatred of the state judicial system is general among the mass of the population – even among those who are exploiting the system assiduously to attack their enemies. As an Urdu couplet (with parallels in many languages round the world) has it,
The day a lawyer was born Satan said with joy,
‘Allah has made me today the father of a boy.’4
Yet at the same time, whether stemming from the teachings of Islam or from innate and universal human cravings, there exists among Pakistanis a deeply felt desire for a better form of justice. This has led to admiration in the educated classes for courageous human rights lawyers such as Asma Jehangir, and to the (alas, exaggerated) hopes attached to the Lawyers’ Movement which began in 2007 against President Musharraf and has continued in a lower key against President Zardari.
For many ordinary Pakistanis, however, this hunger for justice focuses on the Islamic code of Shariah; and as subsequent chapters will describe, at least up to the spring of 2009, the Taleban’s claim to spread Islamic justice was central to the growth of their popularity in the Pathan areas, and to the unwillingness of most Pakistanis elsewhere to support military action against them.
In the words of Imran Aslam, president of Geo TV:
Ask ordinary people here about democracy, and they can’t really explain it; but ask them about justice, and they understand it well, because unlike democracy issues of justice are part of their daily lives. Also, a sense of justice comes from Islam – athird of the names of God have something to do with justice, fairness, harmony or balance. Issues of electoral democracy have no necessary relation to this, because in Pakistan electoral democracy has little to do with the will of ordinary voters.5
It would be quite wrong, however, to see the Pakistani masses faced with the state justice system as simply the passive, sheep-like victims of predatory lawyers, judges, policemen and political elites. This is true, but it is also true that the vast majority of Pakistanis (and Indians) with even the most limited power to do so have contributed to the wreckage of the state judicial system by their constant efforts to twist it to their own individual or group purposes. One reason for this is the continual struggles for power which permeate Pakistani society – struggles in which politics and property are often inextricably mixed. In turn, these struggles generate and are generated by the lack of mutual trust that permeates Pakistani society, between but also within kinship groups.
An additional and disastrous factor is also present. However much, in England in the past, men may have bribed or intimidated judge, jury and witnesses, while at the same time swearing hypocritically into their beer that the law was an ass, they still had a feeling that, however corrupted, the law was English law, with its roots in England and stretching back to the very beginnings of English history.
No Pakistani can feel that his state law is Pakistani law in this sense, for the obvious reason that it isn’t. It is British law, as transmitted by British rule to the empire of India, adapted to the purposes of ruling India, and somewhat modified by Pakistani governments and parliaments since independence. All over the former colonial world, modern legal systems have been undermined by the fact that they were imposed from outside, have never been fully accepted by the mass of the population, and often clash with that population’s traditional codes.
This is also true to some extent in much of neighbouring India. In Pakistan and other parts of the Muslim world, however, the state judicial system faces a dual challenge to its legitimacy: from traditional, informal and unwritten local practices (and the moral orders and loyalties they reflect) called in Urdu rivaz, and from another great formal, written legal code, that of the Shariah.
The state code and the Shariah are both by nature ‘great traditions’ in the legal sense, strongly and essentially opposed to the ‘little traditions’ of the old local and kinship-based codes. They are in competition with each other to replace those codes, though both have at different times and in different ways sought accommodations with them. Indeed, the Taleban in the Pathan areas owes much of its success to its successful blending of Shariah and pashtunwali.
Both the state legal code and the Shariah are reformist and progressive codes in the context of Pakistani customary justice, especially as far as women are concerned. As will be seen in subsequent chapters, the most ghastly atrocities against women in Pakistan have been committed as a result of judgments under customary laws, not the Shariah. In the face of the – let us be frank, often barbarous – tribal traditions of the Baloch and the Pathans, the Islamic code stands where it stood when it was first created by the Prophet Mohammed to civilize the pagan tribes of early seventh-century Arabia. This is something which British imperial administrators in the region fully recognized and sought to exploit.
The competition of judicial codes is intimately related to the weakness of the state in Pakistan, and Pakistan’s difficulties in developing as a modern society and economy. For the idea of the modern state is largely bound up with the idea of the population being subject to one legal code, to which the state itself and its servants are (in theory at least) also subject. This code is laid down by one legislative authority, and administered by one hierarchy of judicial authorities. Any officially sanctioned deviations from this code are fairly minor matters of religious jurisdiction. Unsanctioned deviations are ipso facto not just illegal but illegitimate. The population of Pakistan by contrast has a choice between the law of the state, the law of religion (the Shariah), and local folk, tribal or community law.
People move between these three codes depending on circumstance and advantage, often pursuing their goals through several of them simultaneously – as well as through violence or more often the threat of it. The authorities which are supposed to implement the state law in conjunction with the Shariah, very often end up following community law or even turning a blind eye to violence. Often this is because they have been corrupted or intimidated, but often, too, it is because the police concerned share the cultural attitudes of the populations from which they are recruited. So the nature of Pakistan as a ‘negotiated state’, in which authority is a matter of negotiation, compromise, pressure and violence, not formal rules, is exemplified by the area of law and justice.
THE CUSTOM OF THE COUNTRY
State law and the Shariah are both formal, written codes. Customary laws (which can also be described as community, familial or ‘folk’ laws) are informal and unwritten, but immensely strong, because they reflect the cultures of the people. These laws, as implemented by bodies of local elders and notables or the leading males of families, reflect the basic attitudes of the population across the South Asian countryside, and to a remarkable extent in many of the cities as well.
These laws are weaker in northern Punjab than elsewhere, but still present even there, as Muhammad Azam Chaudhary’s study of justice in a village in Faisalabad District makes clear. For a very large part of the rural population, these codes, and not the state law or the Shariah, govern rules of inheritance, the regulation of marriage and sexual relations, and the punishment of a range of ‘crimes’ or the resolution of a range of local disputes. Local people, and Western commentators, are generally convinced that these laws correspond to Islam or are even part of the Shariah – which is not at all the case.
The most famous, the most extensive, and the best studied example is the pashtunwali, the ethnic code of the Pathans, but every traditional Pakistani, Indian, Bangladeshi and Nepali community has its own version. The only large population in Pakistan which has completely shed allegiance to traditional codes are the Mohajirs of Karachi, precisely because they were migrants who moved during and after 1947 from very different areas of India.
These informal systems of justice take many different shapes, but in all cases both the shapes and the outcomes are closely influenced by local kinship and power relations. In the Western systems of justice derived from or influenced by Roman law, and in all the legal codes around the world which in modern times have been based on Western codes, all crimes should be punished, and the purpose of the law and the criminal justice system is – in principle – to abolish crime altogether. These are also the basic principles of the Pakistani state legal system, because this system is based on that of Britain.
The traditional codes of Pakistan are based on quite different aims: the defence of collective honour and prestige; the restoration of peace, and the maintenance of basic order. In this much of Pakistan resembles many other heavily armed kinship-based societies. Since these kinship groups always really saw themselves at bottom as independent sovereign groups, it is logical that the laws that grew up out of these societies should in key respects resemble traditional international law more than modern national law: that is to say they are based on diplomacy as much as rules; they usually aim at compromise not punishment; and the possibility of pressure and violence continue to lurk in the background.
This is in part because ideas of honour (izzat or ghairat) and dishonour are fundamental to the culture of most parts of Pakistan. A man, or a family, who fails to avenge certain types of insult or injury by violence will be dishonoured in the eyes of their community and themselves, and nothing can be worse than that. Dishonour means lack of prestige, and lack of prestige means that the family’s prospects will be diminished in every way.
A British colonial judge, Sir Cecil Walsh, described ‘that great and fateful word izzat’ as follows, in terms which also imply its direct link to violence:
Every Indian, from the highest to the lowest, has his izzat, or name to keep. After his son, it is his most cherished possession, and if it is injured, he is an unhappy man. And in such a sensitive race there is nothing easier to injure than the izzat. The injury may be purely imaginary, but it is no less keenly felt ... He will neither forget it nor forgive the man who did it.6
In the evocative local phrase, a worthy and respected man ‘does good izzat’ – accha izzat karna – or in the Pathan territories, ‘does pashto’; that is to say ‘follows the path of honour’. This is not just a matter of individual actions and decisions, but a whole way of living one’s life; just as a woman is expected to ‘do ghairat’ in her dress, mode of behaviour and above all, of course, sexual conduct.
Walsh speaks of izzat as an individual matter, but it is equally important to families, extended families and clans. Indeed, most crimes committed in defence of izzat (and for that matter, most crimes in general) are collective crimes, as other family members join in to help or avenge their injured kinsman in battle, to threaten witnesses, to bribe policemen and judges, or at the very least to perjure themselves in court giving evidence on behalf of relatives. This is not seen as immoral, or even in a deeper sense illegal. On the contrary, it takes place in accordance with an overriding moral imperative and ancient moral ‘law’, that of loyalty to kin.
As Walsh himself recognized:
In England, a very large proportion of crime is committed single-handed, and the average number of offenders per crime must be under two. The average number per crime in the United Provinces must be nearer ten than two ...7
Violence is not frequent, or Pakistan would be in chaos; but it is fair to say that the possibility of it is often present somewhere in the background. Muhammad Azam Chaudhary writes that:
The decision to go to the police/courts involves a risk of blemishing the izzat. You often hear ‘if you are a man, brave and strong, come forward and fight directly. Why do you go to uncle police’, and that the real badla [revenge] could only be inflicted directly or by close relatives and not by the police or courts. But, on the other hand, if going to the police is only for the purpose of harassing the opponent and impoverishing him, it could become a source of adding to one’s izzat, especially by winning a court case against one’s rival. This competition of winning the cases in the courts between rivals leads to ... ‘addiction to litigation’.8
During a visit to Sindh in 1990, a member of a great local landowning and political family in Shikarpur told me:
If neighbouring landowners see that you are weakening, there are always a lot of people to take your place, and they will hit your interests in various ways, like bringing lawsuits to seize your land or your water. If you can’t protect yourself, your followers and tenants will ask how you can protect them. A semblance of strength must be maintained, or you’re finished. The trick is to show your armed strength without getting involved in endless blood-feuds ... Such rivalries between families and clans are also conducted in the law courts, but the ultimate decision always lies with physical force ...
In the countryside here in Sindh, a man from a strong tribe can go about unarmed, when no one else can. This will only change if a proper judicial system is established here in Sindh ... Western education changes attitudes to some extent, but people still feel a strong attachment to their tribe. It does make some of the sardars more relaxed though, less likely to demand retaliation at the drop of a hat. Junaid [his younger brother], when he presides over jirgas, tries to take a moderate line, and to seek compromise with other tribes instead of blood. Other sardars and tribal notables do the same. That is why, although the jirgas here are not officially recognized, the government and police use them all the time to settle disputes, and prevent them getting out of hand. On the whole the feudals are more favourable to bring tribal feuds to an end, because they are not carried away by emotion, and see that in the end no one wins. Also, a Kalashnikov can kill more people in a week than were previously killed in a year, so things can more easily get out of hand. All the same, no sardar, however rich, can afford to be seen as a coward by his people ...
Agha Tariq, PPP Development Minister, shot a man from a Mughal family in broad daylight 500 metres from here. He had a love marriage with a girl from Tariq’s family without permission – the girl has disappeared, so they must have killed her too. To kill Tariq or someone from his family in return, the Mughals would have to have tribal backing to protect them and give evidence for them. But they are basically a middle-class service family. The brother is in customs in Karachi. They are wealthy and well-connected in Karachi and even Islamabad, but they don’t have the local influence and prestige necessary to get away with killing, even in revenge. So they filed a case in court, but Tariq and all his followers got sworn alibis – some were supposedly in hospital, some even got the police to swear that they were in gaol at the time for traffic offences. They’ll never be convicted. And they won’t be unpopular with the people here because of it either – people respect men who defend their family’s honour. Even in jail such people are respected more by the other criminals, as people who have done the right thing, maintained their honour.
And the speaker, by the way, was no rural thug, but a senior official of a European-based bank.
Customary laws differ considerably among the different regions and ethnicities of Pakistan. Within the same village too, judgments according to customary law can take place at different levels and in different fora, according to the case in question. Everywhere, however, the basic unit is the same, just as it is in Pakistani rural and to a lesser extent urban societies: the ‘patriarchal’ extended family: ‘patriarchal’, though as innumerable Pakistani and Indian daughters-in-law are bitterly aware, behind the patriarchal façade, the grey eminence, the greatest tyrant and the most ruthless enforcer of custom in these families is quite often the senior female.
According to the traditional ideal, all cases involving only members of one extended family should be settled within that family, and by a patriarch relying on the consensus of the family. A situation in which different members of the same extended family appeal to outside judicial authority – whether state or communal – in disputes among themselves is generally felt to be a disgrace for the family as a whole. Disputes between extended families should also ideally be settled by negotiations between their wise and experienced patriarchs.
When it comes to issues of sexual behaviour and family ‘honour’, a majority of cases are in fact settled at this level – all too often by the death of the woman concerned at the hands of her own family. According to all the customary codes, when this happens wider justice has no role to play at all; and alas, across most of Pakistan the state authorities receive little or no help from local communities in pursuing these cases, most of which go unreported (the same is true across very large parts of India).
If however a case involves people from different extended families (or relations within one extended family break down irretrievably), then outside help will be invoked by one or both parties to the dispute – either to prevent violence or to restore peace after violence has occurred. This help usually involves a mixture of mediation by some respected local figure or figures with judgment by a group of ‘elders’. In Punjab, as in north India, such a group is usually known as a ‘panchayat’ (from a Hindustani word originally meaning ‘council of five’). In the Pathan areas, Sindh and Balochistan, the name commonly used is the Pathan word for such a council of local elders and notables, ‘jirga’.
Among the relatively well-defined and structured Pathan and Baloch tribes, such councils have a fairly regular appearance, and among the Baloch and other tribes influenced by their culture, the jirgas are presided over by the sardar (hereditary chieftain) of the tribe concerned or a close relative. In Punjab they are much looser and less informal. If a case involves members of the same local biradiri, then the panchayat concerned will represent that clan involved; if members of different clans, then representatives of the whole village (or at least its dominant landholding elements) will be present. More rarely, representatives of different villages will meet to discuss disputes between them.
Membership is informal and ad hoc, and emerges from a local consensus as to who is worthy of taking part. In the Pathan and Baloch areas especially, a respected local religious figure may play a mediating role. The local village mullah, however, does not have any right to do so ex officio – a sign of the low respect in which these figures have traditionally been held. Judgments also generally emerge informally from local consensus.
This is especially true when the alleged perpetrator of a given ‘crime’ is some universally despised figure, or one who has committed an action which directly threatens the wellbeing of the whole community – for example, a miller who mixes sawdust into his flour. Such people may be punished by fines, by collective ostracism, or by some form of public ritual humiliation, like being paraded around backwards on a donkey with a blackened face (a South Asian version of the collectively imposed ‘rough music’ in traditional English villages which gave rise to the expression ‘face the music’).
Very often the jirga or panchayat really only ratifies a communal decision which has in effect already been made. This is equally true of the greatest of all jirgas, the traditional loyah jirga, or grand national assembly, of Afghanistan. In disputes involving two families or clans, this decision in turn will be based not on any strict definition of formal justice, but rather on a whole set of shifting elements in which considerations of equity, of relative power and above all of communal peace will all play a part. Judgments will inevitably involve relative winners and losers; but because communal peace and family prestige are both of the essence, considerable care will usually be taken to ‘save face’ on all sides, and to arrange compromises. Here, compensation rather than punishment is of the essence.
As Imran Aslam of Geo TV continued:
Pakistan works at one level which is informal. You could call it the informal moral economy, which keeps hitting back against the elites. Attitudes to the law are part of this ... One thing that ordinary people here fault the state’s Anglo-Saxon legal system for is that there is no compensation. Yes, they say, the law has hanged my brother’s killer, but now who is to support my dead brother’s family – who by the way have ruined themselves bribing the legal system to get the killer punished? Both the traditional justice systems and the Shariah are all about mediation and compensation, which is an important part of their appeal for ordinary people.9
Some of the British themselves recognized these objections to their system; and from the time when they first introduced the modern Western legal system and modern Western administrative, and later representative, institutions to their Indian empire, some of them also sought to give a recognized and honourable place to traditional forms. One of the greatest and most thoughtful of British officials, Sir Mountstuart Elphinstone, sought to safeguard and recognize customary law, because of the need for government ‘to escape the evil of having a [British] code unsuitable to the circumstances of the people, and beyond the reach of their understanding’. 10
Since independence, a number of attempts have been made in both India and Pakistan to bring the jirga or panchayat into the regular state judicial and representative system. In India, ‘Panchayati Raj’, or basic democratic self-government, was for a long time the official Gandhian programme of the Congress Party. Attempts under Ayub Khan and Musharraf to create basic democratic institutions in Pakistan – paradoxically as an underpinning of military rule – both failed in the face of the opposition of the political elites.
When it comes to the judicial system, this issue in Pakistan must be divided into the informal and the formal level. At the informal level, policemen in much of Pakistan (but especially the tribal lands) frequently resort to customary judicial practices for the simple reason that – as so many of them stressed to me – given the reality of Pakistani society and police weakness, it would be impossible to operate half-way effectively without them. In particular, it is quite impossible to prevent, contain or end tribal feuds without recourse to tribal jirgas.
As the chief of police in Larkana District in Sindh told me in 2009 (echoing precisely what the police chief in the neighbouring district of Shikarpur had told me twenty years earlier):
We try to work between the [state] legal system and the tribal system. When the tribes fight each other, I try to first pressurize them by raids, arresting known violent characters or in extreme cases even the sardars themselves, and holding them for a while. Then having taught them a lesson about not going too far, I get both sides around a table to negotiate. You can contain tribal violence by prompt police action, but to solve a conflict, you always end up with a jirga; because you can only end feuds if the two sides agree between themselves to end them ... We are not like the army; we can’t just shoot people until they obey us. In the end we live among the people and have to work with local people. If we don’t, the whole system collapses.
Statements like this exemplify the nature of Pakistan as a ‘negotiated state’, and also the way in which the Pakistani police (and, indeed, much of the civil service) are still basically a colonial-era police force, or even a medieval one: dedicated chiefly not to the pursuit of crime as such, but to the maintenance of basic peace and order. In fact, the Pakistani police still operate on the basis of the British Indian Police Act of 1861, only slightly modified. This act was introduced in the immediate wake of the Indian revolt of 1857, and its structures and regulations were drawn up on the basis of those governing the paramilitary police force in Ireland, also charged with holding down a restive population.
The element of negotiation in police work applies not only to major tribal feuds, but also to quite minor cases. Thus in the Tehkal police district of Peshawar in August 2008, an investigating officer described to me a recent case in which two neighbouring families had fought each other. He said that they probably had longstanding issues with each other, but that the fight itself was the product of pure exasperation, heated to boiling point by a local electricity breakdown in the Peshawar summer.
After an endless wait, an electricity repair crew was bribed by both families to turn up, but naturally had to go to one of them first. An argument erupted which turned to blows, and then pistol shots, leaving two dead on one side. ‘Who started it?’ I asked. ‘God knows,’ the policeman replied. ‘They both say the other did. Does it matter? They weren’t criminals, just ordinary people who got a rush of blood to the head. That’s very common in this country.’
The men of the winning side fled to relatives in the Khyber Agency of FATA, from which it is (especially now) virtually impossible to recover criminals. The investigating officer said that the police tried (‘a bit’) to arrest the men by asking the Khyber Tribal Agency for help and putting pressure on relatives who remained in Peshawar to get them to return and turn themselves in,
but in the end we encouraged the family of the dead men to ask for a jirga to arrange a settlement and compensation, and both sides swore to accept its decision. They were paid Rs10 million, I think, and in return they swore on the Koran not to seek revenge. Then they came to us and we dropped the case ... Rs5 to 20 million is the range of compensation for a murder, but sometimes the compensation can be in vehicles or property. Swara [the infamous Pathan and Baloch custom of handing over young girls in compensation] is greatly diminished these days because of education, at least in the towns.
While the police at ground level are resorting to informal justice to get things done, some senior officers are thinking seriously about how the entire system can be changed so as to bring it more into line with popular expectations of justice, and improve its effectiveness at the same time. Malik Naveed Khan, the thoughtful and able inspector-general (i.e. commander-in-chief) of the police in the NWFP, took time off from fighting the Taleban in July 2009 to give me a fascinating lecture on the subject of ‘restorative justice’. This is a growing trend in approaches to criminal justice in a number of countries (including New Zealand), with certain parallels to traditional South Asian approaches.
Naveed Khan has set up public committees attached to police stations in parts of the NWFP, composed of respected local people co-ordinated by the local police chief to arrange reconciliation and compensation in a range of cases up to and including murder. Unlike in the informal jirgas, these committees are not able to make decisions (reprisal killing, the giving of women, and so on) which contradict Pakistani state law. In his words,
If we can regulate the jirga system and make it official, then we can prevent such illegal decisions while keeping the best aspects of the old system. After all, no one but the lawyers really wants to bring cases to court if they can avoid this. It is an immense burden to everyone concerned, including the police who here in the NWFP are in a life and death struggle with the Taleban. What is more, no one sensible wants to send people to jail – often not even the victims of crime, if they can be compensated by the perpetrator. Prison only turns accidental criminals into professional ones, and anyway, all too often in Pakistan for whatever reasons they are let out again after serving only a small part of their sentence.11
There is, however, a range of obstacles to the full integration of informal justice structures into the formal justice system. The first is obviously the economic interest of judges, lawyers and policemen, all of whom would stand to see their incomes from bribes and fees greatly diminished. This is related to the point that the informal justice system cannot work properly if disappointed parties are always in a position to appeal from local consensus to the police and the state courts – which, unlike the local community, can bring overwhelming force to bear in particular cases, at least if they are bribed enough.
A second obstacle is that because they are ad hoc and informal, jirgas and panchayats usually have to be based on small village or tribal communities in which people know each other, know who has sufficient local respect to serve on a jirga, and also understand well both the personal characters of the parties concerned and the reality of power relations between them. This is less and less possible in Pakistan, where the population, and the urban share of it, are both growing enormously.
This problem was brought home to me when in 2009 I visited Mingora, capital of Swat, after more than twenty years. The people of Swat still remember the autocratic but fair judgments of their former ruler the Wali, under a system in which the ruler presided personally over all serious cases, and knew personally every significant figure in his land. But when the Wali ruled Swat the whole territory had fewer than 500,000 people. Now Mingora alone (which I remember as a small country town) has almost that number – more than London or Paris in the eighteenth century. In a population this size, it is impossible to follow the old ways based on personal knowledge and local consensus.
The existence of a parallel, legally unrecognized set of judicial institutions relying on local codes obviously calls into question the whole project of creating a unified modern state, which is why since early modern times royal authorities in Europe and elsewhere tried to stamp out these institutions and practices and replace them with a uniform code and uniform institutions staffed by centrally appointed judicial officials. This has been a challenge for India as well as Pakistan. In the words of the Indian legal anthropologist M. P. Jain:
There is one other very important reason as to why custom should now be abrogated. Most of the customs are tribal or communal and sectarian, and so long as custom survives these class dictinctions are also bound to survive. It would lead to a better integration of the people, if the sense of separation of each community arising out of its distinctive customs were removed.12
Finally, in one key respect the question of the judicial role of jirgas and panchayats raises in acute form the clash of cultures between the Pakistani masses and the Westernized educated elites which dominate the state and the senior ranks of the judiciary – which in turn raises a fundamental question about Pakistani democracy. This question relates to the treatment of women.
Especially among the Pathans and Baloch (including the Baloch tribes of Sindh and southern Punjab), tribal jirgas are regularly responsible for ordering punishments of women which are absolutely odious not only to modern Pakistani state law and Westernized sensibilities, but to the Shariah and strict Muslim sensibilities as well; but which, unfortunately, enjoy the support of the vast majority of the members of the communities concerned – or at least the males.
These jirga decisions include: the execution of women for ‘immorality’, and even for perfectly legal and religious marriages with men from other tribes; the giving or exchange of minor girls in compensation as part of the settlement of feuds; and, more rarely, orders of gang-rape as a punishment. This last, however, is almost always limited to actions by one locally dominant kinship group to teach another one its place – as in the particularly monstrous case of the rape in 2002 of Mukhtar Mai, a woman of the Gujjar biradiri in the Muzaffargarh district of southern Punjab, on the orders of a jirga of the Mastoi, a local Baloch tribe. This is a tactic often used by superior castes in India as well to crush and humiliate the lower castes.
This issue raises yet again the question of whether Pakistan is really (as most observers believe) insufficiently democratic, or whether on the contrary it is in fact too democratic for its own good – in so far as the views of a largely illiterate, obscurantist and often violent population are in a position to prevail over those of the educated elites, and the state is too weak to enforce its own official law.
For it should be remembered that in eighteenth- and nineteenth-century Europe, key advances in judicial progress, and administration in general, which laid the foundations for modern European civilization, were carried out by small enlightened aristocratic and bourgeois elites. These often had to use authoritarian methods to crush the resistance of the mass of the population. They certainly never believed for a moment that the masses should be consulted about elite actions.
This issue also raises the question of the difference between a truly ‘feudal’ elite and one based on the leadership of kinship groups. A truly feudal elite – and one which did not have to stand in elections – might eventually summon up the will to be true to its own modern education and ensure that measures protecting women (of which there are plenty in law) are actually enforced. An elite dependent on the consensus of kinship groups to be elected to parliament cannot do so – especially because even in the most autocratic Pakistani culture, that of the Baloch tribes, there is in the end almost always some rival would-be chieftain waiting within the chieftain’s family to challenge him if his support in the tribe dwindles.
The reality of all this was brought home to me by the Sardar of one tribe in Balochistan – a Pathan tribe, but which, unlike the Pathans of the NWFP and FATA, had been heavily influenced by autocratic Baloch traditions. If his very candid and all-too-human account of his approach seems less than heroic, I invite you, dear Reader, to ask yourself whether you or I would really do so much better.
This Sardar is a ‘Nawabzada’, the descendant of a tribal chieftain who fought against the British, but later compromised with them and was given the title of ‘Nawab’ – another sign of the old Frontier tradition whereby yesterday’s enemy is today’s ally, and vice versa. His tribe straddles the Afghan frontier, but in Afghanistan his influence, though present, is greatly reduced. The Sardar’s grandfather sat in the Pakistani Constituent Assembly of 1947.
The walls of the Sardar’s mansion in Quetta are festooned with the heads of mountain goats and photographs of ancestors bristling with guns, swords and facial hair. The resemblance in terms of both hair and general expression was rather marked. The Sardar’s own facial hair is more limited – a moustache and a pair of small sideburns, which together with his long curling hair gave evidence of student years in London in the late 1960s. He spoke of his time in London with deep regret as ‘the happiest time of my life’, but with a disarming smile, admitted that ‘in the end, I just could not bear to live my whole life in a place where, when I walk down the street, people do not bow and say, ‘Salaam aleikum, Sardar Sahib’.
The Sardar described his judicial role as follows:
In my tribe, the poorest man if he gets into trouble will be helped by his fellow tribesmen, led by me and my cousins. Even if he drives a rickshaw or sells boot polish he can look anyone in the eyes because he has a chief and a powerful tribe behind him ...
Every month, hundreds of people come to me or my cousins to have their problems solved. If it is a simple case, we make decisions ourselves. If more difficult, we call a jirga, and from the jirga people are chosen as a committee to look into the case. We choose people depending on the nature of the case. If it is a transport problem, we choose people with transport experience. If business, then businessmen. If the parties to the case want it to be judged according to the Shariah, we include a mullah. We make the judgment, and we enforce it.
For example, a few months ago one boy from the tribe killed another boy. We are arranging compensation. They are both from our tribe, so that was quite easy. A more difficult case recently was when one of our women was raped by two young men from another tribe. We caught the men, and our tribal jirga met, and called witnesses according to the Shariah and modern law. We consulted with the elders of the other tribe. They offered money compensation but we can only take this in cases of murder or wounding. To take it in cases of the rape of our women would disgrace us. Then they said, you can kill the older boy, but please spare the younger one. So we decided to kill the older boy, and slit the nose and ears of the younger one ... The older one was twenty-something, the younger is sixteen ...
‘Rough justice,’ I suggested.
Yes, but if we had gone to the government law it would have taken years, and in that time they would have been free to roam the streets raping more girls and laughing at us. Relations between the tribes would have got worse and worse, and maybe in the end many people would have been killed. This is our tribal system which has existed for ages. If it had been bad, it would have been abandoned by the people. It is a hard decision, but we need to make sure that no one will think of killing or raping our people again ...
This system helps keep the peace and stops feuds getting out of hand. For example, we have just settled a feud with another tribe in south Punjab, over land. Six years ago, there was a clash. Two people were killed on each side, and four of our men are in jail in Multan for this. Our jirga has negotiated a settlement with the other tribe, and they agreed to drop the charges. So this week we are going to Multan to bring our men from jail. We will give a feast for the jirga of the other tribe at which we will formally forgive each other, and in two weeks, they will give a feast for us.
‘Is this according to Pakistani law?’ I asked.
There is no law! If there were a real law in this country, why would all these people come to me for help? I don’t go looking for this work. I have important business in Karachi that I have to leave behind to do this. People come to my cousins and me because they respect us, not just because of our titles but because they know our character and know that we are fair. I depend on my people’s respect only. After all, I have no official position, and no support from the police or the courts ...
I asked him about the punishment of women in ‘honour’ cases, and how far – since he had previously spoken bitterly about the backwardness and lack of education of his fellow-countrymen – he was able to bring his own more enlightened views to bear.
Sometimes there is no need to set up a committee of the jirga. If it is a very simple case and I know what the tribe thinks, I can just say, ‘This is the decision!’ But issues involving women are never simple, and I always have to think about what the opinion of the tribe will be. The tribal set-up is very hard, not just towards women but towards men as well. Remember, no one in this country has real rights ...
Because I have travelled and am educated, taking these decisions over women is not easy for me. I have to think and think about how to handle them. There are certain things I will not permit. For example, the first decision I made on becoming Sardar was that I will not allow the giving of girls in compensation. That is still very common in our system but I will not allow it. I will order money given instead, if necessary much more money.
Also I will not punish a girl for wanting to marry or not to marry someone, as long as it is a proper marriage. If a couple run away together to get married without their parents’ permission, I will put pressure on the parents to agree to the marriage, not to kill them. I may fine the boy’s family though so as to save the face of the girl’s family.
With such female problems I am very cautious. To be honest I try to avoid them whenever I can. If I can solve them without bloodshed, then I do so. Otherwise I send the case to my cousins to decide.
‘And do they share your more enlightened principles?’ I asked.
Well, that is up to them. But I do try, you know, when possible, and this has sometimes involved me in arguments with my own tribe. I can say in the end to the jirga and the parties in a case: ‘I don’t agree to your verdict. This is my decision and if you don’t like it, you can go to state law.’ But I can’t do this often or no one would obey me any more. I only do it sometimes in women’s cases, because after all I am a father with daughters. If it’s a business issue and I disagree with the jirga, I won’t take a stand – after all, businessmen can always get their money back somehow ...
I cannot say whether this Sardar did in fact try hard in ‘women’s cases’; but at least he seemed aware that he ought to. As will be seen in Chapter 8, the other Sardars I met in Balochistan simply defended tribal custom tout court; they also claimed to be modern and educated men, and – of course – ‘good democrats’.
The problems affecting the police and the official judicial system in Pakistan are so many and so great that it is hard adequately to describe them, but one single word that explains many of the others is yet again ‘kinship’. In the words of a police officer in central Punjab:
Families and clans here stick together, so if you really want to arrest one person here and prosecute him successfully, you may need to arrest ten, or threaten to arrest them – the original suspect plus three for perjury, three for bribing the police and judges, and three for intimidating witnesses. And if the family has any influence, the only result will be to get yourself transferred to another district. So I’m afraid that it is often much easier just not to arrest anyone.
Take the FIR [First Information Report] system. If two individuals or families clash, and someone is killed, the dead man’s family will lodge an FIR with one police station saying that he was wantonly murdered, and the other family will lodge an FIR with another police station saying that they were attacked and acted in self-defence – and they may be telling the truth. The police and the courts have to judge between them on the basis of evidence, every bit of which is probably false in one direction or another. So either the case goes on for ever, or it is resolved in favour of which side has more power and influence.
If it’s an especially bad case and you are sure of what happened, you may be able to bargain with the family or with local politicians to give you the man you want. But then of course you will have to give them something in return, or let one of their members off in some other case. This is typical give and take – what we call here lena dena.
The problem for the police and the courts begins with lying. Astonishingly – at least, it astonished me – it is not permitted in Pakistani courts to swear on the Koran (that is, the Book itself, not in the words of the Koran) when giving evidence. I asked Sayyid Mansur Ahmed, vice-president of the Karachi Bar Association, why ever not. ‘It’s very simple,’ he replied with a cheerful smile. ‘Most people would swear and then lie anyway. That would bring religion into disrepute – and you are not supposed to do that in Pakistan.’
British officials working in the field recognized this problem and attributed it to their own system, drawing a contrast yet again with traditional local jirgas and panchayats where, since everyone knows everyone else and the basic facts of the case, outrageous lying is pointless. In the words of General Sir William Sleeman, commander of the campaign to suppress thuggee:
I believe that as little falsehood is spoken by the people of India, in their village communities, as in any part of the world with an equal area and population. It is in our courts of justice where falsehoods prevail most, and the longer they have been anywhere established, the greater the degree of falsehood that prevails in them.13
Denzil Ibbetson, the great colonial administrator and ethnographer of the Punjab, writes of the ordinary Baloch being naturally frank and honest in his statements, ‘except where corrupted by our courts’.
Once again, the people doing the lying and manipulating would in most cases not feel that they were acting immorally; rather, that they were obeying the higher moral law of loyalty to kin. And, once again, there is no essential difference in this regard between the big ‘feudal’ politician and the small tenant farmer. They all, each according to their station and resources, do their utmost to help relatives and allies by deceiving, corrupting or pressuring the police and the courts. Pressure can be directly physical (especially in the case of the Islamist extremist groups) but more often it comes through political influence.
This goes up to the very top. Thus in 2009 I was sitting in the office of the inspector-general of police in one of Pakistan’s provinces, when a call came through from the province’s chief minister – who was roaring so loudly that I could hear him through the receiver from several feet away. He was complaining that a superintendent of police had arrested a dacoit (bandit) leader at the rural mansion of one of his party’s provincial deputies.
The unfortunate inspector had to promise an inquiry, the dacoit’s immediate release and the immediate transfer of the offending police officer to another province. And this chief minister, by the way, has a personal reputation for efficiency, hard work and relative honesty. A senior officer in Punjab told me that around half of the 648 station house officers (chiefs of local police stations) in the province are chosen by local politicians through influence on the Punjab government, to serve their local interests.
Furthermore, the state judicial system is not merely politically reactive, but is also regularly used as an active weapon. A great many artificial cases are brought deliberately by politicians to attack rivals, and by governments against their opponents. The manipulation of such cases and their outcomes is also a key tactic of the ISI (Inter-Services Intelligence) in managing elections by forcing particular candidates to withdraw or to change sides.
A situation of nearly universal mendacity and political pressure concerning their work would place an intolerable burden on even the best-equipped, best-trained, best-paid and best-motivated police force in the world – and the Pakistani police (like the Indian) are very, very far from being any of these things.
The miserable conditions in which ordinary policemen work was brought home to me by a visit to a station house in the suburbs of Peshawar in August 2008 (responsible for an area where there had been eighteen murders so far in 2008). I spoke with the sub-inspector in charge of the investigation unit in the room where he and the other officers sleep and eat during the day and night that they spend at a time on duty. It was a slum, with bare concrete walls, stained with damp from the leaking roof. My visit was during a power cut – the ordinary police of course have no generators – and in the monsoon the whole station was a hot fug of rot and sweat. The officers’ clothes hung on pegs, and there was a mirror for shaving. That, with their charpoys (string beds) and a couple of chairs, was all the furniture.
The sub-inspector is a big, very tough-looking middle-aged man with enormous fists – not a good person to be interrogated by. I asked him what the police in the NWFP need most. He gave a harsh laugh.
Where to begin? First, we need better pay and incentives. Look at the motorway police. Everyone says how honest and hard-working they are – well, that’s easy, they are paid twice what we get. We need better accommodation – look at this place. We need better vehicles, better radios, better arms, bullet-proof vests. Tell me, could any police force in the world work well given what we have to rely on? Would you risk your life fighting the Taleban for the pay we get?
He told me that at that time there was one fingerprinting machine for the whole of the NWFP; and, as his seniors candidly admitted, it was almost completely useless, both because of the inadequacy of the archiving system and because the ordinary police have no training in taking fingerprints. This is also true for the greater part of Punjab and the whole of interior Sindh. And indeed, all this is irrelevant, since the police have no training in how not to ruin all evidence by trampling over a crime scene. This is generally the case even of the Interior Ministry’s special service, the Intelligence Bureau. It helps explain the shambolic nature of the investigation into Benazir Bhutto’s assassination, which has generated so many conspiracy theories.
To lack of equipment and lack of training can be added lack of numbers. Visitors to Pakistan who see large numbers of police guarding official buildings or accompanying politicians may think this is a heavily policed society. In the main cities, large numbers of police can indeed be called upon if required; but in the Punjab countryside, there is one police station for approximately every fifty villages (incidentally, the figures in much of rural India are even worse). Most policemen with whom I spoke had no real idea how many people there were in their areas – or even, very often, how many serious crimes had been committed there over the past year.
The result of all this, as well as of lack of incentives – and a certain doziness, exacerbated by the heat – is that most of the time the police are purely reactive. You never see a speeding police car in Pakistan (whereas you do occasionally see speeding ambulances and fire engines) unless, once again, it is accompanying a senior politician. The police wait in their stations for cases to be lodged with them, and, in the case of murder, for bodies to be brought to them – which naturally makes any forensic examination of the crime scene out of the question, even if the police had the training or equipment to carry it out. Since the population is mostly illiterate, the police can often write down whatever they like on the FIR, and get the witnesses to sign it. Unless the police see some money in it for them, this often means that cases are simply never registered at all.
A standard part of the police investigation technique is the torture of suspects, relatives of the suspects, and witnesses. Most police officers are completely candid about this in private. A senior officer in Punjab told me:
I am trying to introduce fingerprinting, forensic examination and so on, but there is a cultural problem. The response of the ordinary SHOs [Station House Officers] is, ‘Oh, this is just another hobby-horse of our overeducated senior officers. I prefer the reliable method: put the suspect on the mat and give him a good kicking. Then he’ll tell us everything.’
The investigating officer I spoke with in Peshawar described a recent carjacking case in which the suspect had absconded to the Mohmand Agency with the vehicle.
So we arrested his father, and put pressure on him to get the car back. If he had been a young man, naturally we would have beaten him till he told us where it was, but, since he was old, we didn’t torture him. We just threatened him in other ways, with cases against other people in his family – everyone in this society is guilty of something. We told him that we would talk to the Political Agent in Mohmand and get his family home there demolished if he didn’t help us. So in the end he sent someone to bring the car back.
Together with the general police tendency to take bribes in return for every service, it is hardly surprising therefore that people avoid the police as much as possible, and try to resolve crimes in informal ways. As to the idea that it makes any difference in this regard whether Pakistan is ruled by a civilian or military government, the Peshawar investigator answered that question categorically. I visited his station house the day after Musharraf’s resignation as president. I asked him if his use of torture would change now that Pakistan was a ‘democracy’ again. If I had turned into a purple elephant his look could not have been more blank with amazement. I had asked not just a meaningless question, but one with no connection whatsoever to any reality he knew.
None of this however is necessarily timeless or set in stone. Some dedicated and intelligent senior officers are working hard to improve things, and the national motorway police, mentioned by the sub-inspector, are an example of what the Pakistani police can be when the circumstances and conditions are right. Their high pay makes them resistant to bribes, and because they are commanded from Islamabad they are immune to local political pressure. Perhaps equally importantly, they work in a context – that of Pakistan’s splendid modern motorways, with their gleaming service stations and roadside cafés – which gives them legitimate pride in their country and their service.
In consequence, they are amazingly honest and efficient. My driver was given a ticket for speeding on the way from Islamabad to Lahore – with no suggestion that he could be let off in return for a bribe – and I heard numerous members of the elite complain with astonishment that the same thing had happened to them. Then again, Pakistan’s motorways often seem in a way to float over the country without being connected to it, so it is natural that their police should be the same.
Suspects in Pakistan who survive investigation by the police find themselves before the courts – and may the Lord have mercy on their souls. ‘May God save even my worst enemy from disease and a court case,’ as a Punjabi saying has it. At least as bad as the problem of corruption is that of delay. Indeed, if there is a classical legal phrase that ought to be nailed above every Pakistani (and Indian) courtroom, and perhaps to the foreheads of South Asian judges and lawyers, it is ‘Justice Delayed is Justice Denied.’ When I visited the city courts in Quetta, Balochistan, a majority of the people with whom I spoke outside had cases which had been pending for more than five years, and had spent more than Rs200,000 on legal fees and bribes – a colossal sum for a poor man in Pakistan.
These problems do not apply only to court cases. One old man had had to come every day for six days, despite paying several bribes, simply in order to get a property transfer registered. This means that a great many people, especially in the countryside, prefer to arrange all such transfers and inheritance arrangements informally – which means that there can then be no recourse to official law if things go wrong.
The inordinate length of time taken by South Asian legal cases is in part related to corruption, but also to a host of other factors in which local influence and intimidation, lack of staff, a grossly overloaded system, cynical manoeuvres by lawyers, and sheer laxness, laziness and incompetence on the part of both the judiciary and the police all play a part.
Moreover, of course, delay breeds overloading and overloading breeds more delay, in a sort of horrible legal combination of circulus vitiosus and perpetuum mobile (to use two Latin phrases that might usefully replace those legal ones so beloved of South Asian lawyers). As of May 2009, there were more than 100,000 cases pending before the Karachi city courts alone, with 110 judges to try them (in a city of some 17 million people) – which makes for an easy enough calculation. Some of the courts are supposed on paper to attend to more than 100 cases a day. Every day, around 1,200 prisoners should be delivered to the courts in Karachi, but there are only vehicles and holding cells for 500.
To deal with the issue of Pakistani delays in the way that the English legal system (belatedly and in part) improved the almost equally dreadful state of the law in early nineteenth-century England would require the isolation of particular causes. That is hard to do, because there are so many causes, and the legitimate (or at least unavoidable) and the illegitimate are so mixed up together. A central problem is the scandalous number of adjournments, of which it is not at all uncommon to encounter several dozen in one single case.
An adjournment may be given for any number of reasons, including it seems for no reason at all except that one or other lawyer asks for it. And these reasons may be legitimate (for example, there really is an acute shortage of vehicles to bring prisoners from jail to court) or may be the product of corruption, influence, intimidation, personal friendship or just the easygoing attitude to members of their own class that characterizes most of South Asian officialdom. As a retired judge told me:
It doesn’t do for a judge to be too hard with the lawyers. We all know each other and there is a sort of family feeling in the legal profession. And a judge who makes himself really unpopular with the lawyers will find his promotion blocked by rumours and whispers, or may even be accused of corruption, rightly or wrongly. So many judges take a live-and-let-live attitude when they really ought to be pulling a lot of lawyers up very hard indeed, especially when it comes to non-attendance and requests for adjournments for specious reasons ... Though it is also true that the system is so terribly overloaded that it simply couldn’t work properly even if everyone did their duty.
Central to the near-paralysis of the judicial system are the embittered relations between the judiciary and the police. Of course, this exists to some extent in all societies, but in Pakistan it has reached a level which, as will be seen, can become literally violent. It should be obvious from this chapter why the judiciary have good reason to distrust cases brought by the police. Equally, the police can point to numerous instances where they have finally prosecuted well-known murderers and gang leaders, who have then been acquitted by the courts on specious grounds, or whose cases have dragged on for years with no result.
As a result, as many policemen told me: ‘If you really want to deal with a powerful miscreant in this country, you have to kill him.’ This has contributed to the taste of the Pakistani and Indian police – urged on by provincial governments with a particular commitment to tackle crime – for ‘encounter killings’ (extra-judicial executions by the police under the pretence of armed clashes). The inability of the courts to get convictions has been particularly disastrous when it comes to tackling Islamist extremists, who, even when proceeded against by the state, are often released for lack of evidence.
The case of the gang-rape of Mukhtar Mai, mentioned above, shows the police, the courts and the political system at their interactive worst. The crime occurred in 2002. In 2010 she is still waiting for justice; and this was both an extremely simple case (legally speaking) and an extremely high-profile one in which the Pakistani and international media and human rights organizations took a close interest, and which the PPP government which took power in 2008 promised to expedite.
One key aspect both of the incompetence of the judiciary and the alienation of the mass of the population from the judicial system is that, owing once again to the British Raj, the system is conducted mainly in English sprinkled with Latin. The alienation of the population comes from the fact that the overwhelming majority of the population do not understand English. The incompetence comes from the fact that neither do many of the system’s staff – at least, not well enough to do their jobs half-way properly.
In January 2009 in the Bar Association in Multan, southern Punjab, I listened with wry amusement as the president of the Association, Mehmood Ashraf Khan, dictated legal notes to his clerk to write down. The clerk (or munshi) was an old, old man with a grey beard and a wool hat, and it may in part have been lack of teeth as well as lack of English that made him stumble over his words.
‘The following prisoners are required to be implemented as respondents,’ said the lawyer.
The clerk repeated slowly, writing as he spoke, ‘The following prisons are retired to be ...’
‘Required!’ snapped the lawyer.
‘Are required to be imprem, indem ...’
Of course, it would have helped greatly if the lawyer had done his writing himself, but that would presumably have offended against one of the most basic and universal rules of South Asia – that the elites do not perform manual labour. In fact, many of the lawyers whom I meet speak – and therefore presumably write – very poor English. As a result of this and the inadequacy of most Pakistani legal training, a great many simply cannot master even moderately complex briefs, or prepare their cases in ways that will allow them to be understood easily and decided expeditiously. This is of course a godsend for defence lawyers.
Evidence in the courts can be given in Urdu or provincial languages, but then has to be translated into English to be recorded. In a courtroom in Karachi in May 2009 I watched while a woman gave evidence – in a case of child kidnapping – in Urdu and the judge translated it into poorish English to a clerk writing beside him in longhand (the case then had to be adjourned because the public prosecutor did not turn up). Everything had to be repeated to make sure that it was accurate, and the judge and the defence lawyer repeatedly corrected each other’s English. The lawyers can speak to the judge in either English or Urdu, but the lawyers make their arguments in English and the judge delivers his judgment in English – so that unless someone translates for the accused, they will most of the time not know what is happening to them.
I asked a weary but thoughtful woman judge, Amina Nasir Ansari, why the whole system couldn’t be moved to Urdu:
In the first place, because law is based on precedent, and all our records going back to British days are in English. If we abandoned English, there would be no solid basis for our judgments. We would have to start everything over again and God knows where that would take us. And secondly, because of the language issue in this country. In Punjab, most courts do in fact operate in Urdu, though everything still has to be translated into English for the records, and all communications are in English. But here in Karachi, if we moved to Urdu our Sindhi brothers would complain, and vice versa.14
The basic reason why this court was operating in English was carved into its ornate neo-classical façade: the letters GRI, which no one in the court could decipher for me but which stand for Georgius Rex Imperator : George V, King of England and Emperor of India.
According to old photographs, when the court was first built it stood alone, looking out onto a broad avenue. Today, it faces a traffic-choked road, and its façade towers over a bazaar. Indeed, the bazaar appears to have invaded the forecourt itself, with touts, hawkers, police, prisoners and their families, booksellers and lawyers all surging around in a slowmoving maelstrom. Workers of the Saylani Welfare Trust were distributing food from a small field-kitchen to prisoners and their families – an action enjoined by the Koran, and a small example of the private charity which does so much to soften the hard edges of life in Pakistan.
In this busy throng, by far the most exotic sight was the lawyers, who were all dressed in their uniforms of black jackets, white shirts and dark ties, on a day when the temperature in Karachi touched 45° centigrade – like penguins in hell. The women lawyers were also dressed in black jackets, but with white dupattas (scarves). Sitting in the bar-room, I asked the youngish vice-president of the Bar Association, Sayyid Mansur Ahmed, why the lawyers kept their jackets and ties on all the time when they weren’t in court. He looked at me in astonishment. ‘It is our uniform, our identity, our symbol,’ he replied. I pointed out that my sister (a barrister in London) does not wear her wig outside the courtroom, and certainly wouldn’t in this heat.
Yes, but there is a big difference between Karachi and London. There are so many people here who want to be lawyers. We have to show that we are special. I feel that our jackets show that we are advocates, because only advocates are allowed to wear them. Our seniors teach us that it doesn’t matter how hot it is, the common people will see the jacket and know that you are an advocate, and respect you.
Outside, the wall was plastered with campaign posters for elections to various positions on the board of the Bar Association. ‘Please Vote and Support Muhd. Adil Khan Advocate – For Prestige of Lawyers’, one of them read.
Elitism is one of the curses of Pakistan’s official judicial system, but also the source of whatever progressive elements it contains. The police are divided into three cadres, with hardly any movement between them: the ordinary constables and NCOs; the junior officers; and the senior ‘gazetted’ officers (around one in 800 of the total) who are recruited by examination, and rank alongside the senior civil service. This of course is derived directly from the British system, where the British senior officers were divided from their Indian officers, and those in turn from the rank and file. Today’s senior officers (assistant superintendent and above) have often studied criminology in the West.
As for the legal system, this is essentially the English Common Law, as introduced by the British. For obvious imperial reasons, however, the British empire left out the ancient democratic element of the English system, namely the jury. Pakistan and India have continued this autocratic tradition, partly because of the ingrained contempt of the elites for the illiterate masses, and partly because of better-based fears that juries would split bitterly – and then violently – along lines of kinship, sect or ethnicity.
Informal panchayats and jirgas are therefore the only democratic legal institutions in Pakistan. But there is a problem, which raises key issues of democracy and progress in Pakistan. Leaving aside their domination by local elites, these informal courts are at best only representative of half the population – the male half. Women are virtually never represented. On the other hand, in the official legal system, women have a small but slowly growing place: some 500 lawyers in Karachi are women, out of 9,000 in all, and there is a sprinkling of women judges.
Under the lash of progressive lawyers including women such as Asma Jehangir (Chairwoman of the Human Rights Commission of Pakistan), the official system has repeatedly issued judgments and injunctions protecting women’s rights, even if political pressure and its own failings mean that it usually cannot actually deliver justice in individual cases brought before it. Left to itself, the informal judicial system would, by the democratic will of its (male) representatives, sweep away modern women’s rights altogether.
Hence the repeated judgments of the higher courts declaring jirgas and their judgments illegal, even as the police rely on them constantly to reconcile disputes and keep order. This is the dilemma on the horns of which Pakistani liberals are impaled, but which they themselves do not dare to recognize: that their progressive programme, though couched in democratic terms, is opposed in key respects by the overwhelming democratic majority of (male) Pakistanis.
THE LAWYERS’ MOVEMENT
For a time in 2007 – 8, it seemed as if a bridge might be created between the Pakistani judicial elites and the masses, that mass support might be generated for a liberal programme in Pakistan, and that the judiciary itself might find the will radically to reform its own judicial system. This vision was embodied in the Lawyers’ Movement, which played a key role in bringing down the administration of President Pervez Musharraf, and may well contribute to doing the same to President Asif Ali Zardari.
The Lawyers’ Movement originated in attempts by the Chief Justice, Iftikhar Chaudhry, in early 2007, to place limits on President Musharraf’s power – including the alleged ‘disappearance’ of Pakistanis to US custody. Musharraf’s consequent dismissal of the Chief Justice led to a protest movement of lawyers against his rule, which was supported on the streets by hundreds of thousands of people. After Musharraf’s resignation, the movement continued in a lower key against Zardari.
Echoing much of the Western media, the New York Times described the Lawyers’ Movement as ‘the most consequential outpouring of liberal, democratic energy in the Islamic world in recent years’.15 Pakistani liberals, too, initially saw it as marking a breakthrough in Pakistani history, the mobilization of a section of the educated middle classes as a political force in their own right, and with mass support.
It may be that in the long run the Lawyers’ Movement will indeed be seen to have marked the start of a new and better era in Pakistan’s history. As of 2010, however, it seems that many of the media analyses of the movement have missed a number of important aspects of what has happened. The first is that historically the law in Pakistan has resembled the hen in the old Pathan proverb: ‘a bird belonging to the man who seizes it’.
This was very apparent during Pakistan’s period of ‘democratic’ rule in the 1990s. In 1993, fearful of the new power and independence of the Supreme Court, and its apparent leaning to Sharif in 1993, the PPP government sought to pack the Supreme Court and Punjab High Court with its own nominees. The result was a stand-off in which the government refused to implement the Supreme Court’s orders and lawyers boycotted the sittings of PPP-appointed judges, paralysing much of the judicial system.
This episode was followed by an even worse assault on the judiciary by the next Nawaz Sharif administration of 1997 – 9. When the Supreme Court attempted to challenge a law passed by his government giving the police a virtual amnesty for extra-judicial executions, Nawaz Sharif launched a ferocious campaign against them, including the invasion of the Court by Muslim League thugs. By the end of 1997 the head of the Supreme Court had been forced from office along with President Farook Leghari, who had tried to defend the Court’s independence.
These episodes make it rather odd that both Pakistani and Western commentators should have described Musharraf’s clash with the Supreme Court in 2007, and the Lawyers’ Movement that followed, as ‘unprecedented’, the support of the PPP and Muslim League for the dismissed Supreme Court to have been part of a genuine movement for democracy, and Musharraf’s moves against the Court as the result of ‘military dictatorship’ rather than the familiar workings of Pakistan’s power politics.
Every military and civilian regime has sought to win over the higher courts and, failing that, to intimidate them into acquiescence in unconstitutional and illegal actions. The movement to defend the independence of the Supreme Court in 2007 – 9 may represent a radically new departure, as its supporters hope. The problem is, however, that by 2009 the Court and the Lawyers’ Movement had to some extent become political allies of Nawaz Sharif and his PML(N) opposition.
In consequence of this and of the Supreme Court’s moves to abolish the National Reconciliation Ordinance and resume charges of corruption against PPP ministers, the judiciary came under strong attack from liberal journalists and commentators who had previously raised the cry of judicial independence against Musharraf. Liberal circles close to the ruling PPP were full of talk of conspiracies between the judges and the military, and of how the judiciary (and the mainstream media) would have to be ‘tamed’ again.
As already described, Nawaz Sharif when in power in 1997 – 9 also removed the then Chief Justice by unconstitutional and even violent means. It may be that subsequent events have changed his attitude – or it may not. And it may be that if Mr Sharif returns to power the Supreme Court will prosecute further illegal acts by his administration even though they have been political allies – or it may not. The Lawyers’ Movement gives good hope of this, but no certainty.
The idea of the Lawyers’ Movement as a ‘progressive’ force also needs qualification. It is true that prominent liberal lawyers such as Munir Malik and Latif Afridi in Karachi were part of the leadership of the movement. However, much of the local leadership, and the rank and file, were made up of deeply conservative provincial lawyers who detested Musharraf above all for his support for the US and moves for reconciliation with India. As Mr Mehmood Ashraf Khan told me:
I also sympathize with the Taleban movement. They brought peace and justice to Afghanistan in response to the will of the people ... In Pakistan, too, the Taleban have introduced the Shariah and have punished the persons involved in kidnapping, drug dealing, and so on. They have always been loyal to Pakistan, and terrorist attacks here are not their work ...Or, if they have carried out such acts, it is only in response to killings by the government like at the Lal Masjid [Red Mosque]. If your family and friends are killed and the legal system cannot help, then you have the right to fight back. At the Lal Masjid thousands of innocent women were killed. I believe that this was really done by Jews and Christians to create civil war in Pakistan ... They say that the Taleban are burning girls’ schools, but very little of this is being done by the Taleban. Most is being done by other forces to discredit the Taleban. India has dozens of consulates in Afghanistan, not to help the Karzai administration, but to help the Taleban to destroy Pakistan ...15
So if the Pakistani courts have repeatedly released extremist leaders and terrorist suspects, this is not just because they have been intimidated by the extremists or the government. Considerable sympathy on the part of judges and lawyers is also often present, as for the assassin of Governor Salman Taseer in January 2011.
I also have to say that both conservative lawyers like Mehmood Ashraf Khan and liberals like Munir Malik in their conversations with me displayed on many issues a contempt for logic, rationality and basic rules of evidence – no worse than the rest of the population, but these people are senior lawyers. Mr Malik too shared to the full the belief that the US, India, Israel and other countries were – for reasons that he could barely explain himself – supporting the Pakistani Taleban, and were responsible for their terrorist outrages.16
Just as important as any of this – indeed, fundamental to Pakistan’s hopes of progress – is whether the Lawyers’ Movement represents a solid mass movement for reform, or just another desperate search for a magic key that would miraculously solve Pakistan’s problems without anyone having actually to work steadily to achieve change. In the New York Times article mentioned above, James Traub described the lawyers he met at a demonstration as ‘apparently deranged’ by enthusiasm for their cause, and some of the slogans I saw raised would certainly support that view. ‘Restoration of Chief Justice Means Salvation of Pakistan’ read one placard above the Bar Association in Multan. ‘Independent Judiciary Will Solve Every Problem’ read another.
On the whole the evidence as of 2010 concerning the future of the Lawyers’ Movement is pretty discouraging. To put it at its simplest, masses of ordinary Pakistanis supported the Lawyers’ Movement not because of its programme, but because it seemed the only force able and willing to challenge the increasingly hated rule of President Musharraf; just as they supported it later out of hatred for President Zardari. This certainly did not reflect popular admiration for lawyers as a class, or the official law as an institution.
Moreover, the masses could not in fact have supported the Lawyers’ Movement’s liberal programme anyway, because the movement did not have one. The lawyers’ only collective programme has been the independence, power and prestige of the judiciary – which is an excellent thing in principle, except that the judicial system is one of the most flawed institutions in Pakistan, and consequently loathed by the masses.
Unfortunately, although individuals such as Mr Ashraf Khan have brought forward some very valuable proposals for judicial reform, the Lawyers’ Movement as a whole has not generated any serious movement among lawyers for reform of their own judicial system – something that is absolutely essential if mass support for the movement is to be maintained in the long term, but would be very uncomfortable for many lawyers. Indeed, most of the members of the movement with whom I spoke did not seem to understand what I was driving at when I asked about this, let alone think that it was in any way important.
In his suo moto (by his own motion, i.e., not in response to a case brought before the Court) judgments in 2007 – 9, Chief Justice Chaudhry undoubtedly righted a number of individual wrongs, and garnered a great deal of popularity by hauling police chiefs and bureaucrats before the Court and humiliating them publicly. He also appears to have a genuine commitment to the supremacy of the law, at least as defined by himself. His personal style in this it must be said was entirely autocratic, as was that of other senior leaders of the Lawyers’ Movement whom I met – on both the conservative and liberal sides.
The question is once again whether this was part of an attempt at systemic change, or whether Chaudhry was simply playing the role that you can see politicians and their assistants playing in every political office in Pakistan – responding to appeals for help against the police in return for promises of political support. Moreover, by 2009 the use of suo motos by Chaudhry and other senior judges was beginning to extend far beyond their judicial competence, with, for example, judgments being issued ordering the government to reduce prices of essential goods. If continued, this will inevitably bring the courts into conflict with any government – and it is not clear where public sympathy will lie in future.
At a lower level, individual lawyers and groups of lawyers express their views in more direct ways. During the Lawyers’ Movement, lawyers beat up opponents and fought with police. After the restoration of the Chief Justice, some took their victory as a licence to continue this violence in individual cases. During my stay in Lahore in August 2009, a group of lawyers beat up a police officer who had testified against their client in front of the court. When this was shown on television, the next day they beat up the camera team responsible. From various parts of the country came reports of judges using Contempt of Court judgments to muzzle the press and intimidate opponents, to help friends and relatives. As a Lahori friend remarked cynically,
Well, what do you expect? The army wears uniforms and beats up people, and so do the police, so of course the lawyers wear their black jackets and beat up people. It is what you do if you have power in this country.
Faced with all this, it is hardly surprising that ordinary people dream of a completely different and better system of justice, or that for many these hopes should focus on the Shariah. All over Pakistan there was majority support among the ordinary people with whom I spoke for agreements with the Taleban to establish the Shariah in certain areas (like the Nizam-e-Adl agreement of February 2009 for Swat), and in the Pathan areas that support was overwhelming – though that only made many people’s disillusionment greater when they saw that the Taleban were not interested only in bringing Islamic justice, but also sought power for themselves.
People on both sides of the Afghan – Pakistan frontier remember how in the 1990s the Afghan Taleban, on the ideological basis of the Shariah, restored order out of the chaos created by the victory of the Afghan Mujahidin in 1992. The Islamic Courts’ Movement in Somalia has much of the same appeal.
In fact, the Afghan Taleban fulfilled the vision set out for me by a qazi (Islamic judge) in the Afghan province of Paktika in 1989. Looking at the complete absence of regular government in the areas ‘liberated’ by the Mujahidin, I asked him whether he was not afraid of anarchy when the Communist regime in Kabul fell and the Mujahidin took over completely. ‘No,’ he replied, ‘because we Pashtuns have our own code, the pashtunwali , which resolves conflicts and maintains order. It doesn’t stop all feuds, but it prevents them going too far. And if that fails, then we have the Shariah, Islamic law, which everyone respects and which it is my job to implement.’
But what is this ‘Shariah’ that ordinary people say they want, and that the Taleban claim to be implementing? Here, a great deal of careful unpicking is necessary. At one level, believing Muslims are simply required to declare their support for the Shariah, because its ultimate basis is to be found in the Koran, which is the word of God delivered through His Prophet. On the other hand, people also use ‘Shariah’ as a sort of code for a better, simpler, more equal, more honest and more accessible form of official justice, without really knowing in detail what they mean by this, or what the various forms of Shariah really contain. For example, when faced with the idea of amputation of the hand as a standard punishment for theft, most people (outside the harsher Pathan areas) reject this outright, some nevertheless pointing out approvingly the Shariah’s detailed provisions for compensation and reconciliation.
Formally speaking, the introduction of Shariah law in Pakistan is quite unnecessary, because a series of laws beginning with Zulfikar Ali Bhutto in the 1970s have declared that all Pakistani laws must be in conformity with the Shariah. In practice, however, this is irrelevant. Legally, it has only added to the confusion and contradiction that marks Pakistan’s legal scene. Much more importantly, however, it misses the point that the campaign for the Shariah is not so much about the content of the law as about popular access to the law, the speed of the law, and who gets to enforce the law.
In trying to make the Shariah the system of justice throughout Pakistan, and to make local mullahs the judges, the Taleban are going far beyond anything that existed before. Before the British came, the Shariah was of course the official code of Muslim states in South Asia, but in practice its implementation was restricted to the cities and seats of government. Beyond, everything was governed by local customary law, albeit formally in the name of Islam.
But then again, it is not really the Shariah that the Pakistani Taleban and their allies are trying to implement in the areas they control, but a mixture of the Shariah and the pashtunwali – and this also marks a change between the old Taleban in Afghanistan before 9/11 and the ‘Neo-Taleban’ that has emerged in response to the Western presence. Between this mixture of the pashtunwali and the extremely harsh Wahabi version of the Shariah favoured by the Taleban, more progressive aspects of the Shariah are absent from the Taleban programme. In the Shariah itself, however, they remain marked when compared to the tribal codes of Pakistan. The Shariah was in consequence admired and even promoted by British officials. As the British gazetteer for Balochistan in 1906 has it:
The position of widows has been further strengthened by the following important decision given by Sir Hugh Barnes, agent to the Governor General, in November 1892 in the case of Lukman Kakar versus the Crown:
As regards a widow’s power of choosing a husband, Muhammadan law must not be over-ridden by local inhuman and ignorant custom and, in all disputes regarding widow remarriage brought before the courts in British Balochistan or the Agency territories, the Courts of law should follow the provisions of Muhammadan law, in so far as that law gives to widows full liberty and discretion to marry whom they please; and no case of this kind should be submitted to a jirga for settlement without a clear direction that on this point of a widow’s freedom of choice, no curtailment whatsoever will be permitted of the liberty and discretion which Muhammadan law allows her.17
Under the British, the Muslim Shariah Act of 1937 abrogated (officially, that is) customary laws with reference to Muslims and applied to all Muslims instead the provisions of the Shariah as regards all issues of personal law, marriage and inheritance. In justifying this, the British government of India cited the formality and certainty of the Shariah compared to the informality and endless variations of customary codes. However, according to M. P. Jain:
A much more sound reason to abrogate custom was that under it the position of women in matters of inheritance was inferior to that under Muslim law ... The abrogation of customary law was a result of the agitation carried on by such bodies as the Jamiat-ul-Ulema-i-Hind [a forerunner of the contemporary JUI], an organization of Muslim religious men. Support was lent by many Muslim women’s organizations which condemned the customary law as adversely affecting their rights.18
Educated women in the Pathan areas of Pakistan are still well aware of this difference. Thus in May 2007 I provoked a fascinating discussion among students of Peshawar University concerning the Taleban’s promotion of a strict version of the Shariah, whether this conflicted with the traditions of the pashtunwali and, if so, which should take precedence. At first, the great majority tried to argue that there was no conflict between the two traditions, and their professor cut in with ‘Well, the main point is that all my customs, whether they are good or bad, are different from those of Punjab’ – at which there was another tremendous burst of applause.
When, however, I pressed them to state a preference between the Shariah and the pashtunwali, twelve chose the pashtunwali and fourteen the Shariah, with the rest not voting. The striking thing was that most of the men chose the pashtunwali and all the girls chose the Shariah. They did not state their reasons, but they seem obvious enough. Restrictive though they appear to Westerners, the provisions of the Shariah proscribe the most savage provisions of the pashtunwali as far as women are concerned – like the odious practice of giving girls as part of the settlement of feuds between families – just as the Koran was intended to reform the savage tribal traditions of seventh-century Arabia.
The Shariah also guarantees a share of inheritance to girls, while the pashtunwali gives it only to boys; and furthermore it guarantees rights to wives in the case of divorce. This progressive aspect of the Shariah was also something that the Information Secretary of the MMA (Muttahida Majlis-e-Amal) Islamist alliance (then forming the government of the NWFP) stressed to me in an interview later that afternoon, emphasizing that his party stood for Islamic progress against tribal barbarism.
For all that, there is no chance of the Shariah as preached by the Taleban sweeping Pakistan, for the same reasons that the Taleban themselves cannot sweep Pakistan. The first is that while the ruling elites may be willing to make any number of local compromises with the Shariah, they will fight hard and successfully to prevent Islamist revolution.
That leaves open the possibility that moderate Islamist forces in Pakistan might develop a new form of the Shariah like that of the modern state in Iran, more adapted to the contemporary world. But this will be extremely difficult in Pakistan, because the different Islamist groups in Pakistan cannot agree on which form of the Shariah is in fact valid. While Iran has a unitary and centralized form of Shia Islam, Pakistan – quite apart from its Sunni – Shia divide – has a multifarious collection of different forms of Sunni Islam. This critical obstacle to Islamist revolution will be explored further in the next chapter.
NOT QUITE AS BAD AS IT LOOKS
Re-reading this chapter, I feel that it needs a certain correction. Naturally a description of a country’s criminal justice system will focus on crime, but it would be a mistake to draw from the above the idea that Pakistani society is in a state of permanent chaotic violence. A number of things need to be kept in mind. The first is that the jirga and panchayat mechanisms described in this chapter are explicitly dedicated to regulating and containing violence, and usually do so successfully. Local saints and their descendants also play a part in this regard.
As Stephen Lyon has pointed out, one also needs to watch out for local hyperbole. If you believed all the stories you hear concerning violence in the countryside, ‘there would hardly be a man left alive or a women left un-raped’.19 Political violence aside, most of Pakistan is not in fact very violent or crime-ridden by the standards of many US cities, let alone those of Mexico or Brazil. In fact, given levels of poverty, the level of ordinary crime (as opposed to crime stemming from politics, religion or ‘honour’) is in many ways remarkably low.
One reason is that this society is mostly dominated by landowning and business politicians who, while they have to be prepared to order killings if really necessary, have generally inherited their positions, not murdered their way to them in savage gangland wars. They generally have to obey some sort of local moral consensus, which approves courage in defence of your izzat, but which certainly does not approve unrestrained murder and theft. Another factor is the relative (though of course only relative) lack of extreme class divisions, mentioned in the Introduction.
It is quite true that in much of Pakistan, tribes and chieftains operate as autonomous armed forces – but that was true of medieval Europe, and it did not prevent the great achievements of that period in terms of both culture and commerce. To paraphrase the words of various ‘feudal’ acquaintances and tribal chieftains, for by far the greater part of the time, the point of armed force is not war but deterrence – to show that you are strong so as not to have to fight. In a paradoxical way, therefore, to use violence may be a sign of weakness, and also of lack of self-control. This virtue is not prized as much as physical courage, but it is still highly prized, since the consequences of lack of self-control can be both personally fatal and bad for your kinship group’s prestige.
Finally, the rather miserable picture of the police and courts painted in this chapter is equally true of by far the greater part of India; indeed, because of caste divisions, parts of India are considerably worse as far as police atrocities are concerned. The same is true of the dominance of customary law. In fact, throughout most of this chapter (except, obviously, those parts dealing with the Shariah), I could, without any substantial inaccuracy, have substituted the words ‘Indian’ or ‘South Asian’ for ‘Pakistani’.
This is awful for much of the Indian population, and has contributed directly to the growing Maoist insurgency among low-caste and tribal peasants in much of the Indian countryside; but it has not so far prevented the great recent economic achievements of the Indian state. The difference with Pakistan is that in India there is no coherent and unified cultural alternative to the modern state and its legal structures, which also operates as a standing moral reproach to those structures. In Pakistan, in the view of many believers, there is the way of Islam, reflected in the Shariah. This code for every aspect of life and society is the subject of the next chapter.