Pakistan: A Hard Country (17 page)

Among the relatively wel -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 wil represent that clan involved; if members of different clans, then representatives of the whole vil age (or at least its dominant landholding elements) wil be present. More rarely, representatives of different vil ages wil 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 especial y, a respected local religious figure may play a mediating role. The local vil age mul ah, however, does not have any right to do so ex officio – a sign of the low respect in which these figures have traditional y been held. Judgments also general y emerge informal y from local consensus.

This is especial y true when the al eged perpetrator of a given ‘crime’ is some universal y despised figure, or one who has committed an action which directly threatens the wel being of the whole community – for example, a mil er who mixes sawdust into his flour. Such people may be punished by fines, by col ective 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 col ectively imposed ‘rough music’ in traditional English vil ages which gave rise to the expression ‘face the music’).

Very often the jirga or panchayat real y only ratifies a communal decision which has in effect already been made. This is equal y true of the greatest of al jirgas, the traditional loyah jirga, or grand national assembly, of Afghanistan. In disputes involving two families or clans, this decision in turn wil 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 al of communal peace wil al play a part. Judgments wil inevitably involve relative winners and losers; but because communal peace and family prestige are both of the essence, considerable care wil usual y be taken to ‘save face’ on al 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 cal 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 kil er, 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 kil er punished? Both the traditional justice systems and the Shariah are al 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 – paradoxical y 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 especial y 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 col apses.

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 stil basical y 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 stil 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 natural y 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 (especial y now) virtual y 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

mil ion, 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 mil ion 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 paral els 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 kil ing, 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 il egal decisions while keeping the best aspects of the old system. After al , no one but the lawyers real y 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, al too often in Pakistan for whatever reasons they are let out again after serving only a smal part of their sentence.11

There is, however, a range of obstacles to the ful integration of informal justice structures into the formal justice system. The first is obviously the economic interest of judges, lawyers and policemen, al 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 usual y have to be based on smal vil age or tribal communities in which people know each other, know who has sufficient local respect to serve on a jirga, and also understand wel 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 stil remember the autocratic but fair judgments of their former ruler the Wali, under a system in which the ruler presided personal y over al serious cases, and knew personal y 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 smal country town) has almost that number – more than London or Paris in the eighteenth century. In a population this size, it is impossible to fol ow the old ways based on personal knowledge and local consensus.

The existence of a paral el, legal y unrecognized set of judicial institutions relying on local codes obviously cal s 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 central y appointed judicial officials. This has been a chal enge for India as wel 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

Final y, 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.

Especial y among the Pathans and Baloch (including the Baloch tri bes 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 wel ; but which, unfortunately, enjoy the support of the vast majority of the members of the communities concerned – or at least the males.