Pakistan: A Hard Country (20 page)

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 stil waiting for justice; and this was both an extremely simple case (legal y 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 wel 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 wel as lack of English that made him stumble over his words.

‘The fol owing prisoners are required to be implemented as respondents,’ said the lawyer.

The clerk repeated slowly, writing as he spoke, ‘The fol owing prisons are retired to be ...’

‘Required!’ snapped the lawyer.

‘Are required to be imprem, indem ...’

‘Implemented!’

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 wil al ow 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 wil 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 al 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 stil has to be translated into English for the records, and al 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, booksel ers and lawyers al surging around in a slowmoving maelstrom. Workers of the Saylani Welfare Trust were distributing food from a smal field-kitchen to prisoners and their families – an action enjoined by the Koran, and a smal 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 al 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 hel . 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 al 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 al owed to wear them. Our seniors teach us that it doesn’t matter how hot it is, the common people wil see the jacket and know that you are an advocate, and respect you.

Outside, the wal 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 essential y 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 il iterate 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 virtual y never represented. On the other hand, in the official legal system, women have a smal but slowly growing place: some 500

lawyers in Karachi are women, out of 9,000 in al , 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 usual y cannot actual y deliver justice in individual cases brought before it. Left to itself, the informal judicial system would, by the democratic wil of its (male) representatives, sweep away modern women’s rights altogether.

Hence the repeated judgments of the higher courts declaring jirgas and their judgments il egal, 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 wil radical y 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 wel 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 al eged ‘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, initial y 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 wil 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 historical y 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 fol owed by an even worse assault on the judiciary by the next Nawaz Sharif administration of 1997 – 9. When the Supreme Court attempted to chal enge a law passed by his government giving the police a virtual amnesty for extrajudicial 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 fol owed, 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 il egal actions. The movement to defend the independence of the Supreme Court in 2007 – 9 may represent a radical y 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 al ies 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 ful 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 wil prosecute further il egal acts by his administration even though they have been political al ies – or it may not. The Lawyers’ Movement gives good hope of this, but no certainty.