Pakistan: A Hard Country (21 page)

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 al 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 wil 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 kil ings by the government like at the Lal Masjid [Red Mosque]. If your family and friends are kil ed and the legal system cannot help, then you have the right to fight back. At the Lal Masjid thousands of innocent women were kil ed. I believe that this was real y 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 ful 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 actual y 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 Wil 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 wil ing to chal enge 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 col ective programme has been the independence, power and prestige of the judiciary – which is an excel ent 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 wil inevitably bring the courts into conflict with any government – and it is not clear where public sympathy wil 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 cynical y,

Wel , 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.

THE SHARIAH

Faced with al 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. Al 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 disil usionment 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 fulfil ed 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 fel 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 al 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 real y knowing in detail what they mean by this, or what the various forms of Shariah real y 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.

Formal y 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 al Pakistani laws must be in conformity with the Shariah. In practice, however, this is irrelevant.

Legal y, 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 mul ahs 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 formal y in the name of Islam.

But then again, it is not real y the Shariah that the Pakistani Taleban and their al ies 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 fol owing 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 al disputes regarding widow remarriage brought before the courts in British Balochistan or the Agency territories, the Courts of law should fol ow the provisions of Muhammadan law, in so far as that law gives to widows ful 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 wil be permitted of the liberty and discretion which Muhammadan law al ows her.17

Under the British, the Muslim Shariah Act of 1937 abrogated (official y, that is) customary laws with reference to Muslims and applied to al Muslims instead the provisions of the Shariah as regards al 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 stil wel 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 ‘Wel , the main point is that al my customs, whether they are good or bad, are different from those of Punjab’ – at which there was another tremendous burst of applause.