Local systems of justice

IN many societies state law dos not exhaust the legal domain. Customary law, enforced by councils of local elders and notables, governs aspects of individual behaviour and societal interaction. Unwritten, it represents the day-to-day practice of the people concerned. It may cover certain types of crime (murder, assault, theft, etc.), but much of it relates to other matters.

Among some African tribes, customary law applies to succession to traditional title and office (tribal chief, village headman); inheritance and the inheritors’ liability for the debts of the deceased; the right of a widow to the family home and its contents, the amount of mourning (crying, beating her breast, prostrating on the floor) she must do on her husband’s death, her subsequent isolation and lifestyle; non-recognition of woman as head of household; the age of marriage, the wife’s status as a purchased article and male supremacy in decision-making.

Among some of our own Pakhtoon and Baloch tribes, it is customary for the family of a young man to pay the family of the young woman whose hand he wants in marriage a certain sum of money (or property) as the “bride price”. The girl’s wishes in the matter do not count. Once the price has been paid, she belongs to the groom and his people, and they may treat with her as they deem fit.

Much of the customary law is left to the individual to follow or to families to enforce. Acts considered crimes, and disputes involving money matters, property and women (“zar, zameen, zan”) that are not taken to the state courts may be referred to a local council of elders or notables. Two such councils, the “jirga” in the Pakhtoon tribal areas and the “panchayat” in rural Punjab are noteworthy.

The jirga, as an agency for punishing crimes and resolving disputes, has been functioning in our tribal areas for hundreds of years. Members sit in something like a semi-circle when they meet to settle an issue that concerns the community as a whole. No one acts as a chairman, and everybody who wants to be heard can have his say. Respect is shown to the elders, but otherwise all participants are treated as equals.

Beyond this deliberative function, the jirga is the only organ that settles disputes and dispenses justice in the tribal areas. Initially the disputants will look for a mediator, who may be a religious leader, a khan, or a malik. After listening to the parties he may call a jirga of the community elders, including supporters of each side. It will hear the parties, discuss the matter, and then arrive at a decision. The parties accept the verdict (if they have agreed in advance to do so), hug each other, and sometimes roast a lamb to celebrate the peace they have made.

This is the “shakhsi jirga”. Older men with flowing white beards act as judges while the others present may be regarded as jurors. Each side is entitled to produce evidence, quote precedents and rules, and present arguments. If one of them feels that the jirga has given a wrong verdict, it can take the case to a second jirga, whose decision will bind both parties.

The customary law the jirga enforces is informed by the Pakhtoon code of conduct, called “Pukhtunwali”. Some of its values and usages are said to be personal honour (“izzat, nang, ghairat), especially the honour of one’s women, courage, obligation to take revenge (“badal”), hospitality, and generosity towards a fallen foe who appeals for peace and brings gifts — usually two lamb — to mend relations (called “nanawati”).

The jirga has ways of enforcing its verdict. It may fine the non-compliant, confiscate his property, expel him from the fold, and withdraw the community’s protection from him in which case his opponents may kill him without fear of retribution.

The British in India had made treaties with the Pakhtoon tribes assuring non-interference in their internal affairs and recognizing the jirga as a vital institution. The government of Pakistan has done the same with some minor modifications. Apart from the kind discussed above, there is also the “sarkari jirga.” Under the Frontier Crimes Regulations (1901), the Political Agent concerned can designate a group of elders to try a criminal case and the jirga can send the guilty party to prison for up to fourteen years.

Jirgas tried both civil and criminal cases throughout the Pakhtoon areas before the advent of British rule. Their first endeavour used to be, and still is, to bring about a reconciliation between the contending parties. Penalties, when they must be imposed, were relatively light. Acts of violence, including murder, were regarded as acts against individuals, not against the community. Compensation to the victim or his family, instead of the offender’s imprisonment or death, was the preferred way of handling crime.

As much of this territory came under direct provincial administration in “settled districts,” customary law gave way to the state law and courts, and the jirga receded to the substantially autonomous tribal agencies. The courts, however, encountered an agonizing problem. G.R. Elsmie, Additional Commissioner and then Sessions Judge in Peshawar during the 1870s, found it to be a custom among the Pakhtoons that the friends of a murdered man would add to a true accusation against the real assassin an utterly false one against his relatives. A wounded man, even as he knew that he was about to go away to meet his Maker, would not only name his assailant but implicate others, whom he did not wish well. The Pakhtoons did not hesitate to bring bogus witnesses and fabricated evidence to court. Elsmie wondered how judges, following Anglo-Saxon procedural due process, could function in a society that regarded the ruin of one’s opponents, regardless of the legality or morality of the means employed, merely as a “natural proceeding”.

Not surprisingly some of the British officials, trying to evolve a judicial system for the territory, came to the view that trial by a jirga would afford an effective check against false witnesses and evidence, for its members, conversant with their people and their ways, would be able to detect and exclude falsehoods if these were presented to them.

This would pose a dilemma to the National Reconstruction Bureau if it ever got to be seized of the issue. People in the tribal areas are citizens of Pakistan. They are free to come to any place in the country, buy property, take jobs, or establish businesses. They have a disproportionately large representation in the National Assembly and the Senate. Yet, within their own territory, they will not submit to the laws, courts, and the legal processes of the country. The reason for this unusual situation may be that their bonding with Pakistan has never been firmed up.

It is amazing that the government of Pakistan has not done much in fifty-five years of independence to integrate these areas with the rest of the country. On the other hand, considering how crooked and incompetent the state courts are, it may be just as well that their reach does not extend to our tribal areas. We know that proceedings in the jirga are relatively inexpensive, simple and speedy. The quality of justice the jirgas dispense may be no worse than that which the state courts do. It may not then be a bad idea to leave the jirgas alone for a time.

As I recollect our pre-independence experience, the panchayat, as a dispute-resolving agency, was much more a part of Hindu, than Muslim, society. The “arts of peace” — conciliation, mediation, arbitration — were not unknown to Muslims in rural Punjab, and occasionally disputants would agree to take their case to a mutually acceptable “council” of elders and notables assembled on an ad hoc basis. But this resort was not frequent enough to have allowed institutionalization. More often, Muslims took their disputes to the state courts. Criminal cases, as a rule, did not go to any kind of a panchayat.

A so-called panchayat has, of late, come into prominence and made news in southern Punjab because of its scandalous and unlawful involvement with situations that were none of its business. The “panchayat” in these instances meant a small group of self-appointed individuals, consisting of an influential local landlord and his cronies.

In one such case, Mumtaz Mai, a mother of four children, was said to have eloped with a relative, Ghulam Mustafa. Her husband, Muhammad Hussain, recovered her and took her to the “dera” (meeting place) of the local landlord, Allah Yar Khan, where a “panchayat” ordered Ghulam Mustafa (the alleged lover) to give his three-year old daughter in marriage to Muhammad Hussain’s four-year old son plus a bullock cart as compensation for the disgrace the betrayed husband had endured. In addition, the panchayat ordered Mumtaz Mai’s head and eyebrows shaved, which was done right there and then.

In other cases, women accused of adultery have been stripped and paraded naked in the village streets. In one instance a murderer has been forgiven on the condition that he give away six young maidens from his family in forced marriage to members of the deceased’s family regardless of their eligibility.

It is clear that in these and other similar situations the group calling itself a “panchayat” has not acted as a dispute-resolving agency. It has acted in a highhanded fashion to impose penalties that may accord with local prejudices or custom but violate the law of the land. Such panchayats commit crime on the pretext of punishing alleged crime. They should be banned or, to begin with, excluded forthwith from having any role in dealing with acts that fall within the domain of criminal law and of which the police are required to take cognizance.

The writer is professor emeritus of political science at the University of Massachusetts at Amherst, USA.

E-mail: syed.anwar@comcast.net

Alliances and intrigues

CHAUDHRY SHUJAAT says he had all but struck a deal with the religious parties — the JUI chief was to become the deputy prime minister and JI chief the speaker — but their alliance came up with ever new demands and Benazir Bhutto and Nawaz Sharif joined hands to sabotage it by luring its leaders with more tempting offers.

He then goes on to boast that he is the president of the same Muslim League which the Quaid-i-Azam once led, and that explains the suffix of the party as well as its programme.

The Chaudhry’s disclosure and claim taken together raise many questions but let him ponder just over this one: Did Mr Jinnah, whose political mantle he claims to have inherited, ever negotiate deal with the religious parties of his time? Today they are essentially the same. He fought against the clerics as resolutely as he did against the British and the Congress but did not compromise on his scheme of independence and his concept of state. No true heir to his politics should have done it either.

The machinations for power and the principles of Jinnah do not go together. Jinnah’s Muslim League cannot now collaborate with the JI, JUI and the rest of their ilk as it couldn’t before independence: their ideologies and electorates were and remain polls apart.

The current controversy over the Legal Framework Order centres on the sovereignty or supremacy of the parliament. The existence of the National Security Council is perceived to detract from it though its role is advisory. Now, piqued by the finding of an election tribunal that the holder of a ‘sanad’ from a madrassah is not equal to a university graduate and hence not qualified to be a member of the parliament, Maulana Fazlur Rahman insists that the ulema have a right and duty to guide the legislatures because under the Constitution, reinforced by various Sharia laws, all legislation must conform to the injunctions of the holy Quran and Sunnah.

Here the Maulana is giving the clergy (presumably in both the parliament and outside) a role which is more than advisory; it sounds like a veto on the parliament’s power to legislate. Where then remains the much talked about supremacy of the parliament? The Muslim Leaguers and others laying claim to Jinnah’s political legacy, thus, should be particularly wary of seeking collaboration with the religious elements. They should also look at the pitiable state of the parliaments in some countries — Sudan, Saudi Arabia, Nigeria — in which the rule of Sharia has been formally proclaimed. It is not the legislative process alone that is non-existent, controlled or guided; their societies are also suppressed or violent and their economies backward or held hostage to oil. The fault, of course, lies not in the Shariat but in its custodians who have projected it as a force of reaction instead of enlightenment, and its practitioners who have made it into an instrument to punish the weak and poor rather than promote social welfare and economic justice. Indeed it has become synonymous with despotism.

In a situation like this in which the arbitrary powers of the executive are being challenged; the laws enacted tend to be sweeping and pretend to be sanctimonious; and, as Dawn’s editorial of last Tuesday pointed out, with extortion, midnight raids, fake encounters, custodial killings on the increase, the country needs nothing more than an independent and alert judiciary. Unluckily, it is neither and such also is the widely prevalent popular belief.

The judgment on the legality of the LFO (as the professor of political science writing in this paper pointed out last Sunday) has been pronounced by the speaker instead of the Supreme Court, for neither the proponents of the LFO nor its opponents would resort to it nor the court thought it necessary to act on its own. In amending the Constitution, the preamble to the LFO published in August 2002 (the elections were held six weeks later) says, the Chief Executive (now the president) acted “in pursuance of the powers vested in him by and under the judgment of the Supreme Court of Pakistan” pronounced on May 12, 2000.

Only the Supreme Court therefore — and not the speaker — could have determined whether the amendments made were within or beyond the powers envisaged in its judgment. The speaker’s ruling won no adherents to the LFO but earned him a humiliating notice from Qazi Hussain Ahmad and exacerbated dissent. Whether the speaker ruled as he did being impelled to do so by a NAB notice, as Qazi Hussain Ahmad alleges, or it was a mere slander will never be known. Such notices pass off lightly and are soon forgotten, for honour is protected better by holding on to an office rather than going to a court of law or to the court of public opinion. Maybe the speaker, or the parliament for him, makes it a test case for defamation and the MMA takes up the cudgels for the Qazi.

The speaker may choose to ignore the attacks on his independence and integrity (after all, he is a politician and, contrary to the parliamentary tradition, remains a party member and a future hopeful) but the judges should not. Unfortunately, now they too tend to protect their careers rather than the majesty of the law. The boycott of courts and defiance of their orders thus has become a routine affair. The contempt notices are ignored and the courts acquiesce. Punishing contempt however would not earn respect for the judges. The courts should do justice not just in whatever comes before them but actively seek to dispense it especially to the victims of the men in authority. A week-long police hunt to deport the wife of Shahbaz Sharif and his two daughter (the press described it as a raid and ransack operation) provided one such occasion. No court moved on its own to hear the viewpoint of the hapless hiding women nor cared to examine the legality of the agreement under which they were being forcibly sent out of their home country.

Any agreement made in public interest must be open to legal scrutiny and public debate. The poignant element in this case is that a secret compact or mere understanding between a convict (as Nawaz Sharif is) and a supreme executive and legislative authority (as Musharraf then was) was invoked against women who are not even in public life and posed no threat either to society or to the government. Chaudhry Shujaat says often, and touchingly, that politics can be different but daughters remain common. He failed to convey this message to his chief minister cousin in Punjab on an occasion when it was most needed.

Persecution of political adversaries is an accepted though detestable tradition in this country, but this episode has given it anew tragic and mean dimension second only to the detention of Bhutto’s wife and daughter by Ziaul Haq when he was being hanged and buried. A similar fate can befall any politician or public official at any time. Some indeed have escaped it only by a quirk of fate or by the helping hand of a fellow from the same course, class or caste. Vengeance here has a short cycle.

The faltering institutions of law and justice seem to leave no choice but to call fresh elections at every tier, from the village unions to the national level. The cabinets and governments are expanding and fighting but not functioning as they are riddled with anomalies and absurdities.

The political parties and their leaders, whether in the government or opposing it, should start moving towards this goal rather than scramble to share the present spoils. The parliamentary system will not work, whether the LFO is a part of it or not, unless two or three unified parties emerge to replace the present floating plethora.

Should Pakistan bail out the US in Iraq?

IN the mid-eighties, Dr. Mahboobul Haq gave a small lunch party in honour of Dr. Henry Kissinger at the Foreign Office in Islamabad, which I happened to attend. Kissinger made a moving speech after the meal. Said he, Pakistan had urged the US from about the mid-sixties to recognize communist China.

Initially these urgings were met with much disdain by the US government, as was our China connection. There was a misreading of Chinese priorities in American perceptions. Non-recognition of China was an affront to its proud nationalism. Communist ideological adventurism abroad was a feint or cover in response to its non-recognition by the West. The US view at the time was that this feint was for real and that the Chinese did mean, when they proclaimed, that “the East was Red”. The US perception was wrong. Satisfy the imperatives of a hurt nationalism and ideological extremism would melt was the message of Pakistan. This wisdom, Kissinger implied, is what the US eventually learnt from Pakistan’s friendly initiative.

The final part of Kissinger’s speech was even more touching. Pakistan had provided a historic assistance of an immeasurable kind to the US by acting as a go-between at the head of state level, which culminated in Kissinger’s secret visit to Beijing in 1970. “But Pakistan never asked for a quid pro quo for the services rendered.” This, he thought, was simply amazing. America was waiting for the penny to drop. It never did. Perhaps it is a cultural habit of ours not to demand payment for services rendered to friends, which the Americans may not have appreciated. Yet, notwithstanding the pro-Pakistan tilt of the Nixon administration, united Pakistan was lost because to our abrupt Dhaka surrender on December 16, 1971. The Americans had expected Pakistan to hold on longer. Nixon, however, firmly drew a “hands-off” line on West Pakistan in clear language for the Indians.

By 1990, all this was forgotten when President Bush Sr. decided to cut all aid to Pakistan and stopped the sale of the F-16s in mid-delivery. The US had correctly judged that we had crossed the red line on uranium enrichment. Since the US reportedly now seeks Pakistan’s armed forces in Iraq and Saudi Arabia, it could perhaps do with a bit of Pakistani wisdom again by taking care on fraternal concerns arising from its invasion of Iraq.

It is clear by now that the US has made perhaps the most dreadful mistake ever by invading a far-away foreign country on a premise that has proved to be false. The failure to find the weapons of mass destruction (WMDs) points to an intelligence failure which may eventually undermine the Bush government. Americans can be merciless with their own rulers if they are perceived to have misjudged or wronged others. This war without a clear UN sanction was a blatant act of aggression; a slap on the face of the world community by an impatient and aggressive president. Seldom in the annals of war has a more unequal war been fought.

It was also the world’s first truly video war. Beale air force base in California supported six U2 missions and three to four predator (drone) flights per day flying over Iraq, sending back exact coordinates and video pictures of Iraqi weaponry before and during the war. For example, on April 5, four days before the US captured Baghdad, a U2 flying at a height of 60,000 feet detected 30 Iraqi artillery pieces and three tanks north of the city. Within 10 minutes of this detection coordinates and videos beamed to Beale in California were the Iraqi war assets destroyed by US aircraft. Such is the shape of modern warfare (it may be useful to remember that the Israeli Phalcons, which the US has cleared for delivery to India are meant for a similar purpose).

Three months down the line, the Iraqi nation is bereft of civil society. Saddam’s army of 250,000 has not been paid salaries since April. The cities of Iraq have descended into unimaginable chaos. Everything from Iraq’s nuclear stations to banks, business houses, museums, universities, radio and TV stations and government offices have been looted or burnt following the collapse of civil order.

Consider this eyewitness account on the National Library of Baghdad.

“The scene at the deserted National Library in Baghdad looks almost to staged to be true. Ignoring the occasional tock-tock-tock of nearby gunplay, a tethered donkey lunches on flowers in the garden. A statue of Saddam is still standing out front, but someone has looped a noose around its neck. A hot gust of wind sends signed catalogue cards scudding across the tiled terrace of the four-storey building, along with curls of half-melted microfiche that turn out to be pages from The New York Times of November 1979. Through smashed windows one can see blackened corridors and heaps of sooty debris.

The American perception of Saddam/Al Qaeda remnants fighting the US is wrong. It is now a war of Iraqi nationalism vs. the US. A war that pits the lone sniper or suicide bomber against the might of America. A war of attrition, a war of national liberation. A war pointed at the America’s Achilles heel, which, as we know, is body bags count by public soon to be weary of this lingering war. A war that the might of America can never win. In a sense, America is pitted against itself. It goes against the grain of all that America has stood for since its own War of Independence.

In this graveyard of civilized life, pock-marked by burnt buildings, sewerage running in road-side canals, an absence of drinking water and electricity with pent-up sectarian hatreds, Iraq is in no mood to accept any Marshall Plan from the US. At least in Afghanistan there was casus belli. In Iraq there is none. And to remove dictators by force is not the business of America.

What should Pakistan do? What should the OIC do? What should the UN do? And above all, what should the US do to bring this tragedy to an end?

• Large elements of Saddam’s army sans those criminally involved with Saddam’s government are part of a disciplined force. It should be resuscitated; paid wage arrears adjusted to inflation and employed as a para military force to restore law and order.

• All organs of the previous civil society be paid wage arrears adjusted to the post-war inflation. The 18 billion dollars that the US was prepared to shower on the Turks for the use of its military bases might well be funded for this purpose.

• An interim administration be formed immediately consisting of eminent non-controversial, non-political Iraqi personalities representing the Northern Kurds, the Southern Shias and the middle-belt Iraqis, who should select their own head of government. The para-military force should be responsible to the interim government.

• The interim government will be responsible to the UN’s Security Council, its main tasks being to maintain the territorial unity of Iraq, restore normal conditions and hold elections under the UN supervision within two years.

• The coalition forces (American and British) must quit but elements thereof could be part of a blue-helmet UN force. The UN force acquired a bad reputation in Bosnia for being supine and directionless. This must of course change. A part of this force should consist of engineers and rehabilitation experts. The requirements of Iraqi nationalism should be satisfied.

• The holy places of Iraq should be policed exclusively by Arab/Muslim forces.

American political culture stands for a no-nonsense approach to the truth. Its historic norm has been anti-colonial and pro-freedom struggles of oppressed peoples. The Iraq invasion is certainly its worst misadventure. No doubt, the ostensible purpose was to make this world safe from WMD, but why did the coalition not accept the same advice of Hans Blix to hold off the invasion till its mission was complete. He had asked for another eight weeks to conclude his mission, which was never granted. Why?

Pakistan as a friend of the US should help America, save it from itself. If the US remains stubbornly allergic to a UN role in post-war Iraq, Pakistan may consider securing support for an OIC role in Iraq along with the US, provided a dead line is set for the US to quit honourably whilst it can.

The writer is a member of the National Assembly.

E-mail: murbr@isb.paknet.com.pk

Net campaign

Democratic presidential hopeful Howard Dean is barely registering 6 per cent support in the latest Gallup poll, but the former Vermont governor’s voracious campaigning on the Internet isn’t being easily dismissed.

With more than 39,000 Dean volunteers signed up on the Internet’s meetup.com, he is getting his support faster and cheaper than any other candidate. Meetup.com allows users to organize local meetings on anything of common interest, and Dean’s supporters have made broad use of the Web site.

More than 317,000 online ballots were cast, exceeding the total number of Democratic voters in the 2000 Iowa caucuses and the New Hampshire and South Carolina primaries.— The Washington Post