JUSTICE SYSTEM IN PAKISTAN
Legal system in Pakistan: common law system with Islamic law influence. Judicial branch: highest courts: Supreme Court of Pakistan consists of the chief justice and 16 judges. Justices are nominated by an 8-member parliamentary committee upon the recommendation of the Judicial Commission, a 9-member body of judges and other judicial professionals, and appointed by the president. Justices can serve until age 65. Subordinate courts: High Courts; Federal Shariat Court; provincial and district civil and criminal courts; specialized courts for issues, such as taxation, banking, and customs. [Source: CIA World Factbook, 2020]
Pakistan is the most religiously conservative of all South Asian countries. Laws in Pakistan are mix of “sharia” (Islamic Law) and secular laws, with the predominance of Islamic Law varying to some degree from region to region and leader to leader. A Federal Shariah Court has the power to nullify any law it finds repugnant to Islam. Islamic laws are tend to be given less weight in cities like Karachi, Lahore and Islamabad but are taken more seriously in tribal regions, the North-West Frontier area and rural areas.
The legal system in Pakistan is modeled after the British legal system and features four distinct sets of laws: 1) British-based law, which forms the basis of the Pakistan’s 1947 penal code and criminal procedure code and dates back to the colonial era; 2) Islamic “sharia” law; 3) tribal law, which applies to certain areas in the country; and 4) state law, which has been codified by the governments in each state. How contradictory laws are applied has never been completely worked out.
Judicial Branch of Pakistan
Pakistan has an independent judicial branch of government. The legal system in Pakistan is derived from English common law and is based on the much-amended 1973 constitution and Islamic law (sharia). The Supreme Court, provincial high courts, and other courts have jurisdiction over criminal and civil issues. The president appoints the Supreme Court’s chief justice and formally approves other Supreme Court justices as well as provincial high court judges on the advice of the chief justice. The chief justice and judges of the Supreme Court may remain in office until age sixty-five. [Source: Library of Congress, February 2005 **]
The Supreme Court has original, appellate, and advisory jurisdiction, and high courts have original and appellate jurisdiction. Judges of the provincial high courts are appointed by the president after consultation with the chief justice of the Supreme Court, as well as the governor of the province and the chief justice of the high court to which the appointment is being made. High courts have original and appellate jurisdiction. [Source: Peter Blood, Library of Congress, 1994 *]
The judiciary is proscribed from issuing any order contrary to the decisions of the President. Federal Sharia Court hears cases that primarily involve Sharia, or Islamic law. Legislation enacted in 1991 gave legal status to Sharia. Although Sharia was declared the law of the land, it did not replace the existing legal code. [Source: U.S. State Department]
Legal Rights in Pakistan
The 1973 constitution guarantees an independent judiciary, freedom of speech, press, and religion as well as the right to bail, counsel, habeas corpus, representation, appeal, and numerous other protections. However, the government has constitutional authority to limit civil liberties in accordance with Islamic doctrine, national security, and other circumstances. Pakistani courts can impose the death penalty, and some crimes are punishable by stoning, lashing, or amputation, although these punishments rarely occur outside of tribal areas. The judiciary has limited independence from the executive branch, and the legislative and executive branches often attempt to remove themselves from judicial oversight. The judiciary also suffers from low public credibility, large case backlogs, corruption, and a lack of resources. In 2001, however, the Asian Development Bank pledged US$350 million for judicial reform and improved governance. [Source: Library of Congress, 2005]
A further feature of the judicial system is the office of Wafaqi Mohtasib (Ombudsman), which is provided for in the constitution. The office of Mohtasib was established in many early Muslim states to ensure that no wrongs were done to citizens. Appointed by the president, the Mohtasib holds office for four years; the term cannot be extended or renewed. The Mohtasib's purpose is to institutionalize a system for enforcing administrative accountability, through investigating and rectifying any injustice done to a person through maladministration by a federal agency or a federal government official. The Mohtasib is empowered to award compensation to those who have suffered loss or damage as a result of maladministration. Excluded from jurisdiction, however, are personal grievances or service matters of a public servant as well as matters relating to foreign affairs, national defense, and the armed services. This institution is designed to bridge the gap between administrator and citizen, to improve administrative processes and procedures, and to help curb misuse of discretionary powers. [Source: Peter Blood, Library of Congress, 1994]
According to the “Worldmark Encyclopedia of National Economies”: “In principle, Pakistan's press publishes freely. However, self-censorship is widely practiced by journalists, and advertising and other tactics are used by the government to influence media content. The electronic media are strictly controlled by the state and are notorious for their propaganda against domestic political opposition and India. [Source: “Worldmark Encyclopedia of National Economies”, The Gale Group Inc., 2002]
Courts in Pakistan
Pakistan has a three-tired justice system with lower courts, high courts and a Supreme Court. There is also a Federal Islamic (or Shari'a) Court. The Supreme Court is Pakistan's highest court. It has original, appeals, and advisory jurisdictions. Each province has a high court, the justices of which are appointed by the president after conferring with the chief justice of the Supreme Court and the provincial chief justice. Below the high courts are district and session courts, and below these are subordinate courts and village courts on the civil side and magistrates on the criminal side.
The High Court appeal process can take up to 18 months. The Pakistani Supreme court has dispensed with wigs and robes, which carried over from the days of British rule. Judges now wear traditional Jinnah caps and black sherewanis and are addressed as "Janab Wala" instead of "My Lord." High courts in the provincial capitals of Lahore, Karachi, Peshawar, and Quetta are at the top of the provincial judicial systems.
The Federal Shariat Court determines whether laws are consistent with Islamic injunctions. Special courts and tribunals hear particular types of cases, such as drugs, commerce, and terrorism. Pakistan’s penal code has limited jurisdiction in tribal areas, where law is largely derived from tribal customs. Courts are subject to pressure from the executive branch partly because the president controls the appointments of judges. There are no jury trials in Pakistan. [Source: Library of Congress, February 2005 **]
The Federal Shariat Court consisting of eight Muslim judges, including a chief justice appointed by the president. Three of the judges are ulama, that is, Islamic Scholars, and are well versed in Islamic law. The Federal Shariat Court has original and appellate jurisdiction. This court decides whether any law is repugnant to the injunctions of Islam. When a law is deemed repugnant to Islam, the president, in the case of a federal law, or the governor, in the case of a provincial law, is charged with taking steps to bring the law into conformity with the injunctions of Islam. The court also hears appeals from decisions of criminal courts under laws relating to the enforcement of hudood laws that is, laws pertaining to such offenses as intoxication, theft, and unlawful sexual intercourse. [Source: Peter Blood, Library of Congress, 1994 *]
In addition, there are special courts and tribunals to deal with specific kinds of cases, such as drug courts, commercial courts, labor courts, traffic courts, an insurance appellate tribunal, an income tax appellate tribunal, and special courts for bank offenses. There are also special courts to try terrorists. Appeals from special courts go to high courts except for labor and traffic courts, which have their own forums for appeal. Appeals from the tribunals go to the Supreme Court. *
Military Justice in Pakistan
The military justice system rests on three similar service laws: the Pakistan Army Act (1952), the Pakistan Air Force Act (1953), and the Pakistan Navy Ordinance (1961). The acts are administered by the individual services under the central supervision of the Ministry of Defence. [Source: Peter Blood, Library of Congress, 1994 *]
The army has a four-tier system; the air force and navy, three-tier systems. The top two levels of all three systems are the general courts-martial and district courts-martial; the third level comprises the field general courts-martial in the army and air force and the equivalent summary general courts-martial in the navy. The army also has a further level, the summary courtsmartial.*
The differences in court levels reflect whether their competence extends to officers or enlisted men only and the severity of the punishment that may be imposed. Sentences of military courts must be approved by the convening authority, that is, the commanding general of the organization concerned. Every decision of a court-martial higher than summary court-martial level must be concurred in by a majority of the members of the court; where a vote is split evenly, the law provides that the "decision shall be in favor of the accused." There is a right of appeal within the military court system, but no civilian court has the right to question the judgment of a military court. In cases where a military person is alleged to have committed a crime against a civilian, the central government determines whether military or civilian courts have jurisdiction. Double jeopardy is prohibited. Former servicemen in civilian life who are accused of felonies committed while on active duty are liable for prosecution under the jurisdiction of military courts. These courts are empowered to mete out a wide range of punishments — including death. All sentences of imprisonment are served in military prisons or detention barracks.*
In contrast to the civilian court system, the introduction of Islamic law (sharia) has had little effect on the military justice system. The Federal Shariat Court has, however, ordered the military to make more liberal provisions to appeal, to confront witnesses, and to show just cause (see Justice System). It was not clear in early 1994 what practical effect these directives have had.*
Pakistani Penal Code and Punishments
Pakistan has an extensive penal code of some 511 articles, based on the Indian Penal Code of 1860, extensively amended during both the preindependence and the postindependence eras, and an equally extensive Code of Criminal Procedure. Numerous other laws relating to criminal behavior have also been enacted. Much of Pakistan's code deals with crimes against persons and properties — including the crime of dacoity (robbery by armed gangs) and the misappropriation of property. [Source: Peter Blood, Library of Congress, 1994 *]
In principle, articles 9 through 13 of the constitution and provisions of the codes guarantee most of the same protections that are found in British and United States law. These rights include, for example, the right to bail and to counsel, the right of habeas corpus, the right of cross-examination, the right of representation, the right of being informed of charges, the right of appeal, and the right of the prevention of double jeopardy. Article 45 of the constitution bestows on the president the right to grant a pardon or to remit, suspend, or commute any sentence passed by any court. There are also legal provisions for parole.*
The code contains copious provisions for punishment of crimes against the state or against public tranquillity. These crimes extend to conspiracy against the government, incitement of hatred, contempt or disaffection toward a lawfully constituted authority, unlawful assembly, and public disturbances. Punishments range from terms of imprisonment to life in prison or death.*
Pakistani courts can, and do impose the death sentence, as well as imprisonment, forfeiture of property, and fines. Imprisonment is either "rigorous" — the equivalent of hard labor for up to fourteen years — or "simple" — confinement without hard labor. Another form is "banishment," which involves serving in a maximum security prison for periods of seven years to life. In February 1979, Zia ul-Haq issued new laws that punished rape, adultery, and the "carnal knowledge of a virgin" by stoning; first time theft by amputation of the right hand; and consumption of alcohol by eighty lashes. Stoning and amputation, it should be noted, had not been carried out as of early 1994 — at least not outside of the tribal area where tribal custom, rather than the Pakistani penal code, is the law of the land.*
History of the Pakistan Legal System
According to the “Worldmark Encyclopedia of Nations”: “Pakistan's judicial system stems directly from the system that was used in British India. The British tradition of an independent judiciary has been undermined in Pakistan by developments over the last 50 years. In May 1991, for example, the National Assembly adopted legislation which incorporated the Islamic legal code, the Shariah into Pakistan's legal system. A Federal Shariah Court has the power to nullify any law it finds repugnant to Islam. [Source: “Worldmark Encyclopedia of Nations”, Thomson Gale, 2007]
“The position of the judiciary in Pakistan has also been affected by periods of military rule in the country. When General Zia al-Huq imposed martial law in 1977, military courts were given jurisdiction over trial and punishment of civilians found guilty of violating martial law regulations. The verdicts could not be appealed to a higher civilian court. Moreover, a provision of the 1973 constitution that judges could be removed only by the supreme judicial council, consisting of the chief justice and two ranking judges from the Supreme Court and the high courts, was revoked by the military government in June 1979. Under the 1981 interim constitution, a new oath was imposed on all Supreme Court, high court, and Shariah court judges, and all laws promulgated by the martial law regime were exempted from judicial review. The Supreme Court chief justice and several other judges were replaced after refusing to take the oath. Although the military courts were abolished in December 1985, their decisions still cannot be appealed to civilian courts.
“Similarly, in January 2000, Musharraf required all judges to take an oath of loyalty to his regime. The Supreme Court chief justice, Saiduzzaman Siddiqui, and five colleagues refused and were dismissed. This was just a week before the court was due to hear the first of several cases challenging the legality of the new government. Legal experts argue this action did irreparable harm to Pakistan's judiciary; with all sitting judges having accepted the military regime, there is no independent judiciary to protect the constitution.”
Criminal Procedures in Pakistan
In most instances, a person apprehended appears before a magistrate or assistant commissioner, who decides on bail; the magistrate may also try less serious cases. Serious cases are tried before the sessions courts, which can award punishments up to death. The provincial high court hears appeals and automatically reviews any conviction involving the death penalty. The highest level of appeal for criminal cases is the federal Supreme Court.) [Source: Peter Blood, Library of Congress, 1994 *]
Under the Suppression of Terrorist Activities (Special Courts) Act of 1975, the government established special courts to try cases involving crimes of a "terrorist" nature (for example, murder and sabotage). In 1987 another ordinance was passed establishing Speedy Trial Courts, which were empowered to hand down a death penalty after a three-day trial in which almost no adjournments were permitted. The jurisdictional authority of both kinds of courts was amended in 1988, but they have continued to operate. In 1991 the Speedy Trial Courts were given new jurisdictional authority to try particularly heinous crimes under the constitution's Twelfth Amendment. These courts handle cases that attract widespread public attention, especially those dealing with murder and drug offenses and in which the government believes that justice must be meted out rapidly. Only one appeal is permitted. In 1990 special "accountability" courts were set up to try individuals from Benazir's first administration who were charged with corruption. In late 1993, Benazir announced that her government would stop referring new cases to the special courts and would allow the constitutional authority for these courts to lapse in 1994.*
The court system and the provisions of criminal law do not extend into the tribal areas along the Afghan border. These areas are administrated by political agents who work with tribal leaders to maintain law and order according to tribal standards.*
Emergency Provisions in the Pakistan Legal Code
The British colonial constitutional provisions and penal codes gave the authorities ample scope for overriding regular legal procedures in the case of persons suspected of political agitation or threats to the public order. These provisions and codes were perpetuated and strengthened in Pakistan. The Security of Pakistan Act empowers authorities to move against any person "acting in a manner prejudicial to the defence, external affairs and security of Pakistan or the maintenance of public order." Under the act, persons may be detained, their business activities, employment, or movements may be restricted, and they may be required to report regularly to a magistrate. [Source: Peter Blood, Library of Congress, 1994 *]
Article 144 of the Code of Criminal Procedure allows the government to act preventively if it perceives the danger of public disorder. A magistrate may prohibit meetings of five or more persons, forbid the carrying of firearms, and impose "preventive detention" on anybody thought likely to disturb public order. Although a detainee is entitled to be informed of the reason for his detention and to a fair review of the case, these restrictions are in practice easy to circumvent, and the constitution specifically denies such detainees procedural guarantees. The government, especially in periods of martial law, has used Section 144 frequently when feeling its position could be threatened by demonstrations and public opposition to its policies; Section 144's provisions have also been used, however, to contain disorder that is not political.*
In 1991 Pakistan adopted the Terrorist Affected Areas (Special Courts) Ordinance, which extends the authority of Speedy Trial Courts and gives the police expanded powers to use weapons. The Maintenance of Public Order Act allows detention without trial for three months, extendable to twelve months in some cases. This act has been used to silence political opponents of the government.*
Although persons accused of crimes are entitled to bail, there have been a number of restrictions placed on this right in cases involving alleged threats to national security. In late 1992, the law requiring automatic bail for anyone in jail for two years who had not yet been convicted was rescinded, and the high courts were prohibited from hearing bail applications from persons facing trial in the special courts set up in 1975 to try terrorists. A Pakistani jurist commented: "The government can now arrest anyone, call him a terrorist, and keep him in prison indefinitely."
Problems with the Pakistani Justice System
According to the United Nations Office on Drugs and Crime: Currently, the major lacunas in Pakistan's criminal justice regime are reactive policing approaches, lack of effective crime prevention measures and issues with evidence collection. Criminal procedures tend to be tedious and time consuming, and there is a sizeable backlog of court cases in the country.”
Akbar Ahmen, a Pakistani scholar at American University, wrote in the Washington Post: “Reform of [Pakistan’s] legal and administrative system are long overdue. Those who turned to the law for recourse found themselves involved in exhausting and expensive cases that could last decades, Individuals had few rights, and the system favored the rich and powerful;. There was a disastrous mismatch between British colonial law and the contemporary needs of society.”
Police can detain alleged criminals for 90 days without filing charges. Under Musharraf and the pretext of fighting terrorism, the period was extended to a year. As part of an effort to reduce crime in the late 1990s, the military established special courts to try civilians quickly. After two people were executed in a ruling by an army-court in Sindh in 1998, the Pakistan Supreme Court ruled it was done “without lawful authority and of no legal affect.”
Mobile Courtrooms Help Pakistan Deal with Massive Case Backlog
In 2013, Pakistani officials began offering mediation in a mobile courtroom to test whether it can help clear clogged courts. Jibran Ahmad wrote in The Independent: “The courtroom-on-a-bus will mediate small civil cases, minor criminal cases and juvenile cases, said Hayat Ali Shah, the head of the provincial judicial academy. Cases can drag on for decades in Pakistan — there are 1.4 million pending nationally. Some families of victims, frustrated with the moribund courts, turn to all-male gatherings of elders called jirgas instead. [Source: Jibran Ahmad, The Independent, August 28 2013]
“Judicial problems have also helped win the Taliban support when the militants offered Islamic courts dispensing swift justice. Officials hope that new mediation can offer an alternative to the Taliban courts and traditional jirgas. "Through this system we are trying to institutionalise mediation so that there is less of a chance that a citizen's rights will be violated," Shah said.
“The mobile court heard 29 cases in its wood-panelled courtroom on its first day in Peshawar yesterday. It freed juveniles from jail, heard property disputes and imposed small fines. "I got justice within 10 minutes in the mobile court. My case was running for the past six months in the court of the civil judge," property dealer Adnan Khan said. The government hopes to launch 11 more buses this year with funding from the UN. But lawyer Salman Raja said mediation could only work in small cases. For serious crimes, Pakistan needed more judges and better training for police, lawyers and judges, he said.”
Jirgas; Tribal Justice in Pakistan
Traditionally, people in rural Pakistan have little confidence in, or access to, police and courts in big towns. They solve problems through jirgas, typically all-male councils of village elders that impose decisions based on tribal and Islamic law. Some families turn to jirgas because they are frustrated with the moribund courts and slow wheels of justice.
Alex Rodriguez wrote in the Los Angeles Times: “Pakistan straddles the line between centuries-old traditions and iPhone-era modernity, and few societal dilemmas illustrate that better than tribal jirgas...Jirgas are a cornerstone of tribal societies in Pakistan, from the badlands in the country’s northwest to the plains of Punjab and Sindh provinces. They decide issues such as property disputes and squabbles over debt, and in regions where conventional courts are not trusted, locals embrace them as a swift means of obtaining justice. [Source: Alex Rodriguez, Los Angeles Times, August. 1, 2012]
The jirgas often provide instant decisions, but sometimes the sentenced people are buried alive, gunned down, gang-raped or stoned to death. In addition, jirgas are often manipulated by the powerful, according to Reuters, and become tools for sanctioning violence against the weak, often in the course of a dispute within an extended family over land or some other asset. [Sources: Jibran Ahmad, The Independent, August 28 2013; Aftab Borka, Reuters, January 23, 2009]
Honor killing — the burning, beating, stabbing, maiming, disfiguring and killing of women and girls by fathers, brothers and other male relatives over activities deemed shameful or dishonorable — are often sanctioned by jirgas. Aftab Borka of Reuters wrote: “Women are the weakest of all in traditional, male-dominated Muslim society so they are often targeted, rights groups say. “Why does it happen? Because they are always the ones who have no redress, either legally or socially,” Anis Haroon, of the women’s rights group the Aurat Foundation, said of the victims. “They don’t know anyone, they have no contacts, they have no money to offer the police. And these perpetrators come from the higher status of society,” she said.
Orangzeb Magsi, a 32-year-old graduate from a U.S. university, is a leader of one of the most powerful tribes in Balochistan. Magsi has dealt with more than 100 cases of “honor” crime in the past four years in his district but thankfully no killings, he says. Only education and time will bring change, he adds. “On the one hand, you have these centuries old customs and on the other, the government says ‘it’s illegal’,” Magsi said. “Since they are not educated, it’s very difficult to make them understand.”
“Nafeesa Shah, a newly elected member of parliament from a rural area of Sindh province, said the jirgas and custom of killing women over honor reflected the failure of the judicial system. “You had these customs in medieval Europe. You had the lynching of people in America ... These things will only go if you have laws that don’t allow space for it,” Shah said.
The Pashtuns (Pathans) are an ethnic group that live in western and southern Pakistan and eastern Afghanistan and whose homeland is in the valleys of Hindu Kush. Pashtuns have a strong sense of what is right and not right. Pashtun tribal law has precedence over Pakistani law and Islamic law. Authority is the hands of “kashar” (elders) and in serious matters a “jirga” (tribal council). Matter can be enforced by a “lashkar” (temporary tribal militia). One tribal leader told Atlantic Monthly, “Much of my time is spent deciding cases that in another country would be handled by the family courts.
Pashtun legal matters are decided by a jirga, a council of elders. It is made of maliks who decode various intra- and intertribal matters based on tribal custom and to a less extent Islamic law. Lovers can be stoned to death. Virgins may be sold as compensation for murders. These actions are often taken to keep a disputes from escalating into a blood feud that can persist for decades, Justice comes with a price. In the 1970s a murder could set a Pashtun back US$3000; the loss of a limp or an eye half that much; a broken tooth, 100 rupees. [Source: Mike W. Edwards, National Geographic, January 1977 ♠]
Many Pashtuns defend their system as being very efficient: "A dispute outside a tribal area might lead to the courts. Here it leads to the graveyard. So a man will think carefully before he acts. In one case a man snuck into the house of a married woman and was promptly killed by her brothers. The jirga decide the shooting was justified and let the brothers go. For her part in the matter the woman was ordered to divorce her husband and was given to the dead man's family. ♠
The jirga can also end blood feuds. One feud, which had gone on for a century and claimed 102 lives, was brought to an end with a “tigah”, or truce. One of the clan members involved in the feud said, "But there is always the chance some hothead will start the killing all over again."♠
The Afridi is a large Pashtun tribe. Afridi justice can be very quick and efficient. Once group of outlaws, who had been granted asylum, shot a man on the highway. The seven outlaws were cornered in a wheat field where they were "mowed down as if they had been stalks of grain."♠
The Baloch, also know the Balochi, Baluch or Baluchi, are an ethnic group that live primarily in the sandy plains, deserts and barren mountains of southeast Iran, southwest Pakistan and southern Afghanistan. The Baloch have their own justice system. known as “riwaj” (or rawaj), which has traditionally had precedence over Islamic law and is based on the “mayar,” the Baloch code of honor and presided over by sadars. The British tried to introduce the Pashtun “jirga,” or tribal council, as a way of settling disputes but with limited success.
Deaths sentence can be imposed in cases of adultery and theft of clan property. Failure to comply with customs of hospitality can be result in fines. Pardons are often worked out through the work of female representatives. Perpetrators often seek refuge in the household of a non-related clan. The code still involves trial by fire ordeal.
Most disputes have traditionally been over grazing rights and groups often carefully define their territories with serious punishments for trespassers. Murderers often were punished only with small fines imposed by tribal councils. When this happened the victim's family often killed the murderer in reprisal which led to eternal eye-for-an-eye blood feuds. [Source: “Pakistan, Problems of a Two Part Land", National Geographic by Bern Keating, January 1967]
Wrongful deaths have traditionally been settled with blood feuds. One clan feud involving the Bugti tribe involved the use of rockets and automatic weapons and left 13 people dead. Once a hundred members of a Baloch clan were arrested.
Jirgas, Vani Rulings and Revenge
Jirgas often serve as vehicles for violence and revenge, and often the victims are women. Alex Rodriguez wrote in Los Angeles Times: “Jirgas routinely settle disputes through a tradition called vani, in which a family is ordered to agree to the marriage of one of its daughters to a male in the “plaintiff” family. The daughter can be in her teens, and in some cases she is only a few days old when the marriage contract is signed. [Source: Alex Rodriguez, Los Angeles Times, August. 1, 2012]
“Other verdicts are tantamount to murder. Last year in a village outside the eastern city of Bahawalpur, a Punjabi council of elders known as a panchayat sanctioned the electrocution of a young woman by her family after the woman eloped against their wishes. “These jirgas are dominated by men from the elite class, local influentials who usually have a very conservative mind-set,” said Farzana Bari, a prominent Pakistani women’s rights activist and director of gender rights studies atIslamabad’sQuaid-i-Azam University. “Their rulings usually give men control over women’s lives. It’s the responsibility of the state and law enforcement agencies to make sure that these jirgas don’t take place.”
“Pakistani law on jirgas is murky. The country’s Supreme Court and other review courts have issued rulings that deem jirgas illegal, but those rulings don’t lay out what constitutes a jirga and don’t establish penalties for taking part in one. Pakistan’s legal code has no specific law banning jirgas. Though jirgas routinely issue rulings that amount to a crime — such as giving a village the go-ahead to harm or even execute someone — federal and provincial authorities balk at acting against the councils, experts say, because they don’t want to risk alienating tribal communities and elders who embrace the tradition.
“Human rights groups have been pushing for reforms, calling for laws that would make it illegal to convene or participate in jirgas that result in extrajudicial convictions and punishments, said Fouzia Saeed, director of the Mehergarh human rights institute in Islamabad. The issue has gotten the attention of Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, who in March ordered the country’s top provincial police officials to clamp down on jirgas that involved vani rulings. “It seems we are living in the Stone Age,” Chaudhry remarked at the hearing. In some parts of Pakistan, jirgas operate as an unsanctioned parallel justice system. Local police tolerate, and even participate in, the meetings.
Jirga Ruling: Marry Your Kidnapper or Else
Alex Rodriguez wrote in Los Angeles Times“The jirga that decided the fate of Sofia Niaz, a 15-year-old doe-eyed girl from a village outside the northern city of Mansehra, was held in a police station. Sofia was already engaged when two men, one of them a distant relative and the other a stranger, kidnapped her in the dead of night and took her to a local madrasa, or Islamic religious school, the young woman said during a recent interview at the courthouse in Mansehra. The motive behind the kidnapping never became clear, and the madrasa’s imam returned Sofia to her family unharmed later that night. Nevertheless, Sofia’s fiance insisted that the episode had tainted the girl, and demanded that a jirga be held to settle the dispute. [Source: Alex Rodriguez, Los Angeles Times, August. 1, 2012]
“At the station, the police chief, Shah Mohammed Khan, presided over a gathering of elders from the families of the fiance and the two men who kidnapped Sofia. Elders debated for 11 hours, trying to persuade her father to accept their ruling: Sofia would marry Naveed, one of her kidnappers, and her fiance would marry one of the kidnapper’s sisters. When Sofia’s father, Niaz Mohammed, refused to accept the verdict, Khan locked him in one of the station’s cells. With the police chief watching, one of the jirga elders put a gun to Mohammed’s head to force him to give in, Sofia said. “I told them: ‘Don’t torture my father. I will agree to marry Naveed.’ Under pressure, I accepted,” Sofia said.
“The ceremony was held at the lockup. A month later, Sofia escaped from Naveed’s house and sought the help of a local human rights activist, who took the case to court. A judge granted Sofia a divorce and initiated criminal proceedings against her kidnappers, the jirga members and the police chief. “There should be a special punishment for people who do such things,” Sofia said, “so that other girls don’t have to go through such misery.”
Jirga Justice: Strip a 45-Year-Old Woman Naked and Drag Her in the Dirt for Her Son Sleeping with a Man’s Wife
Reporting from Haripur, near Islamabad. Alex Rodriguez wrote in Los Angeles Times Suleman Khan demanded justice from the tribal elders. His wife had slept with another man, he said, and he wanted their permission to seek revenge. The elders deliberated for an hour, and then announced their verdict: Punish the man and his family any way you see fit. [Source: Alex Rodriguez, Los Angeles Times, August. 1, 2012]
“Within minutes, Khan and his three brothers had broken into the man’s house. Only his 45-year-old mother, Shehnaz Bibi, and her teenage son were home. Armed with rifles and canes, they dragged Bibi out of the house and brought her to the village square. As dozens of astonished villagers watched, they stripped her naked and dragged her by the ankles, making several circles in the dirt with her body.
“After about an hour, Khan and his brothers left. Bibi crawled over to grab her shawl and covered her dust-caked body with it. “All the time, I was thinking, ‘I just want to die right now,’” Bibi recalled, using her head scarf to wipe away tears from her sun-weathered face. “I thought to myself, ‘I just can’t bear this anymore.’”
“Authorities also made arrests in Shehnaz Bibi’s case. Although it’s rare for police to take action against jirga participants, charges are pending against the four men who dragged her from her home in the village of Nilour Bala, along with three other men who led the jirga. That’s little solace to Bibi, however. She is too ashamed to return to her village, and her family worries about reprisals by relatives of the arrested men.
“Provincial government officials have given her a tiny flat in a weed-choked cluster of concrete apartment buildings on the edge of Haripur, a small city about 25 miles northwest of Islamabad. Outside her flat, a police officer wearing aviator sunglasses sat slumped in his lawn chair, a member of the 24-hour guard duty she and her family now receive. “It’s impossible for us to get our lives back,” Bibi said, sitting on a cot in her darkened, bare-walled living room. “What happened to me is a curse that will stay with me for the rest of my life.”
Lack of Justice for Acid Attack Victims in Pakistan
Some women in Pakistan are victims of acid attacks that leave their faces and bodies horribly scarred for life. Alex Rodriguez wrote in the Los Angeles Times: “The attacks are often an escalation of domestic violence. “And at some point, the level of violence rises to a point where the husband wants to punish the wife by throwing acid at her to teach her a lesson and disfigure her for life,” said Valerie Khan of the Acid Survivors Foundation. Many attacks go unreported, and even when victims lodge complaints, police and judges often halfheartedly pursue the cases. “The main trend in the Pakistani justice system remains that too few perpetrators are being convicted,” Khan said. “With local police and judges, the level of sensitivity and attention that they give to this issue is clearly insufficient.” [Source: Alex Rodriguez, Los Angeles Times, May 29, 2012]
“On November 25, a man named Dastagir attacked a woman named Parveen Akhtar with acid that mostly missed Akhtar and instead horribly disfigured her 10-year-old daughter, Zaib, an innocent bystander.. “After throwing the acid, Dastagir and the other three men sped away. Police later arrested Dastagir and two of the accomplices. Dastagir, however, had connections with clout-wielding locals, including a Punjab provincial lawmaker, said Akhtar’s brother-in-law, Abdul Aleem. The lawmaker’s son-in-law began showing up at Akhtar’s house, urging her and her husband to accept money instead of a jail term for Dastagir and the other men, he said. “There was no direct pressure, but we felt we were being threatened,” said Aleem, who became the family’s negotiator. “He’d say: ‘If you agree, in the future we will take care of you if you’re in trouble. But if you don’t listen to us, we won’t be on your side if you face trouble.’ ”
“On the day a judge approved the settlement, Dastagir and the other men walked free. Though the money is far more than either Aleem or Aslam, Zaib’s father, makes in a year, it doesn’t come close to paying for the raft of surgeries that doctors say Zaib will need to have any hope of improving her face and eyesight. “Zaib’s father is retired, and the eight children who still live at home rely on about US$200 a month earned by Zaib’s 12- and 15-year-old brothers, who work as mini-bus attendants, and an 18-year-old brother who works at a bakery. In the legislation passed in December, a loophole that once allowed acid attack defendants to avoid jail by reaching out-of-court settlements with victims was closed. That doesn’t give Zaib any solace, however. The attack that ended her life as she knew it occurred November 25, just 17 days before it passed. A settlement reached in March between Zaib’s family and Ghulam Dastagir, the man who engineered the attack, is not affected by the new law (See Above).
“The price that settlement put on Zaib’s face and misery was 350,000 rupees, about US$3,800. Akhtar received 500,000 rupees, roughly US$5,500. Leaning against a doorway at their two-room house in a cramped Faisalabad neighborhood, Akhtar glanced over at Zaib sitting motionless on a bed and acknowledged that settling was a mistake. “I’m not happy with this agreement,” Akhtar said. “He’s free, and he could come and attack me again, or he could attack someone else in my family. That fear gnaws at me.”“
Pakistani Court Orders Noses and Ears Cut Off Two Men
In December 2009, A Pakistani court has ordered the noses and ears of two men cut off after they did the same thing to a young woman whose family spurned one of the men's marriage proposal. The anti-terrorism court in the eastern city of Lahore said it was applying Islamic law by ordering the punishment. [Source: Babar Dogar, Seattle Times, December 22, 2009]
Babar Dogar wrote in the Seattle Times: “Lahore prosecutor Chaudhry Ali Ahmed said one of the accused, Sher Mohammad, was a cousin of the 19-year-old woman and wanted to marry her. Her parents refused his proposal. Sher Mohammad and a friend, Amanat Mohammad, were accused of kidnapping the woman and cutting off her ears and nose in late September in the Raiwind area of Lahore.
“The court also sentenced each man to 50 years in prison and told them to pay fines and compensation to the woman amounting to several thousand dollars, the prosecutor said. Pakistan’s legal system has Islamic elements that sometimes lead to orders for harsh punishments, but the sentences are often overturned and rarely carried out. Serious crimes are often referred to anti-terrorism courts in Pakistan because they move faster.
Death Penalty in Pakistan
Pakistan has the death penalty as does Japan, South Korea, Bangladesh, Bhutan, Indonesia, Malaysia, Iran, the U.S., Saudi Arabia and Iraq. One a serial killer accused of killing 100 children was sentenced to death. A lower court called for him to die as his victims had died by being strangled with an iron chain and then on top of that chopping his body into a 100 pieces and then dissolving these in acid. The Council of Islamic Ideology ruled against the sentence, saying it violated the tenets of Islam that prohibits the desecration of a body. .
Circumstantial evidence is often sufficient to hang someone. Pakistani law prescribes the death penalty for 27 offences, ranging from murder to kidnapping, rape, adultery, blasphemy, drug trafficking and even sabotaging the country's railway system. [Source: Asad Hashim, Al Jazeera, April 11, 2017]
In 2016, Pakistan executed 87 people, the fifth most in the world that year according to Amnesty International. In 2014, the government lifted a six-year moratorium on executions as part of a counter-terrorism plan. It then expanded the use of executions to include non-terrorism offences in 2015, saying the measure was needed to combat crime. Together, Iran, Saudi Arabia, Iraq and Pakistan accounted for 87 percent of all recorded executions worldwide. China is widely believed to execute thousands of people every year, but data on executions "is classified as a state secret", according to Amnesty.
Injustices of Death Penalty Justice in Pakistan
Asad Hashim of Al Jazeera wrote: “Rights groups say Pakistan's justice system disproportionately convicts and sentences those in lower-income groups to death, given their lack of resources to arrange an adequate legal defence. “Many people had no lawyers, and they were appealing [against their sentences] through the jail," Sohail Yafat, a human rights activist Yafat said. "The hearings were ongoing for years — sometimes for more than 10 years, and often cases would be left by the wayside, with no one to take up the case from outside the jail to push for it to be heard. Often their lawyers would not show up for hearings." “Pakistan's justice system is ridden with deficiencies and abuses of authority," says Sarah Belal, director at rights group Justice Project Pakistan. "Police routinely coerce defendants into confessing, often by torture, and courts admit and rely upon such evidence." [Source: Asad Hashim, Al Jazeera, April 11, 2017]
Allegations of torture to obtain confessions and improper investigative work by Pakistan's police force have been well documented by rights groups and research organizations, although the state denies their use is policy. Questions also remain about the efficacy of the judicial system. In October, Pakistan's Supreme Court acquitted two brothers who were on death row for murder, but judges were astonished to find that the men had already been hanged a year earlier. Moreover, defendants without access to funds "must rely on attorneys who typically provide only cursory and ineffective representation", says Belal.
In 2001, Yafat went to visit a colleague's ailing father at a Lahore hospital. “Yafat never expected the police to be there, waiting for him. He was arrested, and bundled into a police van. “There was no warrant. This was all purely on suspicion," he says. "I was blindfolded, and I was brutally tortured and beaten on the way. I had never even entered a police station, so I had no idea of this world."
“The police and a complainant had named him as an accomplice in a murder case in the town of Sahiwal, about 150km south. What followed for Yafat was harrowing: 10 years of imprisonment during which he was tried, convicted and sentenced to life imprisonment. In 2011, a court exonerated him, acquitting him of his crimes for want of evidence. “I was subjected to third-degree torture. They beat the soles of my feet with bamboo sticks. I was beaten with whips. I was kept awake, bound so that I was positioned bolt upright and unable to sleep," he recalls. The maximum punishment for murder suspects in Pakistan is the death penalty — Yafat says he was terrified of receiving it. In the 10 years he spent in prison, having seen the conditions under which death row prisoners lived, he was determined to work for their rights, "to ease their pain", he says.
Image Sources: Wikimedia Commons
Text Sources: New York Times, Washington Post, Los Angeles Times, Lonely Planet Guides, Library of Congress, Pakistan Tourism Development Corporation (tourism.gov.pk), Official Gateway to the Government of Pakistan (pakistan.gov.pk), The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Reuters, Associated Press, AFP, Wikipedia and various books, websites and other publications.
Last updated February 2022