in the legal sense, strongly and essential y opposed to the ‘little traditions’ of the old local and kinship-based codes. They are in competition with each other to replace those codes, though both have at different times and in different ways sought accommodations with them. Indeed, the Taleban in the Pathan areas owes much of its success to its successful blending of Shariah and pashtunwali.
Both the state legal code and the Shariah are reformist and progressive codes in the context of Pakistani customary justice, especial y as far as women are concerned. As wil be seen in subsequent chapters, the most ghastly atrocities against women in Pakistan have been committed as a result of judgments under customary laws, not the Shariah. In the face of the – let us be frank, often barbarous – tribal traditions of the Baloch and the Pathans, the Islamic code stands where it stood when it was first created by the Prophet Mohammed to civilize the pagan tribes of early seventh-century Arabia. This is something which British imperial administrators in the region ful y recognized and sought to exploit.
The competition of judicial codes is intimately related to the weakness of the state in Pakistan, and Pakistan’s difficulties in developing as a modern society and economy. For the idea of the modern state is largely bound up with the idea of the population being subject to one legal code, to which the state itself and its servants are (in theory at least) also subject. This code is laid down by one legislative authority, and administered by one hierarchy of judicial authorities. Any official y sanctioned deviations from this code are fairly minor matters of religious jurisdiction. Unsanctioned deviations are ipso facto not just il egal but il egitimate. The population of Pakistan by contrast has a choice between the law of the state, the law of religion (the Shariah), and local folk, tribal or community law.
People move between these three codes depending on circumstance and advantage, often pursuing their goals through several of them simultaneously – as wel as through violence or more often the threat of it. The authorities which are supposed to implement the state law in conjunction with the Shariah, very often end up fol owing community law or even turning a blind eye to violence. Often this is because they have been corrupted or intimidated, but often, too, it is because the police concerned share the cultural attitudes of the populations from which they are recruited. So the nature of Pakistan as a ‘negotiated state’, in which authority is a matter of negotiation, compromise, pressure and violence, not formal rules, is exemplified by the area of law and justice.
THE CUSTOM OF THE COUNTRY
State law and the Shariah are both formal, written codes. Customary laws (which can also be described as community, familial or ‘folk’
laws) are informal and unwritten, but immensely strong, because they reflect the cultures of the people. These laws, as implemented by bodies of local elders and notables or the leading males of families, reflect the basic attitudes of the population across the South Asian countryside, and to a remarkable extent in many of the cities as wel .
These laws are weaker in northern Punjab than elsewhere, but stil present even there, as Muhammad Azam Chaudhary’s study of justice in a vil age in Faisalabad District makes clear. For a very large part of the rural population, these codes, and not the state law or the Shariah, govern rules of inheritance, the regulation of marriage and sexual relations, and the punishment of a range of ‘crimes’ or the resolution of a range of local disputes. Local people, and Western commentators, are general y convinced that these laws correspond to Islam or are even part of the Shariah – which is not at al the case.
The most famous, the most extensive, and the best studied example is the pashtunwali, the ethnic code of the Pathans, but every traditional Pakistani, Indian, Bangladeshi and Nepali community has its own version. The only large population in Pakistan which has completely shed al egiance to traditional codes are the Mohajirs of Karachi, precisely because they were migrants who moved during and after 1947 from very different areas of India.
These informal systems of justice take many different shapes, but in al cases both the shapes and the outcomes are closely influenced by local kinship and power relations. In the Western systems of justice derived from or influenced by Roman law, and in al the legal codes around the world which in modern times have been based on Western codes, al crimes should be punished, and the purpose of the law and the criminal justice system is – in principle – to abolish crime altogether. These are also the basic principles of the Pakistani state legal system, because this system is based on that of Britain.
The traditional codes of Pakistan are based on quite different aims: the defence of col ective honour and prestige; the restoration of peace, and the maintenance of basic order. In this much of Pakistan resembles many other heavily armed kinship-based societies. Since these kinship groups always real y saw themselves at bottom as independent sovereign groups, it is logical that the laws that grew up out of these societies should in key respects resemble traditional international law more than modern national law: that is to say they are based on diplomacy as much as rules; they usual y aim at compromise not punishment; and the possibility of pressure and violence continue to lurk in the background.
This is in part because ideas of honour (izzat or ghairat) and dishonour are fundamental to the culture of most parts of Pakistan. A man, or a family, who fails to avenge certain types of insult or injury by violence wil be dishonoured in the eyes of their community and themselves, and nothing can be worse than that. Dishonour means lack of prestige, and lack of prestige means that the family’s prospects wil be diminished in every way.
A British colonial judge, Sir Cecil Walsh, described ‘that great and fateful word izzat’ as fol ows, in terms which also imply its direct link to violence:
Every Indian, from the highest to the lowest, has his izzat, or name to keep. After his son, it is his most cherished possession, and if it is injured, he is an unhappy man. And in such a sensitive race there is nothing easier to injure than the izzat. The injury may be purely imaginary, but it is no less keenly felt ... He wil neither forget it nor forgive the man who did it.6
In the evocative local phrase, a worthy and respected man ‘does good izzat’ – accha izzat karna – or in the Pathan territories, ‘does pashto’; that is to say ‘fol ows the path of honour’. This is not just a matter of individual actions and decisions, but a whole way of living one’s life; just as a woman is expected to ‘do ghairat’ in her dress, mode of behaviour and above al , of course, sexual conduct.
Walsh speaks of izzat as an individual matter, but it is equal y important to families, extended families and clans. Indeed, most crimes committed in defence of izzat (and for that matter, most crimes in general) are col ective crimes, as other family members join in to help or avenge their injured kinsman in battle, to threaten witnesses, to bribe policemen and judges, or at the very least to perjure themselves in court giving evidence on behalf of relatives. This is not seen as immoral, or even in a deeper sense il egal. On the contrary, it takes place in accordance with an overriding moral imperative and ancient moral ‘law’, that of loyalty to kin.
As Walsh himself recognized:
In England, a very large proportion of crime is committed single-handed, and the average number of offenders per crime must be under two. The average number per crime in the United Provinces must be nearer ten than two ...7
Violence is not frequent, or Pakistan would be in chaos; but it is fair to say that the possibility of it is often present somewhere in the background. Muhammad Azam Chaudhary writes that: The decision to go to the police/courts involves a risk of blemishing the izzat. You often hear ‘if you are a man, brave and strong, come forward and fight directly. Why do you go to uncle police’, and that the real badla [revenge] could only be inflicted directly or by close relatives and not by the police or courts. But, on the other hand, if going to the police is only for the purpose of harassing the opponent and impoverishing him, it could become a source of adding to one’s izzat, especial y by winning a court case against one’s rival. This competition of winning the cases in the courts between rivals leads to ... ‘addiction to litigation’.8
During a visit to Sindh in 1990, a member of a great local landowning and political family in Shikarpur told me: If neighbouring landowners see that you are weakening, there are always a lot of people to take your place, and they wil hit your interests in various ways, like bringing lawsuits to seize your land or your water. If you can’t protect yourself, your fol owers and tenants wil ask how you can protect them. A semblance of strength must be maintained, or you’re finished.
The trick is to show your armed strength without getting involved in endless blood-feuds ... Such rivalries between families and clans are also conducted in the law courts, but the ultimate decision always lies with physical force ...
In the countryside here in Sindh, a man from a strong tribe can go about unarmed, when no one else can. This wil only change if a proper judicial system is established here in Sindh ... Western education changes attitudes to some extent, but people stil feel a strong attachment to their tribe. It does make some of the sardars more relaxed though, less likely to demand retaliation at the drop of a hat. Junaid [his younger brother], when he presides over jirgas, tries to take a moderate line, and to seek compromise with other tribes instead of blood. Other sardars and tribal notables do the same. That is why, although the jirgas here are not official y recognized, the government and police use them al the time to settle disputes, and prevent them getting out of hand. On the whole the feudals are more favourable to bring tribal feuds to an end, because they are not carried away by emotion, and see that in the end no one wins.
Also, a Kalashnikov can kil more people in a week than were previously kil ed in a year, so things can more easily get out of hand. Al the same, no sardar, however rich, can afford to be seen as a coward by his people ...
Agha Tariq, PPP Development Minister, shot a man from a Mughal family in broad daylight 500 metres from here. He had a love marriage with a girl from Tariq’s family without permission – the girl has disappeared, so they must have kil ed her too. To kil Tariq or someone from his family in return, the Mughals would have to have tribal backing to protect them and give evidence for them. But they are basical y a middle-class service family. The brother is in customs in Karachi. They are wealthy and wel -connected in Karachi and even Islamabad, but they don’t have the local influence and prestige necessary to get away with kil ing, even in revenge. So they filed a case in court, but Tariq and al his fol owers got sworn alibis – some were supposedly in hospital, some even got the police to swear that they were in gaol at the time for traffic offences. They’l never be convicted. And they won’t be unpopular with the people here because of it either – people respect men who defend their family’s honour. Even in jail such people are respected more by the other criminals, as people who have done the right thing, maintained their honour.
And the speaker, by the way, was no rural thug, but a senior official of a European-based bank.
Customary laws differ considerably among the different regions and ethnicities of Pakistan. Within the same vil age too, judgments according to customary law can take place at different levels and in different fora, according to the case in question. Everywhere, however, the basic unit is the same, just as it is in Pakistani rural and to a lesser extent urban societies: the ‘patriarchal’ extended family: ‘patriarchal’, though as innumerable Pakistani and Indian daughters-in-law are bitterly aware, behind the patriarchal façade, the grey eminence, the greatest tyrant and the most ruthless enforcer of custom in these families is quite often the senior female.
According to the traditional ideal, all cases involving only members of one extended family should be settled within that family, and by a patriarch relying on the consensus of the family. A situation in which different members of the same extended family appeal to outside judicial authority – whether state or communal – in disputes among themselves is general y felt to be a disgrace for the family as a whole.
Disputes between extended families should also ideal y be settled by negotiations between their wise and experienced patriarchs.
When it comes to issues of sexual behaviour and family ‘honour’, a majority of cases are in fact settled at this level – al too often by the death of the woman concerned at the hands of her own family.
According to al the customary codes, when this happens wider justice has no role to play at al ; and alas, across most of Pakistan the state authorities receive little or no help from local communities in pursuing these cases, most of which go unreported (the same is true across very large parts of India).
If however a case involves people from different extended families (or relations within one extended family break down irretrievably), then outside help wil be invoked by one or both parties to the dispute – either to prevent violence or to restore peace after violence has occurred. This help usual y involves a mixture of mediation by some respected local figure or figures with judgment by a group of ‘elders’. In Punjab, as in north India, such a group is usual y known as a ‘panchayat’ (from a Hindustani word original y meaning ‘council of five’). In the Pathan areas, Sindh and Balochistan, the name commonly used is the Pathan word for such a council of local elders and notables, ‘jirga’.