Pakistan_ A Hard Country - Anatol Lieven [56]
The men of the winning side fled to relatives in the Khyber Agency of FATA, from which it is (especially now) virtually impossible to recover criminals. The investigating officer said that the police tried (‘a bit’) to arrest the men by asking the Khyber Tribal Agency for help and putting pressure on relatives who remained in Peshawar to get them to return and turn themselves in,
but in the end we encouraged the family of the dead men to ask for a jirga to arrange a settlement and compensation, and both sides swore to accept its decision. They were paid Rs10 million, I think, and in return they swore on the Koran not to seek revenge. Then they came to us and we dropped the case ... Rs5 to 20 million is the range of compensation for a murder, but sometimes the compensation can be in vehicles or property. Swara [the infamous Pathan and Baloch custom of handing over young girls in compensation] is greatly diminished these days because of education, at least in the towns.
While the police at ground level are resorting to informal justice to get things done, some senior officers are thinking seriously about how the entire system can be changed so as to bring it more into line with popular expectations of justice, and improve its effectiveness at the same time. Malik Naveed Khan, the thoughtful and able inspector-general (i.e. commander-in-chief) of the police in the NWFP, took time off from fighting the Taleban in July 2009 to give me a fascinating lecture on the subject of ‘restorative justice’. This is a growing trend in approaches to criminal justice in a number of countries (including New Zealand), with certain parallels to traditional South Asian approaches.
Naveed Khan has set up public committees attached to police stations in parts of the NWFP, composed of respected local people co-ordinated by the local police chief to arrange reconciliation and compensation in a range of cases up to and including murder. Unlike in the informal jirgas, these committees are not able to make decisions (reprisal killing, the giving of women, and so on) which contradict Pakistani state law. In his words,
If we can regulate the jirga system and make it official, then we can prevent such illegal decisions while keeping the best aspects of the old system. After all, no one but the lawyers really wants to bring cases to court if they can avoid this. It is an immense burden to everyone concerned, including the police who here in the NWFP are in a life and death struggle with the Taleban. What is more, no one sensible wants to send people to jail – often not even the victims of crime, if they can be compensated by the perpetrator. Prison only turns accidental criminals into professional ones, and anyway, all too often in Pakistan for whatever reasons they are let out again after serving only a small part of their sentence.11
There is, however, a range of obstacles to the full integration of informal justice structures into the formal justice system. The first is obviously the economic interest of judges, lawyers and policemen, all of whom would stand to see their incomes from bribes and fees greatly diminished. This is related to the point that the informal justice system cannot work properly if disappointed parties are always in a position to appeal from local consensus to the police and the state courts – which, unlike the local community, can bring overwhelming force to bear in particular cases, at least if they are bribed enough.
A second obstacle is that because they are ad hoc and informal, jirgas and panchayats usually have to be based on small village or tribal communities in which people know each other, know who has sufficient local respect to serve on a jirga, and also understand well both the personal characters of the parties concerned and the reality of power relations between them. This is less and less possible in Pakistan, where the population, and the urban share of it, are both growing enormously.
This problem was brought home to me when in 2009 I visited Mingora, capital of Swat, after