Pakistan_ A Hard Country - Anatol Lieven [57]
The existence of a parallel, legally unrecognized set of judicial institutions relying on local codes obviously calls into question the whole project of creating a unified modern state, which is why since early modern times royal authorities in Europe and elsewhere tried to stamp out these institutions and practices and replace them with a uniform code and uniform institutions staffed by centrally appointed judicial officials. This has been a challenge for India as well as Pakistan. In the words of the Indian legal anthropologist M. P. Jain:
There is one other very important reason as to why custom should now be abrogated. Most of the customs are tribal or communal and sectarian, and so long as custom survives these class dictinctions are also bound to survive. It would lead to a better integration of the people, if the sense of separation of each community arising out of its distinctive customs were removed.12
Finally, in one key respect the question of the judicial role of jirgas and panchayats raises in acute form the clash of cultures between the Pakistani masses and the Westernized educated elites which dominate the state and the senior ranks of the judiciary – which in turn raises a fundamental question about Pakistani democracy. This question relates to the treatment of women.
Especially among the Pathans and Baloch (including the Baloch tribes of Sindh and southern Punjab), tribal jirgas are regularly responsible for ordering punishments of women which are absolutely odious not only to modern Pakistani state law and Westernized sensibilities, but to the Shariah and strict Muslim sensibilities as well; but which, unfortunately, enjoy the support of the vast majority of the members of the communities concerned – or at least the males.
These jirga decisions include: the execution of women for ‘immorality’, and even for perfectly legal and religious marriages with men from other tribes; the giving or exchange of minor girls in compensation as part of the settlement of feuds; and, more rarely, orders of gang-rape as a punishment. This last, however, is almost always limited to actions by one locally dominant kinship group to teach another one its place – as in the particularly monstrous case of the rape in 2002 of Mukhtar Mai, a woman of the Gujjar biradiri in the Muzaffargarh district of southern Punjab, on the orders of a jirga of the Mastoi, a local Baloch tribe. This is a tactic often used by superior castes in India as well to crush and humiliate the lower castes.
This issue raises yet again the question of whether Pakistan is really (as most observers believe) insufficiently democratic, or whether on the contrary it is in fact too democratic for its own good – in so far as the views of a largely illiterate, obscurantist and often violent population are in a position to prevail over those of the educated elites, and the state is too weak to enforce its own official law.
For it should be remembered that in eighteenth- and nineteenth-century Europe, key advances in judicial progress, and administration in general, which laid the foundations for modern European civilization, were carried out by small enlightened aristocratic and bourgeois elites. These often had to use authoritarian methods to crush the resistance of the mass of the population. They certainly never believed for a moment that the masses should be consulted about elite actions.
This issue also raises the question of the difference between a truly ‘feudal’ elite