Pakistan_ A Hard Country - Anatol Lieven [66]
As for the legal system, this is essentially the English Common Law, as introduced by the British. For obvious imperial reasons, however, the British empire left out the ancient democratic element of the English system, namely the jury. Pakistan and India have continued this autocratic tradition, partly because of the ingrained contempt of the elites for the illiterate masses, and partly because of better-based fears that juries would split bitterly – and then violently – along lines of kinship, sect or ethnicity.
Informal panchayats and jirgas are therefore the only democratic legal institutions in Pakistan. But there is a problem, which raises key issues of democracy and progress in Pakistan. Leaving aside their domination by local elites, these informal courts are at best only representative of half the population – the male half. Women are virtually never represented. On the other hand, in the official legal system, women have a small but slowly growing place: some 500 lawyers in Karachi are women, out of 9,000 in all, and there is a sprinkling of women judges.
Under the lash of progressive lawyers including women such as Asma Jehangir (Chairwoman of the Human Rights Commission of Pakistan), the official system has repeatedly issued judgments and injunctions protecting women’s rights, even if political pressure and its own failings mean that it usually cannot actually deliver justice in individual cases brought before it. Left to itself, the informal judicial system would, by the democratic will of its (male) representatives, sweep away modern women’s rights altogether.
Hence the repeated judgments of the higher courts declaring jirgas and their judgments illegal, even as the police rely on them constantly to reconcile disputes and keep order. This is the dilemma on the horns of which Pakistani liberals are impaled, but which they themselves do not dare to recognize: that their progressive programme, though couched in democratic terms, is opposed in key respects by the overwhelming democratic majority of (male) Pakistanis.
THE LAWYERS’ MOVEMENT
For a time in 2007 – 8, it seemed as if a bridge might be created between the Pakistani judicial elites and the masses, that mass support might be generated for a liberal programme in Pakistan, and that the judiciary itself might find the will radically to reform its own judicial system. This vision was embodied in the Lawyers’ Movement, which played a key role in bringing down the administration of President Pervez Musharraf, and may well contribute to doing the same to President Asif Ali Zardari.
The Lawyers’ Movement originated in attempts by the Chief Justice, Iftikhar Chaudhry, in early 2007, to place limits on President Musharraf’s power – including the alleged ‘disappearance’ of Pakistanis to US custody. Musharraf’s consequent dismissal of the Chief Justice led to a protest movement of lawyers against his rule, which was supported on the streets by hundreds of thousands of people. After Musharraf’s resignation, the movement continued in a lower key against Zardari.
Echoing much of the Western media, the New York Times described the Lawyers’ Movement as ‘the most consequential outpouring of liberal, democratic energy in the Islamic world in recent years’.15 Pakistani liberals, too, initially saw it as marking a breakthrough in Pakistani history, the mobilization of a section of the educated middle classes as a political force in their own right, and with mass support.
It may be that in the long run the Lawyers’ Movement will indeed be seen to have marked the start of a new and better era in Pakistan’s history. As of 2010, however, it seems that many of the media analyses of the movement have missed a number of important aspects of what has happened. The first is that historically the law in Pakistan has resembled the hen in the old Pathan proverb: ‘a bird belonging to the man who seizes it’.
This was very apparent during Pakistan’s period