Code of Justinian
“From the unwritten comes the law which is sanctioned by use, because long lasting customs, which are approved of by agreement of those who are used to them, resemble laws”
Pakistan’s rural areas constitute around 68% of the total population of the country and thus the values, laws and traditions prevailing in these rural areas matter the most for the local population. There are 4 different justice systems simultaneously working in Pakistan.
These four systems are as follows:
- Jirga System
- Panchayat System
- Sharia Laws
- State Judicial System
The North Western areas of Pakistan constitute Pashtuns in a large number. Pashtuns by population make up around 15% of Pakistan’s total population. Most of these Pashtuns either live in Khyber Pakhtunkhwa (KP) province or have strong connections to the region.
Jirga is a Pashtoon tradition and is used for resolving disputes between individuals, as well as tribes. This is a form of local justice in which people bring their criminal as well as procedural issues. Pashtuns take pride in this one of the oldest forms of justice systems in the world. They boast off its neutrality.
Functioning of Jirga:
The community council meaning is often found in circumstances involving a dispute between two individuals; a jirga may be part of the dispute resolution mechanism in such cases. The disputants would usually begin by finding a mediator, choosing someone such as a senior religious leader, a local notable, or a mediation specialist (a khan or Malik). In tribal Pashtun society the Maliks serve as de facto arbiters in local conflicts, interlocutors in state policy-making, tax-collectors, heads of village and town councils and delegates to provincial and national jirgas as well as to Parliament. The mediator hears from the two sides and then forms a jirga of community elders, taking care to include supporters of both sides. The jirga then considers the case and, after discussing the matter, comes to a decision about how to handle it, which the mediator then announces. The jirgas conclusion is binding.
Jirga does not only mediate between individuals or tribes but it also has a much broader purpose at times as well. In the past Loya Jirgas were called in order to declare wars in the ancient Afghanistan and the tribal areas of Pakistan. It is a large conglomerate of various tribes that join hands together to decide about something that concerns them all.
Advantages of Jirga system:
The state judicial system in Pakistan and Afghanistan is quite weak, owing to a host of reasons. The administration is weak and ill-equipped to carry out the justice and therefore, Jirga offers a perfect solution for speedy justice with all parties included in the hearing of the case.
Disadvantages of Jirga system
The code is quite primitive and needs modernisation but being an informal system, the state doesn’t help improving it, in fact denounces it officially. The punishments are harsh and have been subjected to criticism from local and international observers.
Jirgas have also been criticized for the cruelty in the manner of their punishments, especially for those who do not abide by the decisions of the Jirga. The punishments include stoning to death, torching of houses, sending the ‘criminal’ into exile and others.
The Sindh High Court imposed a ban on the holding of jirgas in April 2004 because of the sometimes inhumane sentences awarded to people, especially women and men who marry of their own free will. The ban, however, has been ignored.
Panchayat is a system mainly prevailing in the plains of Punjab and Sindh, and some areas of Balochistan. Besides, the system is extremely popular across the border in central India as well. Panchayat works largely like the Jirga. But the biggest difference is that of the formation of the Panchayat. As the name indicates, Panchayat generally consists of five notables from the family, area or the region, depending on the nature of the conflict.
Panchayat is an old system of governance and in India, it is not just a justice system, but an administrative body that also collected revenues, applied taxes, did the policing, regulated the yield and were responsible for the development of the village in ancient India.
According to archaeological evidence, Panchayat used to be held in Southern India during the 10th century. The region was divided into 30 wards and each ward used to have its own Panch (member of Panchayat). This Panch used to be elected through lottery method. The procedure was that names of the notables from each ward used to be pooled in a jar and then a kid was asked to take one chit out of the many. The name borne by the chit picked by the kid was nominated the Panch from the area.
When the British came to India, they liked the Panchayat system and termed it a viable basic democracy system. However, East India Company, which was basically aimed at collecting money for the company, it brought its own justice system and imposed the British bureaucratic system on the villages. The taxes were begun to be collected individually, instead of collectively. As a result, the development of individual gradually became the area of focus in India, replacing the idea of collective development.
In the 20th century, as the nationalism rose in India, the demand for Panchayat system also gained popularity. The British allowed it in 1919 and the system was adopted by Bombay, Punjab, Orissa and many other provinces. But after the partition, this system failed to provide a viable system of basic administration and thus was abolished. However, it was reintroduced in 1992 and is still functioning in many states of India. It is called Gram Panchayat.
In Pakistan though, the system has always remained a source of justice, and not administration. The state doesn’t recognise it as a justice system either and whatever legitimacy it has is due to the popularity among the locals and the failure of the state justice system to provide an alternative.
Functioning of Panchayat in Pakistani Punjab:
In Punjab they are much looser and less informal. If a case involves members of the same local biradiri, then the panchayat concerned will represent that clan involved; if members of different clans, then representatives of the whole village (or at least its dominant landholding elements) will be present. More rarely, representatives of different villages will meet to discuss disputes between them.
Disadvantages of Panchayat system:
Panchayat system’s biggest disadvantage is that it is not exactly a system. There is no written code or policy draft. Moreover, the state doesn’t back this system, making its decisions non-binding and thus the decisions can’t be enforced legally. It thrives mainly on the verbal orders and no decisions are binding.
Harsh punishments have been the biggest drawback of this system. Karo Kari, Vanni and such punishments are heavily criticised and have no backing whatsoever from the state judicial system. Stoning to death is also one of the punishments, the panchayat and Jirga are criticised for.
State Judicial System
Judicial system or court system is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. The rural areas are mainly concerned with the lower judiciary i.e. district and session courts.
Advantages of judicial system
The biggest advantage that the state judicial system enjoys is that it is backed by the state. Since it is backed by the state, the decisions made are enforced legally and the state apparatus including police, army and all the law-enforcing agencies can be utilised for enforcing it.
Disadvantages of judicial system
The biggest disadvantage of the judicial system is that the procedure is slow and takes years in serving justice. The time taken is by far the biggest reason it is discredited for by the residents of the rural areas of Pakistan.
The number of cases pending in courts as per a 2009 report is as follows:
Besides, the security of the judges is yet another threat to the entire judicial system. The state apparatus is insufficient in providing security to the judges and thus they are unable to dole out swift justice in case of strong and well-connected disputants.
Being a Muslim country, there has always been an urge at various levels for a justice system derived out of Sharia law and one that is guided by the core principles of Islam and which rejects or endorses decisions only in the light of the Quran and Sunnah.
Although Sharia was applied in only Malaknd Division and that too for a brief period in 2009 but according to a Gallup survey in 2011, 67% Pakistanis wanted the government to Islamise the society and thus the system holds a considerable popularity among the masses and needs to be discussed. The biggest reason for Sharia’s popularity is, again, inefficiency of the state judicial system.
It is also important to discuss Sharia Law that the adherents of this system are the only faction in the society who have taken up arms for the imposition of any other justice system other than the state justice system.
Popularity in Punjab and KP only
It is pertinent to mention here though that the highest popularity for Sharia Law is in Punjab, followed by KP. Sindh and Balochistan have very low popularity for Sharia Law according to the Gallup survey. The primary reason could be the failure of the religious forces to penetrate into these societies or maybe it is because of high popularity for nationalism in these societies, leading to higher support for the local justice system against Sharia Law.
The main difference between traditional and state systems
In the Western systems of justice derived from or influenced by Roman law, and in all the legal codes around the world which in modern times have been based on Western codes, all 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 collective honour and prestige; the restoration of peace, and the maintenance of basic order they are based on diplomacy as much as rules; they usually aim at compromise not punishment; and the possibility of pressure and violence continue to lurk in the background.
According to Imran Aslam of Geo TV:
One thing that ordinary people here fault the state’s Anglo-Saxon legal system for is that there is no compensation. Yes, they say, the law has hanged my brother’s killer, but now who is to support my dead brother’s family – who by the way have ruined themselves bribing the legal system to get the killer punished? Both the traditional justice systems and the Sharia are all about mediation and compensation, which is an important part of their appeal for ordinary people.
One of the greatest and most thoughtful of British officials, Sir Mountstuart Elphinstone, sought to safeguard and recognize customary law, because of the need for government ‘to escape the evil of having a [British] code unsuitable to the circumstances of the people, and beyond the reach of their understanding’.
The obstacles in bringing the local justice systems into mainstream:
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.
The role of democracy
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.
The biggest hurdle however is that of language. The state justice system primarily operates in English language while the language of the masses is Urdu and other local languages. The Anglo Saxon law is based mainly on precedence and all the precedence is recorded in English language since 1884. Therefore, it is near impossible to translate all the legal precedence into the local languages and therefore, the local justice system remains far from the state justice system and will probably continue to be the same forever.
The article widely refers to Anatol Lieven's book, Pakistan – A Hard Country