Pakistan’s multiple legal systems

Military justice is to justice what military music is to music: Groucho Marx

Pakistan, that polygamist among the community of nations, has four legal systems in tow: civil, military, traditional tribal (jirga) and religious (Sharia). Which system has the casting vote? Isn’t the civilian legal system sufficient, and if not, why? Has it broken down? Is it possible to maintain all four legal systems without one stepping on the other’s toes?

In what sounds like the standard excuse for polygamy, military courts are said to be required in the civilian arena at certain times and this is apparently one of those times. Military courts have therefore been granted legal writ in the civilian realm, at least for now.

As the country ushered in the New Year, nine terrorists were tried and sentenced to death by military courts, their death warrants signed by the COAC. At least three of these persons, civilians, are charged with crimes against civilians. Under normal circumstances these three would have been tried by civil courts. Military courts would be reserved for cases that involve the military. So if, for example, an army officer shoots his superior during the course of duty, he is tried by a military court. But if the same army officer shoots the same superior because the superior is the father of his daughter’s fiancé who broke off their engagement, he comes under the ambit of civil law.

In Karachi military courts appear to have achieved something for the present. Speak to a Karachiite and you’ll find they feel safer and vouch for the city having become less dangerous which strongly implies that civil systems were not doing their job. Yet what long term prospects for peace exist in a city where violence is blocked by force without any attempt to address the basis for that violence? That however is not how the military thinks or works. It does not address the basis of any given issue; it works by removing the issue from its path, blowing it up, shooting it away. Its music bands play not peaceful raags or the gentle strains of Mozart which reach into the core of your heart and mind but strident martial music which make you stamp in time to the beat. The militaryhas its own agenda, its own targets and as such there is a danger that military courts will share these aims and targets and fail to be neutral. In Mexico where a similar tussle took place between civilian and military legal courts, the Inter-American Court of Human Rights noted that ‘military criminal jurisdiction is not the competent jurisdiction to investigate and, in its case, prosecute and punish the authors of violations of human rights but that instead the processing of those responsible always corresponds to the ordinary justice system.’

A few days ago Rangers arrested, detained, or conducted operations against sundry criminals. They also ‘apprehended’ two criminals, broke into their premises, and recovered grenades and a stolen motorcycle from their possession. Under British law, upon which the Pakistan legal system is largely based, every invasion of private property, be it ever so minute, is trespass. Under normal circumstances apprehending criminals would be the job of the police armed with warrants, and the alleged criminals would be tried by civil courts. Rangers have no legal writ in such matters… unless, of course, they have been given legal writ which they have.

We also have the jirga system which recently accused a man of rape, shaved his head and face and forced him to drink the urine of the woman he was supposed to have raped, something he strongly denies. Members of this jirga have since been arrested although some are still ‘at large’. So is the jirga answerable to normal civil law after all? If so, how is it that in Wana a grand jirga warned members of all ‘non-local militant groups’ to leave the area or else face some undefined action? And wait a minute. What about the local militant groups? Any action against them? And why is the jirga taking action against anyone anyway? This jirga also decided to destroy the homes of anyone who helped the non-local militants. So how about the homes of anyone who helps the local militants? But hang on, since when does a jirga decide and act upon such things? And which law says it is okay to destroy anyone’s home? Why aren’t the law enforcement people out there dealing with this matter? And how is it that members of this jirga were not arrested like others?

And then there are the Shariah courts whose job it is to ensure that the laws of the country comply with Shariah law. What Shariah law is of course still remains to be defined and agreed upon to a great extent. It is also uncertain how Shariah courts dovetail with the Council of Islamic Ideology which is also charged with making recommendations to Parliament for bringing current laws into conformity with Islamic injunctions, but it must do so somehow somewhere. On a snide note: the Chairperson of the Council of Islamic Ideology Maulana Sheerani recently came to very physical blows with Maulana Ashrafi during one of their meetings. Obviously the organisation has a ways to go before reaching consensus on matters between itself before it can advise the community at large. The Shariah courts need to take another look at where they get their okays from.

A well run, free from corruption, neutral justice system is crucial to the continued growth and wellbeing of any society. Messing around with this is like messing around sexually after marriage, it never works in the long run.

Justice, like theism is best served with just one head. Multiple legal systems will only ever lead to chaos. Pakistan’s civilian courts have many issues but would it not be better to fix these than handing their job out to several groups that have their own issues and little in common with each other?