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Ineffective rule of law
In recent years, the establishment of military courts and rule has undermined the little legal framework that exists in Pakistan. This being the case, the traditional practice of honour killings is merely exacerbated by the collapse of the rule of law throughout the country. This collapse stems not only from poor legislation, but also from ineffective justice mechanisms - the institutions responsible for enforcing the legislation and protecting the rights of the people under the country's constitution are currently in a state of corruption and decline. One of the reasons that is consistently cited for why the jirga system is still so common throughout the country, is precisely because of the ineffective and drawn out process of official justice.
If we look at the reasons for the lack of justice in the three cases illustrating the practice of honour killings described in Lesson 1, it is evident that the police were not merely inefficient, but actively worked against the victims. For instance, in the first case of the 50-year-old aunt who was killed, the police officers took no action to arrest the perpetrators even though a complaint was made identifying those responsible. This lack of action was allegedly due to the fact that the father of one of the perpetrators is a police constable. Similarly, in the third case of Shazia and Ehsan, although the couple had married in accordance with the law, the police were hostile towards them and refused them protection, their sympathies with the tribal leaders.
In contrast, the case of the two teenage girls saw more effective police action, with an investigation being conducted, three perpetrators arrested and protection given to the witnesses. However, six other perpetrators have yet to be arrested and political pressure is being put on the district investigation officer in charge of the case. This fact is highly disturbing as all the ministers and members of parliament of that particular area happen to be feudal lords. This illustrates the close relationship between jirgas and the police.?lt;br />Other systemic issues that perpetuate the breakdown of the rule of law in Pakistan are as follows: - Not only are the police seen as working with local jirga leaders or with magistrates, but they are also seen as biased against women and the poor, being influenced by wealthy families in the area/district. Corruption is rife within the police force, and in most cases, simply to file a complaint, the police need to be paid a 'fee'.
- Corruption and partiality is also used to solve cases; due to the fact that the police are under-equipped and under-trained, they lack decent investigative skills and in most cases do not even bother to investigate crimes or complaints.
- Corruption is also inevitably experienced within the courts themselves. The level of bribery ranges from giving 'fees' to clerks to process documents, to paying lawyers. Many lawyers also openly conspire with magistrates regarding cases.
- Similarly, there are also political issues that affect the outcome of cases; for instance, the current politicization of the appointments and promotions of judges, including punitive transfers, all ensure partial rather than impartial judgements.
- Due to poor infrastructure and staffing within the courts, amongst other things, it takes years to get through the large number of cases, which also increases the expense for the victim.
- Access to the official justice system is highly limited to the cities and more urban areas. Those living in rural areas or remote villages have a long way to go to access the courts. When they do make their way there after a long and arduous journey, they inevitably experience delays and a long procedure, which means they must either stay near the court for some time, or be prepared to make frequent journeys back and forth. Time and expense are hence both taken up.
It is for these reasons that the Asian Legal Resource Center (ALRC) stated in its submission Pakistan: Critique of the rule of law and policing system [E/CN.4/2004/NGO/43] to the UN Commission on Human Rights in 2004 that,
| 11. For effective rule of law, reliable services from the police, prosecution and judiciary must be accessible to all citizens alike. Protection from the police must not be based upon social status and class, but should be granted to all citizens without them having to go via a Member of Parliament or a feudal lord. Should an ordinary citizen enter a police station, he must be confident that they will not be subjected to intimidation, torture or arbitrary custody. Furthermore, it is also necessary that they know that if they end up in police custody, they will be treated as innocent until proven guilty. There must be guarantees ensuring that no detainee will be summarily killed by a hint from the local feudal lord or for denying a financial request of a police official. Minorities need to be assured and protected against falsified cases, which only are fabricated to show increase in police efficiency. Women need to be assured that should they be subjected to crimes against them they would be treated equally before the law and granted required protection. 12. Although the government introduced a new Police Order in 2002, it has failed to address many of the issues targeted. It in fact misses the independence and effective functioning of the police institution at large. The current legal framework has on the contrary managed to tighten the grip of feudal lords and politicians. What feudal lords and politicians do in their constituencies on a daily basis, has to a certain extent now been extended into the larger context of the national level. This strengthening of power has contrary to its assumed purpose deplorably undermined its very purpose and instead contributed to increased local feudal control. 13. There is yet arbitrary and whimsical (mis)management of the police by the executive authority of the state at all levels. Still are police officers recruited, trained, promoted and posted without regard to merit but mainly for their subservience to people with influence and power. This shows the extent and influence of feudal and political 'gurus' of Pakistan. 14. The Asian Legal Resource Center is of the opinion that in the Police Order of 2002, the Government of Pakistan has failed to provide a framework for public accountability, de-politicisation of the institutions of justice and the provision of a people friendly policing system in the country. On the contrary, by giving accountability to district councils and political figures, the government has assured that the institutional controls of justice remain under the same privileged group as always. 15. Additionally, politicisation and other ill-practices, such as fabricated police cases and corruption, gives a clear message that in Pakistani state institutions, principles such as 'might is right' still prevails. In short, the whole system of administration of justice is very vulnerable to whims of power of the elite groups and feudal lords. |
It should also be noted here that in many ways, the current laws of Pakistan and the jirga system are similar, especially with regard to the treatment of honour killings and other violence against women. For example, both the jirga law and the Qisas and Diyat law allow for honour killing to be seen as a compoundable offence and one that can be punished by compensation. This being the case, it is not surprising that many people, particularly the poor, continue to choose the parallel system of justice rather than the official one, especially with the drawbacks and extra time and money that is associated with the official justice system of the country. In order to get rid of alternative forms of justice, it is thus necessary for Pakistan to re-haul its existing laws and justice mechanisms, such as the police, prosecution and judiciary. The access to justice program is evidently not working, with the poorer sections of society and those living in rural areas still unable to effectively make use of the official justice system. Also, as brought up in the ALRC submission above, the institutional control of the police is with the feudal lords, who use the police for their own purposes.
It is only with the abolishment of the jirgas and the reform of Pakistan's current legal system and institutions that human rights violations such as honour killings will cease.
Questions For Discussion
1. Discuss the relationship between corrupt justice mechanisms and ineffective rule of law. 2. What is the state of the police, prosecution and judiciary in your country and what is the attitude of the public towards these institutions? Are they effective in upholding the rule of law and preventing human rights violations? 3. Choose one of the three justice mechanisms in Pakistan or your own country, and work out a plan for reform of that institution, covering aspects such as recruitment, skills training, legal knowledge, budget & remuneration, independent complaints mechanism, disciplinary action and evaluation.? References Amnesty International, Pakistan: The tribal justice system, [ASA 33/024/2002], August 2002.?lt;/p> Iqbal Detho, 'Tradition is stronger than the law: A report on honour killings,' Human Rights SOLIDARITY, vol. 13, no. 5, 2003.
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