Thursday, October 23, 2008

Would Justice Cornelius Have Pardoned FATA Militants?

I'm undecided as to whether the Pakistani legal system, in its entirety, is a bit like a monkey in a suit. Or like W, looking ridiculous in his Vietnamese Ao Dai. Or like Wasi Zafar, pretending to be a Law Minister. In each instance, you have an already strange creature made to wear something that just doesn't fit because the whole outfit is designed for something altogether different.



Consider this news item, published without a blink of a reaction from anyone (including the lawyer's movement):
"PESHAWAR: Another eight alleged militants surrendered to police here Wednesday and were freed after they swore on the Holy Quran to refrain from any terrorist activity in future."
Before the occasional reactionary reader starts making presumptions and frothing at the mouth, I am not mocking the oath on the Quran or even expressing outrage at their pardon. I am simply questioning a legal system that permits police officers the power to pardon individuals who have admittedly been involved in shootings, killings and perhaps bombings. What about common murderers, or decoits, or carjackers? Slaps on the wrist and oaths on the Quran all round?

And I'm not even being sarcastic or facetious. The latter may actually be part of a better solution. Let me lend some authority to the notion. Even Justice A.R Cornelius, a former Chief Justice of Pakistan - who was both a student of the Shariah and a Christian - asserted:
"[The British] did great work in establishing a complete system of courts and judiciary, and furnishing an example to the people ,over about 200 years of how such a system can be run.

[However] they were operating a system of justice which was imposed upon the people and did not derive from the life of the people themselves.

...To a community, a wrong by one of its members of a nature which disturbs its peace would always appear in a limited light, namely in those lights which derive from considerations of the common welfare of the community. They would not be included to exaggerated the offense, but always to minimize it and keep it at a proper level. Thus for instance, any breach of the peace can be regarded either as a breach of the local peace or reach of the kings peace. The community would tend to keep it at the former level, but the laws are devised so that the State steps in to deal with all except the most trivial breaches and the matter assumes an extra communal aspect by the intervention of Police and magistrates in many cases where such intervention might have been avoided"
Some would say that Cornelius was a tad too enthusiastic in his efforts to establish symbolic continuity between the the Pakistani Legal System and the populace's Muslim heritage. At one stage he famously suggested that Pakistan should adopt a modernized version of the classical Quranic Hadd punishment for theft, namely severing the thief's arm. Rather than sever the arm altogether (a bit hardcore for Cornelius's liking), he proposed that the 'motor nerves' connecting the brain to the arm be disconnected, thereby rendering flaccid and inoperative.

Personally, I'd disagree with Cornelius's proposal. Hazrat Umar suspended the Hadd punishment of arm severance (for the crime of theft) during a famine, arguably on the basis of Istihsan (Juristic Preference), as societal circumstances prevented the Quranic rule from being applied without the contravention of core Quranic values of social justice and fairness. Justice is not a price that is paid for lip service to Quranic formalism, let alone for some false notion of continuity. As for the whole severance of the motor nerves business, it's creepy and lacks any sort of cultural resonance or logic, so it adds zero value.

And if, according to a Rashidun, juristic preference can dictate that the operation of a Quranic rule is to be suspended in the broader interests of justice and social utility, then why not suspend the law of the land of Pakistan? Why not pardon militants who have committed crimes against the state, but repented? If their repentance is bona-fide, then surely a pardon serves the agenda of reconciliation, cools temperatures in the NWFP, and its good for the country.

In that sense, I don't take issue with the pardon. I actually think its a good idea. I just wish that the administration of justice in Pakistan was more systematic and consistent. The real injustice for our people results not from the exercise of discretion itself, but the extra legal ad-hoc-ism that characterizes its application. It is the reason our common law system is yet to fit us, in our 60 years of independence.

Consider this:

"...Mr Bush grimaced repeatedly and shifted from foot to foot, a portrait of embarrassment in turquoise blue brocade with yellow trim. It was obvious he couldn't’t wait to get it off and sure enough, moments after the official photographs were taken, he strode away, ripped it off and folded it up."

Now just imagine if he had been wearing it faithfully and consistently for 60 years. And he fully intended to do so for the indefinite future. Maybe then he wouldn't have looked like a complete idiot masquerading as a statesman.

11 comments:

Prabhav said...

I'm really surprised to hear this..! 'terrorists freed after they swore on the Holy Quran to refrain from any terrorist activity in future!!'
Isn't this a joke!! a clear mockery of the constitution of the land.. I just hope the situation changes and changes for the good..

NB said...

The constitutions been a joke for a while. Besides, think of Iraq where as part of the 'Sunni Awakening', former militants are being asked by the government to police theneighborhoods they once battled in. There as here, its old school normative communal harmony that promises a greater chance at security, as opposed to the formal enforcement of positive law.

Rabia said...

"a clear mockery of the constitution of the land."

well, many of the laws of the land don't apply in FATA. Clearly the FCR needs to be reformed or repealed and replaced. It's pathetic that the tribal pathans have been asking for this since the time of Ghaffar Khan and nothing has ever been done. The fact of the matter is we have carried on the very worst policies of the British and that is why we are in the mess we are in.

NB said...

@Rabia

I was wondering about that. The militants were from Darra, and around Peshawar, and they surrendered in Peshawar, at some place called Malik Saad Shaheed Police Lines. So strictly speaking jurisdictionally, the Pakistan penal code probably applies.

That said, I agree with your broader point, which is that the centres policy towards FATA has always been appalling, and has served to create the situation we now find ourselves in.

Rabia said...

[So strictly speaking jurisdictionally, the Pakistan penal code probably applies]

that's true, my bad.

I dunno if you read the letter Gillani wrote to Nawaz Sharif but one of the points he mentioned was that all terrorists who are willing to "deradicalize" should be given the opportunity to do so. I agree that it does seem like Pakistan (and the US) is trying to do something like anbar here.

It's really a tough call -- I don't think haphazardly pardoning a bunch of criminals is fair to the people who have to live with them in their midst but I do agree that peace isn't going to be brought about just by forcing everyone to follow the law (whatever that is). anyway, sorry for the rambling comment.

NB said...

@Rabia

I agree, it is a really tough call for the reason you mentioned. I think the key word you used was 'haphazardly', i.e. this amnesty business is only worth something if it can be done systematically, where there are some basic structures in place for follow up and enforcement in the event of a relapse into insurgency.

In Anbar, 'awakened'-insurgents are handled in their pre-existing groups (with their own hierarchy), and are salaried, so that may be how they’re monitored and regulated. I have no idea as to whether that can work here, given that a similar practice of buying off commanders and their respective groups is something that the Pak government has already tried and failed at.

(I just re-read my earlier comment btw, I hope it didn’t come across as sarcy, not my intent)

Rabia said...

nb,
I guess one of the big worries I have about an anbar type strategy working in fata is that a) the tribal structure is completely different from the sunni iraqi tribes (which seem to be more similar to that of balochistan in that they follow one leader) and b) that the tribal structure has been completely destroyed anyway by the 4 years of taliban rule and army meddling. I think I read a column by Khalid Aziz in the news one time about how no admits it, but the traditional tribal social structure in FATA has basically been eradicated by the Taliban.

but I hope it works.

ps: I didn't think you were being sarcastic

Ahsan said...

Am I the only person here who misses Wasi Zafar?

Anonymous said...

can anyone point me in the direction of some [free, online] literature on pathan history under the british imperial rule, and probably pre-british setting up shop? i only have a vague understanding that the british 'used' the punjabis - a sort of 'martial race' the british tried to create - to fight the pathan in an attempt to conquer 'their' land.

more specifically i wonder, at what point did the pathan end up 'becoming' 'pakistani'. was at it overnight, was it gradually, was it natural? how does it compare to the experience of bengalis, punjabis, kashmiris, baluchis, sindis, north indian mohajirs, etc?
more generally i wonder, how does one group of people, a nation or 'qaum' of sorts, make a transition into another identity that it might have helped create, or had nothing to do with?

Rabia said...

[more specifically i wonder, at what point did the pathan end up 'becoming' 'pakistani']

anonymous,
this is only part of it, but here are two blog posts about the 1947 referendum in NWFP:
-one that is very, very partial to the muslim league side
-and a response from the Khudai Khidmatgar perspective

(I'm more partial to the second pov, but I guess the truth is somewhere in between and they are both very good)

Ahsan said...

Anon530:

I can't help you with the online stuff, but I can direct you to a book or two. For a comparison of the various subnationalisms in Pakistan, you should read Owen Bennett-Jones' book "In the Eye of the Storm." He has a chapter where he compares all the movements you talk about, and devotes a separate chapter to Bengal.

As for your query about how certain groups "change" their identities, I highly recommend Eugene Weber's "Peasants Into Frenchmen". It deals with the EXACT question you're talking about, and is a very interesting book. I have a bunch of other recommendations on this issue, but I'll stick to just the best one for now.