Pakistan: Brutality cloaked as tradition

That was and
is the norm for rape - except that no tribal council (known as a panchayat or,
in regions bordering Afghanistan, as a jirga) is known to have pronounced such a
sentence before. Government officials routinely turn a blind eye to panchayat or
jirga justice, which mostly settles matters related to land or family disputes.
Police chiefs and district commissioners attempting to end jirga law find no
support from the government.

The strengthening of jirga law beyond
Pakistan's tribal areas (where it has some legal sanction) has run parallel with
the rise of Islamic extremism. Many Pakistanis connect the two as being
"traditional" and therefore similar, but the fact remains that the jirga
tradition has no connection to religion, and that many so-called traditions,
particularly "Islamic laws," are not based in religion or
tradition.

Jirga law is rooted in tribal customs and in the power of
tribal elders. The state, willing to exchange some of its powers for social
stability, has let these men take responsibility for many "private" matters.
This often means, in practice, giving this small portion of the population
private power over others, particularly women, even at a time when elsewhere in
society, the power of the elders is declining.

What is equally troubling
is that the state, in its insecurity, might even cede more power by redefining
public affairs as private, thereby shifting accountability away from itself and
into the hands of others. This has happened not only with jirga law - giving
both accountability and power to tribal elders - but on a larger scale with
Islamic law and practice.

For example, the panchayat's decree in Meerwala
Jatoi that the punishment of rape be carried out by four men echoes the
aberrations in Pakistani law introduced by Gen. Zia ul-Haq, whose military rule
lasted from 1977 to 1988, in his attempts to Islamicize the country. One law
introduced in 1979 requires the presence of four witnesses to an act of rape or
adultery before the crime can be established. This law obliterates the
distinction between adultery and rape, criminalizing a private offense
(adultery) while, in effect, making rape a private matter in which the burden of
proof lies on the victim.

Yet even General Zia's campaign to create new
laws and punishments and label them as Islamic was questioned. When in 1981 the
punishment of stoning to death was challenged before the federal Shariah court -
part of Pakistan's extensive Islamic legal system - a majority of the bench
agreed it was un-Islamic. But that law was later reinstated under political
pressure. The point is that when the state declares some aspect of social power
to be Islamic or traditional, it creates a political constituency in those who
get that particular scrap of power. And once they have it they will defend it in
the terms it came wrapped in, even if the "tradition" is new and the "Muslim
law" even newer.

In the tribal parts of Pakistan, local men are seizing
more power via religion or tradition. The police quail at confronting the
issuers of fatwas, no matter how political. There are exceptions, as when an
imam of a mosque in Jaranwala, in the Punjab, issued a fatwa last month against
Faraz Javed, who had objected to the imam's making a political sermon during
Friday prayers. Mr. Javed was saved from being lynched by his American
citizenship. The police swiftly arrested those who had besieged his house,
proving that the state can be quite effective when it makes an
effort.

Less lucky was Zahid Shah, a mentally disturbed young man in
another Punjabi village who was accused of blasphemy by a cleric and stoned to
death by an enraged mob barely a week before the Jaranwala case. Blasphemy
carries a death sentence in any case, but the accused are often killed by
vigilantes.

The values propagated during General Zia's long rule and
entrenched in the law have been internalized by some sectors of society. No
subsequent government has had the courage to reverse these laws, despite the
recommendations of government commissions. An early effort by Gen. Pervez
Musharraf to review blasphemy laws quickly ran into political and clerical
opposition.

Meanwhile, the government is gradually handing over the
rights of women as citizens and indeed as human beings to tribal elders in a
society that has, to a degree, long considered women as lesser beings, family
property and repositories of the family honor. Rape as a form of revenge is a
common phenomenon, particularly in the southern Punjab and upper Sindh region,
and the use of such violence is increasing.

The decision of the panchayat
in Meerwala Jatoi stemmed from another aspect of the social system: the family
of the woman who was raped was poor, from a low caste. Yet another tradition was
brought into play.

It is to the good that such cases are inspiring debate
on the national level in Pakistan. The problems involved in cases like this are
not unique to Pakistan and the debate should not be, either. General Zia's
notions of Islamic law, for example, were partly foreign in inspiration. This is
not to shift blame but to acknowledge that forms of traditionalism and
fundamentalism can in a sense be modern, even late-modern, across large parts of
the world - and that they can and should be contested in modern, usually secular
terms without any loss of cultural or religious identity. In Pakistan and many
other places, this is the fight now. It is hardly abstract. It is fought over
the bodies of girls and women, and sometimes over the bodies of boys.

In
the end, the state must assert its right and responsibility to protect all its
citizens. The culprits in acts like this now-famous panchayat-law rape must be
punished, but in accordance with law. And the affected family must be tended to
with sensitivity and care. Surely that cannot be in violation of any traditions
or beliefs worth keeping.


* Beena Sarwar is a journalist with The News, a Pakistani daily.

Article appears here courtesy of the New York Times and is published with the author's permission.