TABLE OF CONTENTS 1. Introduction p. 1 2. The jirga or faislo system p. 7 3. Tribal justice and the state p.18 4. Tribal justice and the official judiciary p.24 5. Principles of tribal justice and official criminal law p.27 6. Tribal justice and gender inequality p.31 7. Reforming or replacing tribal justice? P.32 8. Amnesty International’s concerns and recommendations p.34 PAKISTAN The tribal justice system “The speed with which the jirga system is expanding makes the need for strengthening the justice system all the more pressing”, The State of Human Rights in 2001, Human Rights Commission of Pakistan, 2002. Introduction On 22 June 2002, a tribal council of elders ‘sentenced’ Mukhtaran Bibi, a 30-year-old woman of the Gujjar tribe in village Meerwala, district Muzaffargarh, Punjab province, to being gang raped in ‘punishment’ for her younger brother’s alleged ‘illicit affair’ with a girl from another tribe, the Mastoi, considered higher in the tribal hierarchy. Following a public outcry, the Governor of Punjab, Lieutenant General (retrd.) Khalid Maqbool Ahmed, set up an official enquiry which confirmed assertions made earlier by Mukhtaran Bibi: that the story of the ‘illicit affair’ was itself concocted to cover up another earlier sexual abuse. Three men of the Mastoi tribe were found to have sodomized Shakoor, Mukhtaran Bibi’s 12-year-old brother. When Shakoor threatened to tell his family about the rape - which a later medical examination confirmed - the tribesmen handed him over to the local police station where at least some police officers apparently knew about the antecedents but detained the boy. The Mastoi then publicly alleged that Shakoor had had an ‘illicit affair’ with an older Amnesty International August 2002 AI Index: ASA 33/024/2002 woman of the Mastoi tribe and summoned a jirga, a council of tribal elders, to deal with the alleged ‘affair’. A medical examination later found that Shakoor would have been physically unable to sexually molest the woman; she insisted that her account was true and Shakoor was examined once more, with the same result. The ‘trial’ by jirga then took place on 22 June 2002 in the presence of several hundred local residents none of whom took any action to prevent the rape. Mukhtaran Bibi later said that she had appealed to all those present for mercy but no one dared object to the council’s ‘verdict’. Given the wide local participation, it must be assumed that local police - some of whom knew the real antecedents - were aware of the event as it unfolded, if not directly present during the incident. However, they did nothing to stop it and to protect the victim. After the ‘judgment’, the gang-rape was carried out by four men, including one member of the tribal council in an adjacent hut while members of the Mastoi tribe reportedly stood outside and cheered. After the rape, the victim was reportedly made to walk naked through the streets of her village before hundreds of onlookers. As relatives of the young woman and the boy were too frightened of retribution by the Mastoi tribe to approach the police, no complaint was filed and the abuses would have been ignored if a local cleric had not mentioned the case in Friday prayers and a journalist picked up the news. National and international media then reported the incident and national and international organisations protested. Local police only accepted a complaint by the woman’s father seven days AI Index: ASA 33/024/2002 Amnesty International August 2002 The tribal justice system 3 after the offence, when a delegation of lawyers met local police authorities and insisted on the registration of the complaint.1 On 3 July 2002, the Chief Justice of Pakistan under the Supreme Court’s suo moto powers to take up issues of public interest, publicly condemned the rape of Mukhtaran Bibi as a ‘violation of human rights and human dignity’ and issued directions to the Punjab police authorities to regularly report to the court on any action taken by them. At the same time the Punjab Governor ordered an official inquiry into the tribal council’s action, the rape and a possible attempt by police to cover up the crime. The special bench of the Supreme Court set up to monitor the case had occasion to rebuke police on several occasions; on 5 July 2002, it reprimanded police for ‘laxity’ in pursuing the alleged offenders including those responsible for the rape of Shakoor - none of whom had by then been arrested - and for taking more than a week to register the complaint. Chief Justice Sheikh Riaz Ahmad reportedly 1Rape and gang-rape are widespread in Pakistan. Police records which were presented to the government inquiry into the Meerwala rape case, showed that in Muzaffargarh district of Punjab province, 22 women were reportedly raped by 53 men in June 2002 alone, including 14 women who had been gang-raped (AFP, 18 and 22 July 2002). At least two of the victims were dead within weeks, one shot dead as she was probably able to identify the rapist, another because she committed suicide reportedly because the police took no action against her attackers. The non-governmental Human Rights Commission of Pakistan (HRCP) reported that in 2001, one woman was raped every hour in Pakistan as a whole; this included one woman raped in Punjab province every six hours, and one woman gang-raped in the province every fourth day. Yet the Punjab police filed only 321 complaints of rape in 2001 leading to the arrest of 33 people. The small number of complaints results from the social stigma attached to rape due to which victims do not report the crime, patterns of threats and intimidation by the perpetrators, ignorance of the law, lack of access to justice and women’s well-founded fear that victims of rape may be accused of zina, fornication, an offence punishable with death by stoning or public lashes, if they cannot prove absence of consent. For details see: Women in Pakistan: Disadvantaged and denied their rights, AI Index: ASA 33/23/95. Amnesty International August 2002 AI Index: ASA 33/024/2002 4 The tribal justice system said in the hearing that “it is unbelievable that the IG [Inspector General of Police], being the head of police, came to know about the facts of the case so late”.2 He added that police should be more alert and intervene not only after offences had occurred but reach out to stop crimes and help victims in good time. There appears to have been some reluctance by police to protect the rights of the victims and to arrest the alleged perpetrators. At least some police officers were apparently aware of the earlier sodomy case; however, not only did they not take any action against the perpetrators but they also allowed the jirga and the gang rape to go ahead without taking any steps to protect the victim. Local human rights activists have also pointed out that police, when finally forced to register the complaint, did not mention in it the responsibility of the jirga for the commission of the offence nor the presence of 30 to 40 armed members of the Mastoi tribe abetting the jirga’s activities nor again that the victim was made to pass a gathering of several hundred people in a state of undress after the rape, which is an offence under section 354A Pakistan Penal Code (PPC). The arrests of the alleged rapists were preceded by the arbitrary arrests of their family members intended to make the perpetrators surrender to police; police took a long time to arrest the locally powerful Mastoi members of the jirga and those accused of sodomy. Protection of the victims may not have been adequate at every stage. While the victims’ family was given some police protection, they reported that they had 2Dawn, 6 July 2002. AI Index: ASA 33/024/2002 Amnesty International August 2002 The tribal justice system 5 been threatened and harassed by Mastoi tribesmen. The Director General of Police, Punjab, later assured the Supreme Court supervising the case that he would look into allegation that the Superintendent of Police of Muzaffargarh had exerted pressure on the victims’ family to agree to an out of court settlement and to accept compensation. After initial delays, all the alleged perpetrators, including the four alleged rapists, the 10 members of the jirga and the three men who had allegedly sodomized Shakoor were arrested. A local police officer was reportedly arrested on 12 July for holding Shakoor in police custody although he knew that sodomy had been committed on the boy and for allegedly taking a bribe from Shakoor’s family to release him. Other police officers have apparently been transferred or suspended. The trial by an anti-terrorist court in Dera Ghazi Khan began in the third week of July; the Supreme Court had directed the court to conduct and complete the trial within three weeks. The Punjab government deputed a three member team of lawyers to act as free legal counsels to Mukhtaran Bibi. The maximum punishment for gang rape and aiding and abetting gang rape is the death penalty. Amnesty International opposes the death penalty in all cases as it violates the right to life and tends to contribute to a climate of violence. Meanwhile Pakistani media have reported that Mukhtaran Bibi is planning to set up a mosque and a school for girls with the money, Rs. 500,000, reportedly given to her in compensation for her ordeal by the President of Pakistan.