How could a tribal council in the Pakistani village of Meerwala Jatoi decree that a young woman be raped in revenge for a crime allegedly committed by her brother? They were certain they could get away with it, of course. And they would have, except that the local imam spoke out against it during Friday prayers; a journalist in the mosque that day reported the case; the story was picked up nationwide, then worldwide. Absent this circumstantial chain, the rape would have gone unremarked.
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
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