Pakistan: the ICJ condemns the illegal exercise of judicial power by tribal councils

The ICJ intervened with President Pervez Musharraf requesting that police inaction in the case of the gang-rape of a woman and her very young brother be investigated. 

The abusive and illegal exercise of judicial power by tribal councils Pakistan must be prevented, the ICJ also said.

The case concerns the gang-rape of Mukhtaran Bibi, as ordered by the Tribal Council in Punjab in retribution for her very young brother’s alleged “affair” with an older women. Our information indicates that the “affair” was in fact fabricated to cover up the brother’s earlier gang-sodomy by man from a higher caste. The woman’s case is now before the Supreme Court, however, no action has been taken in regard to the child.

The transcript of this intervention follows:

26 July 2002

General Pervez Musharraf
President and Chief Executive of the Islamic Republic of Pakistan
Office of the President

Dear Sir,

The International Commission of Jurists (ICJ) consists of jurists who represent all regions and legal systems in the world working to uphold the Rule of Law and the legal protection of human rights.

Like many others, both within Pakistan and abroad, we are deeply distressed at the conduct of the tribal council in Meerwala, Punjab province, which ruled to punish a young woman, Mukhataran Bibi, by gang-rape for her very young brother’s alleged “affair” with an older woman from another tribe. We have received information that the “affair” was in fact fabricated to cover up the earlier gang-sodomy of Mukhataran Bibi’s brother, Abdul Shaqoor by men of an upper caste.

We are encouraged that your Government has reacted swiftly to investigate this matter and that the Pakistani Supreme Court has begun hearing Mukhataran Bibi’s case. We are also encouraged that the negligence of the police in this matter has been followed up.

However, as we have received information that this type of incident is not exceptional, two fundamental and long-term concerns are raised. The first relates to the duties and behavior of the police in relation to sexual offences and the second relates to the existence and powers of the tribal councils.

With regard to the police, it is disturbing that they took eight days to arrest persons connected with the rape of Mukhtaran Bibi, given that they must have been aware of the crime as it took place before several hundred local people.

Furthermore, we have no information as to whether or not an investigation into the role of the police has been undertaken in relation to the case of Abdul Shaqoor and we are disturbed as to the attitude of the local police toward this young boy. The police reportedly put Abdul Shaqoor in police custody after negotiating his release from his abductors and demanding a bribe from his family in return. We respectfully ask your Government to clarify why the police did not promptly arrest Abdul Shaqoor’s abductors and why they put the child in prison instead. We also do not understand why the police have failed, to date, to proceed with any criminal investigation into the alleged gang-rape of Abdul Shaqoor. We urge that that an investigation into this crime be immediately launched and that the perpetrators be brought to justice according to due process of the law. It is also imperative that the victims and their family be given adequate protection from further reprisals.

With regard to Mukhtaran Bibi, we respectfully draw your attention to the fact that non-derogable international customary law considers that rape constitutes cruel, inhuman and degrading punishment and, in some cases, torture. Raping someone as a means of punishing other family members constitutes collective punishment which is also prohibited by international customary law.

With respect to Abdul Shaqoor, we remind you that Pakistan is a State party to the Convention on the Rights of the Child (CRC) which imposes a positive obligation on the State to protect the human rights of children. Article 37 of the CRC states that,

States Parties shall ensure that (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment…

The gang-rape of Abdul Shaqoor certainly violated this article.

As regards both these individuals, under international human rights law, every State has a legal duty to prevent human rights abuses and to carry out a prompt and impartial investigation of violations committed within its jurisdiction in order to identify and punish those responsible. Police inaction in relation to these appalling sexual offenses amounts to a lack of due diligence by state agents which entails Pakistan’s abrogation, through its agents, of its responsibility to protect its own citizens.

With respect to tribal councils, it is our understanding that they have no legal standing. Nevertheless, they issue judgements which violate the human rights of Pakistani citizens. The International Law Commission (ILC), in its draft Articles on Responsibility of States for internationally wrongful acts (2001) states its view that under international customary law,

Art. 4. Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State.

2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

The commentary to the above-mentioned Article explains that, “In some systems the status and functions of various entities are determined not only by law but also by practice…Accordingly, a State cannot avoid responsibility for the conduct of a body which does in truth act as one of its organs merely by denying it that status under its own law. This result is achieved by the use of the word ‘includes'”. By their status and function, which are determined by long-term practice, tribal councils therefore serve as state organs. As such, your Government is directly responsible for the conduct of these bodies.

Furthermore, Article 9 of the ILC’s Articles on Responsibility of States for internationally wrongful acts states that,

Art. 9. Conduct carried out in the absence or default of the official authorities
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.

By acting as judicial bodies and taking the law into their own hands, tribal councils are “exercising elements of government authority in the absence or default of the official authorities”. Thus, your Government is legally obligated to take reasonable steps to prevent human right abuses and carry out a serious investigation whenever such abuses occur. We respectfully urge your Government to do everything in its power to prevent the abusive and illegal exercise of authority by tribal councils and to ensure that the human rights of your citizens and the Rule of Law are protected throughout Pakistan.

We fully hope that your Government will take all necessary measures to address endemic problems of sexual abuse of women and children as expeditiously as possible and to prevent their recurrence.

Yours faithfully,

Louise Doswald-Beck

cc: Dr. Khalid Ranjha
Minister of Law, Justice, Human Rights and Parliamentary Affairs
Islamabad, Pakistan
Fax N. 0092 51 920 2628

cc: Governor Khalid Maqbool
Provincial Governor of Punjab Province
Governor House
Lahore, Pakistan
Fax N. 0092 42 920 0077

cc: H.E. Ambassador Munir Akram
Permanent Mission of the Islamic Republic of Pakistan to the United Nations
56, rue de Moillebeau
P.O. Box 434
1211 Geneva 19
Fax: 022 734 80 85

cc: Asma Jahangir
AGHS Law Associates
131 – E/1 Gulberg III
Lahore, Pakistan

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