The People’s Law Tribunals in Pakistan

Asad Farooq (Law Department, LUMS) interviewed by Qalandar Bux Memon on community struggles in Southern Punjab.

Okara 09/01

QM: A set of movements you have been involved with in Punjab is the sath, a form of people’s law. What is a sath and how does it translate? What areas are governed by sath? What is your involvement? Finally, can you explain how the experience of law and justice differs between state law and the people’s sath?

AF: The experience of sath began in Southern Punjab. Before we begin to explain the sath, it is important to understand the position of Southern Punjab within Punjab and Pakistan. The communities settled in the South are heavily impoverished, marginalised and subject to a peculiar form of displacement within their own territory. This form of extraction involves the settlement of Central Punjabis and the establishment of new farming practices. Using David Harvey’s words, we can describe what’s happening in Southern Punjab as ‘accumulation by dispossession.’ But in other ways, it constitutes primitive accumulation, the first stage of capitalist growth, in which people are displaced and land is taken through either a form of brute force or pure extraction or a combination of the two.

The socio-political questions in South Punjab centre on land and water. Last year’s floods have put into question the whole irrigation structure of Pakistan. Questions are being asked about the role of man-made irrigation structures and their contribution to the scale and extent of the floods. But the questions do not begin in 2010. Resistance around irrigation projects in Southern Punjab has continued from the year 2000 onwards. The struggle against the Chashma Right Bank Canal is worth recalling. One of the interesting things about Southern Punjab is that its marginalisation has meant that the state’s presence has been limited. In this context, irrigation projects are one of the ways in which the state has expanded its presence.

The British knew this 150 years ago and the Pakistani state knows this now. A reading of early British irrigation policy reports reveals how irrigation projects are conceived of as projects of social engineering. For example, the report on the Sukkur barrage built in 1920 reveals that the British considered controlling water as a means to control ‘savages’ and settle ‘nomads’. The control of water was essentially a project to control populations or segments of populations. ‘We control water, we control them’ was the colonial thinking. And the post-colonial Pakistani state has continued the same policy, which slowly found its way into Southern Punjab. Irrigation experiments have historically been conducted in certain parts of Southern Punjab, however, the right bank of the Indus River remained untouched by irrigation interventions until the Chashma Right Bank Canal. The area was historically irrigated by hill torrents (rowd kohee). The British recognised that and formalised the structure of the hill torrents. The catchment area of these hill torrents is 1500 miles deep into Afghanistan and feeds into the hill torrents of the Suleiman range. When the water would end up in the Suleiman range, the settled communities would band together and build small, temporary dams to slow and store the incoming water. They would then disperse the water through a system of sharing. The British recognised that they could not build canals to alter the hydrology of the area and, as a result, they decided to formalise the rowd kohee system. The intricate system of social relationships built around the process of managing water was codified within law.

The formalisation meant the creation of a rowd kohee department. The rowd kohee department was tasked with ensuring that communities downstream would partake in the creation of temporary dams upstream. The department was also given legal power to fine those who did not contribute to the management of the rowd kohee’s water management.

QM: Did the formalisation of the rowd kohee system change the social relationships and sanctions around water management? Did it change who was responsible for the management of the system?

AF: Yes. The transfer of sanction and enforcement powers to the rowd kohee department meant that a water management system that had previously been managed locally became dependent on the state. This singular transformation brought about by legal-formalisation contributed to the downfall of the system once Pakistan was established

QM: So what changed after the transfer of power to Pakistan? How did the post-colonial state think about the rowd kohee? What affect did this have on the social structure of the area?

AF: After independence, the post-colonial Pakistani state, driven as it was by the modernist fantasy of dams and mega-canals, showed no regard for traditional ways of irrigating. Similar neglect met the rowd kohee system. Funds were withdrawn from the department and a previously active department was reduced to shambles. The current rowd kohee department office in Dera Ghazi Khan is a small, dingy room manned by one official who sits there doing absolutely nothing. The only things populating the place are ons of old files, which are interesting records of history. But the place has no present. It is completely dysfunctional.

QM: So how does the Chashma Right Bank Canal alter the hydrology of the area?

AF: So when the canal is conceived of, it runs through an area that is historically irrigated by the rowd kohee system. Suddenly you have a canal that’s coming with all the attendant state machinery that comes along with any canal. You swiftly have the state establishing itself in an area where it really didn’t have much role before. You suddenly have the police, the irrigation officers, and the water officers patrolling the area. There’s an entire new restructuring of societies in these areas.

QM: So how did people view the canal project? We heard an inspection claim was filed by the locals which the Asian Development Bank (ADB) accepted. How did the inspection claim work? What was the local response to the process?

AF: So when this primarily ADB funded project comes along with various failures in its planning and implementation, the communities decide to file an inspection claim with the ADB. Now the inspection claim process is supposed to proceed as follows: affected communities go to the ADB with their grievance, file an inspection claim and the process begins. ADB then sends out an inspection panel to assess what happened and arrive at a judgement on the validity of the communities’ grievances. Various types of compensation may then be dispersed to the communities concerned. Now when the community filed this inspection claim, the ADB contrived this wonderful strategy to defer the inspection panel actually conducting the inspection for a while while they tried to address the grievances.

QM: So how did the community deal with the bureaucratic inspection process? This is where the space for people’s law came to be imagined, I believe. Can you take us through the process through which the communities decided that the ADB run process was insufficient?

AF: The communities turned around and said “you’re violating your own process. Your process stipulates that when someone files an inspection claim, if the inspection claim is accepted, then the inspection must be done and it shouldn’t be deferred.” This was only the second time in ADB history that an inspection claim had been accepted, and so for it to be accepted was in itself a recognition of the failure of this project. With the deferral of the inspection, the communities turned around and exclaimed “well, why are we even involving ourselves in this inspection process? Why are we speaking to power to address its own failures?”. There was this remarkable moment over a period of six months to a year when people began to realize that they need not engage with the state. This realization materialized in sets of villagers forming what I would hesitantly call ‘people’s tribunals’.

QM: Can you explain what a people’s tribunal is? And how did it affect community organising around the Chashma Right Bank Canal?

AF: People’s tribunals are people coming together and laying claim to the power to judge what happened. In this case, there was more than judging; there was also a sense of controlling the results of the judgement. In short, people became authors of their own livelihoods. So you have this remarkable coming together of these communities who are then turning around and discarding state authority. The first set of villagers who began having these tribunals in the evening were saying “actually, this is what’s happened, this is our testimony of what’s happened, this is what we understand by this and this is what we think we should do” and passing judgement on those who have been involved, on the ADB, on the government, and on the irrigation department. The concept of people’s tribunals touches on traditional articulations of coming together to craft resolutions, but here it was taken a step further by making tribunals part of a broader political struggle.

These tribunals began to spread across villages as activists within those communities embarked upon long marches of over 200 kilometres from the North all the way to the South of Punjab, from village to village, having important discussions and establishing tribunals. These tribunals were then combined into very large tribunals in which the ADB and the government were invited. Predictably, they often didn’t turn up, however, on rare occasions, they did. Moreover, what was particularly unique about these tribunals was that you heard the types of articulation in the Saraiki language that hitherto had been unheard of. Saraiki language has never really been used as a tool for these kinds of demands. So not only does the tribunal become a forum for passing judgement on something, in authoring a different type of understanding of what had happened, but it also becomes part of the Saraiki struggle for due recognition of their language.

QM: Authorship of events by communities and not the state is the key change that you suggest took place. Can you explain further what happens when people’s tribunals become the language of articulating the communities’ demands? Were the communities able to achieve anything from the process? And what did the articulation of people’s law through the sath mean for state law?

AF: So suddenly you have these tribunals in which the Saraiki language is the primary language of articulation of demands, a language that isn’t even recognized by the Pakistani state. When the ADB would come to these tribunals conducted in Saraiki, their understanding or lack of understanding was almost irrelevant to the process. This was another way in which these communities rejected the authority of the state and its agents.

An example of what these people’s tribunals have accomplished is that to this day, in the entire stretch of the third stage of the canal project, which is over 170 kilometres long, no one pays irrigation tax. Moreover, when there are threats of flooding, people would breach the canal when they need to. There is this constant, everyday resistance that has grown out of this tribunal process. It has become an incredible forum, or incredible mode of articulating, in which people are actually laying claim to crafting the law. And that’s the key: it’s no longer a claim to the state; it’s a claim to themselves, a claim that they have the power and authority to craft law.

QM: So the state no longer crafts the law. It is the people. That is an interesting idea.

AF: We have this fetish that either the state is the institution that crafts and administers the law or that people are governed through customary law. These people’s tribunals were outside these two categories. They were deeply imbricated in the political struggle, and the political struggle is what gave it its shape and its flavour. The beauty of these tribunals is that they reclaim the crafting of law, reclaim the ability to actually say “we are the ones who do law, we are the ones who want to articulate judgements and we are the ones who craft the law that stems from that”.

QM: One of the criticisms of sath is its male dominance. Do participants see the lack of female participation as a problem and, if so, do they take any steps to redress this?

AF: I think the way we measure law is the key here. We automatically raise the state versus sath as an example of the way we understand law. For me, that’s a flaw in understanding law. There’s no difference between the two. Let’s be clear: female participation in the state system is equally marginalised. So measuring ourselves to a certain standard is something we need to step away from. These tribunals are organic kinds of growth around struggle. And of course those struggles had dynamics in which gender relations were either ruptured or replicated and that’s issue the struggle has to address and not necessarily the tribunal. Don’t get me wrong, we have saths which are heavily dominated by women, so it’s incorrect to say that all saths are male-dominated. Nonetheless, I don’t think it’s the tribunals responsibility to address the issue of gender relations; it’s a question the struggle and the communities themselves need to pose themselves. And they do increasingly so.

QM: When a judgement is passed, it has no legal recognition in terms of the state’s legal apparatus. How is the move from articulation to action then made?

AF: Communities lay claim to self action; to having the ability to enact that judgement.

QM: Can you give an example?

AF: Refusal to pay irrigation tax. These were decisions made at tribunals and to this day they are not paying irrigation tax.

QM: And how did the state respond to that?

AF: The state responded in various ways. It tried to buy people off or forcibly extract, but these attempts failed. It’s important to keep in mind that people’s tribunals make claims upon its participants. They do not make a claim to somebody else to enact their resolutions. It’s a claim upon participant communities do implement the resolutions. The saths and their resolutions remind me of similar articulations around the world, for example the Algiers Declaration of Self Determination, where Algerians came together and articulated self determination in a particular way, which was totally unrecognized by international law. And yet this remains one of the most beautiful documents on self determination that has ever been produced and international law’s lack of recognition of that is irrelevant. Its power remains nonetheless. The documents that are being produced at these saths, the judgements that are being made, and these claims to law that are being produced are what’s important.

QM: Let’s briefly talk about the Saraiki issue in Pakistan. Tell me a bit more about Saraiki nationalism. Who are the Saraikis?

AF: The Saraiki movement would be really hard to delineate in coherent narrative. What we can say is that Saraiki identity has primarily been based around the Saraiki language. The Saraiki belt runs from anywhere starting from Dera Ismail Khan southwards to Multan. Bahawalpur would also be included.

QM: Are there Saraikis outside of Punjab?

AF: Yes. There are a significant number of Saraiki-speakers in North-East Baluchistan and Southern Khyber Pakhtunkhwa. Saraiki identity is very much a linguistic-based identity. Now, this articulation of Saraiki identity does not have a long historical trajectory; it emerges post-partition. The Saraiki language, however, certainly does.

The most important thing to bear in mind here is that the Saraiki-speaking belt of Pakistan has been historically marginalised. The Pakistani government, which should be committed to advancing the welfare of all its citizens, has shown little interest in developing the Saraiki region. Saraiki is not even a recognised language and if you look at simple statistics, for example the number of Higher Education Commission of Pakistan (HEC) recognized institutions, you can count on one hand how many there are in the Saraiki region. There are around seven HEC recognised institutions in the Saraiki region. To compare, Lahore has more than the entire Saraiki region, with approximately 32 HEC recognised institutions. This is astonishing!

What is also interesting here is that, unlike many parts of Central and Northern Punjab, Southern Punjab has land that is still available for allotment. And so when the new agricultural scheme was announced, where agricultural university graduates were given an amount of land, the land which was given was mostly from Southern Punjab. University students primarily from Central Punjab are being allotted land in Southern Punjab, a process which in many ways mirrors the colonial-settler dynamic. And this foreign settlement is being distinctly felt in these communities. The irrigation model of state craft enables this process – irrigation opens up those lands which then allow people to move in and settle on them until they make those lands cultivatable. This is the dynamic that’s taking place in Southern Punjab. In response, these communities are making a very simple claim: “what about us? What about our language? What about our communities and our economies?” This is a very simple claim to self determination.

QM: Let’s look at the other side: what is recognized by the state. What languages can one use in court?

AF: It depends which court you go to. You can get away with English, Urdu and Punjabi. Proceedings in Supreme Court are usually in English. Let’s be clear, our legal system has this very coffee room feel to it in the sense that you can go to the court and it’s like you are sitting in front of a fire and just having a chat with the judge. You can switch to Punjabi every now and then, and you even have Supreme Court Judges who curse in Punjabi as they are listening to depositions. Unfortunately, I haven’t come across Saraiki as one of the major languages in court.

QM: Discussing the Saraiki situation reminds me of the situation in Sindh and Balochistan. What is the relation between these identity-based struggles.

AF: I think looking at capital’s incursions and the way capital accumulates is key. David Harvey, who we mentioned a moment ago, is very useful in getting your head around these dynamics. The idea of primitive accumulation has historically been treated as something that happened in the nascent stages of capitalism and is now over. What David Harvey’s argument is – and I think it’s really useful here, particularly when we talk about settlers in Balochistan and Southern Punjab – is that primitive accumulation hasn’t ended yet. What David Harvey argues is that since 1970s, with the whole oil crisis, primitive accumulation actually becomes a larger and larger part of capitalist accumulation. He calls this process accumulation by dispossession. We can use this theory to understand what’s happening in areas like Balochistan, where pure brute force is being used to lay claim to the land, dispossessing whoever resides on the land, in order to create spaces for capital penetration and extraction.

QM: In Pakistan, does this primitive accumulation take an ethnic form? To what extent is the claim of Punjabi hegemony in Pakistan legitimate?

AF: I think it is important to bear in mind that capital will use whatever structure it requires at particular times. And in this instance, it is very clear that there is a structuring around a certain type of ethnicity. Balochi communities and Saraiki communities, for example, are marginalised, let’s be clear on that. An important question is: could it have been someone else? Yes! I don’t think it’s because they are Baloch that they are marginalized, I think it’s because they live in Balochistan and that’s where the next stage of capital is going towards. And they will be marginalised as a result.

Edit and transcript by Shozab Raza. Initially published on Naked Punch.

  1 comment for “The People’s Law Tribunals in Pakistan

  1. Stephen Mikesell
    14 February 2013 at 2:34 am

    This really doesn’t have to do with the substance of the piece, I just want to say that everybody calls it primitive accumulation, but it should be noted that Marx’s last chapter is entitled “the So-Called Primitive Accumulation,” with emphasis here on “so-called.” I think the point that he was making was that these forms of accumulation are integral to capital and he was criticizing the position that this is somehow primitive and not really capitalism. In what was to be a last chapter to Capital but kept unpublished until after Stalin’s death, he described the whole process “subsumption.”

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