Decolonising the law
IT would perhaps be expecting too much of the media anchor, mainstream politician and, yes, Supreme Court judge to remind one another and the wider Pakistani public that ours is a state that owes much to the British Raj.
It can be reasonably argued that understanding the deep imprint of colonialism on the institutional and social structures which we have inherited is the work of academics.
Still I believe that every so often, when complex and divisive political issues threaten to drive us to distraction, it is necessary to engage in collective recollection of historical facts and particularly to think about how the legacy of colonial rule continues to cast its shadow over both state and society.
The British unleashed many new forces upon Indian society, some of which the colonial masters themselves would subsequently try and rein in. There was one institution, however, to which the British remained true till the very end; many Britishers, Indians and Pakistanis almost seven decades after independence would probably agree that this was amongst the few gifts bequeathed to us by colonialism that served to move society forward rather than stunt its growth. I speak of The Law.
The civilising mission was about many things, but above all it was about the impersonal, rational principles of law that, according to many a colonial administrator, were what distinguish truly modern societies from all that preceded them. And there can be no doubt that the establishment of legal institutions had, and continue to have, revolutionary repercussions for society, the polity and the economy. Only one example need be mentioned here to illustrate this point: it was only after the British came to India that the concept of (saleable) private property — which today is a taken-for-granted fact of life — became a universal denominator.
Jinnah, among other Indian nationalists, shared with the colonial rulers an unbridled commitment both to the universality of the law and its indiscriminate application (notwithstanding British double standards). Gandhi, on the other hand, was far less enamoured by the law per se, and built much of his political philosophy — and movement — around the need to challenge the law, or at least some laws which he argued were antithetical to the interests of the Indian nation.
My point is not to enter into conjecture about the respective merits and demerits of the politics of prominent nationalist leaders, but simply to note that there was, even during the colonial period, disagreement about what the law represented and the extent to which it needed to be challenged or accepted.
I think it is absolutely essential to recognise that, when we unqualifiedly invoke the ‘rule of law’, we gloss over the fact that a great many laws operative in Pakistan were designed by the British to serve their own, very distinct purposes. The justice system in its entirety, replete with the actual functioning of institutions down to the lowest level, was a colonial one, featuring an overwhelming emphasis on social control and punishment.
To a limited extent, these colonial statutes have been overridden by laws designed and approved by the people of Pakistan. However, it would be a gross exaggeration to suggest that there has been any significant overhaul of the colonial legal apparatus in its form, content or practice.
These days we hear endless references to the constitution, to the point that one might be forgiven for starting to think that the constitution is an end in itself. To the extent that the constitution represents an attempt by the Pakistani people’s elected representatives to elucidate the basic legal principles that bind us together and provide the best chance of a majority of us being guaranteed formal equality and access to justice, it is not only worthy of compliment but should also be defended.
Yet even the most committed student of jurisprudence would be hard-pressed to defend everything in the constitution and argue that nothing within it should be changed. The constitution bears imprints of the far-from-democratic Government of India Act, 1935. Then there is the fact that unelected regimes have used and abused the constitution, and the law more generally, to provide cover to their illegitimate actions — in short, employed the law as a colonising device much like the British did.
To be sure, our elected representatives often invoke these same retrogressive laws — whether created by the British or by military rulers after independenc — to reinforce their own power, target their opponents and disenfranchise ordinary people. So it is not as if any one of the major power players (military, judiciary, politicians) throughout Pakistan’s undeniably chequered history emerges with a great deal of credit when it comes to the matter of decolonising the law.
But this does not mean that the imperative of decolonising the law is any less urgent than it was five or six decades ago when the European colonial empires started to disintegrate. It also means that it is high time that we moved beyond relatively meaningless questions of whether or not a particular individual or party elected by the people has the right to rule and start to hold these individuals and parties to account for what they actually do in the realm of lawmaking.
In other words what we should be demanding, among other meaningful political actions, is the repeal of draconian colonial statutes (such as the Land Acquisition Act or the Maintenance of Public Order acts) and the promulgation of new legislation that protects the interests of ordinary people vis-à-vis powerful interest groups both at home and abroad. Instead, on the one hand we are happily invoking constitutional clauses written in by military dictators to disqualify elected representatives and on the other passing new parliamentary legislation to pre-empt disqualification.
Of course one could go blue in the face talking about what should be happening in this land of the pure. The reality is that many educated folk still appear ambivalent about the democratic process and the need to deepen it. Sadly, the British bequeathed to us much more than draconian laws; they also ensured, knowingly or otherwise, that there would remain, long after their departure, a powerful constituency within society that, while claiming to be committed to all the right things, was actually committed to little more than maintaining its own privilege and social control.
The writer teaches at Quaid-i-Azam University, Islamabad.
Word is La, the limit absolute, corrupted to be Law, left on will of a human as truth absolute, secrete behind justification of slavery of another human being.
I think a great deal is being made of the Legal legacy the British left us but before we get too carried away with nostalgia let us note that the key aspect of the legal system they gave us lacked one principal aspect of the judicial system and that is the Jury – the concept everybody deserves to be tried by his peers – is missing – they left us a justice system fit for slaves What is surprising is that we have allowed the system to continue after over 60 years of so-called independence
Judicial restraint is particularly important for the Supreme Court for two reasons:
(1) Of the three organs of the state, only one, the judiciary, is empowered to declare the limits of jurisdiction of all three organs. This great power must therefore be exercised by the judiciary with the utmost humility and self restraint.
(2) The errors of the lower courts can be corrected by the higher courts, but there is none above the Supreme Court to correct its errors.
Some people justify judicial activism by saying that the legislature and executive are not properly performing their functions. The reply to this argument is that the same charge is often levelled against the judiciary. Should the legislature or the executive then take over judicial functions? If the legislature and the executive do not perform their functions properly, it is for the people to correct them by exercising their franchise properly, or by peaceful and lawful public meetings and demonstrations, and/or by public criticism through the media and by other lawful means. The remedy is not in the judiciary taking over these functions, because the judiciary has neither the expertise nor the resources to perform these functions.
In this connection I may quote from an article by Wallace Mendelson published in 31 Vanderbilt Law Review 71 (1978): “If, then, the Thayer tradition of judicial modesty is outmoded, if judicial aggression is to be the rule, as in the 1930s, some basic issues remain:
“First, how legitimate is government by Judges? Is anything beyond their reach? Will anything be left for ultimate resolution by the democratic process, for, what Thayer called ‘that wide margin of considerations which address themselves only to the practical judgment of a legislative body representing (as Courts do not) a wide range of mundane needs and aspirations?’
“Third, can nine men [the Supreme Court Judges] master the complexities of every phase of American life? Are any nine men wise enough and good enough to wield such power over the lives of millions? Are Courts institutionally equipped for such burdens? Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions.
“Finally, what kind of citizens will such a system of judicial activism produce, a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites: nine Judges governing our lives without political or judicial accountability? Surely this is neither democracy nor the rule of law.”
In Marbury vs. Madison (1803), Chief Justice Marshal, while avoiding confrontation with the government of President Jefferson, upheld the supremacy of the Constitution. Another example is the very recent judgment of U.S. Chief Justice John Roberts in the Affordable Healthcare Act case, in which he basically followed the doctrine of judicial restraint.
In Divisional Manager, Aravali Golf Course vs. Chander Haas (2006) the Indian Supreme Court observed: “Judges must know their limits and not try to run the government. They must have modesty and humility and not behave like Emperors. There is broad separation of powers under the Constitution, and each of the organs of the state must have respect for the others and must not encroach into each other’s domain.” A similar view was taken in Government of Andhra Pradesh vs. P. Laxmi Devi.
New Deal legislation:
A reference may usefully be made to the well known episode in the history of the U.S. Supreme Court when it dealt with the New Deal legislation initiated by President Franklin Roosevelt soon after he assumed office in 1933. When the overactive court kept striking down this legislation, President Roosevelt proposed to pack the court with six of his nominees. The threat was enough, and it was not necessary to carry it out. In 1937, the court changed its conservationist attitude and started upholding the legislation (see West Coast Hotel Vs. Parrish). “Economic due process” met with a sudden demise.The moral of this story is that if the judiciary does not maintain restraint and crosses its limits there will be a reaction which may do great damage to the judiciary, its independence, and its respect in society.
It is not my opinion that a judge should never be activist, but such activism should be done only in exceptional and rare cases, and ordinarily judges should exercise self restraint.In Dennis vs. U.S. (1950), Justice Frankfurter observed: “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when Courts become embroiled in the passions of the day, and assume primary responsibility in choosing between competing political, economic, and social pressures”.
The Pakistan Supreme Court would be well advised to heed these words of wisdom, even at such a late stage.
"This country, with its institutions, belongs to the people
who inhabit it. Whenever they shall grow weary of the existing
government, they can exercise their constitutional right of
amending it, or the revolutionary right to dismember or
overthrow it."
— Abraham Lincoln
"Who will govern the governors? There is only one force in the
nation that can be depended upon to keep the government pure
and the governors honest, and that is the people themselves.
They alone, if well informed, are capable of preventing the
corruption of power, and of restoring the nation to its
rightful course if it should go astray. They alone are the
safest depository of the ultimate powers of government"
— Thomas Jefferson
This is a very well-argued and, unlike Mr. Faisal Bari's article which I have commented upon earlier, a non-pedantic and relevant article in the context of the current political and economic developments in Pakistan. The question of jettisoning the unwholesome parts of our colonial legacy is, however, limited not only to the legal, but also our economic, social and educational system. Vested interests in all of them are trying to protect and their own niches and are more interested in exercising control over others, rather than in reforming the system and improving the overall welfare of the society. As we progress towards democracy, we will have to get rid of the colonial legacy in all spheres of life. It is, however, welcome that the issue has been raised, even if in a limited context.
Your statement"As we progress towards democracy,we will have to get rid of the colonial legacy IN ALL SPHERES OF LIFE" does not make sense.You got independence in 1947.What were you doing all these years? In all spheres? You mean abolish the good things that the British did? Like roads,railway,schools,hospitals,the judicial system and the basis of civil service?The problem with your country's leadership is that it did not improve on what was handed to you.Unlike countries like Malaysia and Singapore.You got into a rut of politics based on region by region in your country.These countries got people of all races and religions to send their best to form a common government.They improved on what the British left them.They removed what was not suitable.The governments worked for the people's betterment.Their leaders were pragmatic,honest and well educated people.Look at these countries now and the success and progress the people enjoy.You should not blame your failure for what the British did.
Are you suggesting we did not have roads, means of communications or a civil society before the arrival of British? I think the British were in taking George Bush's term shock an awe to see developments in India such as Taj Mahals, Qutub Minar and several Palaces. Sure the British did lot of work in terms of connecting towns, provinces that was to effectively manage the state rather than civic work for general population. Now, what were we doing for the last 65 years. Well, you are to understand we have had only one fair elections in the history of the country which was back in 1971. We never have continued elections for people to be able to learn to flush out the system.
All talks no help for Pakistan
Pakistan better help itself instead of waiting for a messiah