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.