MUZAFFARGARH and Khuzdar, separated as they are by more than 600 kilometres, do not immediately appear to have much in common. And yet both cities made headlines recently for grave violations of the law: Muzaffargarh for the alleged gang rape of a 40-year-old widow and Khuzdar for being home to secret mass graves.

The Supreme Court’s prompt suo motu notice of the two incidents is, of course, laudable. However, it is more important to understand, and address, the systemic factors that, despite the complex web of courts spread throughout the country, allow citizens of these and other areas to remain so blatantly beyond the limits of the law of Pakistan and to continue to seek recourse to panchayats and jirgas for the resolution of their disputes.

The history of these two cities is, perhaps, a good starting point for this inquiry. According to some accounts, the town of Muzaffargarh in southern Punjab was founded in the 18th century by the then governor of Multan, Nawab Muzaffar Khan. It was taken over by the British in 1848, and soon designated as the district headquarters.

Khuzdar, on the other hand, was part of the kingdom of Kalat in Balochistan. Kalat had entered into a treaty with the British in 1903, in terms of which it was allowed to retain its independence albeit under the supervision of a British-appointed political agent. In 1947, however, Kalat gave up its independence and acceded to Pakistan. Soon afterwards the Pakistani government designated Khuzdar as the headquarters of the newly created Kalat division.

Muzaffargarh’s and Khuzdar’s pre-eminence in their respective districts and divisions, suggests that the cities enjoyed considerably greater prosperity and development than their neighbouring towns. Their history, however, suggests, that whilst the social life of these cities was organised according to the traditions and norms of their particular cultural heritage, their system of governance was organised along British lines which, in all likelihood, were not entirely compatible with the pre-existing cultural norms.

This is likely to have resulted in a certain tension in these societies, which was not only natural but also expected. What is not immediately clear, however, is why this tension persisted beyond 1947, even after the two cities were fully integrated into the mainstream legal system of their own country.

The problem perhaps is that the mainstream Pakistani legal system is itself a legacy of the Raj. The British had introduced their legal system in India primarily for the benefit of the East India Company. It was only after the 1857 War of Independence, when India had been formally designated as a British colony, that the British legal system was made applicable to Indians as well as the British resident in the country.

The British tried to pre-empt potential clashes between their system and Indian social norms, by either adapting legal rules to the Indian context or, in case of personal disputes, by allowing matters to be decided according to special religious laws. This rationale for any flexibility displayed towards Indians under the British legal system disappeared after the creation of Pakistan. Given Pakistan’s majority Muslim population, it was deemed entirely appropriate to establish a single legal system headed by the Supreme Court, to order the affairs of the people.

The only problem in this arrangement was, however, that this legal system, based as it was on the British system, was in fact alien —in form, substance and even language — to a large proportion of the Pakistani people. The tragedy for Pakistan perhaps is, that despite its aspirations to being a representative state, it did not make a meaningful attempt to determine whether or not such a system was even understood let alone accepted by its citizens.

The impact of Pakistan’s failure to address this potential incompatibility between its formal laws and social norms may be best explained by reference to an article published in 2003 by Berkowitz (University of Pittsburgh), Pistor (Columbia) and Richard (also Pittsburgh). According to them, laws made in a certain country and imposed in another via colonisation (as they were in the subcontinent) are likely to be aligned with the norms and customs of their country of origin and, therefore, incompatible with the social and political norms of the adopting country.

This incompatibility prevents the population in the new country from fully understanding these laws. Consequently, ordinary people remain shy of invoking them, the enforcers of the law lack confidence in their authority and the governments fail to allocate adequate resources for their development.

Is it any surprise, therefore, that our mainstream legal system has failed to take root in the country and that people continue to resort to panchayats, jirgas and tribal customs for the resolution of their disputes? Perhaps not. However, the idea behind highlighting this inherent incompatibility is not to drive ourselves to despair but to indicate the need to make appropriate adjustments in our formal legal system so that even the most ordinary have no hesitation in seeking recourse to it.

Perhaps if the Supreme Court is truly sincere in its efforts to bring justice to the common man, it should bolster the administration of justice at all tiers of the country’s legal system; do away with complex procedures and inordinate delays; adopt the flexibility and accessibility of panchayats and jirgas and support small-town judges so that they are able to withstand pressure from the local elites. Anything short of that is simply not enough.

The writer is a barrister.

amber.darr@gmail.com