5
‘The fault, dear Brutus, is not in our stars, but in ourselves’
—William Shakespeare, Julius Caesar
NO matter how you look at it, Farzana Parveen’s gruesome murder in broad daylight immediately outside the Lahore High Court building is downright disturbing. It speaks of a perversion of family and social values, a criminal distortion of the very meaning of the word ‘honour’ and, more worryingly, the growing tendency of individuals to kill rather than to seek justice from the courts for the real or imagined wrongs they have suffered.
The recurrence of such incidents, across the country, suggests that a broad spectrum of people, irrespective of social or income strata, have either no knowledge of the legal system or, worse still, they don’t respect or fear it. This evident disconnect between the law of the country and its citizens, raises two fundamental questions: are the people simply unaware of the law or has the legal system failed to cater to their needs?
In his award-winning book, Pakistan’s Experience with Formal Law: An Alien Justice, Osama Siddique argues that Pakistan’s formal law is in fact alien to its citizens and, therefore, inherently inaccessible to them. He bases this argument on two related factors: That the formal law is a legacy of the Raj and, therefore, unsuited to South Asian social norms and values and that it is written and practised in English, a language unintelligible to the vast majority of litigants.
A broad spectrum of people have no knowledge of the legal system.
The foreignness of our law, however, offers only a partial explanation for the ills of our legal system. Laws have been transplanted across continents, cultures and legal systems throughout history and there is no country today that can claim to have generated its law entirely independently. Even the linguistic barrier cited by Siddique poses only limited problems because, in actual fact, most proceedings in Pakistan, up to the Supreme Court, are conducted in a mixture of Urdu and English, especially if the litigant appears without a lawyer.
The issue, therefore, is not simply that our laws are foreign but that we have failed to adapt these to the realities of our local conditions — an act which requires the interest and expertise of the indigenous law-enforcement authorities, both of which appear to be sorely missing. Until such time as the custodians of the Pakistani legal system engage in a holistic review of the legal system they will neither be able to identify its shortcomings nor be in a position to design projects for its reform.
As Siddique details in his book, the majority of law reform initiatives in the country have been introduced, designed and led by foreign donors. Local authorities associated with these programmes have either been spectators or passive recipients or have been interested simply in securing benefits for themselves. It is perhaps no surprise, therefore, that despite the millions of dollars invested in them, none of these law reform programmes have made a meaningful dent in the lot of the ordinary litigant.
Locally generated reform efforts have been piecemeal and whimsical and therefore equally fruitless. This is evident in a recent initiative of the superior judiciary to cite references to Arab and Persian scholars in their judgements and to have these translated into Urdu. These efforts are short-sighted in two respects: They merely replace the legacy of the Raj with those of Arabs and Persians, which is equally, if not more, foreign to the average Pakistani and they reach, at best, only the literate, resourceful litigant who is not the worst victim of the system.
It is important to remember that the issues of delay, convoluted procedures and legal jargon faced by litigants in Pakistan are not unique either to Pakistan or to post-colonial states. In fact, English litigants faced these well into the 19th century — and the English did not even have the advantage of blaming it on the foreignness of the law. What they did have, however, was the ability to recognise that their issues were of their own making and the capacity to address them by reform geared towards securing greater access and ease for the ordinary litigant.
If the recent budgetary allocations for the law ministry are anything to go by, it appears that the custodians of the law in Pakistan are still focused on the superior judiciary rather than on the hapless, lower court litigant or indeed on promoting a scientific inquiry into the shortcomings of the legal system.
Siddique cites a wonderful anecdote of a certain Colonel Sykes who travelled alone on horseback, across British India, to painstakingly collect statistics and information and produce a report on the workings of the legal system. It is perhaps tragic that whilst Pakistan remains committed to the trappings of the legal system of the Raj it has been unable to produce even a single Colonel Sykes.
The author is a barrister.
Twitter: @AmberMDarr
Published in Dawn, June 10th, 2014
