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What law?

January 12, 2018

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IT wasn’t as if we needed to be shaken out of our stupor by the gruesome rape and murder of eight-year old Zainab in Kasur. In that city alone there have been a dozen or so similar acts of brutality over the past few months. All over the country crimes are committed against women and girls (and boys) on a daily basis, and most perpetrators do so with impunity.

Yet it is only when a particular case sees the light of day and our deepest emotions are triggered that we vociferously demand justice. And then, almost like clockwork, we descend back into our daily grind, unable and/or unwilling to align ourselves with a bigger movement for justice, one that consistently fights to undo the structures that generate oppression and violence.

Let us not forget that such structures are not unique to Pakistan. The endemic problem of gratuitous violence against women has come to the fore in India over the past couple of years.

Patriarchal violence and other forms of abuse are far from fringe phenomena in Western societies. In short, the problem is not an isolated one that can be fixed by a magic policy wand. It is embedded in society. This is why it is incumbent on those who want a more just social order to do more than raise their voice in and around those incidents that become ‘breaking news’.

The law does not often ensure justice.

The truth is that even when we do come together and demand justice for Zainab and others like her, we generally find ourselves limited to asking for exemplary punishment under the law. But at the same time we are forced to recognise that law enforcers themselves often do not take perpetrators to task, especially when the latter fall into the category of rich and/or powerful.

So we find ourselves demanding that state functionaries and/or institutions also be held to account for subverting due process. But ultimately we remain in a cul-de-sac, because we are limited to asking for the very same law to be upheld which clearly did not serve the cause of justice to begin with.

Contrary to what poses as common sense — in this country and around the world — the law does not always, or even often, ensure justice. In fact, throughout most of human history the law has actually been little more than an instrument in the hands of tyrants that have claimed legitimacy for their acts by invoking it.

The idea that the law could function as an instrument of liberation for ordinary people is, in historical terms, relatively novel. It is tied to the idea that the state is not a personal fiefdom passed down from one generation of tyrant to the next, but in fact answerable to ordinary people who have inalienable rights.

Yet the reality of the state (and law) in practice has never quite lived up to the hype.

In much of the non-Western world, the modern state and its laws never served the people — indeed, the basic assumption that ordinary people had inalienable rights enshrined in the law was not met in any of the European colonial empires. After the white man gave us ‘freedom’, the post-colonial state depicted itself as the guarantor of the ‘nation’, whereas in fact it continued to impose the ‘greater national interest’ often through the very formal legal procedures that the white man left behind.

So it is that the thana and kutchery remain institutions that uphold the privileges of the patriarchs dominant in our homes, schools, workplaces and religious institutions. Time and again, we ask the state’s law and order apparatus to protect us and, time and again, it demonstrates that it cannot or will not. Further up the food chain, the same police functionaries that reinforce power relations at the local level are either unwilling or unable to challenge more powerful state functionaries than themselves who are involved in practices such as enforced disappearances.

Which brings me to the final point: while the decolonisation of the law must be recognised an imperative for societies such as ours, the proliferation of legal ‘exceptions’ in the contemporary period has become a fundamental question of politics all over the world.

It is eerie how the state today arrogates to itself extraordinary powers under the pretext of defending ‘civilisation’ from the ‘terrorists’ — a ‘civilising mission’ not dissimilar to that of the colonial state hundreds of years ago.

The question is whether we are walking into this trap of accepting everything that happens under the guise of the law even while injustice, inequality and oppression become naturalised. Yes we raise our voice whenever a Zainab’s plight comes to light, but most of our time is spent nodding our head at the mention of law, even when it subverts rather than serves the cause of justice.

The writer teaches at Quaid-i-Azam University, Islamabad.

Published in Dawn, January 12th, 2018

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