THE two-day conference in Karachi on law, judicial interventions and social change was well worth the effort for it dealt with a basic but generally ignored function of a legal regime, namely, the social development of the people.
Organised by the Rasheed Rizvi Centre for Constitutional and Human Rights and the Pakistan Institute of Labour Education and Research, the conference discussed labour laws in the broader context of modern labour initiatives that are enabling workers to enrich their lives. These efforts are relevant to Pakistan as post-independence governments have mostly used laws to curtail rights that even the colonial rulers had recognised. These new techniques of workers’ mobilisation have borne fruit in Bangladesh and India and it should be possible to replicate them in Pakistan.
The session on judicial interventions and social justice generated a critique of the judicial system, especially of judicial activism, from more than one perspective. These discussions, however, squeezed the time for a debate on law as an instrument of social change. The importance of this subject is manifest. Western countries owe much of their social development to laws that abolished slavery and feudal relationships, and guaranteed equality of access to education, health facilities and social security. Now social development has become synonymous with growing respect for human rights.
People are not unfamiliar with laws designed to promote social change. There are examples from the abolition of sati and infanticide to Pakistani laws to eliminate social evils and the framing of family laws, the Indian Trade Union Act, and laws for compulsory education. However, this country faces two serious challenges in this area.
Is it not time to question the adherence to a retributive system of justice?
First, Pakistan has sustained pre-Independence social relationships. A large number of people are living in the tribal phase, a bigger number still subscribe to feudal customs, while a small minority professes post-feudal sensibilities. Naturally, inequalities at various levels have ossified.
Secondly, Pakistan has been drifting towards social regression. The decline in education and health is leading to an increase in the number of people who cannot benefit from their services. For a majority of citizens, access to justice is problematic and laws have been made to deny a large number of workers their basic rights.
The state has been trying to alleviate the hardships of hordes of citizens who are denied social justice by widening the safety net, but that cannot cover more than a fraction of the population.
It is obviously necessary to deliberate further on the role the law should play in promoting forward-looking social change. The immediate tasks for the state apparently are to make legislation to operationalise Article 3 of the Constitution (elimination of exploitation), fulfilment of obligations assumed under the International Covenant on Economic, Social and Cultural Rights and under various conventions (ie child rights, the elimination of discrimination against women, rights of those with disabilities, torture), and at least a reduction in the exploitation of tenants and farm labour and decrease in gender inequality.
The final session invited participants to dream, and the organisers hoped to cull from the speakers’ dreams “a manifesto for South Asia through legal and judicial means and explore the possibilities of (support from) international law”.
The proceedings confirmed that a people who are overwhelmed by immediate crises cannot prevent a devaluation of their dreams. The key speakers gave more time to analysing the unhappy situation prevailing in Pakistan than to their aspirations. However, it could be deduced from Raza Rabbani’s impassioned denunciation of a hybrid state and a hybrid Constitution that he was ideologising federalism and parliamentary democracy. In a way, his speech was a continuation of Justice Faez Isa’s keynote address a day earlier. Likewise, advocate Faisal Siddiqi’s plea to the Supreme Court chief justice to answer the three challenges confronting the judiciary identified by himself indicated the areas of essential reform.
Former chief justice Tassaduq Hussain Jillani sent a detailed paper in which he limited his presentation to “the challenges of global rule of law and the role of the International Court of Justice”. His idea was that “if we want the world to be governed by the rule of law, then the UN has to be strengthened, the veto powers of the five permanent members of the Security Council have to be done away with, and the International Court of Justice has to have compulsory jurisdiction”.
While all this is good because attempts to discuss radical ideas about an exemplary judicial order are rare in Pakistan, it may be necessary to further explore the notable aspirations. Is it not time to question the adherence to a retributive system of justice?
Acceptance of the principle of tit for tat amounts to continuing to live by a primitive society’s whims, and closing our eyes to all that humankind has learnt about crime and punishment, and the dignity of human person over many ages. Neither our lawmakers nor our judicial lights should be unaware of the modern discourse on reformative justice as a means to establish humanitarian justice. The basic formulation underlying reformative justice, that any human being who commits an unlawful act should be helped to repent and reform himself, is an essential corollary of human rights standards.
One of the problems with retributive justice is that it treats an offender as exclusively responsible for his crime, whereas society and rulers must accept their failure to prevent crime.
Considering the law and order situation in Pakistan and the kind of horrible crimes that are reported almost daily, any suggestion to move towards reformative justice is likely to be dismissed as unrealistic. But systems entrenched for ages cannot be replaced instantly. A public discourse over an extended period on the demerits of justice by vengeance and the merits of justice by compassion will be necessary before the need for change is commonly accepted. Still, it is never too early to start a debate on the desirability, feasibility and mechanics of a change that should move society towards a more rational existence.
Published in Dawn, October 3rd, 2019