Decolonise the court

Published October 2, 2021
The writer is a lawyer and columnist from Okara.
The writer is a lawyer and columnist from Okara.

IT’S often considered a symptom of the hubris of youth to question the centuries-old impositions of men long dead. Bureaucratic inertia compels the moving to continue, and the static to remain so. Tradition binds the descendants to respect the orders of those who came before them. What happens, though, when it emerges that these decisions were made not by one’s ancestors, but their colonisers? What if they reveal themselves to be grounded in little more than the asymmetrical whims of a white man who knew nothing about the people he ruled over? And what if those decisions in question related to one of the most sacred pillars of the state — its court?

Such decisions are far too abundant, but if any are to be addressed first it’s the most symbolic. Prof Jan C. Jansen of Princeton University first proposed the idea that decolonisation is not singular, but rather a continuous process whereby societies reclaim sovereignty by upending the status quos left to them. Global decolonisation movements in Asia and Africa have shown this with glaringly visible steps forward in the toppling of statues, the reform of laws — and critically the changing of names. In the context of these movements, for reasons both symbolic and pragmatic, the Lahore High Court needs to be renamed.

For reasons both symbolic and pragmatic, the LHC needs to be renamed.

The proposal to rename the Lahore High Court has been spearheaded by one of its most brilliant jurists, the honourable Justice Jawad Hassan, as a part of recent judicial reforms. The first reason appears obvious to the point of redundancy— it is not the high court of Lahore. Its jurisdiction applies to the entirety of Punjab, with all its 200,000 square kilometres and over 110 million residents. Half the population of Pakistan. More than the populations of the UK, Australia, and Switzerland combined. Due to decentralisation the world over, it’s difficult to find an example of a single high court wielding as much power and responsibility across as many people as in the province of Punjab. Why then must we suggest otherwise, even for a moment, by naming it after its capital city? As noted by judges in the past, foreign dignitaries often go through pains to explain the discrepancy between who the court oversees and what its name would suggest.

The second factor to consider is consistency. Across Pakistan, there seems to be no discernible regulation for how the courts are named. The Sindh and Balochistan high courts go by the provinces, and Peshawar and Lahore by their host city. While there may not be a clear reason for this discrepancy in nomenclature, we can look to history for some context. The Lahore High Court first came into existence as the ‘Chief Court of the Punjab’ in 1882. Following the defeat of the Sikh Empire in 1849, the East India Company desired to introduce its British brand of rule of law in its conquered territories, so it passed the Punjab Courts Act (XIX of 1865), laying out a comprehensive judicial structure in the province. The current name was first used in 1882, when the court’s status was elevated. Its jurisdiction was expanded to cover not just the entirety of pre-partition Punjab, but Delhi as well, with King George V as chief justice. Thus, the name ‘Lahore High Court’ was deemed to be a step up from Punjab; the Mughal city of grandeur fit to rule over the crown jewels of the British empire, including what is now the capital of India.

In terms of technicality, ‘Lahore High Court’ was perfectly reasonable for its time. The switch from ‘Chief Court of Punjab’ sets a clear precedent that names can be changed the moment that jurisdictions are. Why then, did it not revert when that jurisdiction ceased to exist? The Lahore High Court no longer governs the judiciary of Indian Punjab or Delhi. Through the horrors of partition and a mountain of burdens that arose for the new state, it’s reasonable to forgive a minor technicality being overlooked. But a technical wrong, however small, demands to be corrected. And every day that passes without this correction is a perpetuation of that oversight.

Seventy-four years after partition it is clear now that replacing ‘Lahore’ with ‘Punjab’ in the name of the Lahore High Court would reclaim a flawed legacy of colonialism, correct a technical wrong, and elevate the court’s stature on the international stage. What counterargument could exist though for such a move? Well, aside from the nostalgic tendency to not fix what isn’t visibly broken, it would require someone to go out of their way to do something, in a system where it is much, much easier to do nothing. Innovators with the competence to think up improvements and willpower to push through the bureaucratic inertia that constrains them are hard to come by. In Justice Jawad Hassan, the legal community of Punjab seems to have found one. For all intents and purposes, better late than never.

The writer is a lawyer and columnist from Okara.

Twitter: @hkwattoo1

Published in Dawn, October 2nd, 2021

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