An alien justice

The formal justice system in Pakistan is founded on four colonial instruments including: Indian Penal Code 1862, Code of Criminal Procedure 1861, Code of Civil Procedure, 1908 and Evidence Act 1872.

The formal justice system requires serious debates; to find the ‘law’ in Pakistan, we must look beyond the state records, law journals and periodicals. My line of inquiry is not simply that how the law influences and shapes society, it is also equally important that how social behaviors influence and shape the law and how it responds consequently?

The Indian society was a complex combination of intertwined cultures. The historian Jon Wilson, in his book India Conquered, called it ‘a society of little societies’; and the problem was that the British was unfamiliar to the Indian social structures and values. Moreover, they had originally devised the justice system to tailor their own political and social goals.

The colonial legal structure is often given pride for introducing penal laws. Macaulay make the penal code in a dissociated mood which also lacked the confidence of British as it was finished in 1837 and enacted in 1860 after twenty-three years of its completion. John Wilson, thus termed it ‘a body of jurisprudence written for everyone and no one, which had no relationship to previous Indian laws.’

The colonizers imposed an alien justice system primarily to channelize the aggression of ‘subjects’ instead of redressing their genuine grievances. In the circumstances, as noted by Diane Kirkby, ‘the law that was erected can hardly be said to have serve the interests of colonial subjects.’

There is a plethora of literature which has established that colonizers imposed formal justice system with clear imperial intent to rule the subjects in colonial India by deploying the strategy of ‘rule by law’ while deceptively chanting mantra of ‘rule of law’.

Shashi Tharoor in his book ‘An Era of Darkness’ argued: the British introduced their ideas of trial by jury, freedom of expression and due process of law. These are incontestable legal values, except in their actual manner of working, but in the case of its application in the colonial India, the rule of law was not founded exactly impartial. The imperial system of laws was created by a foreign race and imposed upon a conquered people who had never been consulted in its creation. Justice was not blind in the colonial India rather it was highly attentive to the skin colour of the justice seekers.

For example, Lieutenants Thompson and Neave killed an Indian boy in Bangalore. The villagers forcibly snatched Neave’s gun. The matter was brought before the court, who sentenced two villagers to six months’ imprisonment for committing the crime of misappropriating the white man’s weapon, whereas, murderers went unpunished.

The British used coercion and cruelty to get their way; often they had to resort to the dissolution of prior practices and traditional systems as well as to reshape civil society. The rights of people in colonial India were left to be adjudicated by an intricate and lengthy procedures which could take up decades just to decide a lis instead of resolving the real dispute involved therein.

A legal anthropologist, Bernard S. Cohn’s Some Note on law and Change suggests. The implication of formal justice system not only adversely affected the traditional dispute resolution mechanisms in local regions - rather it confronted Indians with a situation of clash of civilizations - ‘where they developed a collective social behavior of manipulating the procedural complexities of new system - not to settle their disputes but to further them.’

In a society having strong trends, behaviors and tendency of taking revenge, the people used to opt the courts for persecution of their opponents and not to get justice; or the legal intricacies are used as counter blast to evade any criminal liability, coercion and oppression. L. Benton articulated this position in Comparative Studies in Society and History as: “indigenous litigants helped to shape change by crafting legal strategies to exploit the jurisdictional complexity of colonial legal orders”.

Thus, as time passed, a societal behavior evolved to manipulate the loopholes and complexities of the system in reaction to the continued subjugation and oppression, which started influencing and affecting the justice system, resultantly, “the construction of colonial state proceeded haltingly and in response to myriad conflicts over the definitions of difference, property, and moral authority” according to Benton.

In such like eventuality, courts were not always used for the fair resolution of disputes. D. A. Washbrook pointed out in his article Law, State and Agrarian Society in Colonial India that “litigants found the courts a convenient place in which to bury ‘bad cases’ for years at a time, which might be lost if heard before unofficial panchayati tribunals”.

These deficiencies of the system were noticed in early sixty years of experience but no serious steps were taken to improve them, “the Company government still attempted no remedy, it may be more reasonable to suppose that they were quite content with the apparent abuse of the law and intended it to be used in no other way than it was, and as its institutional structure suggested it should be” concludes Washbrook.

The inherited laws, regulations, legal culture and norms, the existing formal justice system of Pakistan is derivative whereof, have been termed “an alien justice” by Osama Siddique, an academic and a lawyer in his book Pakistan’s Experience with Formal Law. Thus, Pak-India adopted this oppressive alien justice system which had a direct clash with its social structure and values.

After partition, Pakistan continued performing formal justice system as they received it from colonizers, without making any substantive change in its character, mood or ethos. Though some piece-meal reform attempts were made halfheartedly but no initiative to depart from the received patterns and to redefine the inherited justice system, keeping in view the historical and sociological context, has seriously been undertaken.

It is rather considered blasphemous by many lawyers and jurists of the recent times, ‘who owe to the British a deep debt of gratitude for the introduction of a system of dispensing justice based on the English pattern.’

The ignorance and illiteracy, thus become a favorable tool in the hands of ruling elite who are bend upon to preserve colonial legacy intact to maintain the status qua, and to them fresh legislation too must be molded in the same dissociated colonial mode. According to David Kennedy, “the unreformed features of the legal system then appear as a device for maintaining the partial dissociation of everyday practice from these authoritative institutional and normative commitments.”

Eventually, the courts in Pakistan have virtually become a ‘convenient place’ where indigenous litigants by ‘manipulating jurisdiction complexities’ are able to prolong their cases for years instead of resolving them. Moreover, they have also learnt the art of ‘crafting legal strategies’ to respond the tyranny embedded in the justice system.

On contrary, the courts with the same colonial ethos continue to channelize the aggression of the victims to perpetuate a hierarchical social order, and to maintain the status quo in order to protect the vested interests of ruling elite and of those who directly or indirectly are beneficiaries of the system.

The current situational analysis of notions of freedom of expression, rule of law and fundamental guarantees gives depressive feelings. According to the Rule of Law Index (2017-18) compiled by the World Justice Project, Pakistan stands at 105 out of 113 countries. In the categories of ‘Criminal Justice’ and ‘Civil Justice’ it stood at 81 and 107 respectively, and in the situation of ‘Order and Security Factor’, Pakistan ranked at the bottom, at 113.

This situation has not arisen because of the complexities of alien justice system only, rater it is a result of those collective social behaviors which evolved with the passage of time to cope with the coerciveness of oppressed justice system that remained “alien” even after a considerable lapse of time. Probably, the existing judicial system of post-colonial Pakistan cannot be expected something different from what it presently is.

Mudassar Farooq (The writer is a lawyer and can be reached at mudassar.clc@gmail.com).