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Themes of alien justice

A study of the state of disarray our system is in

Themes of alien justice

With the growing talk of why the Taliban sympathisers are gaining increasing currency in our public discourse, the efficacy, limits and failures of our justice system have been highlighted and critiqued by many. None of the critiques that you hear on a day-to-day basis, however, is as potent or intellectually stimulating as that carried out by Osama Siddique in his highly readable and engaging book Pakistan’s Experience with Formal Law: An Alien Justice (Cambridge University Press, 2013).

If you read one book this spring, make sure it is this.

Much has been said about the need for legal reform in Pakistan — from the staggering backlog that plagues the courts to the need for trust in the judiciary. Churchill was once famously told, during the height of German bombardment of England, of the carnage that was reigning across the country. His reply was to ask: “Are the courts dispensing justice?”

When this question was met in the affirmative, he stated that then there was nothing to worry about.

We can only wonder how Pakistan can rise up to such a level of pride and trust in its judiciary — particularly the lower courts where most litigants in this country bring their disputes. The people have always been looking for the courts to become that elusive epitome of justice, more often than not while comparing it to justice in the West or their notions of justice stemming from the sharia. Obviously, to even fathom striving towards that ideal we need to appreciate the history of our legal system and later attempts at reform. In Siddique’s book, we may have found the empirical study that broadens our understanding of all our flaws and what we can do to overcome them.

Beginning with insights into our colonial heritage, Siddique lays bare the perception that our system was directly imported from England. He persuasively demonstrates the reality that India was used by the colonialists as essentially a guinea pig for legislation that was introduced much later, in a more refined shape, in England. Although the British had the benefit of evolving law by moulding it according to their own history and anthropology, Indian law never benefited from this, as there was an underlying repugnancy felt by the British for the laws existing in India.osama siddique1

Siddique shows through an excellent analysis of the colonial shaping of law, that the system that was incorporated failed to craft anything along the lines of a legal system that was receptive to the many nuances that governed Indian society and its people, with Courts in the 19th century being a constant playing ground where litigants could ‘bury’ bad cases — an epicenter for abuse.

Further, law was moulded according to the best way by which colonial rule could perpetuate, thus laws that held market capitalism above everything (thereby only remotely connected to India’s agrarian economy) were introduced. These themes of an ‘alien’ justice run like a thread throughout the book.

Throughout the book, the striking surveys he performs showcase the extreme poverty, illiteracy that afflict the population and concomitantly are linked to the despair that litigants are forced to suffer at the hands of an inept and inefficient court system. The alien nature of a colonial system of justice is exposed through the immense language barrier that exists between the law and the local population, as well as the lack of perception of a system that excludes many traditional alternative dispute resolution mechanisms from its domain.

The scope of work that the book presents in showcasing the problems that a diverse and multifaceted population is forced to endure is perhaps the book’s greatest achievement. No other study of our courts and legal system presents such a vast array of opinions showing the dire need of judicial and legal reform in Pakistan. Osama Siddique shows just how far away we are from the ideal of trust that we dream about.

Not only are these insights into our problems brought to light but he also provides a critical view of how mechanisms of reform have been lacking in Pakistan. His primary concern is that legislative and judicial reform is too fetishised by an overt reliance on foreign models, thus only providing a subordinate and empty legal system that only occasionally serves the needs of a handful of people of Pakistan.

His concern is that all stakeholders are never involved in the debate that is characterised by the rhetoric of reform. Our current reform is dominated by international donors and organisations. The book makes the argument that these entities reduce the issues that our courts face as those of merely management and inadequate human resources. Real reform requires the discourse to be richer by the inclusion of individuals not just from the appellate judiciary but also bar associations, public policy circles, political parties, workers’ unions, special interest groups etc. but most importantly of the people of the varying social and cultural backgrounds that are the final consumers of the reform projects — and the justice system itself.

The book shows us many things that have perhaps been lost in our consciousness till now when assessing judicial and legal reform in Pakistan. Siddique shows how the system introduced by the colonialists never appreciated the subtle yet wide-reaching cultural and historical roots of the people of India.

Culture and society are resilient to something which is artificially imposed on them, and any reform agenda needs to appreciate this. Since the stakeholders that could contribute this discourse to the reform debate are excluded, our constant pseudo-reforms are lacking, and may always be lacking. A reform agenda merely obsessed with increasing ‘efficacy’ i.e. backlog and speedier justice, would still be lacking because it would fail to appreciate what causes societal disputes and resulting litigation in Pakistan.

But one must ask the question whether it is the ‘alienness’ of the system that causes these problems or is something else at play? If we were to adopt different, say more culturally-sensitive and informed ways of settling disputes, would it not have biases and problems of its own? Would it not make certain communities, based on caste or gender, vulnerable?

Siddique would probably agree that these are things one must guard against. And the fact that a system may have biases is no reason to give up the will or faith that it can be improved upon — with enough checks and balances.

All in all, the book is arguably the finest study till now of the state of disarray our system is in. He focuses not on numbers but on actual human experience. His work indeed creates new possibilities that should and hopefully will encourage more research and debate.

Pakistan could not get better advice — and what is more it comes from one of its finest legal minds. This book is a highly recommended reading — whether you are a lawyer or a citizen of Pakistan.

Waqqas Mir

waqqas
The writer is a practicing lawyer. He can be reached at [email protected]

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