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The Wasteland of Justice Sector Discourse (The Friday Times 2010)

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The Wasteland of Justice Sector Discourse (The Friday Times 2010)
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  The Wasteland of Justice Sector Discourse in Pakistan...  The Wasteland of Justice Sector Discourse in Pakistan...   by  Osama Siddique  » Mon Sep 27, 2010 10:30 am The Wasteland of Justice Sector Discourse in Pakistan andJudging the Eighteenth Amendment   By Osama Siddique   For there to be any meaningful change there first has to be a meaningful discourse on what needsto be changed and why so. There is currently, however, a wide chasm between actual discussionof reforms in our legal and judicial system and what ought to be discussed. This is unsurprisingconsidering who is dominating this discussion and as a result, who has been told to wait outsidethe hallowed chambers of these secluded deliberations, expected to mutely await the verdict. Let me first emphasize that the concept of the ‘justice sector’ is not limited to mere courtrooms and  judges. It is a much broader concept that encompasses, inter alia, a country’s myriad laws, regulations and rules, its larger public policy with its subset of legal policy, its governancemechanisms, its regulatory frameworks, its policing, and its modes and mechanisms of legalincarceration. Further, let me stress that hardly any serious commentator on the justice sector continues to visualize it solely within the narrow and arid analytic of the lifeless letter of the law.Much as legal rules, doctrines, and decisions still hold an important place in analyses of laws andtheir outcomes, they are no longer regarded as articles of faith. A blind fascination for the samecan no longer excuse a pious contempt for the recognition that laws are symbiotically linked tosociety  –  that they emerge from society, are influenced by society, and are ultimately meant for the greater good of society.Over the past century and a half, an illustrious list of scholars have challenged the mystique of  the ‘doctrine of law’ and developed the disciplines of sociology of law and sociological  jurisprudence. These include, amongst many others, Max Weber, Emile Durkheim, Rudolf vonJhering, Eugen Ehrlich, Roscoe Pound, Karl Llewellyn, Wesley Hohfeld, Robert Hale, and morerecently, Duncan Kennedy, Michel Foucault, and David Kennedy. Together they have steadilychipped away at the sacred monolith of socially de-contextualized legal doctrine. Though legal  science continues to grow in multiple directions, a monastic servitude to extant laws and legal  principles, at the cost of ignoring laws’ social cont ext and indeed its social justification andvalue, is thus an outdated phenomenon. So much for what is well-recognized philosophical andmethodological evolution in legal analysis. Let me move now to some outcomes of the bane of the aforementioned servitude.It is a fact that the labor laws in Pakistan are a jumble of multiple, piecemeal, dated and oftenoverlapping and even conflicting pieces of legislation. It is a fact that the penal laws of thecountry and its criminal procedure continue to have the deep imprint of the shrewd but nigger-hating mind of a Thomas Babington Macaulay as well as the Machiavellian outrages of aGeneral Zia-ul-Haq. It is a fact that for women, minorities, juveniles and various other categoriesof vulnerable people in our socio-political milieu, life on a daily basis is reduced to an acutelydisempowered level. It rests far below the minimum guarantees of even a minimalist notion of citizenship. That is not to say that the rest of us have successfully clambered to that haven. I can promise (this by no means is a pitch for clients; a humble non-practicing lawyer as I am) that if you hire me as your lawyer in a particularly cantankerous land or civil dispute, I shall take youalong on an amazing, wild hop, skip and jump through the labyrinth of law that shall spanseveral excruciating years. You are particularly welcome if you are an unsuspecting peasant andhail from a village in Kahror Pacca, Digri, Duki or Munda  –  I have an entire list of socio-economically backward Tehsils that I would prefer if choosing any patrons. Of course, I shall first have to double check whether you are essentially a very ‘ordinary sub - citizen’ of the country, or actually a mere subject with differential access to any constitutional rights, whohappens to pass his or her days under the multiple alternative legal regimes of FATA, PATA, aFrontier Region, a Tribal Agency or a Special Area in Baluchistan. If you happen to come from aflood ravaged area (and the chances are statistically high), if you have lost everything, if your land boundaries are under several feet of water, if the local land record is now in the depths of  the Arabian Sea, and if the area’s Patwari has already contacted you to discuss matters at his house in the city, here is some free advice. Early and generous negotiations are your best bet. Inshort, I must tell you that there is no dearth of laws in the country if you know who to talk to.There is precious little, however, that they have to do with the myriad challenges that actuallyface the Pakistani society.In other lands, not so far way, laws increasingly respond to societal needs and challenges as they emerge from social and political discourses embedded and thriving in these countries’ institutional landscape, their everyday existence, and their fundamental psyche. If there is the feltneed for new laws or for amending existing laws, such need is neither gauged from reformtemplates flown in by international multilateral or bilateral donor agencies, nor is it the result of the occasional ramblings of a small coterie of local legal technocrats. Laws respond, and aremeant to respond, to societal problems, needs and aspirations. The discourse leading to eventuallaws srcinates from what the trade and labor unions, farmer collectives, consumer groups,citizen organizations, community and special interest groups, NGOs, investigative journalism,human rights organizations policy research centers, a multi-disciplinary academy, empiricalevidence generated by a variety of public and private sources, and the political parties, processesand legislature are discussing and debating. The rest of the world calls this politics. It is now for us to also embrace politics or forever hold our peace.  Laws respond to the problem on the street and the dispute in the field or else they lose resonancewith public faith. On the contrary the justice sector reform discourse in Pakistan throughout itsfirst five decades (characterized by a brutally interrupted political process, and with not much toshow in terms of formal reform thinking, except occasional and ineffective law reformcommission reports), and also during its last decade and a half of imported pre-packaged reformideas, has been a deeply undemocratic phenomenon. We live in the ravaged garden of a denuded polity. The political and social processes, institutions and players that ought to define and sustainthe various debates and discussions in a country that eventually flower into blue prints for itslaws and policies remain perpetually stunted in this garden. What thrives instead is a field of  weeds with obscure growths of a purely ‘technocratic’ variety, forbidding any scrutiny, andclosely tended by a cadre of socially aloof and democratically unaccountable ‘experts.’ Is it then surprising that the discourse surrounding legal and judicial reform in Pakistan is so inaudible?Would it shock you if it were also insular, self-serving and parochial?In 2010, our media continues to insist that all politics is loathsome. Failed medical practitionersturned T.V. anchors maniacally foam at the mouths at the mere suggestion of political continuity.Meanwhile, the myriad issues of archaic laws, outdated procedures and weak or non-existentcitizen rights await deeper discussion, analysis, solutions and championing. An increasinglyinsular judicial leadership makes judicial policies, while stringently keeping its own counsel, not even inviting their brothers from what is disdainfully termed as the ‘lower judiciary.’ You and I have no access to its deliberations. A lackluster assemblage of international donors laze in their  barbed wire clad bungalows converted into offices, occasionally thinking up new ways to rehashand repackage already failed and socially disconnected reform ideas. You and I have noinfluence on their psychosis. Laws emerge from politics. Politics is nothing but debate,organization, mobilization, and advocacy of what individuals or groups want changed andimproved (at times at odds with each other but gradually working towards an enrichedconsensus). We ought to either become political or else not express any alarm and incredulitythat what is described above is the essential bare schema of our extant justice sector discourse.In this already sorry milieu of a withered discourse, is it not a step completely in the wrongdirection for the Supreme Court to be currently sitting in judgment over an amendment to theconstitution that has emerged from several months of rigorous, widely participatory andtransparent political deliberation? Does t his not amount to questioning peoples’ fundamental right to decide through political processes of consultation and consensus building as to what laws should govern them as also the parliament’s unquestionable power to legislate accordingly? Is it not tantamount to neglecting an uplift of what is essential from the standpoint of you and I whodaily face a deeply eroded court system, in order to take on something that you and I never entrusted the judicial organ to displace? Osama Siddique is a legal academic and a doctoral candidate at Harvard Law School. He was the Founding Chair of the Department of Law & Policy at LUMS.  
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