Since the creation of Pakistan, its intellectuals have been aware of the need to alter and amend several colonial administrative norms. The colonial usurpers of power refused to recognize any communal authority within their domain that could hold them accountable or even answerable for their actions. Perhaps the great rhetoric of Oriental Despotism was a convenience for justifying their own despotism and autocracy. Nonetheless they had to make compromises or ‘communal’ allowances with some social units in order to maintain their control over the locals. Some of them crept into the legal and judicial system.
WHY DID THE BRITISH NOT SET UP THE BARRISTER-SOLICITOR FORM OF LEGAL PROCEEDINGS IN SOUTH ASIA? How did the local or cannon law find its way into the legal practices of colonial India? What were the changes brought about in social practices by the replacement of communal or pre-colonial imperial legal structures in the body politic of various parts of South Asia? Although the concept of Vakil existed in Muslim jurisprudence, the vakil was not a professional nor did a profession of lawyers exist as such. The jurisdiction of the qazi was also very different from the judge and the very nature of crime was far less complex and universal as it is in the modern state.
The social seclusion of the judge and the lawyer’s commitment to finding a legal means of getting an acquittal for the client ensure that the legal system should not search for the truth but must ensure ‘supremacy of law’. This essential flaw of the Roman legal system is compounded by its Anglo-Saxon form and has become a hideous distortion of judiciary in its South Asian version. However, to trash it entirely is a virtual impossibility because a society can’t function as in the absence or temporary abeyance of a judicial code.
Even a piecemeal amendment must be judicious and well thought out. The sectarian issue in Islamic jurisprudence will have to be resolved before we can consider instituting it in a number of criminal cases in modern society. On the other hand the maize of legal forms in Roman law will need to cut across so many strands of social, administrative, political and economic management in domestic and international transactions that a cutting edge solution will be needed for this Gordian knot. Ostensibly a variation of pre-colonial legal systems, the colonial judicial legacy is a hydra in which the sanity of judges and morality of lawyers is almost certainly doomed; and there is no easy escape for either.
Whereas pre-colonial society had civil communities within each community but neither produced a national civil society nor a national middle class. The modern state has both, a national middle class, no matter how impoverished, and a national civil society. Lawyers, educationists, students and non-government organizations are claimants to membership in both. Alone among the members of the national civil society, lawyers are constantly in a state of organized activity in tasks that civil society arrogates to itself. This professional, longstanding organ has a vested interest in maintaining the Roman legal system.
The pre-modern societies of South Asia functioned on the recognition that states must not disregard the sense of justice that exists within communities. It was acknowledged that a community’s right of self-determination may dictate a specific legal framework to uphold justice and fair play. Consequently, local ‘crimes’ [generally civil cases] were addressed by local courts and crimes against the state were addressed by the state legal system. As a result, although most Muslim rulers declared their writ over an area by appointing a qazi as soon as possible, his jurisdiction was sometimes confined to the sect he belonged to. Land disputes were settled by land officials, some with only communal jurisdiction.
Now that judicial reforms have finally made their way into the “de-colonization” process, we must realize that the Islamic legal and judicial framework cannot be reinstated by the stroke of a pen, just as the Khilafat, Sultanate or Badshahat cannot be resurrected. There is need for judicious reconstruction of the entire institutional framework before the mores of society can be molded to our liking. No matter how we devise it, a mongrel form will have to be visualized which can cater to the need of modernization while safeguarding an Islamic core of values and our local cultural ethos. It is easier to visualize certain plans in an unchartered territory; others are better framed within defined parameters.
Choosing the location and architecture of a building in an open space could be easier for some people while others may prefer to have the plot of land marked out before they can visualize what the structure will look like. Perhaps most people find it easier to furnish a room after it has been constructed, not when the foundations are dug-up. However, when a lived-in house has to be restructured while the inhabitants continue to live in it, the way to do it should only be visualized by someone who has thought about how the change can be made without radically disrupting the daily lives of the inhabitants. Generally, changes of this kind just ‘happen’ over time, without a planned or intended overhaul.
No! I have not lost the thread of the argument nor is this part of a different discourse. The process of social change is like the restructuring of a house while its inhabitants continue to occupy it. In the case of some governance structures, they emerged during the course of social interaction in small bits and pieces but were later deliberately interconnected or balanced to create a higher or more refined organization. Probably all legal codes and judicial systems were framed due to communal/social historical experience and emerged from the responses of intellectual and political elites based on ethnic preferences.
The multi-ethnic, multi-cultural polity of Pakistan can ill afford staying in a legal limbo for decades while social imperatives and cultural forces balance the many factors that are yet to be balanced in this state where the most common denominator is religion. Since the variety of sects present different versions of religious jurisprudence, a consensus is being framed on ad-hoc basis. Even if this process can be expedited and made fully functional, the variety of modern crimes and illegalities will need a massive ijtihad [inferences based on established judicial procedures of Islam] to bring them under a Muslim legal umbrella. A process that must rely heavily on Roman law from the body of which these crimes and their punishments have evolved over the past five centuries of European history.
European culture depends on the formation of complex, elaborate procedures such as the system of musical notations, social etiquette and rules for games. The same applies to the legal-judicial complex. History shows that crimes, criminals, law and justice were always far simpler in societies before the Industrial Revolution even in Europe. Theft and murder may have been the more common crimes but they seldom had the complexity which has become their forte since the technological developments of the modern age.