Human Rights & Pakistan’s Legal Frame work
The emergence of the post colonial states in thee third world countries was result of long, bitter and lengthy struggles based upon the phenomenon of violence in the shape of Independence struggles and the ensuing Civil Wars in the Colonies.
The phenomenon of the independence in the sub-continent is unique in the respect that there was no wide spread violence between the rulers and the ruled. But the infighting and internecine fighting between their Indians was rampant in the Provinces of Bengal and Punjab.
The struggle of Hindus and Muslims was not violent to that extent as it was observed in the Colonies of Africa and other Asian countries. The process was done through the legal transfer of power from the British Raj to the independent states of India and Pakisatn respectively on 15th and 14th August 1947. The bases of the Pakisatn are deeply immersed in the legal process and the founder of Pakisatn is also a lawyer par excellence! the ethos of Pakistani legal system are the direct progeny of the British Raj in India as the adoption of 1935 Act of India shows as the law of the land as the constitution of the Pakisatn.
The legal environment of the Pakisatn is the most complex and diversified in the post Colonial states. The reason for this is the multiple traditions vying for supremacy and incomplete synchronization. The case study of Pakistan in this response is the pioneer study which aims at understanding and evaluating the legal framework and search for the possible solutions to the wade through the quagmire of the legal jungle in the light of the International Bill of Human Rights.
This research is based upon the paradigm which takes the
a) Formal legal acts, ordinances and the constitutional ideas as embedded in the Pakistani Legal frame work
B) The Informal legal traditions and networks in the shape of Jirgas, Panchayats, and the Sardari-cum-feudal network
C) The religious popular expressions as in the Formal Legal Framework
D) The religion in the informal but expressly prevailing environment
These are explored in the ensuing pages in a separate discussion s based upon the structure and foundation of the legal environment from adoption to its implementation.
They are tackled in a systematic and coherent manner with reference to the International Bill of Human Rights and the attached and fundamental documents and treaties attached to the Human Rights Bill.
The major trends of the legal thought and practical application are dealt separately hereby and discussed;
1. The Colonial Legacy
2. The Authoritarian Law Making
3. The Democratic Law Making / the Parliament
4. The religious orthodoxy
5. The Cultural customs and traditions
1. The Colonial Legacy
As mentioned earlier the carving out of the state of Pakisatn is the result of legal process by the conferment of the right of self Government by the Queen of UK in 1947 through the 3 June Plan.
The adoption of 1935 Indian Act as the law of land in the first meeting of the Constituent Assembly was the turning point of the Pakistan’s legal history. This adoption was to be the temporary arrangement till the new Constitution for the Republic was to be adopted, but the ensuing legal complexities were to linger on till the present day. the adoption was not only at the constitutional level but it was at the lower most level in the form of adoption all the British legal instruments with the change of the Name India with Pakisatn usually.
This resulted in the aberration of the legal system which plagues the legal scenario till now. The purpose of the legal system of the British Empire was to protect and sustain the “Steel Frame “ of the British Raj over the Indians. But this steel frame was to be as it is for the post-colonial society in the form of legal environment. The efforts were never aimed at the liberalization, rationalization and the humanization of the legal system of the Pakisatn in the last 6 decades of post-colonial period of existence. The polity of Pakisatn was to be ambivalent, complex, and mercurial and anti-people as the successive changes in the legal framework showed.
The structural construction of the governing framework in the Colonial era was based on the following assertions;
1. The natives were unable to govern themselves; they needed benign rule of the British to make them capable to run self governments.
2. The pre-colonial legal system and structure was inadequate to adjust to the needs and exigencies of the British system so drastically changed the legal framework and environment of the India.
3. The Mughal System of legal administration was enshrined in the local traditions and the cultural mores of the natives and local p[populace. The new legal system was aimed t introduction of the Anglo-Saxon traditions of legal system in the alien land where the natives were the subject of this undue experimentation. The result was the introduction of an elaborate and bureaucratic structure which was ruthless in detail and prompt in its application.
4. The crime regulation system was completely new to the local environment. The introduction of prisons and the police system was entirely alien to the Indian soil. The introduction of this Police system was a severe blow to the human freedom. The Criminal Procedure Code of 1898 was the Steel Frame of this gigantic experiment to control the native “mischievous behavior”!
5. The local revenue system was changed by the introduction of individualized payment system in the form of currency or the individual payment of land revenue instead of the collective payment system for the villages and the specified area.
6. The introduction of the property of the land to the illegal and new occupants after the Permanent Settlement of 1979 in Bengal by Lord Cornelius.
7. The priority of law and order in the crimes control system instead of dealing them in their real perspective.
8. The complete disregard and participation of the local people in the process of legislation for the natives.
9. The discrimination vis-a-vis the natives and Europeans in the application, implementation of the legal system.
10. The sustained policy of exacerbating the urban rural divide in the country due to political exigencies .The treaties made by the local rulers with the British show this anomaly in its overall brutality and harshness towards local people.
2.The Authoritarian Law Making
The legacy of the authoritarian ism bequeathed by the British was carried on the avid followers of the Colonial Masters. They adopted the legal process of the British in the same spirit to keep their hold intact over the local people. This tradition was strengthened by the Military Dictatorships to prolong its rule. The decade of 1960,s, 1980,s are the most prominent in this regard. The specific characteristics of these are as following;
1. the aim of the regimes is to broaden their hold over the segments of the society through the legal means
2. the overall purpose of the law making is the sanctioning the individualistic and dictatorial tendencies of the Dictator
3. The bureaucratic structure of the state is more active and the colonial legacy of the law making is maintained and nurtured further.
4. The support of the regime is limited to certain sections of the society which makes it prone to creating legal immunities sot the supporters of the regime.
5. The resources of the regime are diverted to the areas and strata of the society which help the regime. For this the inherent contradictions are developed in the legal framework of the country which is biased, manipulated by executive and undermine he liberty of the Judiciary. This is corroborated by the earlier legal history of Pakisatn.
6. A pseudo ideological garb of ideology is woven around the legal framework of the country which creates secretiveness and mystery around the legal environment. The challenges to the legal discussions are dealt under the threat to the ideology of the country which changes with the change in the ruler. (The Ayub Era and Zia Era are the true examples).
7. The structural bias of colonial legal framework is skewed further to control dissent, free idea and difference of opinion under the State security ideology. The introduction of the Article 63 in the Constitution by Zia regime is case in point.
8. The absence of the parliament sans the debate and healthy exchange of the ideas on the proposed laws in the dictatorial regimes which stifles the growth of the respect for the human rights and the freedom of the ideas.
9. The increased legislation further extends, enhances the power of colonial inherited institutions of brutality. this phenomenon results in more abuse and repressive towards masses, instead of relief to the people. ( The fine examples of this are the Huddood and Prohibition Ordinances of Zia regime)
10. The implementing arm of the Government i.e. police and attached institutions are protected and given extra powers which curtail the freedom of the people in a complex and sustained way. ( This becomes more horrible and expressive in the semi-urban and rural areas of the country as there is little awareness and literacy to demand its rights)
11. The economic resources are used as a ploy to patronize the sections of the government which adhere to the policies of the Government . The Export Bonus Voucher Scheme of Ayub era is an example of such state patronage.
The dictatorial regimes stress on the obedience and absolute authority which enhances the powers of the powers of the colonially inherited institutions. the dictatorial regime s face a great dilemma as they take over on the promises of changing the destiny of people against the plundering of resources by the inept and corrupt politicians as asserted by them; but the state apparatus which is structurally flawed contributes to its undoing at the end.
The efforts to create unity and discipline through legal means fail to deliver; rather they encourage the separatist and secessionist tendencies. Its examples are the separation of East Pakisatn, the unrest in 1970,s in Baluchistan, in Sindh in 1980,s. This situation deteriorates further when the alien elements are involved; the case of Wazirastan is prime example of this fact.
3. The Democratic /Parliamentary Law Making
Along with the authoritarian regimes the legal developments in the country are result of the democratic law making through the parliament. The traits of this legislation are as following
1. The structure of the Parliament is the determining factor in adoption of the laws. As the structural constitution of the parliament determines the course of the legislation.
2. The leanings of the ruling party or the group of parties are the leading forces which shape up the law making in the Pakistani system.
3. The real legislation of the democratic governments is also dependent upon the same institutions and the legal structure as inherited at the time of independence from the British elite. Their stress is not on changing or transforming the fundamental structure of the legal dispensation at all. Because they are more concerned ot turn the balance of power in the favor of the elected governments as the legislative history of 1990,s shows. This is the settlement of political question through means of legislation within the available parameters and transforming the question of the power between President and the Prime Minister usually. ( The 13 the amendment ) This limitation of the or the locking in of the political governments reduce the scope of action and range of their power to mere structural control instead of creating true legal change in the lives of the people.
4. The inherent political instability and ambiguity of the legal system inherited from the British is increased by every attempt at the change or modification of the existing laws. This is shown by the legislative establishment of newer courts for settling with the increased violence in the society. The establishment of the Anti-terrorist courts shows the inadequacy of the traditional capacity of the courts and the desire of the politicians to improve the law and order system of the country.
5. The biases of the ruling governments as to its electoral base also affect the legislation which helps to perpetuate the rule of few. This further alienates the masses from the social process of development and progress.
6. The institutional capacity of the units of the systems is inadequate to cope with the demands of the modern Human Rights Perspective. The resulting legislation is ambivalent to the rights of people in the practicality.
7. The political uncertainty attached
Bibliography
1. Holy Quran
2. The Constitution Of Islamic Republic Of Pakisatn
3. The Major Acts
4. The Minor Acts
5. The Making Of Pakistan By Richard Symonds
6. Emergence Of Pakisatn By Chaudhery Muhammad Ali
7. The Manual of Prisons Law
8. The Manual of Land Revenue Laws
9. Human Rights--- A Compilation of International Instruments Volume I & II Published by United Nations 2004
10. Human Development in South Asia Published by Mahbub-ul-Haq Development Center Islamabad. ( Various Reports)
11. World Development Report Published By World Bank ( Various Reports)
12. Constitutional Development in Pakistan By G.W Chaudhery
13. Liberty or Death? By Patrick French
Magazines, Newspapers
1. The Monthly Herald Karachi.
2. The Monthly News line Karachi.
3. Daily Dawn Islamabad. Lahore. Karachi Editions
4. Daily Nation Lahore.
5. Daily News Lahore. Rawalpindi Karachi
6. Daily Times Lahore.
7. Daily Nawa-i- Waqt Lahore / Rawalpindi .
8. Daily Jang Lahore /Islamabad
9. Pakisatn Law Digest P.L.D ( Various Issues)
10. Daily Khabrain Lahore.
Note . This article was written in year 2005 and was submitted to UN Human Rights Council via the course I attended in FSA Islamabad. Basic premises of the article are same and as to changes during the time passed I will write later...Insha Allah!
