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Opinion

November 9, 2015

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Their law, our law

Their law, our law

As soon as the colonial imperialists undertook the responsibility of reforming the local justice system, they first sought to liberate it from the caprice of the pre-existing Mughal legal system. The Indian Legislative Council introduced a series of acts in this regard.
The Civil Procedure Act of 1859, the Penal Code of 1860, and the Code of Criminal Procedure of 1861 all aim to liberate the local system from the evils of the traditional justice system. The question is: why was there a need for such consecutive attempts at short intervals from each other? And why have such reforms not been able to bring about the desired results since the colonial era?
The answer to the first part of this inquiry is clear. None of the reforms were conducive enough to meet the ideals of justice as envisaged by the colonisers, and reforms became necessary. The second inquiry requires our attention to be shifted towards a crucial fact which the chief justice mentioned in his speech addressing the special committee of the senate. He said it was useless to have laws that are not applicable in a society. Therefore, the responsibility to frame relevant laws falls upon the shoulders of the designated legislative bodies.
Any legal system is bound to fail if it denies the local context in which it must be enforced. Rulers in history have also incorporated this logic into their governance of conquered lands. For example after the Muslim conquest of Spain, Muslim leaders were able to gain the sympathy of the local Jewish and Christian community due to a practice known as Convinencia. This practice allowed small and local communities to settle their issues according to an age-long tradition of conflict resolution.
Similarly, the Ottomans allowed local traditions, known as Tanzeemat, to be exercised as a mechanism for resolving disputes. This flexibility was necessary for maintaining social order and resistance as it respected the system – which had become a fundamental part of the people’s social reality.
However, over here, we make the mistake of expecting the western legislative system to work in the same way it has in their native countries. The discourse involving solutions for our justice system revolve around two main points, both of which are, unfortunately, flawed. First, parliament and the Supreme Court both only look at the content of legal reforms without taking into account its practical implication in society and acceptance among people. It is resisted if it goes against their conventional legal system.
It is important to remember that it is not rule of law that creates a society, but rather society which creates rule of law. Law will never find its place among the people if it is rejected by them. Second, while speaking about the justice system functioning on all levels, we suffer from the same idealism. We expect the local courts to work under this very notion. In doing so, we forget to account for traditions, culture, similarities and differences.
When the chief justice admits that our formal legal system covers only 20 percent of judicial activity in the country, our flawed notions of an ideal legal system being rooted in western notions of justice – which solely worked for the benefit of the colonial rulers. – are highlighted Expecting the formal legal system to work better by introducing the same sort of reforms is nothing more than beating about the same bush with no results. It is time to revisit our priorities and provide avenues for traditional methods of conflict resolution.
Email: [email protected]

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