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Islamic Society ( 5 March 2012, NewAgeIslam.Com)

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Pakistan: What Law and Whose Rule?

BY Iqbal Jafar

March 6, 2012

A QUESTION has been waiting to be asked for a long time, but hasn’t yet been formulated. Let me try: why do our collective thought processes work in such devious ways that twisted logic, perverse defence of patently criminal acts and misplaced sympathy for the guilty, find easy accommodation in our legal and moral universe?

This is not an idle question in a society where vocal support for, or partisan silence over, suicide bombing, faith-based murder, massive corruption, open defiance of the law, or even making fun of the superior courts is not uncommon.

Two factors could be at the root of this moral and legal disorder. First, the lingering colonial mindset where defiance of the laws of the state is not only permissible but even laudable, and free of social stigma Second, the different laws, values and practices of pre-Muslim, Muslim, and of the modern origin, that have coalesced into a mishmash of hybrid morality.

Defiance of the laws of the state is a residue of the colonial period of our history where persons charged or punished by the agencies of the government were our compatriots and the punishers were the alien rulers or their native mercenaries.

Hence, sympathy for the punished and antipathy for the punishers sounded justifiable. That behaviour pattern survives as a baggage of history that we’ll have to carry as long as our ruling class remains alienated from the people and retains a pre-Independence adversarial relationship with them.

The other factor has even deeper ramifications, and is profoundly complex. First, this hybrid morality is not the end product of an evolutionary development where the old is replaced by the new. The three different strains of hybrid morality that emerged at different times, separated by hundreds of years, continue to run parallel to each other, and remain largely unaffected by each other.

Secondly, each of these three strains has its own source of sanction. The pre-Muslim (tribal, feudal, customary) laws, values and practices, have the sanction of history and community; Muslim values, laws and practices have the sanction of religion and tradition; modern laws, values and practices, codified and compiled during and after the colonial period, have the sanction of the state, unsupported as yet by any social, religious or moral pressure, except the coercive power of the state, where the state is willing and able to exercise that power.

Since there are three different flavours of morality on offer, the choice of one instead of the other is often motivated by self-interest or considerations other than what are just and what is unjust. This can happen at the highest level of public discourse.

Consider, for example, the debate on the question of presidential immunity under Article 248 of the constitution. Since the case against the president appears rather weak within the confines of the constitution, it has been argued at the highest level that the president cannot claim immunity as it is against the traditions of Islam.

The example cited is that of the second caliph who presented himself before a court to answer a charge against him. But one could, then, argue that by the same token, the president could claim to be the chief justice as well, as was the case with the second caliph and the one before him and those after him. I am sure the claim will be rejected out of hand on the basis of perfectly sound reasoning that this cannot be done without amending the constitution. This is a good example of how the hybrid nature of our laws and values allows a person to be selective, inconsistent, even dishonest, and yet remain credible.

Another example, taken from the highest rung of the social and intellectual ladder, is that of Ghulam Ishaq Khan. In his famous letter to Sardar Shaukat Hayat, about a matter relating to their two families, he took pride in his own belief in Pakhtunwali and Islamic values, that he adhered to, but advised Sardar Shaukat Hayat to seek redress through a court, knowing full well that the courts administer mainly the British-made laws based on the Anglo-Saxon notions of justice.

This shows how deeply these three strains are embedded in our hybrid morality. Our conscience would be satisfied by resorting to any one of them.

The third example is that of a senator who wouldn’t hesitate waxing eloquent on the virtues of modern democracy, rule of law and human rights, but did choose to defend a tribal practice whereby women suspected of adultery could be buried alive.

These three examples, taken from the highest strata of society, show that we are truly a lawless society in a very subtle way, for we do allow three different, often conflicting, laws and values to prevail wherever they may. Worse, each of the three strains grows weaker by the day for different reasons.

While the sanctions behind the tribal, feudal and Muslim laws, values and practices do command voluntary acceptance, their hold on the people grows ever weaker due to the sectarian and linguistic polarisation of society. But there is nothing to replace them. The modern laws (codified during and after the colonial period), on the other hand have the sanction of the coercive power of state, but are subject to the rule that weaker the state, weaker would be the enforcement of laws; and more rapacious a state, more hostility there would be to its laws. It so happens that the state of Pakistan is both weak and rapacious.

The stage is thus set for complete legal and moral anarchy, both in concept and in enforcement. Hence, the question: what law and whose rule?

The writer is a former civil servant.

Source: The Dawn, Karachi