Decolonising the law

TOWARDS the end of World War II, the idea of ‘decolonisation’ with its attendant images of freedom fighters, ouster of the English colonisers and creation of independent nation states had echoed throughout the British Empire. More than half a century later, the word ‘decolonisation’ is resounding once again. This time however, it is being raised by disgruntled minorities within the UK seeking representation and justice from their own governments.

The modern-day call for decolonisation first emerged at a 2011 conference in Malaysia in which scholars expressed a desire to develop non-Eurocentric paradigms. In a few years, it was raised again as part of the ‘Rhodes Must Fall’ campaign launched at the University of Cape Town. By 2015 this campaign had reached the University of Oxford and its underlying theme of inclusivity and representation was picked up by the National Union of Students who started questioning why their curriculum was predominantly white.

In 2019-2020, the decolonisation movement received an unexpected boost by the Black Lives Matter protests that first erupted in the US in the wake of the successive brutal murders of several young black persons but were quickly replicated by marginalised groups in the UK.

It’s a testament to the determination of the protestors that finally in 2020 Oxford University placed a plaque next to the statute of Rhodes acknowledging his colonial legacy and UK universities stepped up their efforts to include non-Eurocentric approaches in all areas of study It is entirely pertinent to ask what any of this has to do with Pakistan.

After all, wasn’t Pakistan decolonised when it was declared an independent state in 1947? While Pakistan’s creation as an independent country is not disputed, to understand whether it was truly decolonised it is important to go beyond the formal declarations of independence made in Pakistan’s constitutive documents, to examine the extent to which Pakistan’s governing institutions allow it to exercise sovereignty in its political and economic decisions.

The starting point for understanding any country’s core institutions is its constitution. Pakistan has had three constitutions since it was created: the first in 1956, the second in 1962, and finally the third in 1973 which despite 25 amendments, remains in force today. In the nine years that Pakistan deliberated its first constitution it had the option to acquire a constitution that was fully in alignment with Islamic principles, or one based on the liberal values that had gained currency in the aftermath of World War II.

The starting point for understanding any country’s core institutions is its constitution.

Although Pakistani lawmakers made some concessions for Islamic considerations, the core constitutional institutions were aligned with accepted Western norms and liberal values: for instance, the Constitution largely replicated the institutional structure provided in the Government of India Act, 1935, adopted the rights enunciated in the UN Declaration of Human Rights (Articles 8-28), and the economic values of free trade (Article 18), and private property (Article 23-24).

In 1985, Gen Ziaul Haq introduced large-scale amendments to the Constitution ostensibly to bring it in line with the injunctions of Islam: the Objectives Resolution was made a part of the Constitution, provisions were introduced to establish the Federal Shariat Court and the National Assembly was renamed the Majlis-i-Shoora. However, these reforms were optical and semantic and did not interfere with the country’s core legal and political institutions which continued to function as before.

Pakistan’s economic life, as its governance institutions, also remained aligned with Western ideals. Although the world Pakistan was born into had shifted away from imperial rule, it was now governed by multilateral agencies whose aim was to facilitate economic interdependence between the old and new nation states. In a bid to integrate into the global economy, Pakistan became a member of the IMF and the World Bank in 1950 and of the WTO in 1995. To stimulate foreign investment Pakistan also signed bilateral investment treaties with several countries.

The resultant web of ‘interdependence’ rendered Pakistan dependent on the IMF, World Bank and the WTO for its economic prescriptions. In time, Pakistan carried out the first-generation macroeconomic reforms by liberalising exchange and interest rates and the second-generation microeconomic reforms by establishing a range of authorities such as the SECP, CCP and Nepra to regulate activities throughout the country.

Most of these reforms were agreed in closed-door discussions between the executive and multilateral agencies and these were often introduced in the country through temporary ordinances promulgated without stakeholder consultations.

While it is tempting to attribute Pakistan’s independence deficit to its having aligned its constitutional and economic institutions with its external obligations, it is not entirely accurate to do so. Borrowing laws is a historical and global reality and it is only right that Pakistan too should benefit from the collective wisdom of more evolved democracies. Where Pakistan is lacking, however, is copying laws wholesale, at times to meet the conditionalities imposed by multilateral agencies and at others to signal to the world that it has the institutional trappings of a well-functioning modern state.

Ultimately, in imposing laws top-down rather than enacting these through bottom-up, participatory and inclusive institutions, the Pakistani state has drowned out the voices of the various groups within the polity. In doing so, it has not only hardened rather than healed the divisions that it had inherited at the time of its creation but has also recast itself as a colonial master that pursues its agenda without regard to the well-being or representation of its own people.

At its core, the modern call for decolonisation, just as the one seen after World War II, is about redressing the balance of power between the centre and the periphery and for the representation of the marginalised in decisions that affect their lives and their destinies.

The Pakistani state not only needs to correct the power imbalance externally, but also internally, through truly democratic institutions that engage with the people and include their opinions in legislating for the realisation of their interests and aspirations.

The writer is a barrister and an advocate of the Supreme Court of Pakistan. She also holds a PhD in law and lectures in Competition Law at the University of Manchester.