Feisal Naqvi

Archive for April, 2011|Monthly archive page

Guerillas in the court

In Uncategorized on April 23, 2011 at 3:21 am

The problem of how to resist a superior force is one that is as old as time. As it happens, so is the answer.

When confronted with overwhelming force, the solution is not to offer open battle but to hide in the shadows, emerging only to snipe at a passing column, to draw a detachment into a small but deadly skirmish; in short, to inflict the death of a thousand cuts on the enemy.

The term ‘guerrilla’ literally means ‘little war’ and was first coined to refer to the fighters who harassed the armies of Napoleon in Spain. From there, it is a direct line descending through the Long Marchers of Chairman Mao to the Viet Cong, the Mujahideen, the Taliban, the rope-a-dope tactics of Muhammad Ali, and, most pertinently, the legal wing of the PPP.

When the PPP first came to power, it had the option of embracing the lawyers’ movement. Instead, while the PPP repeatedly swore to reinstate the Chief Justice of Pakistan (CJP), perhaps even with one hand on the Holy Quran, it also repeatedly reneged on those oaths. It was only as a consequence of a popular convulsion which left the PPP no choice, that Iftikhar Muhammad Chaudhry was restored as the CJP.

One likely reason why the PPP took such an obstructive stance is that there is very little which can be done about a rampant judiciary. At the end of the day, the only real check on the superior judiciary is its sense of propriety. That sense of propriety depends in part on inherited tradition and in part on public perception. The Pakistani public, however, sees the judiciary as a solution for all evils. All of which is another way of saying that our judiciary is currently not significantly constrained by public perception.

In these circumstances, how does one survive an evidently (but perhaps righteously) hostile court? The solution, as noted above, is to adopt the standard tactics of the insurgent. The PPP, therefore, does not pick direct fights with the judiciary: Instead, it prevaricates, it delays, it finesses, it draws the court into a debilitating sequence of meaningless fights and so it lives to fight another day.

Take, for example, the case challenging Musharraf’s infamousNational Reconciliation Ordinance (NRO) which had erased criminal charges pending against many persons (coincidentally including the late Benazir Bhutto and her husband). In December 2009, the Supreme Court (SC) declared not only that the NRO was unconstitutional but that all cases processed under the NRO were still open, including, most importantly, the cases against Asif Ali Zardari earlier pending in Switzerland.

After its decision, the SC exerted every sinew to get the federal government to ‘implement’ the NRO judgment, by writing to the Swiss and asking them to restart the cases. Even though any such letter would have been a waste of time, the Swiss having no interest in pursuing Mr Zardari any more, the PPP refused. This, in turn, produced a series of hearings in which the federal government presented every possible excuse to refuse to send the letter in question, including the official version of ‘the dog ate my homework’(‘Sir, voh file nahin mil rahi’). Eventually, the SC gave up and suspended its own judgment in review proceedings.

There is much speculation that the shelving of the review petition was intended by the judiciary as some sort of an olive branch. If it was, the gesture failed. Instead, the relationship between the judiciary and the PPP has continued to be one which, in colloquial Punjabi, is described as existing between a brick and a dog.

Many members of the legal community regard the PPP government’s approach as shameful. That may well be true, but it misses the point. By entangling the judiciary in a never-ending series of skirmishes, the PPP government has succeeded in muddying the waters. Faced with daily reports of strife between the government and the judiciary, the average citizen tends to triangulate so that even those who favour the judiciary leave open the possibility that, perhaps, the judges are also at fault. This response operates to the advantage of the government because, while the regime is already subject to heavy criticism in any number of fields, the judiciary must, like Caesar’s wife, avoid even the appearance of impropriety.

The manner in which the government has handled the recent re-emergence of the NRO review petition is a perfect example of legal guerrilla warfare. On day one, the federal government asked to change its lawyer, knowing full well that the application was likely to be refused. Had the SC called the government’s bluff and allowed the change of counsel on day one, the review would have been decided by now. Instead, the SC unwittingly cooperated by sternly rejecting the application. The Feds then challenged the rule which says that lawyers cannot be changed in review (again on the basis of a risibly defective argument), at which point it finally became clear to everyone that the government was not interested in arguing the matter, only in claiming victim status.

Having already boxed itself in, the SC then tried to extricate itself by saying that (a) the additional attorney-general (AAG) could be heard as he had been a lawyer in the original case and (b) the AAG could — nudge, nudge, wink, wink — be assisted by any counsel of the government’s choice. This eminently sensible option was, of course, rejected by the government on “grounds of principle”. In the meantime, the solicitor instructing the AAG withdrew, as he was allegedly “indisposed” (though apparently healthy enough to deal with 400 other cases, as was acidly noted by the CJP) while the file dealing with the withdrawal of instructions was found to have been “misplaced”. The net result so far is that two weeks of judicial time have been wasted and the SC seems stuck with no option but to dismiss the review application; which is perhaps why the case was recently adjourned for two weeks.

Law schools tend to teach jurisprudence more than military tactics. But if the judiciary is to avoid being outfoxed, the CJP may have to replace his copy of Black’s Law Dictionary with Sun Tzu’s Art of War.

Published in The Express Tribune, April 23rd, 2011.

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Islam, the courts and human rights

In Uncategorized on April 11, 2011 at 7:48 am

Most people know the former Chief Justice of Pakistan, A. R. Cornelius, as one of the great jurists produced by this benighted country. He is remembered fondly as the lone dissenting voice in the infamous Dosso case (which was the first of a long line of cases to justify military rule) and as a crusader for fundamental rights. Very few people though know that Cornelius was a champion of recasting Pakistan’s entire jurisprudence in Islamic terms.

M.R. Kayani, the former Chief Justice of what was then called West Pakistan, is on his terms, just as well known as Cornelius. Like Cornelius, he is remembered as a great jurist. Like Cornelius, he is remembered as a voice of strength and courage, one which refused to be silenced by the might of the state. But unlike Cornelius, his view on religion was that it was a dangerous tool in the hands of fanatics. As one of the co-authors of the famous 1953 report on the causes of the anti-Ahmedi riots, he wrote:

If there is one thing which has been conclusively demonstrated in this inquiry, it is that provided you can persuade the masses to believe that something they are asked to do is religiously right or enjoined by religion, you can set them to any course of action, regardless of all considerations of discipline, loyalty, decency, morality or civic sense.

The Cornelius-Kayani debate is examined at length in a brilliant upcoming article by Professor Clark Lombardi of the University of Washington. In brief, his view is that (a) as argued by Cornelius, human rights norms are strongest when entrenched in public acceptance of those norms, (b) Pakistan’s public discourse is dominated by considerations of what is Islamic, (c) the experience of Egypt’s Constitutional Court shows that a secular institution like the courts can imaginatively and sensitively reinterpret Islamic norms in a modern and progressive manner and therefore (d) countries like the United States which are interested in promoting liberal secularism in Pakistan should also consider promoting if not Islamization, then “at least a certain type of Islamization.”

As much as I respect Professor Lombardi’s acumen and learning, I disagree. In my view, the legal and political system in Pakistan needs to be kept as de-Islamized as possible.

To begin with, I am not sure how much comfort one can draw from the Egyptian experience. Egypt’s Constitutional Court only first got the jurisdiction to strike down laws on the grounds of repugnancy to Islam in 1980. The Constitutional Court subsequently determined in 1985 that the test of repugnancy was only to be applied prospectively and so legislation enacted before 1980 could not be struck down on the grounds of it being unIslamic. Since then the Egyptian court has only delved into the matter on very limited occasions. To jump from these few examples that the judiciary can serve as a bulwark against the worst excesses of Islamic fundamentalism is, at best, premature. Once can, for example, just as easily point to decisions by Egyptian courts in which outspoken thinkers have been condemned for apostasy and then had their marriages declared null and void. Finally, the decisions in question are recent. This means that they were made under the aegis of a dictatorship which justified itself – both to the Egyptian people as well as to the international community – as the last line of defence against the dreaded evil of Islamic fundamentalism. In that context, it takes little strength of character to stand for an ostensibly enlightened or moderate form of Islam.

Second, I don’t accept the argument advanced by Cornelius that popular acceptance of human rights in Pakistan will only come about if the concept of those rights is grounded in Islamic jurisprudence. The recent Lawyer’s Movement in Pakistan represents, by many accounts, the single most sustained popular human rights movement in Pakistan’s history. I concede that there are multiple alternative interpretations of the Lawyer’s Movement available which explain mass participation on grounds other than public support for an independent judiciary (general opposition to Musharraf, popular anger over economic equality etc.). However, while interpretations can be argued ad infinitum, the fact remains that (a) the undoubted ruler of Pakistan first threw out the Chief Justice of Pakistan in March 2007 and then threw out the majority of the superior judiciary in November 2007; (b) the entire lawyer’s community was tremendously outraged by these development; (c) despite violent reprisals by the state, the lawyer’s community refused to back down; (d) the lawyer’s community was backed ultimately by both the media and the larger public; and (e) the deposed judges were brought back despite Musharraf’s gambit being adopted by the newly elected federal government. During all of this time, the Lawyer’s Movement stayed resolutely secular – or at least, non-religious. It is therefore no longer possible to maintain that in Pakistan popular support for human rights can only evolve if those rights are given a religious colour.

Thirdly, there is inherent in Cornelius’ argument a colossal degree of arrogance and political naiveté. Cornelius’ argument was (and is) that if (a) the elite institutions of Pakistan were to try and engage with popular Islamic culture, they could capture its commanding heights; (b) they could then present a sanitised and suitably updated version of popular Islam to the masses, then (b) the masses would be enthralled by this new vision of Islam and (c) the end result would be a liberal Islamic utopia.

As stated above, this argument is both arrogant and naive. It is arrogant because it assumes that a disembodied and disengaged elite is best placed to analyse all of the “good” parts of Islamic discourse (while, of course, filtering out all the “objectionable” parts). And it is naive because it assumes that if only the prevalent liberal/secular orthodoxy is wrapped up in Islamic garb, the end result will be happily adopted by the people of Pakistan. In other words, the Cornelius argument says the following: the people of Pakistan are an ignorant and backwards bunch, unfortunately very attached to religion. Let’s repackage all the good things we know as being Islamic. That way, we should be able to guide the nation into the right direction.

Cornelius’ assumption was understandable during his lifetime because Pakistani politics in the 1960s was certainly not an advertisement for popular engagement. The country then was ruled by a military dictator who believed very openly that representative democracy did not suit “the genius” of the people. More importantly, Pakistan was run by a smugly entrenched bureaucracy whose senior ranks had been inducted by the British era and which, like the bureaucracy of the Raj, believed completely in its ability to divine what the masses were thinking even better than the masses themselves. The jump from “guided democracy” to “guided religion” therefore did not require much effort.

Leaving aside the issue of what was normal back in the 1960s, does this approach have any merit today? In my view, the answer is no. I have no cavil with the concept that the passions of the masses need to be filtered through some sort of deliberative mechanism in order to protect people from what has elsewhere been termed as the “madness of crowds.” Where I disagree with Cornelius and his sympathisers is the contention that the broad moral contours of a nation’s beliefs should be demarcated by an isolated group of decision-makers (i.e. judges) rather than a popularly elected and popularly accountable group of people.

My disagreement with the Cornelius view is both ideological and practical.

At the ideological level, I simply do not accept the contention that complex moral questions are best decided by a isolated group of legal thinkers. In such cases, one can normally find persuasive arguments in favour of any number of different but equally legitimate positions. Any attempt to force a consensus can just as easily lead to a backlash as to general approval.

Take, for example, the treatment of abortion in the West. In the United States, abortion is the single most polarising factor between liberals and conservatives. Confirmation hearings to the Supreme Court are often dominated by a potential nominees views on this question. And while potential judges have learnt to avoid answering abortion-related questions, the two ends of the political spectrum both tend to depict the problem in apocalyptic terms.

Feminist scholar Mary Ann Glendon has persuasively argued that the reason why the abortion debate has become so polarised in America is because it has been treated as a legal problem rather than a political problem. Legal problems tend to get analysed (and decided) in terms of right and wrong. In other words, a decision by a court in favour of a particular political argument (the “right” side) tends to delegitimize the counter-argument (the “wrong” side). In normal circumstances, this is not a problem. But in circumstances where the public is both divided and strongly involved, a judicial decision may serve to radicalise the people who find themselves on the losing side. Glendon’s argument is that this is exactly what happened as a consequence of the decision of the U.S. Supreme Court in Roe v. Wade. Her point is that abortion was as divisive an issue in European countries like France and Germany but that in these countries, the debate was settled through a parliamentary debate. And that as a consequence, the compromise position which emerged has not had any problems finding popular support (even though, the ultimate result may not be particularly different from that mandated by Roe v. Wade).

Let me make my point clearer. Islam is a highly emotive issue in Pakistan. Any attempt to cap the geyser of popular belief with a carefully considered, well balanced liberal interpretation of Islam is just as likely to provoke a storm of outrage as it is to preserve human rights.

There is an additional issue involved as well. Judgments based on liberal (or conservative) “interpretations” of the Constitution not only leave open the theoretical possibility that people aggrieved by such judgments can overturn them through the democratic process but also preserve the fiction that judges remain tethered by the popular will (whether expressed in statutory or constitutional form). Deciding cases on the basis of “Islamic” principles negates both of those aspects. A person who is aggrieved by a judgment based on ostensibly Islamic reasons has no remedy, even in theory, because he cannot change that which is Islamic. Furthermore, a judge who decides on the basis of Islamic law is completely independent of any popular concept of what is right or wrong. I, for one, am not prepared to trust any judiciary with such power.

At a practical level, I have a simpler problem. The judiciary in Cornelius’ day was a bastion of Anglicised elitism. Cornelius himself was an ex-ICS officer, somebody who had earned his spurs as a young babu holding court in the mofussil. If Cornelius assumed that trusting the superior judiciary with the broader power to rely upon Islamic jurisprudence would result only in the repackaging of standard western liberalism, he can be forgiven for extrapolating his own beliefs onto others. But, that assumption is self-evidently not valid today.

One of the more comprehensive treatments of Islam and the judiciary is Martin Lau’s 2006 treatise “The Role of Islam in the Legal System of Pakistan.” Lau’s view of the impact of Islamic doctrines on judicial precedent is mostly positive, but he also does acknowledge that there are certainly some decisions which give cause for concern. For example, Lau discusses cases in which Islamic considerations were used to uphold religious restrictions against Ahmedis and to deny women the right to marry individuals of their choice. But while he notes how the law of Qisas and Diyat was forced onto Parliament by the Shariat Court, he does not discuss how the said law (which permits the heirs of a murder victim to forgive the killer) has lead to an increase in honour killings of women. Similarly, while Lau discusses the repeated attempts by various judges to purge the financial system of Pakistan of all interest-based mechanisms, he makes no effort to put these attempts into a larger economic context or to explain how such attempts have lead to a peculiarly hypocritical mess in which “interest” ostensibly does not exist but mark-up certainly does.

Leaving aside the merits of Lau’s book, the further point to note is that Pakistan in 2011 is a different country from the Pakistan of 2006. What was simply a troubling insurgency in the north has now become a life-threatening cancer. Pakistan has for so many years lived on the edge of disaster, sliding ever so imperceptibly towards complete meltdown without ever making it all the way there. But in recent months, the slide has become ever more evident.

Pakistan’s blasphemy laws have for years been used to intimidate and threaten liberals and minorities, but now those threats are becoming more violent. In November 2010, Aasia Bibi, a Christian woman was sentenced to death by hanging. When her cause was taken up by Salman Taseer, the then Governor of Punjab, Pakistan’s largest province, he became a target for extremists. On 4 January 2011, Taseer was shot 26 times at close range by his own bodyguard, Mumtaz Qadri. While that was terrifying enough, what followed was even more scary. Several religious leaders refused to lead the funeral prayers for Taseer before one brave enough was found. More than 500 lawyers signed up to defend Qadri and when he was produced before a court, he was showered with rose petals by a crowd of lawyers. Till date, Qadri has yet to be convicted even though he does not deny shooting Taseer.

Taseer is not the only victim or even the only high-profile victim. On March 12, 2011, Pakistan’s Federal Minister for Minorities, Shahbaz Bhatti, was assassinated in Islamabad. According to reports, he had informed the Federal Government that his life was under threat because of his stance on the blasphemy law. For some reason, it appears as if the threat to his life was not taken seriously.

Let me try and pull all these disparate strands together now. There is a serious and well-respected line of argument which believes that the best way to protect human rights in Pakistan is to recast those rights in Islamic terms. I disagree. Constitution-based human right jurisprudence is not only tried and tested but it preserves a dialogue between the judiciary and the electorate and limits the chances of what the law terms, in another context, as “frolics of one’s own.” By comparison, Islamising jurisprudence is a step into the unknown. It may result in the liberalisation of Islamic discourse and the entrenchment of human rights. Or it may result in prejudice and bigotry being shoved down people’s throats on the basis that God says it is good for them. That is a chance I would rather not take.

Time to stop digging

In Uncategorized on April 8, 2011 at 6:19 am

There is an old saying that if you find yourself in a ditch, the first thing you should do is stop digging.

Pakistan these days is in a deep ditch. Or, as memorably described by Stephen Cohen, “The country is in the metaphorical position of someone who has swallowed poison, sits on a keg of dynamite, is being shot at, all while an earthquake is rumbling through the neighbourhood.”

One of the few bright spots in this litany of bad news is the Higher Education Commission (HEC), generally recognised for having made great strides in promoting higher education. Unfortunately, despite the fact that the HEC is a lonely outpost of competence, the federal government appears inclined to push ahead with plans that would destroy the HEC as it currently exists. This is not a good idea.

There are two main arguments presented by those seeking to get rid of the HEC. The first argument is legal, i.e., that the destruction of the HEC is a necessary consequence of the 18th Amendment and the devolution of education to the provinces. The second argument is ideological, i.e., that the people of Pakistan will be better served if governmental powers to deal with higher education are devolved down to the provinces. Both arguments are not valid.

Let me deal with the legal argument first. Prior to the 18th Amendment, education was in the concurrent list, which meant that both the federal government and the provincial governments were constitutionally authorised to make laws dealing with education. The concurrent list now stands abolished and, therefore, the argument is that the power to deal with education issues now rests exclusively with provincial governments.

The legal argument is hopelessly flawed because it ignores the fact that the 18th Amendment specifically added a new entry (No 12) to Part II of the federal legislative list dealing exclusively with higher education (“Standards in institutions for higher education and research, scientific and technical institutions.”). This entry was drafted and worded so as to cover the then existing role of the HEC because it was then agreed by all parties that the HEC would continue as it was. The legal argument that the HEC must disappear as a consequence of the 18th Amendment is, therefore, not correct.

Even otherwise, there are several entries in the federal legislative list which make it clear that many of the functions currently being performed by the HEC must necessarily be performed by the federal government, even if the HEC stops existing. These include item 16 (federal agencies and institutes for research or the promotion of special studies), item 17 (“Education as respects Pakistani students in foreign countries and foreign students in Pakistan”), and item 7 of Part II (“National planning and national economic coordination, including planning and coordination of scientific and technological research.”) Furthermore, as held by the Supreme Court in Elahi Cotton (PLD 1997 SC 582), legislative entries “cannot be construed narrowly or in a pedantic manner but [are] to be given liberal construction”.

In any event, the federal government will continue in all circumstances to deal with higher education. For example, if the HEC disappears, the federal government will still be in the business of validating degrees. However, instead of the HEC, the federal government wants this function to be performed by the cabinet division. Similarly, if the HEC disappears, monitoring international scholarship programmes will be the responsibility of the ministry of foreign affairs, while administrative control of the National Colleges of Arts will go to the ministry of inter-provincial coordination. And the list goes on.

The policy argument is equally flawed. To begin with, the policy argument is not based on the contention that the HEC has failed or is corrupt or anything of that sort. Instead, it is nothing more than the earnest belief than the devolution of higher education to the provincial governments will somehow, magically, produce better results than the current set-up. Like all faith-based arguments, it is impossible to refute. Nonetheless, here goes. The general theory in favour of devolution is that service delivery is best done if the service providers are locally available and locally accountable. For example, it is better if your local nazim is in charge of fixing roads than some anonymous bureaucrat in Islamabad or Lahore. This is because you can go yell at him, which is not something you can do if the relevant bureaucrat (or minister) is 500 miles away.

This theory simply does not apply to higher education. The object of regulating higher education is not to ensure that basic services are provided in a timely and competent manner but to ensure that the specialised institutions charged with issuing degrees actually meet internationally recognised standards. This is not a job which the local nazim can do, or even your average grade 17 bureaucrat. Has everybody forgotten that 15 years ago, a degree from a Pakistani university had zero credibility in the West? Do we really want to go back to those days?

There are other arguments against the HEC as well, but they are equally risible. Take, for example, the contention that the HEC should be devolved because our primary and secondary education systems are a mess, and hence we don’t have the money to waste on higher education. I completely fail to understand this argument. Just because we have screwed up primary education does not mean we should screw up higher education. And does anybody really doubt that we need both a good primary education system as a well as a good higher education system? I also fail to understand why we should hand over higher education to the same people (i.e. the provincial educational departments) which have made a hash of primary education.

The destruction of the HEC is serious business. In the short run, it will lead to the loss of $550 million in pledged aid for the higher education sector. In the medium term, it will lead to a collapse of institutional standards. As for the longer run, the argument that the provinces will somehow develop competent, autonomous, independent bodies to deal with higher education is simply a fond hope with no basis in reality, especially when those same provinces have till date failed to deal responsibly with primary and secondary education.

As I said in the beginning, we are in a deep hole. It’s time we stopped digging further.

This column appeared first in the Express Tribune on 8.4.2011.

And yet it moves

In Uncategorized on April 2, 2011 at 3:26 am

In the days when I still taught jurisprudence to budding bureaucrats, my favourite topic was legal realism. Because if there was one idea which regularly exploded their minds, it was the concept that law was simply a tool, a means to social ends; and that, like any tool, it had to be judged by the results it produced.

Why is this concept such a big deal? It is a big deal because there are multiple aspects of governance in Pakistan where the systems in place simply do not work; see, for example, the legal system. Yet, there is no serious demand to change those systems. Instead, the assumption is that if a system does not work, it is because of something that we — the people — are doing wrong and that the systems themselves are fine.

By comparison, legal realism begins by rejecting the assumption that there is anything inherently sacred or desirable about a particular law. If it works, fine. If it doesn’t, ditch it.

Legal realism may just seem like common sense by another name but it is much more radical than that. In his brilliant new book titledThe Long Divergence (Princeton University Press, 2010), Timur Kuran (professor of economics and Islamic studies at Duke University) writes how certain aspects of Islamic law (such as the law of inheritance) held back economic development of the Middle East for centuries. It is difficult to read the book and disagree with his conclusions. But does that mean we are willing to consider revising inheritance laws in Pakistan? I don’t think so.

Let me be honest here. I do not think that we as a society are ready to start applying legal realism to Islamic law. Rationalist jurisprudence in Islamic law died many centuries ago and has yet to be revived. But what is far more disturbing for me is that, even outside the boundaries of the ostensibly divine, we cling to modes of thought and action which no longer work.

Take, for example, our legal system. It is an indisputable fact that our legal system is comprehensively dysfunctional. As a lawyer who regularly advises investors, my standard advice is that they should assume they will not be able to enforce contracts in Pakistan and that they will not be able to recover amounts due to them within any commercially reasonable period of time.

It takes no great learning to understand that a legal system in which contracts can freely be broken and through which money cannot be recovered, is less than ideal from an economic perspective. And yet, there is no substantive effort being made to reform the legal system. Yes, a new judicial policy did come out in 2009. Yes, the new policy recognises that delay is a problem. But it rejects the contention that there is any fundamental flaw in the system. Instead, it explicitly states that it “seeks to achieve its objectives, by efficient utilisation of existing resources. We have to operate by remaining within the given legal/procedural framework. The laws are indeed time-tested”.

There is a phenomenon in social science called ‘path dependence’. One well-known example of this is the ‘QWERTY’ keyboard layout, which was originally adopted so as to keep the most-used letters as far away from each other as possible (and avoid mechanical problems). That mechanical restriction is no longer relevant but we are still stuck with an illogical arrangement of keys.

Pakistan’s legal system today, and especially our laws relating to land title, is a textbook example of ‘path dependence’. In brief, we have no system of recorded land title. Instead, all we have is a system that records who is liable to pay taxes on land. We have this system because back in the days when the Sultans of Delhi used to arrive as invaders from Kabul, they found it more convenient to dish out tax fiefdoms (i.e., jagirs) than to set up systems which recorded one’s title (unlike, for example, William the Conqueror). This system was then adopted by the Mughals and, when the Mughals collapsed, by their former dominions. When those dominions were then conquered by the East India Company, the systems in place continued, as they did when the East India Company was replaced, first by the British Raj and then by the independent state of Pakistan.

There are two reasons why all of this historical baggage is important. First, the vast majority of disputes in Pakistan relate to land. Second, the vast majority of those disputes would not exist if we had an intelligently designed and modern system of land laws.

To put it another way, our legal system does not work today because it is overwhelmed by the number of land-related disputes. And it is overwhelmed by land-related disputes because our inherited systems of land law encourage and reward frivolous litigation. Does that mean we should consider changing our laws? Absolutely. Are we going to? Not bloody likely.

To return to where we started, my fundamental point is that we must learn to judge laws by the results they produce. A law which produces lousy results is a lousy law, irrespective of why it exists. And a law which produces good results is a good law, irrespective of where it originates.

Many centuries ago, Galileo was called upon by Pope Urban VIII to recant his heretical position that the earth moved around the sun (or else lose his head). According to legend, Galileo reluctantly repeated what he was told but then, as he turned around, muttered “e pur si muove”. (And yet it moves).

Law is a means to social ends. When the ends move – and they do – it is necessary to change the means earlier adopted so as to continue to achieve those ends. We can pretend that societies don’t change and that social ends don’t change. And yet they move.