[lg policy] Pakistan: The language of justice

Tue Feb 28 15:56:29 UTC 2012

The language of justice
By Osama Siddique
Published: February 28, 2012

The writer is an associate professor of law and policy at LUMS. He
holds a doctorate in law from Harvard Law School
osama.siddique at tribune.com.pk

Last year, during a survey of the Lahore District Courts, my students
and I often came across people lingering outside courtrooms as their
cases were being heard. One day, I observed an elderly lady stoically
standing in the exposed and freezing corridor. As her case was called,
her lawyer briefly conferred with her and then hurried inside. She
stayed put even though the courtroom promised some warmth. I was
curious. She did not seem shy; the court was not over-crowded; and her
matter was not potentially awkward as I found out. She told me that
her lawyer always instructed her to stay outside. “In any case, I
can’t make head or tail of what happens inside. They use strange
English terms. Even the Urdu they speak is very difficult.” I opined
that it must be very hard for her to assess the progress of her case
and her lawyer’s performance. She said that he had become upset on
occasions when she had insisted on observing the proceedings. Her deaf
and mute vigil had been going on for some years.

Published in 1925, Franz Kafka’s brilliant, The Trial explores the
horror and hopelessness of an inaccessible, unintelligible and
unknowable legal system. A significant sub-theme deals with a slavish
dependence on legal counsels to stay afloat in such a system — an
oppressive reliance brought about by the clients’ ignorance. The Trial
was never completed. I sometimes wonder what Kafka would have made of
a postcolonial context where the predominant majority of litigants
don’t even understand the language in which their laws, rules,
regulations and court judgments are written. Admittedly, a fair amount
of legal paperwork and court orders in the lower courts is in Urdu.
Also, court proceedings are often a mix of Urdu, English and regional
languages. But our rights and obligations are ultimately written in
and interpreted from texts that are in English.

Now consider this. Of the 440 interviewed litigants, 26 per cent were
either uneducated (over 15 per cent) or had only received education up
to or equivalent to primary school. The figure is 36.5 per cent if we
include those with education up to or equivalent to secondary school.
It is 58 per cent if we include those with education up to or
equivalent to matriculation. When asked, a mere 33.5 per cent of the
respondents knew that the legal language of the country was English.
Another 36.5 per cent said ‘English and Urdu’ — understandable due to
the use of both languages in some legal contexts. Significantly, 30
per cent actually said ‘Urdu’ (18 per cent) or simply did not know (12
per cent), begetting complete ignorance of the actual state of
affairs.

Coming to the levels of comprehension of our language of justice, 69
per cent of the overall respondents admitted that they either ‘didn’t
understand English (40 per cent), or only ‘somewhat understood it’ (29
per cent). Almost 99 per cent of the uneducated and those with
education up to or equivalent to secondary school said they did not
understand English at all, or had a sketchy understanding (84 per cent
admitted complete incomprehension). Cognisant of the highly
indifferent quality of our school education and the teaching of
English, we further probed any gaps between the respondents’ ‘stated’
general comprehension of English and their ‘actual’ comprehension of
laws in English. We focused on the almost 60 per cent of the overall
respondents who had said that they did indeed understand English, or
that they ‘somewhat’ comprehended it and asked them if they could read
and comprehend the laws applicable to their cases. As anticipated, a
stated general comprehension did not necessarily translate into an
ability to understand laws in English. Many respondents, who had
earlier expressed some facility with English, expressed their
inability on this score. Consequently, it emerged that 56 per cent of
the overall respondents did not at all comprehend the laws and
regulations applicable to their cases as they were in English. They
are the ones who haplessly wait outside the court rooms while their
fates are being decided — or mostly delayed. This is a remarkable
dimension of disempowerment — a language apartheid even Kafka did not
envision. Or else, there may perhaps have been many sequels to The
Trial.

As mentioned earlier, some of the court documents, land records, legal
contracts and court proceedings are in Urdu. Dating from the Mughal
era, this is a highly Persianised version — a very different language
from the contemporary Urdu of the market, the streets and the homes.
Not surprisingly, it turned out that 46.5 per cent of the overall
respondents had a fair amount of trouble understanding it or did not
understand it at all, due both to its technical nature and archaic
usage, as well as their low levels of education.

The state of general education and legal literacy determines levels of
respective empowerment in court battles everywhere. Despite the
necessity, at times, of technical terms for precise rendition of legal
concepts, a country’s language of justice can still make some sense to
its people because hifalutin as it may be, it is their language.
Impaired by very low levels of general literacy and poor quality
education as they are, a vast majority of Pakistanis speak languages
other than that in which their laws are written and interpreted. This
presents a fundamental challenge to comprehending and accessing the
Pakistani legal system for pursuit of justice. Developed countries
recognise the apartheid of ignorance and disempowerment created by
legalese. The introduction of ‘Plain English Rules’ is one significant
response. Any levelling of the playing field, however, can only come
through meaningful access to quality education and information.

A few years ago, some efforts were made to redress the balance in the
interim — information kiosks in courts, publication of simplified Urdu
versions of laws, legal literacy and rights advocacy campaigns through
media, and citizen-court liaison committees were some of the
initiatives briefly pursued. Once international donor money ran out,
so did our commitment. Any leftover funds remain largely unutilised.
It is not just the government, the legislature and the judges who seem
not to care. With TV increasingly accessible to more Pakistanis, a
tremendous opportunity remains unutilised to dedicate some airtime
everyday to legal literacy and rights awareness. However, the
electronic media seems torn between the Memo and Meera. Meanwhile,
hundreds of thousands of Pakistanis engage in guess work as they
mutely wait outside courtrooms that are abuzz with an incomprehensible
language.

Published in The Express Tribune, February 28th, 2012.

http://tribune.com.pk/story/342487/the-language-of-justice/

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