Legal Minds Of Pakistan

Courtesy: Daily Times

VIEW: Legal minds of Pakistan —Yasser Latif Hamdani

The gap between Pakistan and India in terms of intellectual, economic and social development is roughly equal to the gap between Ram Mohan Roy and Sir Syed Ahmed Khan in terms of time

Any legal scholar picking up jurisprudence in Pakistan would be under the impression that Pakistan and India never separated. The reliance Pakistani jurists, judges and lawyers place on Indian judgements and case law is phenomenal.

Indian precedents are not just persuasive – as in the case of English judgements and some American ones – but are given the status of near-law. This is hardly surprising, of course, given that most of the laws in Pakistan and India predate independence and very few, if any, have been updated in Pakistan. What is definite, however, is that Indian jurists and lawyers are certainly far superior as a whole when it comes to expounding law.

There is no question that Pakistan has produced some extraordinary lawyers, jurists, judges and legal scholars, but at the same time it may be recognised that even as a proportion, these stand out few and far between given their opposites who outnumber them. Perhaps this has something to do with the natural stage of evolution that the Pakistani society in particular and Muslim societies in general are undergoing. This society seems incapable of comprehending the true end of a legal system: the safeguard of personal, I daresay private, property.

However, there might be another angle to it. For a religious system that was once preoccupied with essentially personal law – specifically inheritance and property law –modern Islamic jurisprudence seems entirely summary today. While Arab scholars from a millennium ago played their part in enriching the legal and philosophical thought of the West, today the emphasis seems to be more pronounced on hadd punishments and blasphemy. Is it any wonder, then, that it is the only compendium of laws we have genuinely added to our statute books? Laws that seek to criminalise sin! Consequently, in any Pakistani legal manual, case law relating to zina and other hadd laws far outnumbers the pages dedicated to contract law, property law and other commercial laws.

Hindu society, by and large, has never had the sort of taboos about commerce that Muslims have had and therefore amongst Indians in general and Hindus in particular you find the field of commercial and business law developed. There is, for example, not a single decent book on securitisation written by a Pakistani lawyer, but look through any proper legal library in Lahore and you will find several by Indian authors. The finest books on such basic commercial building blocks as sale of goods, transfer of property, contract law, company law, etc, are all by Indian authors. It shows, first and foremost, the different stages of evolution of the two societies. One theory, my preferred one, is that the gap between Pakistan and India in terms of intellectual, economic and social development is roughly equal to the gap between Ram Mohan Roy and Sir Syed Ahmed Khan in terms of time.

It is quite likely that Pakistan’s existence as a separate state from India has set in motion an irreversible process of the slow but steady creation of an indigenous bourgeoisie. If this is an accurate analysis of the Pakistani condition, then perhaps much of what we complain about in this country is going to change but it is a matter of time and patience.

In the meantime, however, we have to put up with a lot of unsavoury characters who otherwise would not even be hired as munshis in a united India. This is as true of academics as it is of lawyers. Thus we find judgements such as the blanket ban on Google floating about in this day and age. One only needs to review 1993 SCMR 1718 to see the true calibre of our geniuses in their full glory.

Yasser Latif Hamdani is a lawyer. He also blogs at https://pakteahouse.wordpress.com and can be reached at yasser.hamdani@gmail.com

17 Comments

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17 responses to “Legal Minds Of Pakistan

  1. Majumdar

    Yasser Pai,

    One theory, my preferred one, is that the gap between Pakistan and India in terms of intellectual, economic and social development is roughly equal to the gap between Ram Mohan Roy and Sir Syed Ahmed Khan in terms of time

    The gap in terms of social and intellectual development stands reduced thanks to the Gandhoo, while the gap in economic development has been practically reduced to zero thanks to his pupil, the Fabian a-hole.

    Regards

  2. Pingback: Legal Minds Of Pakistan « Pak Tea House | Syed Adnan Ahmed Blog

  3. Junaid

    The finest books on such basic commercial building blocks as sale of goods, transfer of property, contract law, company law, etc, are all by Indian authors.

    Most of the famous books for computer science and electrical engineering in Pakistan are also authored by Indian professors. At least the names were Indian.

  4. harbir singh nain

    I have always regarded Indian law to be a farce. Perhaps the best I can say for it is that it could be even worse, and that whatever India does manage to do does have a grounding in the law, such as it is. I suppose if Wipro or TATA are able to exist and function as the entities they are, it is because of the foundations of law and boundaries defined by law. None the less, the experience of law of every citizen in India, except for the most powerful, is one of dysfunction, unreliability, and ineffectiveness.

    Indians cannot expect the law to deliver justice to those physically harmed by political and/or economic interests. They cannot expect their property rights to be protected. They cannot expect adjudication of family matters in any remotely reasonable time frame. They cannot expect effective prevention of violent or economic crime through their prosecution. Success at every level, in every endeavor, invariably involves subversion of the law.

    You could very much make the argument that the problems are in the institutions that are supposed to apply the law, not in the quality of the law itself. That may very well be true. However, when one knows of the corruption of judges, the corruption of law makers, the corruption of the police, the corruption of administration, and actions of private citizens in corrupting the legal process for their own benefits, it is hard to put much stock in intellectual soundness of Indian legal thought.

  5. NotVajra

    Could the difference in books published simply be explained by the economics idea of comparative advantage? That is, it is simply more efficient for an Indian to write and publish a book – there is a larger potential market, the benefits to the Indian’s career are greater, and so on than for a Pakistani writer. So this would not be matter of differing levels of development, it would simply be comparative advantage.

    Here’s a brief note on comparative advantage:

    “A person has a comparative advantage at producing something if he can produce it at lower cost than anyone else.

    Having a comparative advantage is not the same as being the best at something. In fact, someone can be completely unskilled at doing something, yet still have a comparative advantage at doing it! How can that happen?

    First, let’s get some more vocabulary. Someone who is the best at doing something is said to have an absolute advantage. Lance Armstrong has an absolute advantage at cycling. For all I know, Lance Armstrong may also be the fastest typist in the world, giving him an absolute advantage at typing, too. Since he’s better at typing than you, can’t he type more cheaply than you? That is, if someone has an absolute advantage in something, doesn’t he automatically have a comparative advantage in it?

    The answer is no! If Lance takes time out from cycling to do all his own typing, he sacrifices the large income he earns from entertaining fans of the Tour de France. If, instead, his secretary does the typing, the secretary gives up an alternative secretarial job—or perhaps a much lower salary as a cyclist. That is, the secretary is the lower-cost typist. The secretary, not Lance Armstrong, has the comparative advantage at typing! The trick to understanding comparative advantage is in the phrase “lower cost.” What it costs someone to produce something is the opportunity cost—the value of what is given up. Someone may have an absolute advantage at producing every single thing, but he has a comparative advantage at many fewer things, and probably only one or two things. (In Lance’s case, both cycling and also as the entrepreneur behind the yellow LiveStrong wristband.) “

  6. Girish

    Most textbooks published in India are rehashes of Western textbooks, if not outrightly plagiarized versions. Second, they are typically oriented towards getting students to pass exams, not inspring them to learn. I find it surprising therefore that they are widely used in Pakistan. It must be because of the low cost of these books.

  7. nasir jan

    Pakistan suffers from a intellectual black hole – our leaders hold fake degrees , while the masses that elect them are brainwashed by mullahs. The Judiciary pretend to hold the banner of freedom while at the same time have for the last few decades done nothing to stop the spread of extremism against minorities.

    India on the other hand may have lots wrong with it , but lets face it – it is on its way to becoming a economic powerhouse.

    Pakis needs to wake up and smell the coffee – until we educate or eradicate the Jahils and Mullahs in our society we will get nowhere!

  8. libertarian

    If this is an accurate analysis of the Pakistani condition, then perhaps much of what we complain about in this country is going to change but it is a matter of time and patience.

    @YLH I sincerely hope so. I’m not as optimistic as you are though. The current trend seems Southwards. Evolutionary methods – change from within the current system – seem hopelessly powerless against current vested interests. Revolutionary change – replacement of the current system – seem a better bet at this point to unleash the genius of the people.

  9. Vanguard

    One of the most superficial analysis that I have read. If this is how Pakistani lawyers make arguments to support their claims, no wonder we are behind India.

    The absence of Securitisation books is not due to any prohibition. Its because you don’t have the capital and financial market framework to make it happen. We don’t even have a deep debt (bond) market which usually takes off before securitization picks up.

    For a long time, high rates on National Saving Certificates prevented people from depositing money in bank which could not offer such a high rate which stunted growth of the banks which require deposits to make loans and grow. However, a Pakistani jurist can safely make an argument in a newspaper that it is because Riba/interest is prohibited or a taboo thats why our banking sector could not grow.

  10. Zulfiqar Haider

    @nasir jan: very well said, we certainly are suffering from an intellectual black hole; we can reproduce someone else’s work, but there is no research and development.

  11. yasserlatifhamdani

    No ibrahim sb.. It is because people like you don’t get the English language. If you read my article with an open mind, you would get what I am saying but you’ve taken a very superficial view like a typical momin with less than 1000 vocabulary that something is being said against islam. On the contrary I am defending Islam…

  12. Vanguard

    Mr. YLH,

    Apologies if it came across as I am defending Islam. It was not my intention.

    Being from a finance background and as someone who has worked on securitization a bit, I just tackled the issue that I was comfortable with. For books on securitization to be written, there needs to be a demand for securitization which usually develops after there is a deep equity and debt market which is not there in Pakistan.

    I am not competent enough to argue on other points but the securitization argument seemed very flimsy and you mentioned ‘taboo’ in the same paragraph which I thought was a reference to Riba/interest/usury. Mea culpa if you meant something else.

    That makes my vocabulary 1002 words unless ‘mea culpa’ is one word 🙂 One could also argue that mea culpa is not English or the syntax/context is incorrect so my vocabulary is still limited to 1000 words.

  13. ved975

    Indian Judicial system is so slow that if a person by mistakes files a case and if case goes up to supreme court then he spend his complete life on the door of courts and over and above of that in some cases person even could not see the result in his own lifetime.
    JUSTICE DELAYED IS JUSTICE DENIED.

  14. YLH

    “JUSTICE DELAYED IS JUSTICE DENIED.”

    Justice Hurried is Justice Buried.

  15. @Yasser Latif Hamdani

    I wrote this in response to your article, and to the subsequent drain-inspector’s report, which seems to have been built on newspaper reports and no personal knowledge or experience. It is distressing to see a hatchet-job, even more distressing to see a badly-executed one.

    First, yes, you are perhaps right in saying that the body of law on which you get to exercise your critical abilities is much larger, and to some extent, well-refined. Entirely as it should be, except that certain matters I believe should have been routine, and well-understood, and is not properly treated because of the ignorance or the obtuseness, or even downright ill-intention of the banks, also, because of the blame-avoiding culture of government departments.

    In my experience, banks deliberately trade in the ignorance of the general public and the overwhelming disparity between them and the bulk of their borrowers in terms of access to legal knowledge. Hardly any borrower gets the documentation checked in case of taking a loan and being confronted with a huge mass of major and minor documents; the banker presents these for signature with a nonchalant air and a clear attitude that these are reasonable and justifiable documents, and should be signed, and in any case, there is no option, because this is standard procedure required under the law.

    Nothing of the sort. Banks generally push in clauses and admissions by the borrower and waivers by the borrower which completely denude the borrower of any of his rights. This has to be attributed to the attitude of the central legal department in such institutions which determine the documentation to be executed. When they are exposed in reality by the fact that the law does not actually allow them the wide and sweeping powers that they arrogate to themselves, they resort to outright, wholly indefensible acts of coercion and blackmail. Bank collectors and recovery agents had committed unheard of excesses in their methods of recovery, generally quoting these wholly untenable clauses, and recent judgements and court strictures have focussed on setting sharply-bounded borders on such actions, and instructions to the local police to ensure that excess does not occur. I suspect that a practical examination of the case law covered will reveal that a sizeable portion of the cases relate to disputes between banks and their customers.

    On the flip side, it is undeniable that the ability to enforce a contract is key to a functioning legal system. Much of the abuse that the banking system has been subject to is due to the unhealthy haste with which very senior echelons of banks, especially public-sector banks, have extended princely sums to borrowers on insufficient (irony of ironies) documentation; their practices in this regard standing in sharp contrast to their practices in the case of small borrowers. This unpleasant difference in treatment has led to the vast bulk of bank bad loans being constituted of loans to large industrial houses of Indian origin, promoted by Indian business families, which have in some cases become adept at serial default of massive proportions. The response to this was not to pull up the very senior bankers who had been, shall we say, over-enthusiastic, but to strengthen bank recovery procedures through the securitisation act and the creation of the debt recovery tribunal.

    In passing, it must be mentioned that the massive expansion of the Indian banking system has led to an expansion in its management cadre to proportions which are inevitably unhealthy. A simple case in point: the local bank manager handling my father’s pension account refuses to honour cheques written in international style with hundreds of thousands rather than lakhs.

    Having said that, and having observed what happens in Central Europe, newly released from Russian thralldom, as well as in other parts of Europe, including Britain, in the Middle East, in Kuwait and in Dubai, and in Asia, specifically Malaysia, I have to say that Indian banks are two orders of magnitude ahead of others in terms of speed and efficiency with regard to daily operations.

    Back to banks being villains.

    Briefly, these legal issues arising out of banking practice are due to bank imposition of unequal terms and conditions on small borrowers, and resort to bad recovery practices when they need to call in debts; their fawning on big business, due to reasons which all will recognise without any further elaboration; and due to the excesses committed by politicians in their periodic debt-waiver campaigns (Janardhan Poojary being a particularly gross example), as well as the shallowness and inadequacy of the capital market system until a couple of decades ago. Needless to add, with the burgeoning of the capital market system, not only has money raising become easier, its servicing and enforcement of good practices has become more difficult, and a good lawyer can expect to earn a lifetime’s worth of fees on matters related to corporate law.

    Another factor which may not be evident readily but kills the Indian legal system a millimetre at a time is the inevitablity of the Indian government or the state governments going on appeal.

    Generally these cases are due to the bad structuring of statute; while the richness and variety of contract law practice has undoubtedly gone up and the law of contract is flourishing in India, the corresponding British, originally English habit of careful construction of statutes, with clear preambles and introductions laying the ground and body of the statute well-structured with a keen eye on practical application, has become a pale shadow of its former self. The securitisation act was mentioned earlier; this is such a stupidly framed act that recently the Gujarat High Court, fuming and evidently deeply contemptuous of the ways in which it was implemented, as well as its inadequacies in regard to specific detailed implementation, has struck down critical portions, with the result that the whole act is now under appeal in the Supreme Act, where the Court will have to repair both the act and its implementation, typically being forced to act in a capacity for which it was never designed.

    And idiots then carp at the Indian legal system, based on a superficial understanding and knowledge gathered apparently from a jaundiced reading of the daily papers, apart from the predisposition to run down whatever they have left behind.

    But that apart, government habit is to go on appeal, and to appeal at every stage until the Supreme Court refuses to grant a hearing or an appeal. This accounts for the 99% blockage of arteries that affects the judicial system. Fortunately, as the system gradually grinds to a halt, it has become evident that this idiocy cannot continue, and government is now looking hard at its habit of knee-jerk appeal.

    It is instructive to note what percentage of Indian case law is accounted for by the iniquities of banks – not the banking system, but banks – and by the ghastly mess created by government.

    This breeds delay, and delay breeds corruption. If we get better drafting of statutes, better and more equitable loan documentation by banks, better and civilised recovery procedures and specific and pointed attack on rogue bankers and their rogue clients, one part of the case law that you refer to will be freed up. If we lay down the rules relating to government departments preferring appeals, with a strict budget on legal expenses, general and specific to litigation, and a telescopic system of court fees, making each successive appeal a more expensive proposition ONLY FOR THE GOVERNMENT, then vast amounts of court time will suddenly be released. This two programmes will have a huge beneficial effect on court effectiveness and efficiency.

    Touching on the richness of practice and the readier availability of good writing on Indian legal practice and the law, it has to be acknowledged that there has been a purposeful striving for development of new methods, new institutions and new directions which have been very good for the country. It is this mesh of administrative initiative, of legislation, of institution building – SEBI and the IRDA are cases in point – of creation of deep capital markets, and of release of what Manmohan Singh called the animal spirits of entrepreneurship that led to Infosys and WIPRO, also, let it not be forgotten, the often-neglected bull-elephant, Tatas itself, including TCS. That there are blemishes in this growth, nobody will gainsay. But your account is an opportunity to stand and take in this refreshing positive gain that we have had in the post-Narasimha Rao decades.

    About the reasons for this not taking place in another state, I am wholly unable to form an opinion. I simply don’t know enough, not about the banks, not about legislation and the wording of statutes, not about the money markets, not about corporate borrowing and lending, not about individual borrowing and lending, not about securitisation, not about the conduct of courts and the management of appeals, not about anything that would allow a reasonable comparative analysis.

  16. Dastagir

    Yassir : You gladened my heart., and your base tagline “Raja Rammohan Roy vis a vis Sir Syed” is perfectly put. I do not know whether i need to elaborate further on what you have so wonderfully expounded.

    Muslims never had control of “economy” even during the 700 year rule of kings who had Muslim names (Research and read : Economy during the mughal empire). In plain language, the economy of undivided India was always in Hindu Hands.

    This post would become lengthy, so i better halt. Even today, if you look at the 53 muslim “societies” (called as countries); you will realise that Muslims are NOT in control of their economies, even today ! They dont have economy(ies) at all, Yassir. What they do have are Malls., and well stocked shops (“Mall Economy”). They are traders, not “manufacturers of goods and services”. You will see that Muslims are end-users., and have not produced or invented anything over the past 300 yrs.

    Teen sau saal se hain Hind ke may-khaane band !

    We have no originality of thought. We have not invented anything. We have not produced any world class institution. We are living a dead existence for the past 300 years. This is a fact.

    We had a great thinker like Sir Syed., who died a hundred+ years ago. In India., every single year., they are producing a Sir Syed. Since 1947 to date., they have produced 65 Sir Syed’s. Who are they., and what have they done.

    I can produce a list., of what these Annual Sir Syeds (who are all Hindu) are doing ! The great work of Institution Building that is changing the landscape of India.

    Muslims built homes and palaces. Hindus built “Institutions”. There is a definite difference of world-view. Probably due to the “Musafirkhana Theory”, muslims do not take interest in worldly affairs like “Economy”, “Commercial Law”, “Research”, “Science and Technology”, and institution building… whereas the Hindu Worldview says… “This world is the begin all and end all… and once you are dead., you come here again to accomplish the unfinished task ! So they bind the mind to this Mother Earth”.

  17. Zainab Ali

    Lack of intellectual brain power is quite evident in our society, which is perhaps the only reason for our failure.