Jun 142008

As the legal profession and judiciary in Pakistan fight for a more prominent role, there is a gaping absence of debate regarding what values the judiciary and the legal profession would serve
As the American primary season wrapped up last week and Barack Obama was selected as the Democratic Party’s presumptive nominee, there was much talk about the historic nature of his rise to the presidential nomination. The iconic nature of both Hillary Clinton and Barack Obama’s candidacy has been talked about exhaustively over the past year to such an extent that it risks becoming a cliché.

However, the frequency of allusions to the “historic” nature of Obama’s nomination should not repel us from appreciating the enormous cultural shift that his victory marks in the history of the United States.

A mere 58 years ago, African Americans living in the American South could legally be refused service at restaurants, forced to sit at the back of buses, refused lodging at hotels and forbidden from drinking at the same water fountains as white Americans. The deep cultural prejudice that informed segregation in 1960s America was pervasive and infiltrated literally every segment of society. The America of the 1950s, especially the South, was an America divided starkly between black and white, representing two different courses of life, two different realities, two different educational systems. Needless to say, the thought of an African American male leading white men and women was utterly and completely unthinkable.

This was the status quo in 1954 when the Supreme Court of the United States took up the case of Brown vs. Board of Education of Topeka, Kansas, and unanimously agreed that segregation of public schools was against the United States Constitution.

The decision led the way to massive school desegregation and sparked the Civil Rights Movement. Through a series of non-violent protests that included the famous incident of Rosa Parks refusing to sit at the back of the bus, African Americans launched a mass movement that was to change the face of the United States forever.

What had started as a single decision by the United States Supreme Court was taken by the Kennedy Administration as the backbone for legislation that made it illegal for employers to discriminate on the basis of race, religion, nationality and sex in employment decisions.

Other sections of the Civil Rights Act of 1964 also made illegal provisions such as literacy tests and other hurdles that had been used by southern states to prevent African Americans from voting. As per the legislation, the Equal Employment Opportunity Commission was established and the Federal Government began investigating cases in which African Americans were denied jobs, promotions or treated unfairly on the job.

These were legal changes but their initiation represented the commencement of a debate that has dominated the energies of jurists and legal theorists around the world for centuries. Are existing laws the reflection of the culture which creates them or can they be agents of change in society?

When the Civil Rights Act was passed in 1964, few legal commentators could have predicted that it would truly change cultural mores to the extent that an African American male could become a presidential candidate. In this sense, the nomination of Barack Obama represents not simply a historically particular argument relevant only to the United States but a testament to the incredible power of law to change social and cultural mores and make a society more just.

While one must be careful to reiterate that his nomination does not represent an end to racism in American society, it does remain an incredible example of a massive cultural shift galvanised by law. In the mere space of fifty some years, a single generation, a miniscule blip on the slow moving pace of cultural development, the image of the African American male was transformed from one of inferiority, denigration, slavery and barbarity to one of leadership, judgement, wisdom and personal magnetism.

As Pakistan struggles with its own morass of legal wrangling, the mess of a judicial system repeatedly maimed by the self-interest of successive military and democratic rulers, the lessons from this experiment in law promoting cultural change are instructive.

In past weeks, many have questioned the value of law in Pakistani society where elite political wheeling and dealing dominates and where even the supposed “good guys” have only nominal claims to moral uprightness. Indeed, when law is repeatedly and consistently remade to serve the interests of those in power it loses its potency or its ability to initiate the kind of cultural changes represented by the Civil Rights Act.

In other words, the potency of law as a harbinger of cultural change and progress can only be harnessed if it is tied to a moral imperative that transcends political interests and goes beyond the gain of particular administrations.

It is difficult in the crisis-ridden Pakistan of today to gather enough optimism about the potency and power of the law as a mechanism of achieving a more just society. As Pakistan debates yet another constitutional package, with another set of amendments to its patchwork mess of laws, it is onerous to cast off the cynicism of amendments past which were also passed in the “national interest”.

As the legal profession and judiciary in Pakistan fight for a more prominent role, there is a gaping absence of debate regarding what values the judiciary and the legal profession would serve.

In other words, while mass protests are garnered toward a greater role for the judicial branch, little has been said regarding the substantive values this movement represents in terms of the possibility of actually insulating the judicial system from future interference by political interests.

Racism is America is a problem as real and daunting as problems of lawlessness and corruption in Pakistan today. The disaffection and malaise that most Pakistanis feel over the issue of the deposed judges represents a flailing belief in the power of law to result in any actual changes in the increasingly debilitated lot of the Pakistani citizen.

In understanding Barack Obama’s victory as a triumph of law as an agent of change perhaps they can reclaim the barest glimmer of hope and demand not simply the reinstatement of certain judges but rather the actual delivery of justice for the ordinary citizen.

Rafia Zakaria is an attorney living in the United States where she teaches courses on Constitutional Law and Political Philosophy. She can be contacted at rafia.zakaria@gmail.com

Source: Daily Times, 14/6/2008

 Posted by at 8:37 am

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