The language of justice

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 [email protected]

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.

Reader Comments (7)

  • Cynical
    Feb 28, 2012 - 3:39AM

    The author has highlighted one aspect concerning efficiency of judicial system and artticulated as well.
    One pitfall of this linguistic barrier between the law and it’s intended beneficiaries is the cruel and wanton exploitation of ignorant masses by the unscrupulous lawyears.

    Recommend

  • Bilal Niazi
    Feb 28, 2012 - 10:50AM

    OS, as sublime as you were in the class. Interesting finding. And we all thought that one of the purposes of law was to resolve disputes instead of making them further intractable.

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  • Feb 28, 2012 - 12:53PM

    Congratulations on highlighting one of the basic flaw in our legal systam supported throgh facts and figures. I am however, concerned WHO will change it and WHEN will it be changed to preampt the situation before its to late. Unfortunitely, its not the issue of the ones who can change it. Therefore, we all need to also think of strategy for pursuing the key stakeholder Government and the Judiciery to listen and take appropriate actions for changing the situation.

    Best

    Mumtaz Tanoli

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  • mobin raza
    Feb 28, 2012 - 10:21PM

    Right that language, education could be the elements to improve the situation however unless and until accountability is established nothing is going to happen. With education will come exposure and understanding but those who are ruling and are in position and have the power are equipped and are very well aware of the improvements required. Unfortunately the WILL is not there as it serves their purpose well in the current scenario. For eg What is stopping superior judiciary to take SUO MOTO actions on extremely exploitative actions of lawyers fraternity…. Whatever we do, we will have to approach a legal counsel for any legal advice or action as they are the experts. What is the accountability for our legal fraternity ? we currently have sacred cows around us….the untouchables….can get away with anything…… be it our legal fraternity, media or establishment and latest entry of Doctors;who just went on strike for restoration of those who are responsible for more than 100 deaths….all paid through our taxes and ruling us….As for media, they only reach out for money making ventures….if fellow country men are slaughtered in ParaChinar that must not appear in the media….because those fellow countrymen are poor and are being slaughtered by powerful Talibans…..Looking forward to more articles….keep it up

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  • A J Khan
    Feb 29, 2012 - 12:05PM

    As a matter of fact, justice system in Pakistan is all about bussiness between lawyers and Mr Justice. It has nothing to do with the Justice.

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  • Ali Taj
    Mar 1, 2012 - 4:32AM

    This is what is needed independent objective research. Great work. There is no research to speak of in Pakistan, that can enable policy making. This and more is what is needed.

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  • Syed Hussein El-Edroos
    Mar 1, 2012 - 6:28PM

    Maybe that’s the reason why people gravitated towards the “Taliban system of justice”. Swat is a case in point.People became fed up with the so called “Official system of justice”..

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