‘Loud’ Rights in a ‘Shallow Democracy’: A Structural Analysis
I picked up my daughters one by one from their cots to the courtyard of the house and slaughtered them. I had learnt over time that I would never be able to generate enough resources to give honourable lives to my daughters.[1350]
Of course, the event referred to in the quote is disturbing, but I am concerned with its interpretation.
The statement that, “I had learnt over time that I would never be able to generate enough resources” shows that poverty is deeply structural. There is a helplessness that settles in after decades. What role can ‘hope’ play, the buzzword courts used to justify Public Interest Litigation? The man is questioning his “ability” to “generate enough resources” and charity in the form of legal aid and court directions are not his issue. He points out the relation of “enough resources” and “honourable lives” and not a mere ‘right to life’, as is romanticized by the judiciary in the Shehla Zia case.In Pakistan, Public Interest Litigation began with the court intervening in political matters like the Benazir Bhutto case and the Khar case of 1988. It started with these ‘high profile’ political cases and, after a few gestures of being for the ‘public’, became a tool in the hands of the privileged legal players. New business opportunities in Public Interest Litigation have led new lawyers to become interested in it, and it became the focus of the middle class in the 1990s.[1351] After more than a decade, it intervened in issues in non-class terms around women, widows, orphans, children, condemned prisoners and other deserving persons as ‘weaker segments of the society’.[1352] My question is, is it possible to approach class issues through Public Interest Litigation?
5.8.1 Bonded Labour
Starting from the Darshan Masih case, the issue of bonded labour is unresolved, even in neighbouring India.[1353] Menski’s post-structural defense of Public Interest Litigation is that while South Asian middle-class activists and their Western supporters had never seriously put themselves in the feet of a bonded labourer in ‘South Asian conditions of life’, that should not be an excuse.
At least the courts stood with the disadvantaged and argued that more resources should be directed to them.[1354] However, this does not explain the actual place of law in social change.In Pakistan, activists and social movements adopted Public Interest Litigation from the very beginning in the Darshan Masih case?'5'8 To end the issue of bonded labour, they adopted extensive legal means, but they also joined hands with the Pakistan Mazdoor Kissan Party (or the Pakistan Workers and Peasants Party) to fight the issue from a political base.[1355] [1356] In the 1990s, these movements started relying on foreign funds to establish schools for the children of the bonded labourers and to fight legal battles. Slowly, the leadership of these NGOs left the class struggle political debate and the class itself (the class position of the bonded labourer). The focus became for them to help the poor and their rights only. This departure by political and apolitical NGOs was complete when the Pakistan Workers and Peasants Party decided to step back from the bonded labour NGO movement, which was fully indulged in accepting foreign fund assistance. After sometime, foreign funds dried up for bonded labour activities, as the priorities of donor agencies changed to women rights, the environment and consumer protection for emerging markets by the end of the 1990s. Foreign funds moved directly to decentralization under good governance in 2000s. The lack of funds in bonded labour projects resulted in infighting between groups of NGOs, further reducing the interest of the middle class and petty bourgeois NGOs in the issue, as these classes were more interested in ‘good governance’ decentralization. Courts, as a part of state formation, responded accordingly. According to Ghulam Fatima, General Secretary of the Bonded Labour Liberation Front-BLLF, there was relief given in the Darshan Masih case, but this was just a decision. 5.8.2 Gender and Public Interest Litigation The most highlighted contribution of the judiciary was its protection of the right to property for women.[1361] The constitution of Pakistan gives ample opportunities for women’s rights,[1362] but they are not enforced.[1363] The judiciary, being part of the social formation, also carried the prejudices of a male-dominant society. The problem exists at every level of the judicial structure. Female judges are not given proper courtrooms, residential facilities, medical facilities or promotions by the male-dominated judiciary. senior. At the same time, judges used plural legal frameworks to remove the rigours of the laws adopted in the name of Islam.[1373] The judiciary did not touch the Hudood Laws, but no one was executed and the courts did not convict anyone. Doctors refused to do amputations.[1374] According to Samar Minallah, the judiciary played a proactive role in abolishing the customs of Swana, Vanni or Sang Chatti,[1375] which are ‘culturally sanctioned forms of violence’ and an abuse of fundamental rights by Panchayts or jirgas, who claim the customs are “an indigenous means of alternate dispute resolution mechanisms”.[1376] The judiciary in Pakistan strongly stood against the Jirga presenting itself as a ‘modernist’ force. Let us then turn to the potential for women’s emancipation in Public Interest Litigation. Suffice it to say that, in Pakistan, 80% of rapes are never reported and only the most resilient and resourceful go for to file a First Information Report-FIR.[1380] Secondly, the following factors reduce the relief further: Gender bias in judiciary itself What percentage reaches the higher judiciary? What percentage of cases the court takes notice of What percentage it can implement the decisions To what extent legal relief is relief when social, economic and political relief are not available, Even in those cases which were reported and persuaded on behalf of weak and very poor,[1381] the actual motivators have been NGOs for the last two decades. The media also claims credit as in Mukhtaran Mai case.[1382] So, one is compelled to conclude that activism and political struggle are the saviours, not the judiciary. Even when these activist groups go for relief to these judges, it is a minor part of their own work. Women’s rights activists had to fight against the judges and their conservative approach. Thejudiciary does not only refuse today’s NGOs when they go for broader political aims, they can also suffer the reduction of their funding. Let us recall Alavi’s analysis in the very early days of the women’s movement in Pakistan.[1383] He condemned the Left view of the women’s rights movement as bourgeois elitist,[1384] and he gave a class analysis of the movement and its different layers. The agricultural Green Revolution relieved peasant women from outdoor work but increased repression on them within the household. He commented on how women’s income in middle-class families presaged a restructuration of family life and redefinition of moral values. “The whole problem arises from the crisis of middle class and lower middle household economy”, he argued. For him, respect and dignity are middle-class concepts.[1385] Working class women were less involved in women’s rights movement. He felt the need to find ways to go beyond the “confines of the salaried urban middle class and lower middle class women and to work for mobilizing women for the wider sections of society”.[1386] To bring the story to the present, opting only for law-centred and legal struggles also says a lot about the women’s movement in Pakistan. Excessive legal struggles do not show the strength of the movement, but the weakness of class struggle and their thin mass base. 5.8.3 Public Interest Litigation and the Environment The biggest claim for success by Public Interest Litigation is in the area of environment. Dr. Pervez Hasan, a pioneer in this area,[1387] [1388] [1389] evaluated the Shehla Zia case. For him, Pakistan has among the most advanced environmental laws 9 but nothing has happened on this front due to “a wide gap between legislative goals, declared national policies and their implementation”.[1390] This gap between policy and implementation is highlighted in the good governance discourse, and the problem is reduced to a ‘governance’ issue. The Shehla Zia case exemplifies the policy and implementation gap. Shehla Zia’s life was endangered by the electromagnetic effects of a high voltage transmission line designed to go through a posh area of Islamabad; thus, the court ordered an end to the construction. While Shehla was not interested in pursuing the case, however, money was spent by NGOs, as well as the Pervez Hasan, who represented both local and international corporations that pollute the environment, and was appointed as amicus curie?[1391] As opposed to this, the actual lives of millions are endangered when slum dwellers are moved from state land under the high voltage wires. From the Environment Commission in the Shehla Zia case[1392] to the salt mines case[1393] to the Mahmood Booti case,[1394] the elite interest of environment cases is repetitive. But the problematic part in the analyses of these elite environment commissions is the ‘public-private’ model, which results in ‘built to operate and transfer’ investment of the private sector. This is not more that the market endeavouring to control its own excesses. 5.8.4 Conclusion I argue on the basis of previous analysis that the notion of rights as a relief for the subordinate classes has a very limited emancipatory value when the subordinate classes have no power. Subordinate classes can invoke the legal political institutions of the state but this route is usually unproductive. It results in huge costs to both parties, including lengthy delays. Lawyers engaged are parasitic middlemen (and women), and workers have found formal legal codes cumbersome and illegible.[1395] The ‘addiction to litigation’ cannot be a substitute for mass mobilization. Roti, Kapra aur Makaan (meaning Food, Clothing and Shelter)—a quote from the Pakistan People’s Party founding manifesto—was the old programme (1970s), geared towards substantive needs. The current rhetoric is one of legalism and rights and, it remains hollow.[1396] In the ‘good governance’ framework, the rule of law is posited as fundamental to a wide range of societal and developmental goals, including expanding and deepening the reach of democratic institutions, empowering the working classes and granting rights. Locally, the judiciary’s claim about its role of political development and governance rests on two connected claims. The judiciary could not defend democracy in the face of military coups but could by protecting fundamental rights. Throughout my book, I engaged with both claims in an interconnected manner in relation to political development (or governance). My analysis suggests that the judiciary has been crucial in the reproduction of state and political inequality in Pakistan. The rights discourse of the judiciary has been a poor substitute for this democratic deficit.