When we paint law on our layman canvass, we either shade it green–something that should be promoted and celebrated–or red–something that should be demoted and discredited. This green/red dichotomy means that our understanding of the law is bound up with our everyday experience of law between benefit and harm. For those who benefited from the law, it is a pursuit worth pursuing. On the other hand, for others who got harmed in its presence, it is a useless enterprise worth criticism and overhaul. These conflicting experiences of law have led to its variants. Here, we have the likes of St Thomas Aquinas, who contend law as the promulgation of those who care for the community. On the other hand, there are others, like Karl Marx, who mock at the disguised oppression of law and ask if it is anything other than the oppression of the vulnerable at the hands of the bourgeoisie.
Whether we like law; credit it or even think of it as reciprocal or authoritative, this unending struggle is much dependent on the extent, to which law has been able to redress our problems.
As such, it is no wonder then to see in our own country a divided picture of law between Sara Malaki and Asim Sajjad Akhtar. Ms Malaki wrote a column for Dawn in 2019; celebrating the first conviction of the domestic violence perpetrator in Karachi. She drew our attention to the Domestic Violence Act 2013 (DVA), under which the Sindh Court had sentenced the husband to six-months imprisonment and a fine of Rs 45,000 for committing physical, psychological and sexual violence against his wife. On the contrary, Mr Sajjad wrote a column for Dawn in 2018; pressing for better protection of the law for rape victims like Zainab by pointing out that law would remain “an instrument in the hands of tyrants,” until the convictions of culprits are multiplied.
To many, this is a contrast between the just and unjust experience of law. On first look, it is just this. On a closer look, it is something more. The addendum, as a few rightly pointed out, is in the conceptual separation between the laws’ effectiveness (citizens’ obedience of primary laws) and laws’ validity (officials’ acceptance of secondary laws). For Malaki, DVA is a primary law as it puts a duty on the male members of our society to not inflict domestic violence “on women, children and other vulnerable persons,” with whom they have a “domestic relationship.”
Under it, if the males abstain from the proscribed conduct. They obey DVA and ensure its effectiveness. At the same time, if they flaunt it, they defy it and make it ineffective. This lack of obedience and dearth of effectiveness, however, has no impact on the validity of the law, that is, it does not make it unenforceable or non-justiciable. It does not free courts from employing it and making decisions in its light. It requires the courts to frequently adjudicate upon cases of domestic violence and give punishments under its garb.
It is precisely this function of the state apparatus that Mr Sajjad calls for when he says that laws should not be dead instruments; left un-attended by those whose duty was to apply them. Instead, they should be active catalysts in the present case and its likes for the courts to reconfigure our legal canvass with frequent convictions so that citizens’ image of the tyranny of the few is substituted with the care for all under law.
It is, therefore, the legal duty of the courts, to frequently and immediately, invoke laws and award punishments, thereof, so that the validity and protection are better guarded.
But as experience tells us, this move alone will not suffice for change as it takes two to tango. It is, thus, the duty of the citizens to share the burden of responsibility with state functionaries by adopting lawful behaviour so that the burden of the delivery of justice is counterbalanced with the burden of the delivery of responsibility. Until this Janus-faced commitment to law is adopted, our experience of law would be a grotesque picture; stained with the innocent blood of victims.
The writer is a law graduate of the University of London and teaches Jurisprudence & Legal Theory