Every once in a while it is worth pausing to reconsider certain facts of life that we have almost always taken as given. Particularly because of the conflict over Pakistan’s Legal Framework Order (LFO) recently, there have been numerous ‘liberal’ voices lamenting the subordination of the rule of law by unelected and unaccountable forces.

Those who have protested against General Musharraf’s undermining of the formal democratic process through the LFO amendments have been absolutely right in doing so. After all, it is very difficult to argue that unaccountable military rule is in the best interests of the Pakistani people. But, at the same time, we ought not to be apologetic in revisiting the concepts of law, constitution and the whole Western parliamentary model. It is a shallow reading of history that assumes such concepts are indigenous to this region.

Prior to the arrival of the British in the subcontinent there had never been a formal, centralized administrative state structure in the region. The Moghul Empire, for example, was quite fragmented and facilitated a great deal of local autonomy, in contrast to the vertical linkages the British later created. The unitary state is very much a recent historical construction in the subcontinent, but one that left largely intact a complex web of hierarchical patronage at the local level. The potwari (revenue collector), zamindar (landlord) and a variety of state functionaries became the crucial intermediaries for the British in the colonial era. Many retain their privileged status today because of their ability to regulate the distribution of basic goods and services.

It was in this context that the previously alien concepts of formal legality and private property were introduced into the subcontinent. These institutions were arms of an overarching state that exercised ultimate authority over its citizen-subjects. The colonial state around the world introduced a social contract founded upon the extraction of wealth, and therefore all of its institutions served this purpose in one way or another. So, for example, private property facilitated the massive system of revenue collection, particularly in rural areas, that kept the British exchequer overflowing for over a century. The effects of this on the livelihoods of the majority of subsistence growers across the country were acute, with previously self-sufficient and closed regions exposed to food shortages and the pressures of external markets in a way that would previously have been unimaginable.

The system of jagirdari (feudalism), on the other hand, consolidated the influence of local élite groups that were willing to facilitate colonial extraction, exacerbating parochial caste identities. It is interesting that, in spite of this, Western-influenced leaders of the Indian independence movement, such as Nehru and Jinnah, paid tribute to the Western liberal tradition for awaking India from its ‘backward’ and ‘obsolete’ traditions and customs. A more accurate appraisal of the introduction of the Western liberal tradition to the subcontinent would include mention of the fact that it contributed to mass pauperization, and to the establishment of a centralized state structure largely exempt from accountability to the people of the region.

To be fair, Jinnah and Nehru – among others – also saw colonial rule to be exploitative and intrusive, which explains why they led independence movements. But the crucial question that must be asked is to what extent the political independence from British rule gained by these leaders actually translated into meaningful changes in the lives of ordinary Indians and Pakistanis. In other words, to what extent the systems of exploitation that had developed during British colonization were unravelled by the new independent states.

The answer to this question, unfortunately, is that very little changed. The Pakistani state today operates largely on the basis of the same social contract that characterized colonial rule. The relationship of the state to its subject-citizens is strained at best, because the state continues to extract wealth rather than create it for the benefit of ordinary people. For example, land continues to be conceived of as a means of revenue extraction, rather than a source of livelihood and cultural grounding for the people that live on it. The state regularly employs the colonial Land Acquisiton Act of 1894 to take over land forcibly and displace local communities, often in the name of ‘development’. If such ‘development’ is legitimate, why didn’t we just leave the British in power?

Other colonial laws are still very much in vogue. The 1912 Land Colonization Act, for example, gives incredible powers to the armed forces to occupy land for the purposes of horse and mule breeding. When it was enacted the law catered to the British Indian Army’s imperial purposes. Today the law is far less relevant to the military needs of the armed forces but continues to be used gratuitously by General Head Quarters for the personal benefit of retired officers.

Other natural resources – including forests – that provide the livelihood base of many people are still subject to colonial extractive laws. Property laws are still vested in the so-called liberal tradition but in the context of a colonial state – thereby rendering ‘liberalism’ largely redundant.

In any case, the ‘liberalism’ being considered is Western liberalism, not a tradition that has its roots in local histories. One need only consider the fact that the ordinary Pakistani remains terrified of the prospect of having to interact at even a basic level with any of the institutions of the state – including the thana (police station) and katcheri (court) – to ascertain the actual function of the state in people’s lives. When the law itself is oppressive, who in their right mind would want to seek solace in it?

The relevance of this analysis to the present day is far greater than is typically understood. Consider some contemporary social and political conflicts between the ruling élite and ordinary people, such as those of the landless tenants on state land in Punjab, or katchi abadi dwellers (squatters) ‘trespassing’ on state land across the country. Why is it that we question the legality of those who must surely still be categorized as subjects of an exploitative state, rather than question the legitimacy of the state itself? How can we possibly trust the courts to dispense justice when they have proven time and again that they are far more committed to preserving the inordinate power vested in the state?

If the questions that our ‘liberals’ ask are limited only to how to restore the rule of law, then they are subscribing not only to a social contract that gives licence to the state to engage in exploitative relations with citizens, but also to a global social contract in which exploitation is enshrined in ‘legal’ codes, such as those of the United Nations system. Just as the post-colonial state in Pakistan is hardly different from its colonial predecessor, so the international system is neo-colonial in nature, with the US empire leading the line.

It is the fact that a very small élite in this country took over the reigns of power from the British in 1947 that has ensured that we have remained economically dependent on the imperial countries of the West. Our own home-grown radical thinkers, such as the late Hamza Alawi, have pointed out time and again that we must face up to all of these realities and then accurately identify meaningful responses. But intellectual honesty is hard to come by these days.

When the law itself is oppressive, who in their right mind would want to seek solace in it?

It is a great tragedy that the political élite in Pakistan, as represented by our mainstream political parties, has never truly attempted to challenge the domination of the state élite. If anything, our mainstream parties have taken turns to secure a small share of the pie that the state élite – primarily the military – has always controlled. Indeed, many of our parties are composed of élite interest groups, including the old landed class, the nouveau-riche industrial class and the religious clergy, all of whom are typically as threatened by the prospect of an overhaul of the post-colonial state as the state élite itself.

That being said, there can be no doubt that opposition to the LFO is the immediate political battle of our times. This is because the military is the main pillar of the authoritarian state. There can be no recourse from the institutions of the state until and unless they are separated from the interests of the military. It matters little why, for example, the Pakistan People’s Party (PPP) of Benazir Bhutto or the Pakistan Muslim League (PML-N) of Nawaz Sharif are still standing firm against the LFO – just that they continue to stand firm. Their past histories in terms of collaboration with the military are not reassuring. Nonetheless, it is never too late to oppose the establishment.

It cannot be assumed that the nature of the state will be altered if and when the military is banished from the central role it currently occupies. The future of the Pakistani state lies very much in the hands of Pakistani society. ‘Liberal’ thinkers notwithstanding, there is very little hope or legitimacy associated with the prevailing social contract. If it is accepted that the process of decolonization is an ongoing one, there is at least some hope that we will take the necessary, if often painful, steps toward freedom.

Aasim Sajjad Akhtar is a political activist, writer and teacher associated with the People’s Rights Movement (PRM), a non-partisan political confederation of social movements in Pakistan.

This article is from the May 2004 issue of New Internationalist.

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