Mechanical and uncritical understanding of law as command (order) permeates our whole legislative process. Faced with any difficult situation, we immediately think of an 'appropriate' law as the solution, rush to enact the law and end up bemoaning that people do not follow the law or that the enforcers of laws (police and the like) are not doing there job properly.
The Ministry of Home Affairs issues gun licenses and any license issued, understandably, can be revoked and cancelled. Like any other period, a number of gun licenses were issued during the first six months of 2001. The political difference between now and those six month, obviously, is that the ruling party then was different from the ruling party now, in 2002.
The present government issued an order a few weeks ago directing surrender of those guns which were obtained on the basis of licenses issued during the first six months of 2001.
This was an order and the order was issued for understandable reasons. Guns are seen to be threat to the 'law and order' situation and more so if the assumption is that licenses for guns during those six months were issued mostly to 'wrong' people (though they were the right people then). Hence, those persons should be made gun-less (the licensed version). But in response to a writ petition filed, the high Court has now decided that this was an order, which was outside law order without law.
And then we have laws which are amended and changed so frequently that any order (order in the sense of orderly regime) under these laws is almost impossible For example, the law concerning the prime strata of our local government systemUnion Parishad was amendment ment some changes in the power, function, duration of or election to these bodies. such laws succeed more in creating disorder rather than anything else.
No wonder, in such a milieu of order without law and law without order, most of our effort towards a better 'law and order' situation are more replete with failures and frustrations then successes.
Our obsession with law and order probably stems from hangovers from the colonial and marital eras. Administration, unlike 'governance' of these days, primarily meant that the rules would faithfully follow the commands of the rulers and such commands strove to ensure 'order' as discipline. A disciplined society was the epitome of a successful society. However, such notions of 'disciplined' and 'ordered' society presupposed unquestioned submission of the ruled to the orders issued. When the ruled did not have much of an opportunity to question the command, they are compelled to follow those, primarily under the threat of sever punishment.
At the end of successive colonial eras (the British and Pakistani varieties). The ruler, though of the 'native' ilk now, continued to follow the rule, command and order model of administration. Hence our preoccupation with 'law and order.' These are always so many meeting and deliberations on and by the various 'law and order' committees, from the cabinet-ministerial level to the local administrative levels at all times during all governments' rules that we are accustomed to 'law and order' as the central failure of all administrations.
The problem, to my mind, is that most of our laws are without order and orders are without law. We have been taught to understand law as command, i.e., in total isolation from the underlying rationales, social context and notions of acceptability of law by the people for whom these laws are made. Our laws are laws without society, without economy, without history, without custom and, above all, without any need to gauge whether these law reflect the popular notions of what is just, what is right and what is acceptable.
This mechanical and uncritical understanding of law as command (order) permeates our whole legislative process. Faced with any difficult situation, we immediately think of an 'appropriate' law as the solution, rush to enact the law and end up bemoaning that people do not follow the law or that the enforcers of laws (police and the like) are not doing there job properly. From this 'order' mode of understanding laws, we assume that whatever command has been issued will be obeyed. Our notions of laws does not encompass any though about whether the people are wing or ready to accept and obey such laws.
The underlying premise of all these legislation is the simplistic notion that since I or we (military ruler, President or President or Parliament) have the authority to enact laws and I/we shall command the people to obey. No wonder people do obey the laws.
The 'obey/command' paradigm, as indicated, was the frame of reference of the colonial rulers and for them it could not have been otherwise. Colonial rulers, by definition, were not supposed to be concerned about the well-being of the colonized people nor could they not that they did not try occasionally understand the norms, mores and, most importantly, notions of right and wrong, just and unjust and fair and unfair of people of a society which was very different from theirs. Imagine a situation in wh8ch our Parliament is asked to legislate for the British people. We do have some ideas about the British, but not certainly enough to know what is important, passionate, and vital and so forth in the daily lives of ordinary English persons. In such a milieu, a command approach to law whatever I enact must be obeyed would be the only practical solution as such a notion absolves me from the tedious and difficult task of trying to understand which laws would be acceptable to and hence abided by the English people.
The understanding of law as command adopted by the colonizers have been internalized by us and we as law-makers, judges, lawyers, teachers and students are still seeped in the command understanding of law.
II
No wonder that such laws fail both in terms of being followed as order and to create and 'orderly society which is predictable in terms of it's behavior. There is hardly anything predictable for us. The primary culprit for this failure of predictability is not the 'enforcement mechanism' but the 'order' that this mechanism is supposed to implement.
A good recent example would be the banning of polythene bags. It just been a few weeks and all indicators are that these harmful bags have virtually disappeared from the Dhaka markets. Why? And why couldn't the same success be achieved vis-a-vis other harmful object pehensidyle would be a good example of the 'banning/prohibition failure.' It would not out of place to mention that the USA had prohibited alcohol through a constitutional amendment in the early years of this century, leading to the rise of Mafia and not the disappearance of alcohol> After a decade another constitutional amendment lifted the prohibition (banned the ban). The prohibition came and went, but mafia created by the prohibition survived and flourished for many more decades.
The American prohibition failed and our traffic laws don't work not because of the failures of the 'implementation mechanisms' (ineffective and/or corrupt police or traffic sergeants, though they do contribute to the failures) and, conversely, the poylthene ban is working not because the police is really effective or vigilant about polythene users. Some orders work and some don't primarily because, as in the case of the first two example above, people were/are not willing, or at least a sufficient number of them, to follow the 'order', while the second (polythene ban) is working precisely for the reason that people are convinced that this is an order which they should flow. The dissuasions, deliberations, and propaganda to a certain extent, before the polythene ban did go a long way in convincing the people of the harmful effects. These, as it were, 'awareness campaign' was buttressed by quite a long earlier efforts of environmentalist groups against polythene.
How often can we cite examples of an 'order' which was issued through, on the one hand, genuine discussion, deliberations and campaigns and, on the other hand, also reflected popular notions of what is right and what is wrong.
Malik is a lawyer and legal activist
Source: The Daily Star, Dhaka, February 13, 2002