104
legal culture and animosity to the USA. Second, a response to established and
conservative beliefs of key actors in legal practice (the intelligentsia, judges, lawyers)
about the adequacy of the current system and the possibility of change. Both can
be the foundation for changes in law reform practice.
A wider perspective in the practice of constitutional reform
The wider perspective is represented by the use of the USA as a comparator. The
researcher has observed a reluctance in the Pakistani intelligentsia, particularly in
the right wing parties, towards adopting the ways of the USA. His findings provide
an opportunity to challenge this animosity against
the USA that is prevalent
amongst politicians, members of the judiciary and constitutional lawyers.
The researcher is fully aware of the place of Islam in Pakistan's culture, after all the
country was created in the name of Islam, where the Muslims of India could live
according to Islamic practices and customs. The constitutional instruments
discussed in this thesis, therefore, throughout the history of Pakistan enshrined
basic Islamic principles and elevated them to a position of untouchability.
Principles
of Islam, therefore, transcend,
rather than impact on, the stability or
otherwise of individual governments.
Further discussion about the state religion is beyond the scope of this thesis since
the place of religion is not effected. Nevertheless, none
of the reforms proposed
through this thesis clash with Islamic virtues. The researcher, therefore, suggests
that constitutional reforms are possible, and that using a template taken from the
USA does not prejudice Pakistani autonomy or religious culture. This is because it
is only a template, which can and should be adapted to Pakistani culture where
Islam is given a superior place.
A response to conservative beliefs of key actors that can be the foundation for changes
in law reform practice
105
The conservatism is represented first by an allegiance to the British legal system as
a post-colonial legacy Key local legal instruments i.e., Civil Law,
410
Criminal Law
411
and Law of Evidence
412
are those drafted and enacted by the British rulers.
Second, there is an inherent reluctance to be open about the idea of adopting a
presidential form of government. It is assumed that any presidential system must
be that of General Khan (at 4.3.3). There are fears about despotism. Here too the
use of the USA as a comparator demonstrates that key factors of its system such
as separation of powers and checks and balances in the context of political system
are capable of addressing this concern. There are also fears of change, based on an
assumption that since the current constitution
was reached by consensus, any
proposal for change would be strongly opposed.
The researcher’s approach, however, demonstrates that such fears can be
addressed. The country does not have to abrogate
or subvert the constitution
entirely as a small number of constitutional amendments can address these issues.
As an experiment, therefore, this thesis provides an example of the use of a wider
and more creative perspective in constitutional reform, which can be adopted by
lawyers or politicians as an enduring part of their practice as reformers. This then
links with the final recommendations for policy and future research, designed to
further the contribution to practice represented by this thesis.
Dostları ilə paylaş: