Effect of British colonization on Pakistan's legal system: An under looked aspect

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Effect of British colonization on Pakistan's legal system: An under looked aspect #0 Effect of British colonization on Pakistan's legal system: An under looked aspect #1 Effect of British colonization on Pakistan's legal system: An under looked aspect #2 Effect of British colonization on Pakistan's legal system: An under looked aspect #3 Effect of British colonization on Pakistan's legal system: An under looked aspect #4 Effect of British colonization on Pakistan's legal system: An under looked aspect #5 Effect of British colonization on Pakistan's legal system: An under looked aspect #6 Effect of British colonization on Pakistan's legal system: An under looked aspect #7 Effect of British colonization on Pakistan's legal system: An under looked aspect #8 Effect of British colonization on Pakistan's legal system: An under looked aspect #9

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2017 Effect of British Colonization on Pakistan’s Legal System AN UNDER-LOOKED ASPECT AYESHA MAJID Effect of British Colonization on Pakistan’s Legal System 2 1. Table of Contents PREFACE ............................................................................... 3 2. 3. BACKGROUND............................................................. 4 COMMON LAW ........................................................... 8 INTRODUCTION .............................................................. 8 COMMON LAW’S PRECEDE ............................................. 10 UNDER NORMAN RULE ................................................. 12 Magna Carta ................................................................ 16 IV. EVOLUTION OF EQUITY LAW ........................................... 23 V. CONFLICT BETWEEN EQUITY AND COMMON LAW ................ 24 VI. COMMON LAW AND EQUITY TODAY ................................. 26 VII. COMMON LAW ELSEWHERE IN THE WORLD ................... 26 VIII. OTHER LAWS MERGED IN ENGLISH LEGAL SYSTEM ......... 28 I. II. III. 3. BRITISH INDIA’S LEGAL SYSTEM ................................ 30 4. PAKISTAN’S LEGAL SYSTEM ....................................... 35 COURT SYSTEM ..................................................................... 36 SOURCE OF LAW IN PAKISTAN .................................................. 42 5. BUSINESS LAW .......................................................... 44 BUSINESS LAW INTERNATIONALLY ............................................. 45 6. CONTRACT LAW ........................................................ 48 7. TORT LAW ................................................................. 49 8. TAX LAW IN PAKISTAN .............................................. 51 9. CYBER LAWS IN PAKISTAN ........................................ 68 ELECTRONIC TRANSACTION ORDINANCE 2002 ............................ 68 ELECTRONIC/CYBER CRIME BILL 2007....................................... 70 PREVENTION OF ELECTRONIC CRIMES ACT (PECA) 2016 .............. 71 PUNISHMENTS FOR CYBER CRIME UNDER JUDICIAL PRECEDENCE:.... 74 10. CONCLUSION............................................................. 76 BIBLIOGRAPHY ................................................................... 78 Effect of British Colonization on Pakistan’s Legal System 3 Preface This volume will be discussing the effect of British colonization primarily on Pakistan’s legal system but before that we need to know about the evolution of common law; as the impact of colonization is on both legal systems’ development. Secondly not only British legislation but the history and politics revolving around legislation making has its marks on the evolution of Pakistani Legal System. This book will start with the creation of common law, its evolution under Imperial British Rule and then its adaptation by the Pakistan upon independence. Effect of British Colonization on Pakistan’s Legal System 4 2. Background The British rule had a lasting Sway on the lives of the Pakistani people. They exploited the Subcontinental territory for their own interests and left the land in more disorder and confusion than they found the inhabitants of the land in. Once called “Golden Sparrow” by the traders of its time is now a poverty driven land. It is said that during its glorious time it was a land treasured by the emerging powers like France, Britain, Portuguese; which is the very reason that the British Monarchy supported the later wellknown company East India Company for a trade expedition to Mughal India then ruled by “Bad-shah Aurangzeb”. The glorious days of the Golden Sparrow were ending and the last blow was delivered by the British monarchy. The reasons for the crushing effects of post-colonial dilemma on natives of Pakistan are numerous but the following are the major ones. The ethnocentric practices of Brits led to shattering of its subjects’ confidence and pride in their own ethnicity creating a society, which is, till date xenocentric from its very roots. Secondly, their agrarian revolution did not help improve yield and caused landholdings to become more fragmented creating further divide and castes. Thirdly, construction of railways although improved transportation and infrastructure permanently however it was not done keeping the Indian interests but the British interest of boosting in their industrial race with the European powers. Fourthly, though a global system of English education was introduced which led to the downgrading of the local education systems like madrasas’, in the long run it also lead to the creation of hierarchy in the educational Effect of British Colonization on Pakistan’s Legal System 5 institutions’ which now in local jargon we refer to as English-Urdu medium divide. Macaulay’s aim was to create a nation of clerks, half westernized, half native, who could economically man the offices of the British Raj. Much of the weakness of the education system still stems from Macaulay’s attempts at reform. (Hussein, 1997) Fifthly, the Indian industry was not protected and many traditional ones were ruined. Moreover, the new political system which lacked personal element was not more effective than the old one. Perhaps the bitterest legacy of colonial rule is the scar left on the people’s psyche. Indians had been used to regard rightly themselves as a highly evolved and intellectual people. British officials treated Indians with undisguised contempt. This treatment was especially offensive to Muslims who for centuries past had been used to receiving special honour and privileges. (Nadia Saleem, Faqiha Rizvi, 2011) When the British came to India it was in a state of anarchy and hatred for each ethnic group was sprouting, as each kinship fought for imperial power to opportunize the nearing demise of Mughal Empire. In his book, Jawaharlal Nehru comments with his characteristic sarcasm that “We are often reminded, lest we forget, that the British rescued India from chaos and anarchy” (Nehru, 1961) Before the British law was implemented, a more personal form of justice existed in the subcontinent. Civilians went to the durbars of the ruling classes with their issues and they were settled according to the personal judgment of the ruler. India has a recorded legal history starting from the Vedic ages and some sort of civil law system may have been in place during the Bronze Age and the Indus Valley civilization. The prominent legal systems that existed in the area were, Arian norms, Gupta Empire’s Effect of British Colonization on Pakistan’s Legal System 6 judicial system, Law administered by Sultans of Delhi Sultanate and Mughal Empire. Law was a matter of religious prescriptions and philosophical discourse. Hence had an illustrious history in India. Emanating from the Vedas, the Upanishads and other religious texts with varying interpretation from Hindu philosophical schools and later by Jains and Buddhists. Secular law in India varied widely from region to region and from ruler to ruler. Court systems for civil and criminal matters were essential features of many ruling dynasties of ancient India. Excellent secular court systems existed under the Mauryas (321-185 BCE) and the Mughals (16th – 19th centuries) with the latter giving way to the current common law system. The English Orientalists were supportive of adhering surviving Indian law prevailing to a degree in India and revival of ‘ancient Indian constitution’, thus components of this law were continuously added into the constitution. Any endeavour to mess with nearby custom would have brought on a hullabaloo and to the English, this was not worth the trouble. British Imperial Strategy for India favoured Orientalism as a technique for developing good relations

 

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