education and legal education in Pakistan: the glitches

This article was circulated in the National Judicial Conference held in Islamabad, Pakistan, on 9th-11th February and published in DAWN on 17th February 2007.

Education as a topic for discussion may be quite a sought after theme today. As a fact, it remains bland as ever and traipses about as it has for the last 60 odd years of our existence. Just as legislature, executive, and judiciary are tagged as the organs of the state, and the press has so by right infused itself in the system, and come to be called the fourth estate. The role press defined for itself, perhaps in all civil societies, acts as the indicator for the institutions of the countries, tempering the governance, through realism and forging public opinion on states policy. Education on the same premise, has since time immemorial, been considered the first institution of a society. Had it not been so, literary works such as Sophocles’ Oedipus, in today’s ‘moral issues’, and his Antigene distinguishing the laws of God from the laws of man, would not be the areas of study for the scholars, and prescribed in courses covering different fields of study in educational curricula 2000 years hence. Shakespeare, for that matter would never become outdated in English literature. The value is not just literary. For students of law studying his plays get a breathtaking perspective of the evolving English society reflected in his works. The judgment on Shylock’s claim on the ‘pound of flesh’. Yes, but not a drop of blood, in Merchant of Venice, resonates the developing equitable principles through the Chancellor’s Courts of Equity in the sixteenth century. A lesson to learn here is that societies which subscribed to debates on the ought-is dichotomy, and did not shun neo-Platonism as mere irrelevancy, ultimately laid the foundations of those very states which determine and define the future of our world today, however we may hate or loathe the state of affairs, and find solace in obscurantism. If we may learn something from history, that is whenever the state decides to mould the society within, the former fails and the latter ends up in anarchy. One of the critical areas where such engineering takes place is education. Unless those at the helm of affairs decide on some inward reflections, the results are already arriving and witnessed in our every day life. The rule of law has decided to fly out of our window to find better pastures and the writ of the government so far as the life, liberty, property and dignity of the ordinary citizen is concerned lies in tatters

It is not that we as a nation and as a society are any different from so many other states and societies equally passing through transitional phases. What irks is the issue why have we become so numb, insensitive, and unresponsive to own social ailments even at personal levels?

The answers may vary, but the role of the absence of “obligations” and development of corresponding “rights” vis-à-vis the state, the society, and the citizen, as a dominant factor in the present malaise cannot be downplayed. In early 1980s with arrival of neo-islamists, the first victim was law, and with it education. One subject in elementary education which caught the eye of the ruling elite was civics. It was conveniently substituted by a newly invented subject amalgamating history, islamiat, and some topics generally covering the Constitution of Pakistan and given the name Pakistan Studies. The damage caused is quite visible 25 years later. Civics as a subject provides the entrance of a young student, in the making, with the awareness of the citizenship rights, duties and obligations within a family, within the society, and takes up rights and duties as a major topic for the individual and collective endurance vis-à-vis the citizen and the state. Two generations which have completed their elementary schooling simply would have no answer to drawing distinctions between rights, obligations, and duties much less inculcate the latter two elements in their character, and learn to assert the former in it appropriate perspective. Should any blame be placed at their doorstep? How can a person be rationally expected to behave or act in a certain way, when that particular way is unknown to the individual. It thus becomes an unjust requirement. How many of our students at the graduate level are aware of or have been taught the causes of the separation of East Pakistan. Have they any particular knowledge about and would be able to distinguish Ayub Khan’s Basic Democracy, and the distinct significance of today’s local government system; perhaps 2% plus or minus another 2%. Beyond accusing the judgment in Moulvi Tamizudin’s Case and holding it responsible for all our problems, what do private and public parleys generate. Hardly any constructive conclusions are arrived at, certainly none ever seen in the media except for isolated voices such as Mr. Ardeshir Cowasjee, and Mr. Irfan Husain. The issues directly affecting our society cannot per se be assumed to be the exclusive responsibility of judges, and advocates alone to resolve, but require every educated Pakistani to be alive to and address them through participation in public debates.

Where the present day social order remains, no short cuts, no patchwork and certainly no adhocism can suffice to rejuvenate the people and make the administration responsive and responsible towards the citizens.

The first requisite is the search for possible solutions; a dispassionate reappraisal of the problems facing us is a necessary must. The first issue to be addressed is prevailing standards in the sphere of general and professional education in Pakistan and which require redefinition and reprioritization. In the first instance, education must be taken out of the casket of the compartmentalized, short term utility it has been assigned. Disciplines as Liberal Arts, Pure Sciences, and Economics must be reinstated, and re-allocated the status they had in yester years, when Pakistan was socially happier, economically stable, and culturally rich.

Law as a discipline even then did not find a place for itself anywhere and thus continues as an orphan even in the wasted educational system. A simple example here is sufficient to show how the legal education is perceived even today. Pakistan Bar Council Legal Education Rules, 1978 were notified through notification S.R.O 1319 (1) 78- – (Gaz., Ext., Pt.11 19.41.78) Sec. 1 sub-section 2 (c) defines University as …” “a” University established by law in Pakistan and having a faculty of law”. Section 7 of the same rules determines the qualifications of the “staff”. Sub section 1 reads “Part time teachers should possess the following qualifications…” Sub section 2 refers to the governance of the terms and conditions of the teachers by the respective universities. No mention is made anywhere of a permanent faculty and the requisite qualifications therefore, to be maintained by the universities falling within the purview of these rules. One interpretation may be that the determination of the permanent faculty teacher would fall within the jurisdiction of the concerned universities; another may be that the permanent faculty is not mentioned on account of an error, which cannot be keeping in view the principles of the interpretation of statutes; yet another and possibly the most plausible interpretation is that the rules plainly do not conceive of any permanent faculty to be maintained by the universities, because law as a a branch of professional education has always been a part time discipline of study. If this is the case by what definition and on what criteria do the rules envisage a “faculty”? In 90s and 2000 full time faculties were inducted in a few universities, and legal education was offered as full time courses. All this happened in the face of a statute which simply does not acknowledge such a situation. No effort till date has been made to rectify the problem. A few questions for all in the Pakistan Bar Council and Higher Education Commission are posted here; are “ghost faculties” running law institutions in the Public Sector as Peshawar University, and in Private Sector Lahore University of Management Sciences (Lahore) Hamdard University (Karachi) and Punjab Collage of Law (Lahore)? These are the only institutions in Pakistan offering full time LL.B courses. How does HEC of course by statistics defend or justify the current structure of legal education being offered to 160 million people? What average percentiles have we to show the world how we look at law and the priority attached to it. How the Bar Council does absolves itself from a patent abdication of its regulatory role, by failing to address the issue in the face of the prevailing incongruity between the stated law and the de facto position?

These questions attain gravity when the entire system of legal education is viewed at different tiers, such as the status and the requisites of the heads of the law faculty, the ‘station’ of permanent faculties, the priority of legal education on the agenda of PBC and HEC, availability of resources (which includes teachers who have the requisite academic qualifications, and advocates who are either teaching part time or full time courses, monetary allocations, facilities for the teachers and students as aid to teaching and conducting research), teaching methodology, availability of libraries and the actual access available to these libraries, etc.,

In all modern universities Law as a discipline is offered as a full time study course which entitles the potential aspirants to enter the legal profession. Law as a part time study is also offered, but leaving south Asia, nowhere does a a law degree based on part time study alone, entitles the degree holder to take up law as a profession. All these are prescribed by the Pakistan Bar Council. An LL.B degree in Pakistan necessarily means a study of some 45 or 46 subjects covering three years. On the average generally all the teaching institutions affiliated with public or private universities hold classes between 4:00 P.M to 7-8 P.M (leaving aside the law faculties mentioned earlier in this article). One period roughly covers 45 minutes to 1 hour. The total lectures are then 3 or 4 in a day. The lecturers involved in these institutions are advocates who are wholly involved in their legal practice. What amount of time would be available for the preparation of lectures or conducting any research in their own field of study? This statement by no means should be taken as affront, but only points out the humanly impossible task expected from the teachers in the given scenario. The handicaps of the law students in this situation can neither lie with the teaching staff nor the students. The teaching methodology consequentially remains as archaic, as the syllabus. The “deans” of these institutions are equally involved in legal practice, and attend their respective colleges only between the schedules of classes on “part time basis”. Does a “faculty” and the “method” as universally understood and recognized, admit of such teaching practices validated by another primitive piece of legislation for entrance to a profession? Would the Higher Education Commission allow such latitude and complacency in choice areas of education, which provide immediate economic and financial benefits? But then the HEC is not the only regulatory body of education. It can only oversee the functioning of the Universities in completing the pre-requisites. The Bar Council is that body which is responsible for monitoring regulating and upgrading that facet of law, which falls entirely in its purview.

The anomalies, the incongruities in legal educational system are far too serious to be ignored any further, and unless addressed and resolved at the earliest, the system may soon become altogether dysfunctional. In its present state it is in no condition to cope with the fast changing kaleidoscope of the modern 21st century world we are so keen to join, well, it just cannot happen by our own choices, but only what the world requires from us; for one, upgrading the education, and within that especially the legal education on the top of the agenda, if only we could read between the lines. Law may not provide any immediate economic benefit, and therefore may not be a financially viable “investment”, it certainly is a value subject, for it deals with “life” in all its dimensions. Lets not keep proving Oscar Wilde correct time and again, by adhering to his comment “they know the price of everything, value of none”. Today on account so many errors, a new entrant in legal practice continues to remain as distant from the actualities of the legal practice, as is a layperson. The real orientation into the latter field is primarily based on “apprenticeship”, something which the law can no longer allow, if it is to play a positive and constructive role in modern Pakistan. In contemporary legal world the students have to mill it through so many different areas before they can take upon themselves the responsibility of life, liberty, property and dignity. One of these can be cites as the development of analytical mind, the other moot courts, seminars etc.

A lot needs to be done if law is to re-attain its role in the reformation of our society, and the development of the state. Rule of law is unachievable by legislations, or judgments, alone. Rule of law is what sociology terms as civilized behaviour, and civilized behaviour is learnt not dictated. So could we start putting our own house in order before embarking on re-importing the rule of law? As a first step those who matter can start with re-visiting law and legal education, taking serious decisions and making the compliance of such decisions mandatory.

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