To unmake everything the colonial past has bestowed on us is arguably neither possible nor necessary. The common law legal culture has also taken its root in Bangladesh, which may not necessarily need any uprooting. However, one fundamental point that one needs to remember is the colonial masters’ foremost objective could hardly have been to establish a democratic, utilitarian society. Law, for them, was a tool for running the vast sub-continent in an apparent orderly manner. While Thomas Babington Macaulay and his colleagues meticulously drafted the Penal Code, 1860 may be an exemplary craftsmanship in law-making but there is little chance that the same would be the case with many other laws of the colonial era.

Laying out the areas in which exorcising the colonial legacy is more than a book-length project that this short essay would not dare to delve into beyond an example or two. Indeed, too much discretionary power vesting to the bureaucracy, which was palpable in many of the colonial era laws, is still extant in many of the laws of today’s Bangladesh. However, it is not that the colonial legacy is omnipresent in the statutes of Bangladesh, they are often grounded in our psyche. As one judge has recently put to this author that he does not feel like a judge unless he wears a black gown. And when you consider the soaring summer temperature reaching an almost all-time high, you would wonder why someone would be so keen to wear that black robe. As a formal place where serious business takes place, the need for rigorous compliance with formalities in a courtroom cannot be overstated. However, when the robe weighs so heavily on the mind of a Judge that it gets ingrained in his psyche as an unmistakable symbol of his authority and he clings to it even when he can dispense with it – there is some problem. With the disappearance of the British rulers from Bangladesh, the Privy Council has stopped being the Court of last resort for this land, but the culture of ‘Lord’, an appellation befitting the imperial era, has not disappeared from our legal culture. At the risk of some over-simplification, a parallel may be drawn to that of the artist in Guy de Maupassant’s The Artist, who wanted to kill his wife by throwing a knife while remaining blindfolded as a part of the circus show and to pass it off as an accident. Even when he revealed his sinister plan to his wife, she brushed it aside that due to his constant, long, and daily practice, he has been a slave of his practice and cannot throw the knife even half an inch straying off the target. Such mastery of art for an artist may be an achievement to rejoice, but clinging to all that the colonial legacy has bestowed is a different proportion.

The institutional avenues of meaningful change appear to be limited, if not foreclosed. Despite the practice of our Supreme Court dealing with some matters suomotu, the Court can only deal with matters at issue before them. Judicial decisions may in some rare cases, [e.g. Brown v Board of Education of Topeka, (1954) 347 US 483] have far-reaching implications for the entire fabric of society, but at its core, the Courts are dispute settlement bodies. Arguably, some of the landmark judicial innovations (for better or worse) perhaps justly lauded as landmark judgments, [e.g. Anwar Hossain Chowdhury v Bangladesh & others (1989) BLD (AD) (SPL) 1, (1998) 41 DLR (AD) 165] are, in essence, judicial imports from the other jurisdictions. It is difficult for them to serve as a substantial driver of exorcising colonial legal legacy.

The Parliament of Bangladesh, in fairness, cannot be accused of making any serious effort to exorcise the undesirable or dispensable legacies of the past. Many observers of Bangladeshi politics and history would perhaps agree that more often than not, law-making in Bangladesh has been more reactive than pro-active. The Law Commission, an otherwise important institution for engendering meaningful law reform, has not received its due importance from the policymakers of this country.

It is you (hopefully, young law students reading this, if anyone is bothering to) who may play an incremental role in bringing about positive changes. Even if Bangladeshi academia is a factory of producing uncritical thinkers (not that this author agrees or disagrees with the proposition), it has produced some world-class legal minds. The number of competent expatriate Bangladeshi legal professionals in many corners of the world, being formally educated at the universities of this country would possibly be a testament to this. With all the flaws of our academia and academic institutes, it is the indomitable spirit and relentless hard work, which have taken them to the places where they justly are now.

While the world may not be flat as espoused, technology, particularly the internet, is a great leveller. And unlike technological research in science, the study of law does not need a laboratory. Binge study with eyes kept wide open and a critical mind should have few things beyond reach. Of course, the large-scale pay-wall protected research databases can create a formidable barrier for the economically subaltern world, but they are not insurmountable.

There are some, albeit limited, promising signs. This blog and similar initiatives can be a springboard for a discernible culture shift in legal research. Of course, this is not to imply that the fast-food-like eating exercise that a blog essay writing process is akin to that of Kacchi Biriyani, preparing exercise that a thorough research article writing process is. It is only to point out that this is an avenue of legal writing that this generation is pursuing that this author’s one did not. The mooting teams are competing with each other and globally. Students, even undergraduates, are presenting research papers. It is a deplorable reality that an insignificant proportion of the texts relied on in our classrooms feature Bangladeshi authors. Who better to make a foray into this than the young legal minds of today?

Let us question. The form and tone of that question may be oriental. It needs to be underscored that there is nothing non-deferential in the very task of questioning.  And the question need not be confined to the classroom; rather maybe ubiquitous. And, yes, of course, question, this essay’s didactic premises here too. Even when the time may not appear to be ripe for the fearless exercise of freedom of expression, the door of questions can hardly be foreclosed. And in doing this, one needs to confront the artificial wedge between legal education and legal practice – which seems to be gospel truth by a section of the legal community. Those like this author who live with law have, in some ways, an inseparable link to those practitioners who live on law. While the study of law is a life-long process, there is not an iota of reason for it not to commence very seriously at the tertiary level. While in and of themselves, none of the above practices may directly lead to exorcising the colonial legacy in Bangladesh, students with probing eyes, and keen interest in the production of knowledge can give some impetus to a gradual shift in culture where practices would not be sacrosanct even when they hardly make any sense.

* The writer is a Professor of Law and Member, Center for Peace Studies, North South University. He gratefully acknowledges the able research assistance of Sayere Nazabi Sayem and the very helpful comments of his colleague, Nafiz Ahmed, and former colleague, Farhaan Ahmed