Monday, May 1, 2017

Importance of Literature in Law: A Case Study of the Panama Case Supreme Court Judgement

Importance of literature in law and legal judgments and arguments in the floor is an established tradition. This post collects together various quotations from masterpieces of literature in the Supreme Court judgement on the Panama Case Scandal on April 20, 2017. It also contains the references to Quranic definitions of Sadiq and Ameen. I think universities can use this judgement to enable a deep appreciation of how matters of law and constitution are analyzed in the context of culture, literature, religion, constitution and history. This judgement is also a very good example of how qualitative research methods are employed in dissecting the arguments and then reaching a judgement.

SC judgement starts with the following attribution to Mario Puzo's Godfather and Balzac:
Asif Saeed Khan Khosa, J.: The popular 1969 novel ‘The Godfather’ by Mario Puzo recounted the violent tale of a Mafia family and the epigraph selected by the author was fascinating: 
"Behind every great fortune there is a crime." — Balzac

The novel was a popular sensation which was made into an acclaimed film. It is believed that this epigraph was inspired by a sentence that was written by Honoré de Balzac and its original version in French reads as follows:
Le secret des grandes fortunes sans cause apparente est un crime oublié, parce qu’il a été proprement fait.
(The secret of a great success for which you are at a loss to account is a crime that has never been found out, because it was properly executed)
..... 

Here is the full text of judgement. Please note that this is not a document containing a consensus judgement. In fact, it is a collection of five separate judgments by each of the five judges ending with a short court order that encapsulates the consensus points of the 3 majority judges. Judge Khosa had the minority opinion along with another.

Using Marxist Ideas to Condemn the Wealthy, a-priori?

"Behind every great fortune there is a crime": This Balzac's statement is categorical and is condemning all the wealthy people, a-priori, without trial and thus a highly problematic concept to be relied upon in a court of law. Fortunately, this view was rejected by the majority of the supreme court judges on the bench 3-2. The majority held that a person can not be convicted by an appellate court (SC) without due process of law in a trial court followed by his right to appeal.

It is interesting to note that Balzac emphasized class conflicts and inspired the revolutionaries and Marxists who hated the rich and thus socialism and communism ideologies emerged from Marx and Engels.
Marxist Friedrich Engels wrote: "I have learned more [from Balzac] than from all the professional historians, economists and statisticians put together".[128] [Wikipedia]

Law is an ass, but the judge should not become one

Judge Khosa quoting PLD1989 SC146:
“Law sometimes is called an ass but the Judge should, as far as it is possible, try not to become one”: 
Though an old phrase but Charles Dickens made it famous by using it in 'Oliver Twist'
When Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that "...the law supposes that your wife acts under your direction", replies:

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot".

SC Judgement: How to establish "Sadiq" and "Ameen" is the fundamental issue? Judge Khosa: What you and your kin say in talk shows, in parliament and jalsas can be equated as a deposition in court and can be used against u in court! However, this view was over-ruled by the majority.

To Do a Great Right, Do a Little Wrong

Judge Khosa quoting Christopher Marlowe and then Shakespeare's Merchant of Venice admits that his judgement is like Bassanio to Portia saying "To do a great right, do a little wrong”! Pp 169-170 reproduced below.
The precedent to be set by this Court through the present petitions should in fact be a warning to all those rulers who try to subjugate all the organs of power, enslave the institutions of accountability and then in a false sense of security and invincibility proclaim as Christopher Marlowe’s ‘Tamburlaine’ did by boasting that

“I hold the Fates bound fast in iron chains,
And with my hand turn Fortune's wheel about,
And sooner shall the sun fall from his sphere
Than Tamburlaine be slain or overcome.”
While dwelling on the subject of setting a dangerous precedent by a court of law I am also reminded of the old bard William Shakespeare. The power of literature for commenting upon a reality through the medium of fiction is fascinating and an amazing example of the same is the following part of Shakespeare’s play Merchant of Venice which, though written hundreds of years ago in foreign climes, appears to have been written for nothing but the present case being handled by us in a different millennium and in a different continent. While trying to avoid execution of an
oppressive judicial decree regarding payment of money by another Bassanio beseeched the Duke as follows:
“Yes, here I tender it for him in the court;
Yea, twice the sum: if that will not suffice,
I will be bound to pay it ten times o'er,
On forfeit of my hands, my head, my heart:
If this will not suffice, it must appear
That malice bears down truth. And I beseech you,
Wrest once the law to your authority:
To do a great right, do a little wrong,
And curb this cruel devil of his will.” 
which imploring was immediately retorted by Portia in the following strong words:
“It must not be; there is no power in Venice
Can alter a decree established:
'Twill be recorded for a precedent,
And many an error by the same example
Will rush into the state: it cannot be.”
and then what happened to that decree is another story. The punch lines in the above mentioned excerpt appear to be “Wrest once the law to your authority: To do a great right, do a little wrong”.  
Fortunately for me, there is no wresting the law to me authority and no little wrong is to be done by me to do a great right in the matter of issuing a declaration against respondent No. 1 because the original jurisdiction of this Court under Article 184(3)........

Dr Faustus Selling his Soul to Lucifer

Judge Khosa quoting Marlowe (1564-93), English playwright and poet, again:
In Christopher Marlowe’s play ‘Doctor Faustus’ Doctor Faustus had sold his soul to Lucifer (the Devil) for a temporary worldly gain which had ultimately led to his perpetual damnation and it appears that in the present case respondent No. 2 [NAB Chairman] had also decided to act similarly for the purpose of repaying his benefactor. Such a possibility of the Chairman, National Accountability Bureau being beholden to the Prime Minister and the Leader of the Opposition in the National Assembly for his appointment and thereby extending favours to them and refusing to proceed against them when otherwise required to do so had been commented upon by me in the case of Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad (PLD 2011 SC 365) ......

Iqbal's Verses from Masjid e Qurtaba

Judge Ijaz ul Hasan on page 543:
93. As a Nation, we need to heed the words of the great poet and philosopher Dr. Allama Muhammad Iqbal, if we aspire to reach our true potential and hold our heads high amongst the comity of Nations:- 


Definition of Sadiq and Ameen from Quran

SC Judgement: How to establish "Sadiq" and "Ameen" is the fundamental issue,
Judge Khosa quotes the Balochistan High Court full bench decision by Qazi Fez Issa and gives several verses from Holy Quran to establish the meaning of constitutional requirement for the elected members to be Sadiq and Ameen: Judge Khosa writes on page 156:
121. [.....] An appropriate and safe approach towards interpretation of words used in the realm of morality which are not defined is to adopt a limiting and restrictive approach and this is what had been done by a Full Bench of the High Court of Balochistan in the case of Molvi Muhammad Sarwar and others v. Returning Officer PB-15, Musa Khail and others (2013 CLC 1583). Writing for the Full Bench in that case Qazi Faez Isa, CJ (now an Honourable Judge of this Court) had observed as follows:
[...]
16. Lies fall into two different categories, those uttered to deceive and to gain an advantage, in the present case to be able to contest elections, and innocent lies without malice or any intended deception and where no benefit or gain accrues. Almighty Allah states in the Holy Qur'an "... break not the oaths after you have confirmed them" (Surah 16, An-Nahl, Verse 91). "And be not like her who undoes the thread which she has spun after it has become strong, by taking your oaths a means of deception among yourselves..." (Surah 16, An-Nahl, Verse 92). "And make not your oaths, a means of deception among yourselves, lest a foot may slip after being firmly planted, and you may have to taste the evil of having hindered from the Path of Allah and yours will be a great torment" (Surah 16, An-Nahl, Verse 94). "... Whosoever breaks his pledge, breaks only to his own harm, and whosoever fulfils what he has covenanted with Allah, He will bestow on him a great reward" (Surah 48, Al-Fath, Verse 10). "Allah will not punish you for what is unintentional in your oaths, but He will punish you for your deliberate oaths" [if false] (Surah 5, Al-Mai'dah, Verse 89). Whilst liars are castigated the doors of Heaven open to the truthful. "And those who keep their trusts and covenants... shall dwell in Paradise" (Surah 70, Al-Ma'arij, Verses 32-35). "Those who are faithfully true to their trusts and to their covenants ... who shall inherit Paradise" (Surah 23, Al-Mu'minun, Verses 8-11). "Allah said: 'This is a Day on which the truthful will profit from their truth" (Surah 5, Al-Maidah, Verse 119). "0 you who believe! Be afraid of Allah, and be with those who are true" (Surah 9, At-Taubah, Verse 119).
[...]





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