29/12/2022
LITERATURE IN LAW
(Keynote speech by Mr. Justice Asif Saeed Khan Khosa,
former Chief Justice of Pakistan, at the Adab Festival,
Karachi on 31.01.2020)
Before I say anything else let me remember the legendary Hon'ble Justice (Retired) Fakharuddin G. Ibrahim who passed away a few weeks ago. Fakhru Bhai, as all of us fondly knew him, was an icon in ways more than one. He served this country as an accomplished lawyer, Judge of a High Court, Judge of the Supreme Court, Attorney-General, Minister for Law, Governor and lastly as the Chief Election Commissioner. In each of such sensitive positions he served with independence, ability, grace and dignity and earned nothing but respect and reverence. The vacuum created by his passing away shall be hard to fill and he shall be remembered for a long time. May his soul rest in eternal peace. A'meen.
While making an attempt to emulate Mr. Anwar Maqsood, whom I admire a lot, I would like to start my discourse in this Adab Festival as follows:
Today I have decided to speak on Literature in Law. You are quite familiar with father-in-law, brother and sister-in-law and, of course, mother-in-law and you will be pleased to know that literature and law also have a relationship which is equally passionate and, to some traditionalists, equally problematic, if not irritable.
Definition:
It is difficult to define literature but generally it is understood to be a piece of writing having an artistic or an intellectual value or merit. Usual communication between human beings is through the medium of words but literature is that communication which deploys words or language in a manner which pleases the ear, heart or mind or tickles the finer sensibilities in a person and assumes the status of an art. Literature is generally classified as fiction or non-fiction and poetry or prose with sub-categories of novel, short story and drama. Art is sometimes for art's sake but on other occasions it is employed as a tool or a technique while speaking or writing about a mundane or a professional subject or issue and it is this latter aspect which is the focus of my discourse today. The art thus employed essentially boosts expression elevating the text to the status of literature. The definition of 'literature' in the Encyclopaedia Britannica (Eleventh Edition 1910-11) classifies literature as "the best expression of the best thought reduced to writing." It is the use of good words or expression which may sometimes transform even a judgment of a court into a piece of literature not only relevant to the parties to the case in issue but also appealing to a bigger audience.
Literature or the use of it is not to be confined or restricted to what the literati, authors, writers, poets or scholars indulge in and Judges in different parts of the world also sometimes quote literature to embellish, embroider or decorate their judgments, refer to literary masterpieces to emphasize or explain a point or even create literature through the use of prose of artistic merit and expressions of high literary value while composing their judgments. There are also instances in the world where Judges have written the entire judgments in poetry.
Literature essentially deals with human feelings, emotions, conduct or behavior and so does the law. Not many people know that many famous literary figures were also lawyers or were involved in law and they include Henry Fielding, John Donne, Francis Bacon, Johan Wolfgang von Goethe, E.T.A. Hoffman, Heinrich Heine, Franz Kafka, Alexander McCall Smith, William Faulkner and Bernhard Schlink. Charles Dickens, the great Victorian novelist, had remained a lawyer's apprentice. In this backdrop references found in their works to the law, lawyers, legal profession or imaginary court cases is not surprising. The plot thickens when it is realized that many Judges in different parts of the world, including me, had studied literature as a subject in their colleges or universities. Interestingly, the United States Supreme Court Judge Oliver Wendell Holmes, Jr. was elected class poet as a student at Harvard University. It is, thus, not surprising that judges and lawyers sometimes refer to literature and literary figures often write about law and lawyers. The case in point is Geoffrey Chaucer's portrayal of The Man of Law in his Prologue to the Canterbury Tales. Chaucer, the great English poet in the 14th century, exclaimed in "The Man of Law":
"Nowher so bisy a man as he there was;
And yet he semed bisier than he was."
Even Shakespeare wrote in Henry VI: "The first thing we should do is let us kill all the lawyers."
Down the ages law and literature have mingled in many ways. It needs to be understood that writing judgments is an art and not a science, and that is why it is called composing a judgment, and an artist cannot be put to a straightjacket of a particular form or format. Citing literature in judicial opinions can be a versatile technique which, if used sparingly and with care, can embellish a judgment. Many a time law has also been taken up by literary artists as a major or minor thematic concern in their works like Antigone, The Merchant of Venice, The Pickwick Papers and The Mill on the Floss, etc. Literature has often helped the ingenious advocates in being emphatic in their arguments by quoting from great literary texts. Literature has also, at times, become a part of courtroom judgments in the hands of erudite judges. References to literature in legal judgments abound in the Indo-Pak subcontinent and some recent articles written by Sonakshi Awasthi and Surbhi Kapur from India and Chanima Wijebandara from Sri Lanka (JSA Law Journal 2013 Volume I) refer to many such judgments rendered by different courts. A recent article jointly written by Ayesha Tariq, an Assistant Professor at Lahore, and Janhvi Prakash, a clerk-cum-legal researcher of a Judge of the Supreme Court of India, is also quite illustrative of the subject. I must acknowledge that for preparation of today's speech I have considerably benefited from the material available in the research undertaken by the above mentioned writers.
International precedents:
There are many instances where Judges in different parts of the world have referred to different pieces of existing literature in their judgments. Here are a few samples from the kaleidoscope.
United Kingdom:
* In the case of Uratemp Ventures Limited v. Collins [2001] UKHL 43 the House of Lords had resorted to literature in interpreting the word "dwelling" under the Housing Act of 1988. The question for decision was whether a part of a house can constitute a dwelling if cooking facilities are not available or cooking is prohibited by the terms of the letting. Lord Millett stated that the idea that one must also cook his meals in a dwelling is found only in the law reports and finds no support in English literature. "According to the Book of Common Prayer, "the fir trees are a dwelling for the storks" (Psalm 104); while in The Mikado Act II W. S. Gilbert had condemned the billiard sharp "to dwell in a dungeon cell". The judgment also referred to Paradise Lost wherein Milton had written about Lucifer being hurled "to bottomless perdition, there to dwell in adamantine chaos and penal fire".
* In the 2011 case of Pawel Bachanek v. Regional Court in Warsaw, Poland [2013] EWHC 258 (Admire) an appeal had been filed in the High Court of Justice, Queens Bench Division of England against the order of the District Judge that the appellant be extradited to Poland on a conviction warrant. The Court identified a similar plight in a famous literary work and stated as follows; "The case, in my view, has some parallels with the story of Victor Hugo's great novel, Les Miserables, where the hero is pursued in his respectable middle age for having stolen a loaf of bread many years ago." The court commented on the unfairness of the request but held that it was bound by a previous authority which stated that it is not for the English Court to impose its view of seriousness or its view of sentencing policy on the authorities of the requesting State. While expressing its regret, Court dismissed the appeal.
United States of America:
* Gavin Grimm was a transgender student at a school in Gloucester County, Virginia, USA who asserted in school and also went to court for his right to use the boys' restroom which facility was denied to him. In his eloquent opinion rendered on April, 7, 2016 Judge Andre Davis of the US Court of Appeals for the Fourth Circuit compared Gavin to Dred Scott, Fred Korematsu, Linda Brown, Jim Obergefell and others who had "refused to accept quietly the injustices that were perpetuated against them." Gavin's case, Judge Davis maintained, "is about much more than bathrooms…. It's about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It's about…. The simple recognition of their humanity." By standing up for that principle, Judge Davis continued, Gavin "takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail." In his opinion Judge Davis also referred to and reproduced in full the poem "Famous" by the Palestinian-American writer Naomi Shihab Nye and explained that Gavin was "famous," not in the Hollywood sense of celebrity, but in Nye's sense, because "[he] never forgot what [he] could do."
* The case of Parhat v. Gates in the United States Court of Appeal, District of Colombia Circuit was a petition filed against an order of a Combatant Status Review Tribunal. The tribunal had decided that the petitioner Huzaifa Parhat, a detainee at the United States Naval Base at Guantanamo Bay, Cuba, was an enemy combatant and was being detained for more than 6 years. The government had suggested that several of the assertions in the intelligence documents were reliable because they were made in at least three different documents. In his judgment, the Chief Judge Sentelle cited the poem "The Hunting of the Snark" by Lewis Carol, the author of popular children's book Alice in Wonderland, in slamming the reliability of U.S. government intelligence documents and criticized the government for offering unsubstantiated evidence.
Australia:
In the case of Saba Bros Tiling Pty Ltd v. Minister for Immigration and Anor [2010] FMCA 598 the Federal Magistrates Court of Australia quoted from "The Trial" by Franz Kafka, one of the most famous literary works that has a strong legal implication.
INDIA:
* In his post on Linked In dated February 13, 2017 Justice (Retired) Markandey Katju of the Supreme Court of India wrote about The power of Urdu poetry and my SC judgments' and stated as follows:
"As I mentioned before, Faiz Saheb is my favourite Urdu poet of the 20th century (though I regard Mirza Ghalib the greatest Urdu poet of all times). So I quoted him in some judgments of mine in the Supreme Court, beginning the judgment with his sher (couplet).
When I decided to issue an appeal through my judgment to the Pakistan Government to release an Indian citizen, Gopal Das, who was undergoing a life sentence in Pakistan for espionage, and had been in Pakistani jails for 27 years I began with a couplet of Faiz :
"Qafas udas hai yaaron, saba se kuch to kaho
Kaheen to beher-e-khuda aaj zikr-e-yaar chale"
The sher had such a powerful impact on the Pakistani authorities that they announced that the Pakistan Government would honour the appeal made by the Indian Supreme Court. Gopal Das was released a few days thereafter and he came back to India and has got married.
This was unprecedented. Never perhaps in world judicial history was such an appeal made by any Court, and never was it so honoured. Such is the power of Urdu poetry."
* The next case to be mentioned is a case of a petition to allow euthanasia or mercy killing. Aruna Shanbaug was a nurse at Mumbai's King Edward Memorial Hospital who was s*xually assaulted in 1973 by a hospital staff and she had been in a vegetative state for the next 37 years. While considering a request for her mercy killing Justice Katju quoted the following couplet of Mirza Ghalib in his judgment to convey the pain and agony Shanbaug had gone through all those years:
Marte hain aarzoo mein marne ki,
Maut aati hai par nahin aati.
* In a recent judgment passed by the Kerala High Court a divorced mother of a five-year-old child had filed a petition in court after her child was taken away by her in-laws in her absence. On concluding the matter, Justice Chitambaresh opened the judgment with the lyrics of a song from a Tamil movie `Mannan' "Amma endrazhaikatha uyir illaiye Ammavai vanangatha uyir illaiye (There is no life form which does not call for its mother, there is no life form which does not respect its mother)."
* Similarly, lyrics from a Bob Dylan song featured during the Kerala High Court proceedings when Justice Dama Seshadri Naidu quoted "The times they are a-changing."
* Apart from Urdu couplets, judges often incorporate works of famous writers in their judgments. In 2003, hearing an appeal of a lawyer regarding his alleged professional misconduct with his client, the judges added a light humour in the ruling, citing a line from Shakespeare's Henry VI - "The first thing we should do is let us kill all the lawyers."
* In the case of Babu Lal v. State while adjudicating on the service conditions of women serving in the Armed Forces of India the Delhi High Court had quoted the following couplet in the year 2012:
Tere mathe pe ye anchal to bahuthi khuub hai lekin
tu is anchal se ik parcham bana leti to achchha tha.
* In a case in the year 2012 the Delhi High Court had referred to the following couplet in a judgment while commenting upon the general insensitivity in the Metropolitan city whenever a heinous crime was committed in full public view but those witnessing the crime refused to become witnesses in the court:
Lagta Hai Shaher Me Naye Aaye Ho,
Ruk Gaye Ho Raah, Haadsa Dekhkar.
* In the case of Munavvar-ul-Islam v. Rishu Arora in the year 2014 the Delhi High Court had quoted Meer Taqi Meer as follows:
Meer ke deen-o-mazhab ko poochhtey kya ho ab,
Un-ney toh kashqa khaincha, dair mein baitha,
kab ka tark Islam kiya.
* The case of Shahnawaz Zaheer v. Government of NCT of Delhi was about adoption of orphan children and in that case the Delhi High Court quoted Nida Fazli in the year 2015 as follows:
Ghar se masjid hai bahut duur, chaloy uun kar lein Kisee rotey hue bachche ko hansaya jaye.
In the same case the Court also quoted poet Javed Akhtar:
Jo mazhab ho jo zaat ho jo bhi naam ho uska, Insaan wohi hai jisko Mohabbat karna aaye. Kaho jo agar masoom miley usko rahon mein, Usey gair nahin samjhe badhke usey apnaey.
* In the case of Ashok Kumar Aggarwal v. CBI and Ors. in the year 2016 the Delhi High Court quoted the following couplet of Daagh Dehlvi while commenting upon the working of CBI (Central Bureau of Intelligence):
Khoob parda hai ki chilman se lage baithe hain
Saaf chhupte bhi nahin, samne aate bhi nahi.
In the same case the Court also quoted the following couplet of Kaif Bhopali:
Janab-e-'kaif yeh Dilli hai 'Mir' o 'Ghalib' ki,
Yahan Kisi Ki Taraf-dariyan Nahin Chaltin.
* In Budhadev Karmaskar v. State of West Bengal (Criminal Appeal No. 135 of 2010 decided on 14.02.2011) Justices Markandey Katju and Gyan Sudha Mishra of the Indian Supreme Court upheld the sentence of imprisonment for life imposed upon the accused for the murder of a s*x worker. That judgment referred to many literary works, from the great Bengali writer Sarat Chandra Chattopadhyaya's novels "Shrikant" and "Devdas," to Fyodor Dostoyevsky's famous novel "Crime and Punishment" and to Urdu poet Sahir Ludhianvi's poem "Chakle," to convey that s*x workers were entitled to a life of dignity as envisaged in Article 21 of the Indian Constitution. In another order in the same case, the judges quoted Ghalib's verse
Pinha tha daam-e-sakht qareeb aashiyan ke,
udhne na paaye the ki giraftaar hum hue
to describe the plight of young girls caught in the s*x trade due to abject poverty.
* In the Indian case of Hitesh Bhatnagar v. Deepa Bhatnagar (Civil Appeal No. 6288 of 2008) the Indian Supreme Court commented that though Marriages are made in heaven, as it is said, we are more often than not made to wonder what happens to them by the time they descend down to earth. While concluding the judgment in that case of a divorce action the Court quoted from George Eliot's novel "Adam Bede" and observed:
"We conclude by quoting the great poet George Eliot "What greater thing is there for two human souls than to feel that they are joined for life - to strengthen each other in all labour, to rest on each other in all sorrow, to minister to each other in all pain, to be one with each other in silent, unspeakable memories at the moment of the last parting."
* In Pebam Ningol Mikoi Devi v. State of Manipur and others, a case about preventive detention wherein a person was wrongfully detained, Indian Supreme Court judges H. L. Dattu and D. K. Jain made their point by using Shakespeare's lines to highlight the importance of liberty.
* In another landmark case where literature can be found is Navtej Singh Johar and others v. Union of India decriminalising consensual s*x between consenting adults of the same gender. The then Chief Justice Deepak Misra quoted German thinker Johann Wolfgang von Goethe, who said, "I am what I am, so take me as I am." This judgment also quoted Arthur Schopenhauer, "No one can escape from their individuality," as well as John Stuart Mill, "But society has now fairly got the better of individuality, and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences."
Sri Lanka:
* In Sri Lanka in the case of Victor Ivan v. Sarath N. Silva, Attorney-General and another (1988 IV SLR 340) Shakespeare's play "Measure for Measure" had been cited to emphasize that the freedom of press was to be balanced against the rights of those who are innocent.
"It surely does allow the pen of the journalist to be used as a mighty sword to rip open the facades which hide misconduct and corruption, but it is a two-edged weapon which he must wield with care not to wound the innocent while exposing the guilty. As Shakespeare put it:
"O; it is excellent
To have a giant's strength,
But it is tyrannous
To use it like a giant."
* In the Sri Lankan case Chellappa v. Kanapathy (17 NLR 294) where the issue was with regard to inheritance of property under Tesawalamai law Pereira J. referred to the following poem of Alfred Lord Tennyson:
"Mastering the lawless science of our law,
That codeless myriad of precedent,
That wilderness of single instances,
Through which a few, by wit or fortune led,
May beat a pathway out to wealth and fame."
Papua New Guinea:
* In the case of The State v. Allan Woila [1978] PGNC 55; [1978] PNGLR 113 the National Court of Papua New Guinea referred to Charles Dickens's novel Oliver Twist to describe a "dock" in a courtroom.
* In the case of State v. Guta [1900] PGNC 2: N841 (27th March 1990) the National Court of Papua New Guinea had, in the context of a pe*******ac relationship, referred to "Lo**ta", one of the most controversial classic novels by Vladimir Nabokov, a Russian-born novelist, written in English and published in 1955.
Fiji Islands:
In the case of Digicel Fiji LTD v. Lateef and 4 others [2010] FJCA 43; ABU0005.2009 the Court of Appeal of Fiji Islands at Suva dealt with the legality of a decision to erect a mobile based station in an area zoned for recreational purposes close to residential areas. The judgment began with some lines from a poem by Rudyard Kipling titled "Dawn Wind":
"At two o'clock in the morning,
if you open your window and listen,
You will hear the feet of the Wind
that is going to call the sun."
Lyrical Judgments:
In his article Jennifer Davis and in his post Brandon Fitzgerald had mentioned that several Judges in the United States of America had a penchant for poetry and many of them managed to weave their love of verse into their legal careers. The said authors then take a walk on what they call the quirky side of law, i.e. court opinions written in rhyme. They maintain that poetry affords judges opportunities for unconventional creative expression. According to them, the more absurd or perhaps frivolous the case, the more eccentric the form of a decision can arguably take. They ask: Does a judge's responsibility to be right necessarily preclude a judge's ability to be witty? Or does the poetic form diminish the gravity and sincerity of a litigant's grievance? They maintain that every legal professional can come to her or his own conclusion on this matter, but it is an unquestionably amusing exercise to visit some decisions rendered in verse. They then refer to some of such decisions.
* In Fisher v. Lowe (333 N.W.2d 67) a tree was hit and damaged by a car carelessly driven and the owner of the tree had sued the owner, driver and insurer of the car for damages. The trial court passed its judgment in lyrical form and observed as follows:
"A wayward Chevy struck a tree
Whose owner sued defendants three.
He sued car's owner, driver, too,
And insurer for what was due
For his oak tree that now may bear
A lasting need for tender care."
The Michigan Court of Appeals upheld the lower court's decision ruling in favor of the defendants, offering its rationale by smartly imitating poet Joyce Kilmer's well-known poem "Trees":
"We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest,
Upon a mangled tree's behest;
A tree whose battered trunk was prest
Against a Chevy's crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must affirm the court's decree."
* Among the best known judicial lyricists is retired Judge Michael Eakin who served on the Supreme Court of the Commonwealth of Pennsylvania. In Liddle v. Scholze (768 A.2d 1183) a contract claim in which the buyer (Liddlel of two emus (Nicholas and Savannah) sued the seller (Scholze) when the birds failed to procreate, Eakin placed the blame solely on the emus:
"The emu's a bird quite large and stately,
Whose market potential was valued so greatly
That a decade ago, it was thought to be
The boom crop of the 21st century.
Our appellant decided she ought to invest
In two breeding emus, but their conjugal nest
Produced no chicks, so she tried to regain
Her purchase money, but alas in vain.
Appellant then filed a contract suit,
But the verdict gave her claim the boot;
Thus she was left with no resort
But this appeal to the Superior Court.
The learned trial court, in well reasoned words, held Liddle's case was flightless as the birds,
and her appeal in turn we now must find
as barren as the breeders here maligned."
* In Mackensworth v. American Trading Transportation Co. (367 F. Suppl. 373) the counsel for both the plaintiff and the defendant submitted reply briefs that included limericks. Not to be outdone, U.S. District Judge Edward R. Becker decided to show off his own poetic prowess in his opinion and wrote:
"The motion now before us
has stirred up a terrible fuss.
And what is considerably worse,
it has spawned some preposterous doggerel verse.
Overwhelmed by this outburst of pure creativity
we determined to show an equal proclivity.
Hence this opinion in the form of verse,
even if not of the caliber of Saint-John P***e."
Local precedents:
In Pakistan there have been judgments in which Justice Murshid in the erstwhile East Pakistan, Justice Jawwad S. Khawaja, Justice Ch. Ijaz Ahmad and some other Judges had quoted from English literature and had also referred inter alia to Persian couplets of Hafiz Shirazi and Sheikh Saadi, Urdu couplets of Allama Iqbal and Punjabi couplets of Bulleh Shah. I too had ventured in this field and had frequently referred to some masterpieces from English literature. Having decided about 57,000 cases over the last about 22 years I cannot recount all the instances where I had quoted from great literary works but for the present purposes I may refer only to a few of my relatively recent judgments in this regard. In the case of the 18th and 21st Constitutional Amendments (PLD 2015 SC 401) I quoted Sir Francis Bacon and Khalil Gibran's poem 'On Children' and, in the context of military courts, Groucho Marx's observation that "Military justice is to justice what military music is to music". In the case of Ishaq Khan Khakwani (PLD 2015 SC 275) about Articles 62 and 63 of the Constitution I quoted George Bernard Shaw, Abraham Lincoln, Baron de Montesquieu and William Shakespeare. In the blasphemy case of Mst. Asia Bibi (PLD 2019 SC 64) I quoted from Shakespeare in the following words:
"Blasphemy is a serious offence but the insult of the appellant's religion and religious sensibilities by the complainant party and then mixing truth with falsehood in the name of the Holy Prophet Muhammad (Peace Be Upon Him) was also not short of being blasphemous. It is ironical that in the Arabic language the appellant's name Asia means 'sinful' but in the circumstances of the present case she appears to be a person, in the words of Shakespeare's King Lear, "more sinned against than sinning".
In the Panama Papers case (PLD 2017 SC 265) I quoted Balzac, Mario Puzo, Christopher Marlowe's 'Tamburlaine' and 'Doctor Faustus' and William Shakespeare's 'Merchant of Venice'. In the Contempt of Court case against Prime Minister Gillani (PLD 2012 SC 553) I quoted from Johne Donne's 'For Whom the Bell Tolls', reproduced Khalil Gibran's poems 'On Crime and Punishment' and 'Pity the Nation' and, with an apology to Khalil Gibran, the circumstances of that case persuaded me to add the following lines of my own to the latter poem:
"Pity the nation that achieves nationhood in the name of a religion
but pays little heed to truth, righteousness and accountability
which are the essence of every religion.
Pity the nation that proclaims democracy as its polity
but restricts it to queuing up for casting of ballots only
and discourages democratic values.
Pity the nation that measures honour with success and respect with authority,
that despises sublime and cherishes mundane,
that treats a criminal as a hero and considers civility as weakness
and that deems a sage a fool and venerates the wicked.
Pity the nation that adopts a Constitution
but allows political interests to outweigh constitutional diktat.
Pity the nation that demands justice for all
but is agitated when justice hurts its political loyalty.
Pity the nation whose servants treat their solemn oaths
as nothing more than a formality before entering upon an office.
Pity the nation that elects a leader as a redeemer but expects him to bend every law to favour his benefactors.
Pity the nation whose leaders seek martyrdom through disobeying the law
than giving sacrifices for the glory of law and who see no shame in crime.
Pity the nation that is led by those
who laugh at the law
little realizing that the law shall have the last laugh.
Pity the nation that launches a movement for rule of law
but cries foul when the law is applied against its bigwig,
that reads judicial verdicts through political glasses and that permits skills of advocacy to be practised more vigorously outside the courtroom than inside.
Pity the nation that punishes its weak and poor but is shy of bringing its high and mighty to book.
Pity the nation that clamours for equality before law but has selective justice close to its heart.
Pity the nation that thinks from its heart and not from its head.
Indeed, pity the nation
that does not discern villainy from nobility."
A few samples of literary prose by me:
Lady-killer
"Abdul Rashid alias Teddi appellant is a lady-killer but of a different kind. Instead of softly winning over a lady by his amorous and masculine charms he brutally killed her with a chhurri."
[Abdul Rashid alias Teddi v. The State (1999 YLR 1802)]
In a similar subsequent unreported case I had improved the above mentioned expression as follows:
"Dibar appellant is a lady-killer, but of a different kind. After failing to win over the heart of his beloved through his amorous pursuits or masculine charms he reached her heart through the blade of a dagger and for such heartless killing he was sentenced by the learned trial court to death."
The law may sometimes be an ass
"On the authority of Lord Reid in the case of Haughton v. Smith (1975 A.C. 476, 500) it is said that the law may sometimes be an ass but it cannot be so asinine as that. The Hon'ble Supreme Court of Pakistan had observed in the case of Rashad Ehsan and others v. Bashir Ahmad and another (PLD 1989 SC 146) that "The law sometimes is called an ass but the Judge should, as far as it is possible, try not to become one". Similarly in the case of Mst. Aziz Begum v. Federation of Pakistan and others (PLD 1990 SC 899) the Hon'ble Supreme Court of Pakistan had reiterated "the principle" that the "law may be blind but the Judge is not". The case in hand is not strictly about asininity or blindness of any law but it surely concerns an asinine and blindfolded application of a law, i.e. the Illegal Dispossession Act, 2005 (Federal Act XI of 2005).
[Zahoor Ahmad and 5 others v. The State and 3 others (PLD 2007 Lahore 231)]
Faith, nationality and culture in the matter of
custody of a child
"6. After hearing the learned counsel for the parties and the learned law officers at some length and after going through the material and the precedent cases referred to by them I must observe that I have felt distressed over some of the arguments addressed by the learned counsel for respondent No.1, particularly those based upon different faiths professed by the contesting parties to this case and different nationalities and cultures they come from. It is proverbial that all is fair in love and war and in the present case it appears that respondent No.1 actually believes in that. When it came to falling in love with a Christian girl religion did not matter to respondent No. I. When it came to marriage and settling down French nationality of the petitioner and France as an abode did not bother respondent No. 1. When it came to producing a child and bringing him up in France religious inclinations of his spouse and western culture did not make any difference to respondent No. 1. For respondent No.1 religion, nationality and culture did not have much significance as long as it suited him but when the marital relations between respondent No.1 and the petitioner hit turbulence and ultimately came to a dead end in the war of sorts that ensued over custody of the child respondent No.1 has now found it to be advantageous and convenient to take shelter behind faith, nationality and culture. To respondent No.1 it may appear to be a fair ruse or stratagem in the war over custody of the child but I have found such volte-face on the part of respondent No.1 to be offensive to justice, equity and good conscience.
--------
With such credentials and antecedents of respondent No.1 mere professing of Muslim faith by him and his mere incidence of birth in Pakistan may not suffice all by themselves to conclude that welfare of the minor would lie in living with him rather than in living with a Christian mother of French origin whose credentials are blotless, whose antecedents are clean, whose proven love and care for the child has dragged her in foreign land facing untold trials and tribulations and whose courage, fortitude and character may be better suited for imbibing good moral, social and human values in the minor's personality."
[Peggy Collin v. Muhammad Ishfaque Malik and 6 others (PLD 2010 Lahore 48)]
Literature as a catalyst for change of laws for social reforms:
Literature has often become an instrument for making laws more humane and beneficial to mankind. For instance, Charles Dickens depicted the adverse effects of the Industrial Revolution on Victorian England through his novels which led to legislation regarding improved working and living conditions of the poor citizens. Harriet Beecher Stowe's "Uncle Tom's Cabin" (1852) revealed the horrors of slavery faced by an African-American slave Uncle Tom which contributed towards the abolitionist movement which ultimately led to the legislation declaring slavery unconstitutional in 1865. The novel "The Jungle" (1906) by Sinclair aimed at highlighting the misery, exploitation, abject poverty and harsh working conditions faced by the immigrant labourers working in the meat-packing industry in Chicago. The book caused a tremendous public commotion over food hygiene so much so that it led to strict Food Control laws in the United States of America. John Steinbeck's "The Grapes of Wrath" (1939) laid bare for inspection the shocking poverty and misery suffered by millions of migrants moving towards California for work during The Great Depression and that led to reform of labour laws in migrant camps. Nadine Gordimer, the Nobel Prize-winning South African writer, boldly attacked the Apartheid Laws of her country. Her anti-Apartheid literary writings along with the works of many other likeminded writers paved the way for the enactment of the Comprehensive Anti-Apartheid Act of 1986.
Alibi:
Literature sometimes comes in handy when no other recourse is available to a Judge. Only a few weeks before my retirement some constitutional and legal questions were asked in a case about those who had never been questioned before. As expected, such intervention invited the ire of many and resultantly conspiracy theorists started working full time painting a doomsday scenario. Judges normally do not respond to such reactions but through my speech in the Farewell Reference literature provided me an opportunity and I read out the following part of a poem written by Fehmida Riaz:
The said poem was titled "Faiz Kehtey". I can always maintain that I never said what was said in that poem. If Fehmida Riaz were asked about what was said in it she would have said that she did not say it but Faiz would have said it. If Faiz were to be asked about it then he would have said that he was dead and gone for a long time and he had never uttered those words. This again highlights the beauty and utility of literature in law!
Thank you.
Advocate M. Nawaz
