In line of the law

2017-04-27T00:55:15+05:00 Agha Baqir

In a landmark drama titled ‘Death of a salesman’, written by the legendry American playwright, Arthur Millar, the hero of the play, Willy Lowman, introduces his elder brother, Ben, a highly successful person in material life to his two sons, Biff and Happy, who are utter failures in their lives like their father. Willy goes on to say,

“No! Boys! Boys! (Young Biff and Happy appear). Listen to this. This is your Uncle Ben, a great man! Tell my boys, Ben!”

In response, Ben addresses his nephews, “Why, boys, when I was seventeen I walked into the jungle and when I was twenty-one I walked out, (He laughs) and by God I was rich!”

“You see what I been talking about? The greatest things can happen!’ Willy enjoins upon his sons.

Willy clings to Ben’s material success as a tangible evidence of his family’s worth. He longs for measuring up to the financial success of his brother by way of its transmission to his sons. In many ways, Ben’s success fuels Willy’s misdirected concept that riches are just around the corner and under such frustration, Willy ‘Low-man’, the salesman, finally commits suicide.

Interestingly, we see its glimpses in the recent landmark judgment passed by the Honourable Supreme Court of Pakistan in the Panama case. An independent judge of the Supreme Court, Justice Asif Saeed Khosa has ignited his landmark dissenting note in the judgment with the lines from the famous novel Godfather, that “behind every great fortune, there is a crime”. The resemblance which comes out of the respective characters in both the above referred novel and the drama is looking for success by any and all means, whether through crime as achieved in ‘Godfather’ or by getting into the jungle and adopting its laws as gained by the character, Ben vis-à-vis his younger brother, Willy ‘Low -man’ who, due to various ‘failures’ is compelled to end his life by committing suicide in the Death of a Salesman.

One may disagree from the aforesaid quotes by saying that ‘it may be only half true’ but all that depends upon the arguments one prefers to substantiate his contentions including that every success may not necessarily be a result of any crime or law of the jungle, but because of struggle or effort as well. Thus, means adopted and substantiated behind success play a decisive role in determination of such questions.

Justice Asif Saeed Khosa and Justice Gulzar have well substantiated their premise in their dissenting notes by putting across their strong observations supported by law and facts to the effect that the respondents (the Premier and his family) are unable to satisfy the court and hence this merits disqualification.

Although success is claimed by both the parties by way of their proclamations and celebrations, only time will decide the fate of the case. However, the balance of convenience lying in favour or against the parties and relief acclaimed so far can be gauged from certain basic fundamentals.

Is the ruling family willing to admit the judgment on the whole, to the extent of majority judgment only or committed to assail the dissenting note of the two dissenting judges? Is the dissenting note disqualifying the Premier under Article 184(3) lawful within its scope as considered by the two dissenting judges and could the same have also been adopted by the other three majority judges as well? Is the dissenting note and the majority decision merely a difference of opinion amongst the members of the bench or more a conflict if not a distrust, especially when Justice Khosa refers to ‘the average prudence’ of a man probably found by him in his native streets of ‘Dera Ghazi Khan?’ Is the common man, regardless of his any political affiliation, found to heave a sigh of relief or extremely perturbed after pronouncement of the judgment? Is the judgment being regarded as a popular judgment on the whole or being revered partly to the extent of dissenting portion?

The reply to the above general queries is not very hard to trace around. Anyone can, at least, ask from himself or his fellow beings around him, how he or they felt after 2:00pm on Thursday April 20, 2017. Political parties, legal experts, local and international journalists, businessmen and the other stakeholders have been thinking about the circumstances as well. Above all, it is not hard to surmise how the petitioners, the respondents and even the judiciary itself are thinking.

Admittedly, it was a considered opinion of the constitutional and legal fraternity that the Supreme Court was neither an investigation agency nor a trial court to investigate the facts or to determine the question of facts and thus encroaching upon the prerogatives of the investigating agencies or even the lower trial courts. What the court could do was to give its strong observations, refer the matter to independent investigation and concerned agencies to ‘sift the grain from the chuff’ and come back to the court and the commission so constituted for that purpose. It was maintained that deviating from the routine judgments of ‘guilty’ or ‘not guilty”, the Honourable Supreme Court could pronounce a unique judgment declaring the respondents neither ‘guilty’ nor ‘not guilty’ but yet to be proven guilty or otherwise by the competent forum. However, it was also perceived that the Honourable court could lay any stigma on the face of respondents on the pattern of Scottish judgments called ‘bastard judgment.’

The Scottish courts set the accused free for the time, observing that though he seemed to be guilty but the case was not yet proven against him. And the accused left the court with a sense of guilt and being treated so in the society outside and with a strong chance for his case to be re-opened at any time in future. But, here in Pakistan, the situation is entirely different from that of Scotland. Our society is met with hard nerves. However, time and society will decide how far the recent type of judgment would work in Pakistan.

Apart from anything else, whether guilty or not, what concerns the ruling family is that the entire bench has laid down certain strong observations as to the weak defence contended by the respondents. The ruling family has to prepare for a contestable case leaving aside the incredible impressions about the ineffectiveness of the commissions and JITs in the past.

There is a legal maxim that the ‘judge speaks through his orders’. The man in the street seems to be suffocating under the prevailing circumstances. It could not have been so if certain spoken statements, though both in favour and against the parties, particularly declaring the verdict to be a historical one before releasing it should not have appeared in the media. Thanks to the verdict by the dissenting judges, it has fairly reconciled the situation to relieve the people at length. It was and has once more become a politico-judicial trail for the judiciary itself as stated by me in another article titled, ‘Politico-judicial trail.’

Admittedly, one may be a godfather or a Ben obtaining great financial fortunes by any devices available, including plain or white-collar offences or by implementing the laws of the jungle, but merit, proprietary, equality and the law should prevail without any discrimination. As ever, the real test lies with the judiciary and the other investigational institutions it has relied upon. This should be taken to its logical conclusion, for or against purely on merit, so that no Ben should boast of his success as a result of the law of the jungle and no Willy should die of failures. And people should not equate even this with the famous episodes of ‘Thousand and One Nights’.

Although success is claimed by both the parties by way of their proclamations and celebrations, only time will decide the fate of the case.

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