Wednesday, September 7, 2011

Lawyering the law: A rebuttal

The Happy Lawyer: Making a Good Life in the Law

It seems that some people are more interested in their own agendas and axes to grind than any real discussion on history or facts. The context of this ninth pillar of wisdom is an article by by Urooj Zia in Pakistan Today.

Let us start with the basics. Every accused deserves a fair trial.  When President Abraham Lincoln was shot dead, one of the conspirators, Mary Surat, was represented in the famous Lincoln Conspirators Trial by Frederick Aiken, who had served with distinction as a colonel for the Union Army and was considered close to Abraham Lincoln. This is the essence of a fair legal system and responsibility of a lawyer. For more on the Lincoln Conspirators’ Trial read:
The family of the late Shaheed Salmaan Taseer (who ironically is often abused by the journalist in question and whose posthumous sitara e imtiaz on 14 August 2011 was criticised by her repeatedly) has not asked that Qadri be shot dead without a trial. They have asked for a fair trial. A fair trial- a constitutional right under Article 10-A- requires equality of arms in a court of law. However issue changes shape dramatically when a bunch of illiterate uneducated lawyers garland a self confessed killer like Mumtaz Qadri who murdered a sitting governor of a province of Pakistan. Mumtaz Qadri himself is a victim in the sordid drama where an illiterate fanatic, fuelled by sermons of the local Mullah, decided to kill a man whose contributions to Pakistan and whose family’s contributions to Muslims of India are documented.
Now our “journalist” from the said rag has spun a story that interestingly most right wing Islamo-fascists insist on and which is a historical fallacy: That lawyers garlanding Qadri were doing so because of the example set by the father of the nation. She also claimed – again completely inaccurately- that Jinnah’s career was “littered” by such cases. The second bit is an absolute lie. The only other such high profile case was where Jinnah defended Tilak for sedition. This is reported on AIR 1916 Bom 9.
To set the record straight I am going to reproduce a few excerpts from my Daily Times article “IlamDin Fiasco”.
To start with, the story is entirely wrong. First of all, Jinnah was not the trial lawyer. Second, Ilam Din had entered the not guilty plea through his trial lawyer who was a lawyer from Lahore named Farrukh Hussain. The trial court ruled against Ilam Din. The trial lawyer appealed in the Lahore High Court and got Jinnah to appear as the lawyer in appeal. So there is no way Jinnah could have influenced Ilam Din to change his plea when the plea was already entered at the trial court level. Nor was Ilam Din exactly the ‘matchless warrior’ that Iqbal declared him to be — while simultaneously refusing to lead his funeral prayers. Indeed Ilam Din later filed a mercy petition to the King Emperor asking for a pardon.
The relevant case — in which Jinnah appeared — cited as Ilam Din vs. Emperor AIR 1930 Lahore 157 — makes interesting reading. It was a division bench judgement with Justice Broadway and Justice Johnstone presiding. Jinnah’s contention was that the evidence produced before the trial court was insufficient and the prosecution story was dubious. To quote the judgement, “He urged that Kidar Nath was not a reliable witness because (1) he was an employee of the deceased and, therefore, interested. (2) He had not stated in the First Information Report (a) that Bhagat Ram (the other witness) was with him, and (b) that the appellant had stated that he had avenged the Prophet. As to Bhagat Ram it was contended he, as an employee, was interested, and as to the rest that there were variations in some of the details.”
The court rejected this contention. The judgement continues that “Mr Jinnah finally contended that the sentence of death was not called for and urged as extenuating circumstances, that the appellant is only 19 or 20 years of age and that his act was prompted by feelings of veneration for the founder of his religion and anger at one who had scurrilously attacked him.” The court rejected this contention as well referring to Amir vs. Emperor, which was the same court’s decision a few years earlier. Interestingly, the curious reference to 19 or 20 years deserves some attention. Why did Jinnah as one of the leading lawyers refer specifically to an argument that had been exploded by the same court only two years earlier? That only Mr Jinnah can answer and I do not wish to speculate. Perhaps he was trying to argue what Clarence Darrow had argued successfully a few years ago in the famous Leopold and Loeb case involving two 19-year old college students who had committed the ‘perfect crime’. Clarence Darrow’s defence converted a death sentence to a life sentence.

The two cases are entirely distinguishable:
1. Unlike Qadri, Ilam Din did not confess. Instead – contrary to the myth- he repeatedly denied that he killed Raj Pal. Qadri has confessed.
2. Jinnah’s argument to begin with was to question the veracity of the testimony of the witnesses, as per his client’s claim that he was not guilty.
3. Once that was defeated, Jinnah argued to get his client off death row instead of life imprisonment citing that the accused was merely a boy who had been misled.
How is this the same as the shamelessness that was on display at the Islamabad Bar? Even the defence team’s argument is misconceived. The argument for Qadri’s defence team is not that Qadri didn’t do it or that Qadri was misled. The argument that is put forth by Qadri’s legal team is that it was okay to kill Salmaan Taseer because he committed blasphemy. Even under the present legal system – tainted by Islamisation- this is untenable.
1. Salmaan Taseer did not commit any blasphemy by questioning an unjust law.
2. Even if he had, given that there is a law that is all hyped up, he should have been tried under that law.
The Taseer family – from what I can gather having met some of them- understands that the essential difference between them and the Qadris of the world is that Taseers believe in rule of law and state’s writ. It was this spirit that made a man like Aiken defend the conspirator in the conspiracy to kill a man who he respected more than anyone else. Unfortunately much like Qadris our barely educated journalists- especially those without any real integrity or ability to argue without resorting to ad hominem attacks or strawman fallacies, are ill-equipped to understand the nuances of what it means to be a lawyer or the cab-rank rule.
The reason why liberals, historians and researchers continue to hold fast to Jinnah is because he is the only real basis for any claim to secularism and an inclusive democracy in Pakistan. I hinted to this in my article:
We can only conjecture as to what Jinnah’s reasons as a lawyer and politician to agree to be the lawyer for the appellant before the high court were. In any event, a lawyer’s duty is to accord an accused the best possible defence. Just because a lawyer agrees to defend an accused does not mean that the lawyer concurs with the crime. One is reminded of the famous Boston Massacre in 1770 when British soldiers opened fire and killed five civilians who were protesting against them. The British soldiers hired John Adams as a lawyer, who got five of the accused acquitted, arguing that a sentry’s post is his castle. Does that mean that John Adams was in favour of British rule in the US? If so, it is rather ironic that he was the prime mover and the guiding spirit behind the American declaration of independence. Similarly, when Clarence Darrow defended Leopold and Loeb, was he in any way suggesting that the crime that those two young men had committed was justified?
Jinnah’s record as a legislator tells us a different story altogether. He was an indefatigable defender of civil liberties. He stood for Bhagat Singh’s freedom and condemned the British government in the harshest language when no one else would. In the debate on 295-A of the Indian Penal Code, a much more sane and reasonable law than our 295-B and 295-C, Jinnah had sounded a warning against the misuse of such laws in curbing academic freedoms and bona fide criticisms. I have quoted that statement in my previous two articles.
There cannot be any question that Jinnah the legislator would have balked at the idea that his defence of a murder convict is now being used by some people to justify a law that is ten times more oppressive and draconian than the one he had cautioned against. To this day, I have only found him alone to have had the courage to state in the Assembly on September 11, 1929: “If my constituency is so backward as to disapprove of a measure like this then I say, the clearest duty on my part would be to say to my constituency, ‘you had better ask somebody else to represent you’.”
Finally as to her claim about Balochistan, clearly fact checking is not her forte.  She makes up facts when she writes: “Jinnah’s behaviour was legally equivocal while dealing with the Khan of Kalat. The latter had sought help from him after elections in Balochistan resulted in an overwhelming victory for democratic candidates and an effective routing of the sardars. ”
1. There were no elections held in Balochistan or Kalat (not that the writer in question knows the difference).  Kalat State did have a legislative assembly which had been put in place through constitutional reforms. The help Khan of Kalat had sought from Jinnah was as a constitutional advisor in 1940 and the advice Jinnah gave him then was what was to become the cornerstone of Baloch Nationalism – that Kalat constitutionally was not on the same plane as the rest of princely India.
2.  Lasbela and two other princely states subservient to Kalat acceded to Pakistan by their own accord before Kalat’s accession.
3. Jinnah and Khan of Kalat signed a document of accession which gave Pakistan defence and foreign affairs as subjects. Was some coercion used? Yes. Just as coercion all over India was used to bring Princely States in line- and certainly much less coercion than what Sardar Patel had undertaken.
Urooj Zia’s article frankly should be an embarrassment for Baloch Nationalists. Their case for autonomy and independence is based on Jinnah’s argument in the early 40s that Kalat did not accept British sovereign’s suzerainty and also on the document of accession which provided for complete autonomy for Kalat (not British Balochistan) and which autonomy was respected till 1955-56 when the unfortunate One Unit decision was taken. Therefore by inventing a lie about “elections” and “sardars” being defeated in general elections – presumably 1946 elections – Ms. Zia is arguing that Kalat was not only on the same plane as princely India but was infact part of the British India and therefore subject to the June 3rd Plan. Therefore this sad little argument on part of an overzealous and yet utterly ill-informed journalist has within it the germs of burying legitimate Baloch Nationalist aspirations.

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