Pity of Twitterati: Dr. Ayesha Jalal, Manto, Jinnah and us

By Yasser Latif Hamdani

First the obvious question: Why is this on my law blog? Well because I am a lawyer.

Next. Here is a short story from Manto for our readers:
Pathanistan
Khu, speak out immediately. Who are you?'
'I.... I....'
'Son of Satan, speak speak, speak! Are you an Indu (Hindu) or a Muslimeen (Muslim)?'
'Muslimeen.'
'Khu, who is your Prophet?'
'Mohammad Khan.'
'That's right, go.'
(Saadat Hassan Manto)

Lincoln, the film, the lawyer and Pakistanis

By Yasser Latif Hamdani

(Some spoilers- beware)

"Lincoln" v. "Gandhi"

A few days ago, I watched Steven Spielberg's "Lincoln" starring amongst others the likes of Daniel Day Lewis, Sally Field and Tommy Lee Jones. It was one of the most extraordinary films I have seen in my life and what is more is that it wasn't preachy or unrealistic - quite unlike Richard Attenborough's rather mediocre film "Gandhi" which distorted history and presented the subject as an infallible saint instead of the shrewd politician, very capable of cunning and cant, that Gandhi was. Sir Ben Kingsley did a terribly unconvincing job as Gandhi but to be fair that film fails on account of a weak script and the fact that it was naked hagiography masquerading, but failing, as history. On the contrary  Lincoln was a political film about a politician who was human but whose integrity shone through even as he was fighting a grave battle for his nation. Consequently Daniel Day Lewis was superb and masterly as Abraham Lincoln. One reason for this might be that this film itself is for an increasingly aware audience in the information age, as oppose to the naive gaping and ignorant buffoons who crowded cinema halls in the early 1980s (I can only imagine how cinema goers could have reacted without the ability of doing some basic fact checking back then).

Religion, law and Bhagat Singh

When the East India Company first came to India in 1601, it claimed — through the principle of extraterritoriality — to be governed by its own laws, rejecting lex loci or the local laws of the Mughal Empire and its feudatories. Accordingly, the earliest charters empowered the East India Company to draw up reasonable laws in consonance with the principles of English common law. The charter of 1726 applied the laws of England, in entirety, directly to the East India Company’s holdings in India, namely the towns of Calcutta, Madras and Bombay, and all their residents. English law was applied in these towns not just to the English settlers and traders but all communities, castes and people residing within the boundaries of these towns, without any distinction.

Partition of Punjab I

To my mind, it is an extraordinary waste of important public space to engage in tit for tat kind of back and forth comments through columns in national newspapers. I did not want to respond to Ishtiaq Ahmed’s rebuttal article last week (Daily Times, July 22, 2012) through this space and therefore, responded to it through a blog in some detail. Unfortunately, my blog elicited a response in the comments section by one Mr Shakil Chaudhry, who wrote an article in this newspaper. Be that as it may, I am forced to write a three-part response and the readers will just have to bear with me.

Everyone has the right to his own opinion and I would like the counterparties to realise that I too have the right to my opinion about Ishtiaq Ahmed’s work. Nevertheless, I still think that his recent book is a drastic improvement upon his earlier work. It is precisely for this reason the book needs to be highlighted. Coming as it is from a certain one-sided point of view, the content of the book shows that the violence in Punjab was caused by the insistence of Congress to partition Punjab at the insistence of the Sikhs.

Supreme Court's decision is terribly flawed, deploys legal sophistry

By Yasser Latif Hamdani

The Cabinet Mission Plan, which was accepted by both Congress and Muslim League in May of 1946, was a rare glimmer of hope for the resolution of all outstanding disputes between the two major parties of the subcontinent and for a while, it seemed that India was headed towards a federal future, which was to the liking of all stakeholders. Unfortunately, what followed was a disastrous miscalculation on the part of the Congress Party, ironically against better counsel from its own president, Maulana Azad. It centered on the interpretation of the grouping clause of the formula. The formula provided group federations A, B and C, which each consisted of certain provinces, with freedom of opting out from a federation. The position of the Cabinet Mission was that this opting out could happen only after the first elections. That was the interpretation the Muslim League also accepted. Congress however insisted that opting out actually meant that provinces could choose not to be part of a group federation ab initio, a position which was counter-productive to the whole exercise. In a bid to resolve the crisis, Viceroy Lord Wavell held a separate meeting with Congress stalwarts, Gandhi and Nehru. Gandhi and Nehru argued, without realising the irony of their position, that it was not what the Cabinet Mission thought the plan meant but what they interpreted the plan to mean that counted. Flabbergasted, Wavell is reported to have said, “Gentlemen don’t talk to me as lawyers but as reasonable men,” to which Gandhi and Nehru, who other than their training in law had very little to do with the practice of law, responded with one voice: “But we are lawyers!” The rest, as they say, is history.

Tragically, the events of recent months in our country owed their traumatic birth to the aforementioned misplaced legal sophistry in a political realm. That has once again shown what happens when lawyers — in this case lawyers elevated to the benches of the highest court in the land — choose to interpret documents in a way that suits them instead of taking a document in the spirit in which it was drafted. Of course, this is part of what being a lawyer is about and this is what lawyers are paid for while representing their clients. These are tactics to be employed strategically to the best advantage of one’s client. Statesmen have no such luxury because the greater interests of a whole people depend on the steps they take. Similarly, judges, once elevated from their status as lawyers, are duty bound to proceed according to the spirit of the constitution and to attach the most direct and logical meaning to constitutional provisions. In the view of this writer, the Supreme Court has resorted to blatant legal sophistry in both the way it has dealt with the contempt case and now the disqualification of Pakistan’s unanimously elected, longest serving Prime Minister, Mr. Yousaf Raza Gilani. As Justice Katju, formerly of the Indian Supreme Court, wrote in his precise opinion that the Supreme Court should not have overruled 248(2) and asked the prime minister to write a letter to a foreign authority to initiate proceedings against the President of the republic, which is absolutely barred by the constitution of this republic in clearest terms.

Did Jinnah want a secular state?

By Yasser Latif Hamdani


 Taimoor Ashraf made a number of patently inaccurate claims, based on a flawed and utterly misdirected rendering of facts about Jinnah, partition and the making of Pakistan. The gist of his convoluted piece was this: Jinnah might have been secular, but did he want a secular Pakistan? 

Mr Ashraf claims that Jinnah was not secular because the August 11, 1947 speech was made as a consequence of terrible sadness on his part because of the communal bloodletting. By August 11, 1947, there were communal disturbances, but the communal bloodbath, largely, happened in late August and September. Then he claims that Jinnah was not secular because he was a pluralist. So in other words being ‘secular’ and ‘pluralist’ are mutually exclusive? There are no qualms with the fact that Jinnah’s secularism was more of the British variety than the strict French laicism of Kemal Ataturk. Does that mean Jinnah would have approved of ‘priests with a divine mission’? That incidentally is one of the more famous Jinnah quotes: “Pakistan shall not be a theocracy to be run by priests with a divine mission.”