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)

Indian Court Limits Frivolous Drug Patenting, Clearing Path to Affordable Medicines

From Open Society.org

Should pharmaceutical patents—which result in monopolistic pricing of medicines—apply to any new drug, regardless of how it was made and whether it offers anything new?
This question was answered recently in a courageous decision by the Intellectual Property Appellate Board of India (IPAB), in a suit brought by Open Society Foundations’ grantee the Lawyers Collective on behalf of Sankalp Rehabilitation Trust, a Mumbai organization that works with drug dependent patients. In this case, IPAB ruled to revoke the patent held by the pharmaceutical company Roche for its hepatitis C drug, Pegasys, on the grounds that the process used to develop the medicine was not novel or innovative enough to warrant a patent. Since patented Pegasys costs between US$10,000-15,000 per treatment, this ruling is an important first step toward making hepatitis C medicines more accessible by allowing for future production of more affordable generics. 

Yasser Latif Hamdani discusses Jinnah's constitutional vision with Raza Rumi and Simon Samson Sharaf

Cartooning the Constitution: Look before you leak

By Farzana Versey

When I say that you cannot be proud of something you are born in or with unless you contribute to it, including religion and the nation, I am asked, “So you don’t get goosebumps during the national anthem?” This is not the response of only the rightwing, but also centrists, and libertarians. My goosebumps for anything are a personal matter. Flashing fidelity is an insecure reaction, in personal relationships and in patriotism. 

When a political cartoonist from the anti-corruption movement shows the Indian Parliament as a toilet bowl, should not the response be the same? If he depicts the symbols of the Indian Constitution in a manner that insults the symbols rather than pulling up those who abuse it, then why is he held up as an example of freedom of expression? 

Aseem Trivedi is arrested. He refuses a lawyer. He has nothing to say in his defence.Reportedly, “he prefers to be jailed than live in a farcical freedom where activists are targeted and freedom of speech is denied”.

The farcical freedom he talks about has occupied grounds and done little else. IAC cannot take credit for any expose of scams. His stance is no different from the cries of “jail bharo”. This will help the movement come back into the limelight. 

We do know that sedition charges don’t stick. But those who are charged with it get sympathy and a free ticket to ‘victim’ heaven. Has anything happened to Arundhati Roy? Isn’t Dr. Binayak Sen happily sitting in the Planning Commission, appointed by the very government that had sentenced him? 

Power of Judicial Review

First published in The Friday Times.

By Yasser Latif Hamdani

During his confirmation hearings, Judge John Roberts, the Chief Justice of the United States of America, famously admitted that he was aware of the fact that millions of people had elected the US Congress and not even one person had voted for the Supreme Court. More recently, in the now famous Obamacare judgment pronounced on June 28, Roberts declared that it was not the job of the Supreme Court to "protect people from their political choices". Such is the deference for the legislative branch of the government in the country that literally invented the doctrine of judicial review.

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.

Pakistan's future?

By Yasser Latif Hamdani


Our right-wingers and religious extremists with their unthinking rhetoric are leading Pakistan to disaster. The politics of NATO supply lines is the pound of flesh they wish to extract from a wretched establishment that has long utilised them for their own agendas. Now the chickens are coming home to roost.

There is a consensus across the board amongst analysts and policy makers that Pakistan’s bilateral ties with the US are extremely important for the country. It is the US that is Pakistan’s largest trading partner — a partner that largely sustains our legitimate economy. Yet the expediencies of politics are driving all major parties in Pakistan to take a hardline approach towards the US that will in the final assessment only hurt Pakistan’s interests home and abroad.

For long we have ignored the sordid reality of post-1977 Pakistan. Not only has continuous war on our western front drained us economically, it has annihilated us socially. What does the world see when it sees us? It sees an economic basket case, which is constitutionally and in practice a theocracy. It sees a state that persecutes people and discriminates against them in the name of religion. It sees a state that tolerates domestic violence and relegates women to a second-class status. In short, we are today exactly the opposite of what we wanted to be in 1947, thus bringing into controversy the very creation of this state. It is time to look into the mirror without any illusions. We are a ghetto of festering intolerance, dysfunctional democracy and a military establishment that seems to have isolated itself from reality by conflating its own interests (defined by a 20th century military mindset entirely out of step with 21st century realities) with those of the state. Add to that a judiciary that the world at least sees as hell bent on destabilising a nascent and troubled democracy by quoting Kahlil Gibran.

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.”

Some judgments, Pakistani and Indian case law

List of Judgments 

 Specific Performance and Mandatory Injunction

·         Indian (2002) 3 CALLT 108 HC (On point- in PDF form print out)

·         Indian 74 (1998) DLT 60 (In PDF form print out)

·         PLD 1964 SC 337

·         PLD 2002 KAR 542

Specific Performance of Agreements vis a vis obligation of continuous performance for more than three years:

·         AIR 1927 Lah 898

·         AIR 1949 Nag 286

Amended Plaint:

·         2000 SCMR 391

·         2001 SCMR 133

·         2003 SCMR 542

·         1995 SCMR 69

·         PLD 1985 SC 345

·         PLD 1993 SC 83

Lawyering the law: A rebuttal

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.

Jinnah as a lawyer

From http://mylaw.net

This is a wonderful two part series by an Indian law network website on the life and career of Mahomed Ali Jinnah.
Part 1: "No man is more adroit in presenting his case"
Part 2: "A brilliant advocate, man of unimpeachable integrity"

Mohammad Ali Jinnah evokes strong responses in South Asia, and has been cast in a multitude of roles depending on which side of the political line he is viewed from - a master negotiator, a charismatic leader, a cunning politician, a secular liberal, and a conservative reactionary. Few, however, see him as a lawyer, his primary professional training that helped launch his career in public life and shaped both, his political career, and his ideological vision.

Lawyers of course, overwhelmingly dominate the galaxy of political leaders in colonial India. This was partly structural. Professional and middle classes have always played a significant role in republican movements. In British India, law, unlike medicine or engineering, was the only profession that could be practiced without being employed by the colonial government. Jinnah is unique in being amongst the handful of lawyers who became equally successful in both their fields.

Section 151 of the Contract Act 1872 (India and Pakistan)

Section 151 of the Contract Act 1872 says: “In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.”

1.       “Section 151 which refers to all kinds of bailment includes also pledges. Hence a pledge is also liable to the incidents of a bailment such as the duty to take requisite care” Thanwarin Noharsingh v. Darbarilal AIR 1952 Nagpur 8

2.       Bank claiming loss as pledged goods were damaged or destroyed due to natural decay while in custody of bank-…. Bank cannot disown liability 1998 …A clause in the pledge deed that the “pawnor shall be responsible for all losses, damages or deterioration of goods caused by theft, fire, rain, floods earthquake lighting, enemy action, international commotion or any other cause” does not exonerate the liability of the pawnee where goods were lost due to his negligence  because the clause provides him protection only when goods are lost due to causes beyond his control. 1998 (2) Guj LH 204

3.       Share certificates and bank transfer forms are goods.  Jamshed Naoroji Gamadia v. Maganlal Bankeylal AIR 1925 Bombay 314

Tortious Interference with Contracts

Book recommendation: The Law of Torts: Examples & Explanations, Third Edition

Research by Yasser Latif Hamdani and Zeeshan Zafar Hashmi

In order to state a claim for tortious interference with existing contractual relationships, a plaintiff must allege:

 (1) it had a contract with a third party;

(2) the defendant knowingly induced the third party to break the contract;

(3) the defendant had an improper motive or means for doing so; and

(4) it was harmed by such actions.

Legal Minds of Pakistan

Book recommendation: Before Memory Fades - An Autobiography


By Yasser Latif Hamdani

Any legal scholar picking up jurisprudence in Pakistan would be under the impression that Pakistan and India never separated. The reliance Pakistani jurists, judges and lawyers place on Indian judgements and case law is phenomenal. Indian precedents are not just persuasive – as in the case of English judgements and some American ones – but are given the status of near-law. This is hardly surprising, of course, given that most of the laws in Pakistan and India predate independence and very few, if any, have been updated in Pakistan. What is definite, however, is that Indian jurists and lawyers are certainly far superior as a whole when it comes to expounding law.