Lawful humour
October 11, 2012
While the Americans have landed a vehicle named Curiosity on the surface of Mars to uncover its mysteries, we have launched a non-vehicular curiosity of our own to decode the mysteries of the Constitution of 1973.
It was, perhaps, to frustrate just such an effort that the constitution was encoded in a foreign language and was based on concepts and notions that the legal community likes to formulate in yet another foreign language, Latin, that is otherwise used only to encode the secrets of the Vatican.
It helps, therefore, to have at least a nodding acquaintance with Latin if you wish to get the drift of the arguments in judicial proceedings, especially at the higher level of adjudication.
Recently, for example, a knotty problem that arose in a case of contempt of court was resolved by the court when it let the lawyers of the accused know that the court was aware of the principle that nemo debet esse judex in propria sua causa.
That silenced Barrister Aitzaz Ahsan who gave vent to his feelings later, in Urdu, before the native media assembled outside the court.
Recourse to Latin has been quite common in the British courts that remain a source of inspiration for our legal community.
An absolute gem of Latinised judicial wisdom came up in the case of a miner from Barnsley, Yorkshire, who had put in a late claim for compensation.
“Your client,” asked the judge rather sternly “is no doubt aware of vigilantibus, et non dormientibus, jura subvenit?” “Why, in Barnsley, my lord,” replied the counsel, “they speak of little else.”
For the education of those who, like me, are unlettered in Latin, the first quote means, ‘No man can be a judge in his own case’; and the second quote means ‘ the law assists the watchful, not the sleepers.’
To return to constitution making in a foreign language, the linguistically contrived constitutional incomprehension was bound to invoke the wrath of the people and of such dedicated amici populi, friends of the people, as generals Ayub, Yahya, Zia and Musharraf, who did express their outrage in English in public, and in vernacular in private.
One of them even threatened to tear the constitution into pieces with his bare hands, to only desist when told that there were too many copies of it.
At some point it was realised that since most of the framers of the constitution belonged to the farming community and were, in any case, omnium gatherum (gathering of all sorts), it was not likely that they could comprehend what they might have been led into.
That it was not an idle assumption has recently been proven in a case where the court had to explain, with the help of ‘various dictionaries’, to the speaker of the National Assembly, the meaning of “question” as used in Article 63(2) of the constitution. The speaker was obviously under the impression that a question can arise only during question hour.
This further explains why the task of interpretation of the constitution was assigned to persons known for their proficiency in English, and familiarity with Latin.
Hence the inviolable principle that once a constitution has been promulgated or the laws enacted, the legislators cease to have anything to do with what they might have put together or torn asunder.
To put it in proper legal language, they become functus officio and cease to have any locus standi in respect of that piece of legislation. Only the courts and lawyers can tell, in their inimitable legalese, what the legislators might have been up to.
Not many legislators understand this. For them it’s like trying to understand ignotum per ignotius – the unknown by the more unknown.
That settled, the role of the interpretation of laws is exercised by lawyers and judges who, being well-versed in English, can explain the laws in prose and in verse.
Quite often they offer their advice ex proprio motu or, to put it in the current archaic usage, suo motu. Recently there has been some controversy about the role of the judges and the lawyers due to confusion spread by persons whose fide is clearly mala.
However, their roles are quite clear; judging on the basis of what they normally do, the role of the lawyers is to raise so much of legal smoke and dust that justice can hardly be seen to have been done.
The role of the judges, on the other hand, is to write so copiously that most of the guilty ones can be sentenced till the reading of the judgment, as adequate punishment.
The role of judges and lawyers as interpreters of the constitution, being a deviation from their normal role, is not well understood. To fully appreciate the need for judicial intervention to make the threads of the constitution bare, one has to read the constitution at least once.
For starters, let’s begin with one of the 22 qualifications and disqualifications laid down in the constitution for the membership of the parliament, keeping in mind that elsewhere in the world, such as India and the US, the lawmakers couldn’t think of more than two qualifications: citizenship and age.
The most lustrous gem of legislative foresight is embedded in para (1) of clause (1) of Article 63. It provides that a person shall be disqualified from being a member of the parliament if ‘he is of unsound mind and has been so declared by a competent court.’
While nowhere else in the world has it occurred to the lawmakers to prevent the electorate from electing certified lunatics, our lawmakers – ever suspicious of the electorate – have outwitted them at least on this score.
There is, however, a lacuna. What if by the time the court comes to identify the mad man in the House and declares him of unsound mind, the man might have had his days of glory for a long time, maybe for several years?
The constitution should, therefore, provide further that any person aspiring to be a member of the parliament should submit to the Election Commission a declaration by a competent court that the applicant, though desirous of being a member of the parliament, is not insane.
The writer is a retired civil servant. Email: iqjafar@gmail.com
It was, perhaps, to frustrate just such an effort that the constitution was encoded in a foreign language and was based on concepts and notions that the legal community likes to formulate in yet another foreign language, Latin, that is otherwise used only to encode the secrets of the Vatican.
It helps, therefore, to have at least a nodding acquaintance with Latin if you wish to get the drift of the arguments in judicial proceedings, especially at the higher level of adjudication.
Recently, for example, a knotty problem that arose in a case of contempt of court was resolved by the court when it let the lawyers of the accused know that the court was aware of the principle that nemo debet esse judex in propria sua causa.
That silenced Barrister Aitzaz Ahsan who gave vent to his feelings later, in Urdu, before the native media assembled outside the court.
Recourse to Latin has been quite common in the British courts that remain a source of inspiration for our legal community.
An absolute gem of Latinised judicial wisdom came up in the case of a miner from Barnsley, Yorkshire, who had put in a late claim for compensation.
“Your client,” asked the judge rather sternly “is no doubt aware of vigilantibus, et non dormientibus, jura subvenit?” “Why, in Barnsley, my lord,” replied the counsel, “they speak of little else.”
For the education of those who, like me, are unlettered in Latin, the first quote means, ‘No man can be a judge in his own case’; and the second quote means ‘ the law assists the watchful, not the sleepers.’
To return to constitution making in a foreign language, the linguistically contrived constitutional incomprehension was bound to invoke the wrath of the people and of such dedicated amici populi, friends of the people, as generals Ayub, Yahya, Zia and Musharraf, who did express their outrage in English in public, and in vernacular in private.
One of them even threatened to tear the constitution into pieces with his bare hands, to only desist when told that there were too many copies of it.
At some point it was realised that since most of the framers of the constitution belonged to the farming community and were, in any case, omnium gatherum (gathering of all sorts), it was not likely that they could comprehend what they might have been led into.
That it was not an idle assumption has recently been proven in a case where the court had to explain, with the help of ‘various dictionaries’, to the speaker of the National Assembly, the meaning of “question” as used in Article 63(2) of the constitution. The speaker was obviously under the impression that a question can arise only during question hour.
This further explains why the task of interpretation of the constitution was assigned to persons known for their proficiency in English, and familiarity with Latin.
Hence the inviolable principle that once a constitution has been promulgated or the laws enacted, the legislators cease to have anything to do with what they might have put together or torn asunder.
To put it in proper legal language, they become functus officio and cease to have any locus standi in respect of that piece of legislation. Only the courts and lawyers can tell, in their inimitable legalese, what the legislators might have been up to.
Not many legislators understand this. For them it’s like trying to understand ignotum per ignotius – the unknown by the more unknown.
That settled, the role of the interpretation of laws is exercised by lawyers and judges who, being well-versed in English, can explain the laws in prose and in verse.
Quite often they offer their advice ex proprio motu or, to put it in the current archaic usage, suo motu. Recently there has been some controversy about the role of the judges and the lawyers due to confusion spread by persons whose fide is clearly mala.
However, their roles are quite clear; judging on the basis of what they normally do, the role of the lawyers is to raise so much of legal smoke and dust that justice can hardly be seen to have been done.
The role of the judges, on the other hand, is to write so copiously that most of the guilty ones can be sentenced till the reading of the judgment, as adequate punishment.
The role of judges and lawyers as interpreters of the constitution, being a deviation from their normal role, is not well understood. To fully appreciate the need for judicial intervention to make the threads of the constitution bare, one has to read the constitution at least once.
For starters, let’s begin with one of the 22 qualifications and disqualifications laid down in the constitution for the membership of the parliament, keeping in mind that elsewhere in the world, such as India and the US, the lawmakers couldn’t think of more than two qualifications: citizenship and age.
The most lustrous gem of legislative foresight is embedded in para (1) of clause (1) of Article 63. It provides that a person shall be disqualified from being a member of the parliament if ‘he is of unsound mind and has been so declared by a competent court.’
While nowhere else in the world has it occurred to the lawmakers to prevent the electorate from electing certified lunatics, our lawmakers – ever suspicious of the electorate – have outwitted them at least on this score.
There is, however, a lacuna. What if by the time the court comes to identify the mad man in the House and declares him of unsound mind, the man might have had his days of glory for a long time, maybe for several years?
The constitution should, therefore, provide further that any person aspiring to be a member of the parliament should submit to the Election Commission a declaration by a competent court that the applicant, though desirous of being a member of the parliament, is not insane.
The writer is a retired civil servant. Email: iqjafar@gmail.com
