Its legal and factual relevance
“If Hamlet in his madness did amisse, That was not Hamlet but his madness did it, And all the wrong I e’re did to Leartes, I here proclaim was madness”.
The aforesaid verse was borrowed from, Shakespeare’s magnum opus “Hamlet”, by Judge Bostjan Zupancic of European Court of Justice for deciding the case of “Achour vs France” . The rationale behind use of the said verse was to elucidate on the difference between, the degree of criminal liability which arises out of a premeditated act and the extent of criminal liability arising out of an act caused by “loss of self control” or “diminished responsibility (insanity)”.
Court proceedings are often dreary and are seldom deemed as opportunities for sensation and innovation, however, over the years, few unconventional judges have taken advantage of their linguistic acuity, Shakespearean expressions and literary wisdom, to turn their rulings into compulsively readable masterpieces. One such non-conformist judge in our Apex judiciary is, the outstandingly gifted, Justice Asif Saeed Khosa. The flare of Justice Khosa’s language and his ability to author novel judgments with scholarly flavor is unparalleled and accounts for much of his popularity. The verdicts authored by Justice Khosa are generally couched with punchy, mesmerising and unassailable literary references, further clarifying the rationale behind his opinions. After giving, a deep analytical rigor to the law points settled by Justice Khosa over the last decade, one can easily figure out that apart from being a maestro jurist he is a well read individual possessing deep understanding of criminology, literature and philosophy.
Whilst ruling on a case, involving a controversy related to the alleged corruption and unexplained wealth of current Prime Minister of Pakistan, Justice Khosa started his dissenting note with Mario Puzo’s novel “The Godfather” epigraph; “Behind every great fortune there is a crime”. Although the Godfather Analogy, due to its indestructible vitality and magical significance has received far reaching approbation both at domestic and international fronts, however, a section of the public, particularly the, self proclaimed apostolic founders of constitutionalism and champions of abstract notions of rule of law, labeled the said Analogy as an audacious hyperbole having no foundation in constitutional law. Amusingly, some leaders and followers of the ruling party were also found rendering expert opinions, possessing overbearing insolence and artful mendacity, on the Godfather Analogy, proclaiming that law has nothing to do with literary and fictional references.
For personal reasons, right after the announcement of Panama Verdict, I forced myself not to write on the merits of the same, however, after reading some brainless opinions on the legality and relevance of Godfather Analogy, I felt constrained to present my view point at least on this particular issue. As a lawyer, I feel it my duty to call attention to certain judicial precedents which must be borne in mind, if one wants to form a fair opinion of what is written in the preamble of Justice Khosa’s dissenting note.
In US, UK, India and many other jurisdictions all over the world, references to work of authors like Shakespeare, Montesquieu, Balzac, Kafka, Faulkner, Ghalib and Faiz in superior court pronouncements is a norm. In 1999, Robert Peterson in his book “The Bard and the Bench”, pointed out that so fat all thirty seven Shakespeare’s plays have been quoted by American courts, in over 800 judicial opinions.
In “Budhadev vs West Bengal”, the ever flamboyant, Indian Supreme Court Judge, Markandey Katju, started his opinion by quoting Mirza Ghalib’s verse: “Pinha tha daam-e-sakht qareeb aashiyaan ke, Udhne hi na paaye the ki giraftaar hum hue“. In the same case, Mr. Katju made crafty references to the character of, Nancy in Charles Dicken’s “Oliver Twist”, Sonia in Dostoyevsky’s “Crime & Punishment” and Fantine in Victor Hugo’s “Les Miserables”. Moreover, Justice Katju in “Gopal Dass vs Union Of India” began his judgment with a verse of Faiz “Qafas udas hai yaaron saba se kuch to kaho, Kaheen to beher-e-khuda aaj zikr-e-yaar chale” while issuing an appeal to Government of Pakistan for releasing an Indian citizen who was serving life sentence in Pakistan for twenty seven years.
Justice Katju in “Rajindera Singh vs Prem Mai”, for criticising the Indian justice system, quoted an extract from Charles Dickens novel “The Bleak House”: “This scarecrow of a suit has, in course of time, become so complicated, that no man alive knows what it means. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse”.
Justice A K Ganguly in “Subramanian vs Manmohan Singh”, displeased by inordinate delays caused by the Prime Minister Office, explained the position of Prime Minister by quoting Shakespeare’s verse: “uneasy lies the head that wears a crown“. In Shri Shanmu vs State Of Maharashtra, a judge in Madras High Court whilst explaining “manslaughter by reckless driving” quoted Ghalib’s verse: “Rau mein hai rakhsh-e-umr kahan dekhiye thame, naey haath baag par hain na paa hai rakaab mein”.
In “Major Stake Limited vs Curtis”, Lord Scott in House of Lords averred “Harry Potter, we are told, received letters addressed to him at the Cupboard under the Stairs. The Cupboard under the Stairs might have constituted “premises” for the purpose of letters from Hogwarts but for the purposes of construction of the statute, a normal use of the English language must be assumed”.
The American Judges are one step ahead from their counterparts in other jurisdictions, apart from quoting literary references they are used to punching witty and sarcastic remarks in their rulings. In “Kimble v. Marvel Entertainment” Justice Elena Kagan used the opening lyrics from the 1967 Cartoon TV Show “The Spider-Man” in her verdict. Justice Antonin Scalia has used the words “Tutti-Frutti” (Sykes v. United States) “Argle-Bargle” (United States v. Windsor) and “Scotus Care” (King v. Burwell) in his opinions. In “Noble v. Bradford”, Judge James Paine made abundant references to the movie “Wayne’s World” in his ruling.
When Oscar Pistorius, the South African Paralympics sprint runner, was convicted of murdering his girlfriend, the presiding judge in South Africa described the case as a “Human Tragedy of Shakespearean Proportions” thus alluding towards the athlete’s fall from the esteemed Olympian heights into the murky dungeon of desolation.
Judicial rulings are often lengthy, unappealing and monotonous for an average reader; containing complex facts, extensive arguments, discussion on precedents (case laws) and finally the verdict. Literary references, if appropriately and intelligently used, make judicial rulings easier to comprehend as such references smoothly clarify the factual and legal issues involved in a dispute; in addition, citing references invest the judgment with credibility and invoke in it a sense of rationality and wisdom. Therefore, there is no harm, if a judge brings law and literature together and is inspired by the ways in which ideas are expressed by a novelist or a playwright.
Essentially there are two queries, in relation to the use Godfather Analogy, requiring discussion;
First, whether the said Analogy is a legal or constitutional anomaly? In the light of the foregoing discussion on the case laws from different jurisdictions, the answer to this query is in certainly in negative.
Second, whether Nawaz Sharif possesses the traits of Don Vito Corleone? Well, Carleone (Godfather) had strong links with the police, the media, the bureaucracy and the judiciary; they were literally on his payroll and operated according to his whims. Interestingly, the Sharifs, since their arrival on the political stage of Pakistan have obliged several generals, civil servants and judges (after retirement); in addition, they have blessed several journalists with esteemed government posts.
Einsteiniun intellect is not required to find out who was President of Pakistan in January 1998, who was Governor of Sindh in December 2016, who is Chairman PEMRA, Chairman of Pakistan Super League, Advisor to the Prime Minister on National History and Minister of Information Technology in Azad Kashmir. Hence, the Godfather Analogy also appears to be factually relevant, as the same (in just one sentence) gives an immensely detailed portrait of a powerful and mighty ruler, who has acquired assets beyond known sources of income, has failed to explain possession and acquisition of properties in London, was and still is immune law of the land.