Original Articles

The Uncommon Law – by Ali Raja‏

Khud Hi Qatil Bhi Ho Khud Hi Munsif Bhi Ho
Khak Mere Armanun Ka Faisla Ho Ga

Proverbs doubtlessly are the essence of every language, every culture and every nation. These pickled linguistic berries not only depict the centuries old sophisticated wisdom of a nation. These sentences, phrases and clauses are vintage assets of the human race which conduct the experiences earned by sweat of the brows of our elders to us the future of the human race.

Though proverbs are there to learn from and to run with but despite being an aware, educated and self proclaimed sane person I found my self fitting into a proverb we Punjabis use for a fool. The legend says that once there was man who spent a whole night in the chopal listening to the “Arabian Nights” and in the morning inquired “Laila Jaran Si Ke Zanani” (Was Laila a Man or a Woman.) The same happened to me last night. With my Father and Grand Father being Lawyers and my self being a law student it was astonishing as of why I asked my father “Is it the COMMON or the UNCOMMON law we have in Pakistan.” When he stared at me from behind his glasses and started to read again I deduced may be that LAILA proverb has applied with full force on me. To calm my self-esteemed conscious I started to find explanation for my question.

According of the Gazette of Pakistan, the authority on the black and white governance of the Islamic Republic of Pakistan, “Pakistan follows a COMMON LAW legal system.” With the Gazette being clear and me being still unclear, I decided to go after this birdy named “COMMON LAW.” Applying my self proclaimed research abilities I decided to dig into the term. “Mullah’s Marathon to The Mosque” and mine to Dad’s library. So there we were me and the good old “BLACKS LAW DICTIONARY.” The results of scholarly research were much more astonishing and gave even more credentials to my “LAILA” question. Hennery Campbell Black’s journal of law terms said “Common Law is a body of rules and principles, written or unwritten, which are of fixed and immutable authority, and which must be applied to controversies rigorously and in their eternity, and cannot be modified to suit the peculiarities of a specified case or colored by any judicial discretion from any claim to ethical superiority.”

In accordance the statement given above I then was compelled to observe, compare and evaluate the Judgments passed by our very dear honorable Supreme Court. The judgments which in no manner are fixed and immutable, the judgments which are modified to suit peculiarities, the judgments which are colored by discretion and the judgments which make me wonder is the Common or the Uncommon Law we have in Pakistan.

1) – In the infamous establishment adventure known as the memo gates the Supreme Court was so hasty in its wishes that on the very first hearing without even serving notices to the respondents the Supreme Court passed an X Party order against Mr. Hussain Haqqani and ordered him to be placed on the ECL. Does the Common Law now when preliminary evidence and witnesses are already on record not require Arsalan Iftakhar to be put on the ECL???

2) – In the Sarfaraz Shah Murder Case the Supreme Court ordered the the Director General of Rangers Sindh Major General Ijaz Chauhdary and Inspector General of Police Sindh Fayyaz Laghari with no charges in persona over them ordered both to be removed from their respective positions as their presence would influence the inquiry. Does the Common law now when the Chief Justice of Pakistan is in persona on trial not require him to step aside and relinquish his post?

3) – In the Punjab Bank Scandal when Senator Babar Awan and Senator Latif Khan Khosa were accused of having received bribes on behalf of the Members of the Superior Judiciary both of them were referred to National Accountability Bureau for further probe. Does the Common Law now, when the son of the Chief Justice of Pakistan is being suspected of taking bribes on behalf of the Judiciary not require the matter to be referred to NAB?

4) – In the Yousuf Raza Gilani Contempt of Court Case the Supreme Court of Pakistan after having accepted that the appointment of the Attorney General of Pakistan is the due right of the Prime Minister of Pakistan stated in its judgment that “We found it intriguing that the Respondent exercising his powers changed the officer of the Court prosecuting him.” Does the Common Law now when the Chief Justice of Pakistan is being investigated as of weather he did receive bribes via his son or not, not require the Bench hearing the case to be constituted on seniority basis rather than pick and chose?

5) – In the NICL Case the Supreme Court of Pakistan observed that that how an independent inquiry can take course when the prime accused is sitting on the top and his fellow juniors are investigating the case. Does the Common Law now, when the Chief Justice of Pakistan is being accused and his fellow juniors are investigating the case, not require that an independent commission of inquiry based on the members of the Supreme Court Bar Association or the Parliamentary Committee on Law and Justice be authorized to probe into the matter?

After all this self tagged comprehensive scrutiny of the Law in Pakistan my question of weather we have a Common or an Uncommon law in Pakistan gained more strength. If firm, equal and impartial law is what we call the Common Law then Uncommon would be the Vulnerable, Partial and Biased law that we have in Pakistan. With this assessment I marched to my Father and reinforced my question. The research helped to the extent that instead of a stare a received a smile and there he was again to his reading. Still inquisitive I ask the same from the ones at LUBP, with the hope that I will get an answer rather than a smile.

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Dr Uzma Ali

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  • Udhar aik harf ki kushtni, yahan laakh uzr thaa guftni
    Jo kaha toh sun ke ura dia, jo likha toh parh ke mita dia

  • If firm, equal and impartial law is what we call the Common Law then Uncommon would be the Vulnerable, Partial and Biased law that we have in Pakistan.

    Indeed it is the uncommon law that we have in Pakistan. Unfortuantely.