Law and literature similar in many ways: ex-CJP Khosa

KARACHI: Speaking about the role of literature in the legal discourse, former Chief Justice of Pakistan (CJP) Asif Saeed Khosa on Friday said often poetry came in handy to judges who had no other recourse to respond to criticism against them. He said law and literature were similar in many ways and he employed help of literature for solving important cases. He was speaking as a keynote speaker at the inauguration of the three-day Adab Festival at the Arts Council of Pakistan, Karachi.

“Only a few weeks before my retirement, some constitutional and legal questions were asked in a case about those who had never been questioned before. As expected, such intervention invited the ire of many,” remarked the former CJP who retired in December last year. He said being a judge, he was not supposed to respond to what people said about him.

However, he informed the gathering that in his speech at the farewell reference arranged for him, literature provided him an opportunity to respond to such critics as he recited a poem by Fehmida Riaz, titled ‘Faiz kehte’: “Kuch log tumhe samjhayenge/ Woh tum to khauf dilayenge/ Jo hai woh kho bhi sakta hai/ Is raah mein rehzan hain itne/ Kuch aur yahan ho sakta hai/ Kuch aur to aksar hota hai/ Par tum jis lamhe mein zinda ho/ Woh lamha tum se zinda hai/ Yeh waqt nahin phir aaye ga/ Tum apni karni kar guzro/ Jo hoga dekha jayega.”

Justice (retd) Khosa gave many examples of the use of literary texts in court judgments worldwide, which was quite interesting as the idea of literature and legal discourse going together generally seems not apt because interpreting the former involves subjectivity while the latter is grounded in objectivity and demands as much less room for multiple interpretations as possible – something unimaginable for literature, which is an art form.

In the Pakistani context, he said Justice Jawwad S Khawaja and others had quoted poetry by great Persian, Urdu and Punjabi writers such as Hafez, Saadi, Iqbal and Bulleh Shah in their judgments.

Literature helps create emotional argument in favour of legal argument, the former CJP said. He also referred to some of his own judgments in which he had included literary texts. He recalled his judgment of acquittal of Asia Bibi, in which the bench had found contradictions in the statements of testimonies. He said he used a line from Shakespeare’s King Lear, ‘more sinned against than sinning’, to depict the plight of the appellant. He also once wrote “Marte hain aarzoo mein marne ki/ Maut aati hai par nahin aati” by Ghalib in a judgment, he said.

Justice (retd) Khosa also cited various judgments from judges of United States, United Kingdom, India, Sri Lanka, Papua New Guinea and other countries that had referred to Shakespeare, Milton, Charles Dickens, Faiz, Sahir Ludhianvi, Daagh, Majaz, Nida Fazli, Dostoyevsky, Tennyson, Kahlil Gibran, Sarat Chandra Chatterjee and other great writers and poets.

The former CJP also read a judgment from the US that was written in lyrical form. The case was about a Chevrolet car hitting a tree and damaging it after which the tree owner sued the driver, owner and insurance.

The trial court wrote its judgment in poetry that started like thus: “A wayward Chevy struck a tree/ Whose owner sued defendants three/ He sued car’s owner, driver, too,/ And insurer for what was due/ For his oak tree that now may bear/ A lasting need for tender care.” He also cited an appeal from the Indian Supreme Court for the release of an Indian imprisoned in Pakistan over espionage charges.

He said in his appeal Justice Markandey Katju wrote Faiz’s verse, “Qafas udaas hai yaaro saba se kuch to kaho/ Kahin to bahr-e-khuda aaj zikr-e-yaar chale”. The effect of using Faiz’s poetry in the appeal was so profound that Pakistan released the Indian man and it was the first such incident of its kind, Justice (retd) Khosa said.

Literature has been catalyst for change of laws, Justice (retd) Khosa remarked. He said Dickens’ novels created awareness about the exploitation of labour class, which eventually resulted in the introduction of labour-friendly laws. He also named Harriet Beecher Stowe’s ‘Uncle Tom’s Cabin’, Upton Sinclair’s ‘The Jungle’ and John Steinbeck’s ‘The Grapes of Wrath’ as some American novels that resulted in legal reforms after their publications as they brought to the fore the problems of slaves, immigrants and labour class.