[To understand the context of this post, please read At What Cost! Why Compute Economic Costs of Faulty Political Decisions]
Parallel of Justice Khosa’s Great Right version with CJ Munir’s Doctrine of Necessity
- Need for a “Great Right” is always an immediate “Necessity”. In a developing country fighting perpetually for its survival and always going from one life threatening emergency to another, savior’s on horseback aided by creative judges will always find a “necessity” to serve a “great right”.
- If necessity can turn “unlawful into lawful”, then a “little wrong” can always be committed for obtaining a “great right”!
- What quantifiable measure can determine some “necessity” as “unavoidable” and what measurement can turn some “right” into a “great” right?
- Who determines “necessity” and who determines “great right” is a fundamental question? Should a few un-elected judges decide what is the “necessity” and what is the “great right”?
- Is deciding in favor of “wrong” and “unlawful” the prerogative of the judiciary? Is serving a “great right” and “necessity” when it is neither constitutional nor lawful their mandate?
- Judges should strictly decide on the basis of law and constitution by remaining strictly within their bounds. Changing a constitution is always the right of the people. However, neocolonialism dictates that this right should never be given to the people to decide. It should always be usurped through military Dictators or their handmaiden judiciary (see reference below).
- The dominant view of neocolonialism is that people are unworthy of deciding about what is right and what is wrong. What is necessity and what is not. This right has to be decided by the legacy of the colonial raj as enshrined in the unelected elites and powers of the status quo. Our history tells us about this un-holy alliance of the judiciary, military and the educated elites in disenfranchising the people.
- Doctrine of necessity and the hidden status quo powers have been making this decision of deposing our elected prime-ministers. None of the elected prime ministers have been allowed to complete their term. See my post: Why no PM of Pakistan has ever completed his/her tenure?
- Destiny of Neo-colonial Pakistan appears to be a series of governments where the hidden status quo forces of neocolonialism dictate the decisions either as a first umpire or the second umpire or the third umpire. Even in an apparent civilian rule, it all depends upon the third umpire lifting his finger to fold up the setup. The 3rd umpire famosly did not lift the finger in 2014 despite Imran Khan waiting for it on the container [2,3,4], but eventually did in 2017 through their old and trusted ally.
To Do a Great Right, Do a Little Wrong
Judge Khosa quoting Christopher Marlowe and then Shakespeare’s Merchant of Venice admits that his judgement is like Bassanio to Portia saying “To do a great right, do a little wrong”! Pp 169-170 from April 20, 2017 SC Judgement is reproduced below:
The precedent to be set by this Court through the present petitions should in fact be a warning to all those rulers who try to subjugate all the organs of power, enslave the institutions of accountability and then in a false sense of security and invincibility proclaim as Christopher Marlowe’s ‘Tamburlaine’ did by boasting that
“I hold the Fates bound fast in iron chains,
And with my hand turn Fortune’s wheel about,
And sooner shall the sun fall from his sphere
Than Tamburlaine be slain or overcome.”
While dwelling on the subject of setting a dangerous precedent by a court of law I am also reminded of the old bard William Shakespeare. The power of literature for commenting upon a reality through the medium of fiction is fascinating and an amazing example of the same is the following part of Shakespeare’s play Merchant of Venice which, though written hundreds of years ago in foreign climes, appears to have been written for nothing but the present case being handled by us in a different millennium and in a different continent. While trying to avoid execution of an
oppressive judicial decree regarding payment of money by another Bassanio beseeched the Duke as follows:
“Yes, here I tender it for him in the court;
Yea, twice the sum: if that will not suffice,
I will be bound to pay it ten times o’er,
On forfeit of my hands, my head, my heart:
If this will not suffice, it must appear
That malice bears down truth. And I beseech you,
Wrest once the law to your authority:
To do a great right, do a little wrong,
And curb this cruel devil of his will.”
which imploring was immediately retorted by Portia in the following strong words:
“It must not be; there is no power in Venice
Can alter a decree established:
‘Twill be recorded for a precedent,
And many an error by the same example
Will rush into the state: it cannot be.”
and then what happened to that decree is another story. The punch lines in the above mentioned excerpt appear to be “Wrest once the law to your authority: To do a great right, do a little wrong”.
Fortunately for me, there is no wresting the law to me authority and no little wrong is to be done by me to do a great right in the matter of issuing a declaration against respondent No. 1 because the original jurisdiction of this Court under Article 184(3)……..
See Other Posts on Panama Case Judgement:
- SC Panama Case Judgement and Crowds Clamoring for the Heads of Rich under Robespierre
- What Legal Questions Perry Mason would have raised in SC Panama Case Disqualification of PM
- Importance of Literature in Law: A Case Study of the Panama Case Supreme Court Judgement
- SC Interpretation of Sadiq and Ameen in Disqualification of PM Nawaz Sharif
- SC Judgement as Project Assignment for Finance Accounting Students: SC Disqualifies PM on not Declaring Uncollected Receivables as Income
. Doctrine of necessity buried, says SC, March 06, 2012 Daily Dawn Report