I never thought, not imagined even, that some time, some day, some where, individual words will present so much difficulty in understanding their true meaning, their nuances, their cultural variants and the rest of it
“Tact“
In my paper on Executive Orders and their Disobedience, I have described that though widely used none could define or describe ‘tact’. The impression gained, at least by me, was that ‘tact’ was something, which had to be experienced individually, and even the understanding of it, could not be shared collectively.
Around the year 1985, after over thirty years, when I had become a judge of the Supreme Court, in a lighter mood, one of the Chief Justices used to narrate an event. An officer was recruiting a few employees. He asked the first candidate what two and two would make. The candidate replied, simple, twenty-two. The second candidate asnwered ‘zero’. The third candidate said “Sir, you take me in service and I will make whatever you wish it to be”. He was inducted into service. I then thought how was it that I could not understand such a simple word, guess right, what the other person expects to hear from you and you become tactful, guess wrong as to what other person wants to hear from you and you are tactless. Tact being a bureaucratic word could not be removed from its high pedestal so its meaning remains vague as ever’
“Laila”
My first encounter with Urdu took place when, as usual, as a new entrant into the Civil Service of Pakistan, I was asked to appear in a departmental examination, which among others, included a paper on Urdu. This was in middle 1953 when I was posted as Assistant Commissioner Lahore. In the oral, the examiner asked me to read an FIR (first information report of a crime) as shoddily written as ever. I read the top portion but when it came to the substance I stopped after the very first sentence. It read “meri laila chori ho gai hai.” (literally and in Urdu “my beloved has been stolen”) The examiner in a surprised tone asked me to read on. I said it is not an Urdu word. Surprised at my ignorance he said don’t you know that Laila means young goats. I quietly said, “Not in Urdu”. Believe me, from that date I left thinking, talking, reading or writing the word “Laila” because whenever I did that, I always found two baby goats appear in my sight.
Surprisingly, Gen. Mohammad Ayub Khan for reasons not totally unfounded, thought that goats were most dangerous to the country. Goats Ordinance was promulgated to get rid of them in entirety. As chance would have it, I was deputed with a senior judge in the High Court to decided the validity of the law. I kept on imagining during the hearing of the case what will happen to the country if Laila (to me meaning only the beloved) was removed from the scene of the country. We decided that the law was ultra vires, meaning illegal, beyond jurisdiction, not to be enforced.
In 2010, in Bangladesh I found the goats under control, tied, rendered harmless and civilized, as men are supposed to be after their partner joins them. The two were tied by the neck by a rope allowing a leeway of only two feet. What an admirable and civilized way of making uncivilized, civilized.
“Sar Gaya”
On posting to Rajanpur in1953, I asked the clerk to show me an older file. He replied that it “sar gai”. Seeing my face, confused, as ever, he said there was a fire in the record room and it was burnt. I tried my best to link the word with fire but its link with putrid food remained greater.
“May God have mercy on you...”
At the age of 25, unmarried, I got posted as Deputy Commissioner Bhawalpur. The tradition there was that only those were posted as Deputy Commissioner who were on the verge of retirement. Senior officers of the district immaculately dressed, far older in age, always greeted me by saying “May God have mercy on you and the district”. It continued throughout my posting there for over a year. For me it was a blessing far nobler than being called a foolish judge in the judiciary, or at least, thirty senior lawyers a day addressing me for thirty days a month in open courtroom, honoring me with words “Sir, I understand your explanation has been called by the High Court.”
“Bakwas”
As Deputy Commissioner Bhawalpur in 1957-58, I had the duty of prescribing the route of Zuljinah Procession, in consultation with the Superintendent Police and after hearing the Sunni delegation. We were actually doing that when one from the Sunni delegation threatened with the remarks “Sir, If you prescribe any other route then you will be responsible for what happens”. On this, the S.P said “bakwas mat karo” (don’t talk nonsense). There was a serious protest then and there about the word bakwas used by the SP. I tried to be a moderator and I told them that it was not used in any bad sense, it only meant irrelevant. The next day on the front page of the local newspaper in bold words it was published that “SP said to the Sunni delegation “bakwas mat karo” and DC said bakwas was not a bad word”. So ended the matter, the DC as bad as the SP.
“Saala“
While traveling by train to take up an appointment in East Pakistan (now Bangladesh) as a part of our training I saw two persons in serious dispute, getting louder. It happened in the limits of United Provinces of Northern India. I politely asked what the matter was. The one more offended said that the other person had abused him by calling him ‘saala‘ (‘brother in law’ in English). I at once realized that he was from another province where anyone intervening as a mediator runs greater risk of being killed than any of the two involved in serious dispute. Being removed from that locale I intervened to tell him that here this word is used not for building such a relationship but for severing any such relationship if at all in existence. I do not know whether he understood it at all or not. All those watching it realized the foolishness of it.
“Goli Maro”
A service colleague of mine, very polite, holding a doctorate from United States, fed up with pestering in a meeting remarked: “Goli Maro” (‘shoot him’ in English). I dare not name the leader with whom this expression was linked but the result was that he was suspended in service and remained under suspension for over a year. When better sense prevailed, he was restored to office. What a havoc language played in his family life.
“Shaitan“
My own blunder; When I used the word shaitan (‘devil’ in English) at the wrong gathering. I had a six-year junior service colleague of mine working with me when I was Law Secretary of West Pakistan. He was very outspoken, correct on facts, but outspoken and loud in words. He was a great reliever in our moments of stress and serious official work. My only word of advice to him always was that see to it that your utterances do not go outside the room otherwise all of us would be in trouble. He seldom heeded it.
Once in a gathering of officers and their wives but in his absence, his name came up and I said he is a “shaitan“. His wife objected to the use of that word. Immediately I realized that I had committed four mistakes in uttering that word there. First I had labeled him in his absence. Present, he would have called me a greater shaitan (or taghut). The balance would have got restored. Second, all present, male and female knew only one shaitan and no other, the one who is put behind the bars in Ramzan. All my effort to give a different meaning to the word would have been of no avail, rather heightened my ignorance. Third, I lacked the courage and spontaneity to immediately apologize. Fourth, there remained an abiding regret that I committed a blunder without tendering an apology to date.
I may nevertheless explain that shaitan at times means a dear youngster who is at time mischievous to delight others.
Urdu in Bahawalpur
The best lessons that I got in the benefits of the use of Urdu in dealing with court work and the public was in Bahawalpur. There the Judiciary was separate from the Executive so I had no Civil judge under my control or under my supervision. I saw some of their judgments written in Urdu, not very simple though, but well understood by the public. They left no opportunity for the lawyers to attribute ignorance or motives to the judges. Instead, the performance of the lawyers themselves was immediately and correctly understood by the affected litigants. A great asset for the Judiciary, for the lawyers, to know thy judge, for the litigant to know thy lawyer, for the patient to know thy doctor.
As a Deputy Commissioner, I was hearing a case of Agricultural Income Tax. After a while I said to the lawyer, I am satisfied you need not argue more. My reader of the Court, who was to write the judgment in Urdu, rose from his seat and announced that he was not satisfied with the hearing. I told him not to bother, I will make him understand. Such events happened occasionally.
I received an application in Urdu, well written stating “I want ten days casual leave in order to get my order of transfer canceled”. I asked him “Who has transferred you?”. He replied, “You have done it.” I told him that I am granting the leave and if he wants more, I will grant that also as an exceptional case.
At times I received complaints of misconduct against my subordinates so well written that they appeared to me a valuable piece of literature. I enjoyed the first three parts of the description (1) the physical part of the man (2) his utmost submissive, subordination and innocence before officers, reflected in every gesture and word of his (3) how he deals with public and his own subordinates and finally (4) what wealth he had accumulated. Last part seldom received my attention.
Judgment Writing in the United States
We landed in Lansing, Michigan, USA in our learning and training program in April 1987. The hotel appeared overcrowded. I enquired about the reason and was told that there is a conference of the newly appointed judges on judgment writing. I got interested and asked who is going to teach them judgment writing. I was told that it was the Head of the Report Writing of the Engineering Department. It intrigued me. I told them that on the subcontinent of India Pakistan and in the Philippines I have seen that the judges learn judgment writing only from the judges and none else. How is it that they are getting instructions here from a rank outsider? It was explained to me that most of these are elected judges and they have to go back to seek re-election. They must write judgments which the people understand and, in the process, rule of law is strengthened at the roots. We don’t want the judgments to be written for the lawyers, for the projection of the judges, or as examples of literary accomplishment. There appeared a lot of sense in it and I kept thinking about it.
I have quoted elsewhere in the memoirs that the present Chief Justice of US Supreme Court John Robert and Justice Sandra Day O’Connor, the first lady judge of that court, always advised their judges to write judgments in plain language. Only Judge Scalia of that court called the European Court judges as mullah judges of the West and advised that superior courts judgments should be scholarly written with no touch of Common law which he terms as judge-made law and therefore of inferior status.
Conclusion
Article 251 of the Constitution provides “The National language of Pakistan is Urdu, and arrangements shall be made for its being used for official and other purposes within fifteen years from the commencing day” Nowhere could I find ever any mention of superior courts of Pakistan having first time taken notice of this requirement on a petition or as Public interest issue. And where the matter stands in its record on that first petition. Repeatedly it has come in the forefront at the hands of judges who wanted to come in the forefront of the public but remained unsuccessful in achieving the results.
I have narrated a few instances elsewhere in the memoirs which I am reproducing here with a bit of adaptation to highlight what I want to convey.
- When I took over as District and Sessions Judge Peshawar I found dumped in the trash volumes of Allahabad High Court Reports of the years 1920 to 1930 all bilingually printed, English version followed by its Urdu version. I could guess it was not the entire judgment but a complete abridgment of it.
- When a scheme of Adult Education (Taleem e Balighan) was embarked, a small levy was imposed to generate funds for it. Thousands of writ petitions were filed challenging that levy. I was dealing with those cases. I asked the writ petitioners it’s a small levy for a good cause why are you challenging it. All said, “You give us the assurance that the entire amount will be spent on that cause and we will withdraw our petitions”. It appeared to me that they were not against the levy but against the Government, cheating the public in the name of and for the purpose of a good cause. There I recounted that in at least one state of United States, a solemn declaration has to be given at the end of the year that the amount has been spent exclusively for the purpose for which it was recovered and so much balance remains for completing the mission. It is carried forward without lapsing.
I feel over satisfied that long after my retirement, Act XI of 1997 (the General Clauses (Amendment) Act 1997 has been enforced providing as follows.
“2. Insertion of new Section 24 A, Act X of 1897- In the General Clauses Act 1897 ( Act X of 1897, after section 24 the following new section shall be inserted namely:-
24A. Exercise of powers under enactments- (1) Where by or under any enactment, a power to make an order or give any direction is conferred on any authority, office or person, such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, officer, or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially”.
This provision if properly understood, faithfully enforced and made the basis of Governance will serve four abiding landmarks, as recounted hereunder.
- Satisfy the requirement of Article 4 of the Constitution. Right of the individual to be dealt with the law which is disclosed to him.
- Enable a person to be made aware of the law and the reasons for dealing with him in a particular matter.
- Satisfy the requirement of Article 199 (1) making alternative remedy of a written order giving reasons becoming available.
- Dispense with the need and requirement of a functionary of the State appearing in Court in person to give a personal explanation about his qualification and suitability for the job. It should be realized by everyone that a bureaucrat is not obliged to give oral statements about his functions, performance and future actions even to the Court unless the Court records his statement on oath. He is required to act in consultation and is under the control of so many laws and statutory functionaries before he decides or acts or commits.
A way out
The High Court or the Judicial Policymaking body should suggest a small enhancement of only rupees two across the board in court fee, wherever leviable, for initiating a scheme for the specific purpose of making Urdu court language so as to encourage understanding and progressively establish Rule of law at the grass root level. Any increase in the levy at the initial stage, or widening its scope, may amount to bureaucratic sabotage of the entire. The law itself should provide that every fifth year from the start of the financial year the fee would stand increased by one rupee.
The fund so collected provincially should be non-lapsable and placed at the disposal of the respective High Courts for management only. In the first phase only judges below the level of District and Additional District and Sessions judges to be included in the scheme. Ad-hoc appointees by whomsoever appointed to be totally excluded from the benefit because they do not satisfy any of the parameters of judicial service (for further reasons of such exclusion please refer to Dr. Javed Iqbal memoirs elsewhere referred to in detail by me). It should be available only and only to judges who deliver on an average ten contested judgments every month in plain Urdu.
If resources permit the allowance should normally be Rs. one hundred per month, not less than Rs. Fifty in any case.
Second phase: As and when finances permit three independent private sector printers and publishers should be selected on the following terms:
(i) copies published monthly will be purchased at market price from such Fund for free supply to all (i) District and Sessions judges (ii) District Police officers (iii) all law schools, (iv) all universities. (iv) all training institutions of judicial officers located in the province, and free to no other. Each group of recipients will be provided by each publisher one-third of its required number so that the group gets all the three publications for assessment and evaluation.
(ii) The contents of the publications, even the advertisements, should all be in Urdu. No other language. Judgments never in extenso but summarized in Urdu, usually not exceeding six hundred words. Each issue should contain at least one relevant foreign superior court judgment with similar evaluation. Authoritative articles on principles of ethics for governance, for the judiciary, for the bar, for the uplift of the social attitude and behavior, all in conformity with the Constitution should also be published.
Principle of Evaluation.
(i) whether the judgment omits to take notice of any of its own precedent.
(ii) High light the ratio decidendi of the judgment, obiter dicta requiring attention and follow up, obiter dicta to be ignored.
(iii) Go on Repeating occasionally precedents and cases requiring attention for good Governance.
(iv) start the practice of spoon feeding to our literate adult intellectuals. The book “Getting away with murder, Benazir’s assassination” by Heraldo Munoz is a must-read book for those who want to understand how our top police are capable of spoon feeding the powerful intellectuals and how it can take control of every investigation.
I end on a lighter note. Overseas Pakistanis of the status and living standard of officers of grade 19 and above boast of the efficiency of their police, that it can tell where and when a crime is to take place, who is the criminal and how willingly he confesses to having committed the crime. They, for the present, do not say that the courts still delay the disposal of such cases and mostly acquit the accused. I always thought that they are carrying the joke too far to their own detriment. I had to change my opinion and found the joke closer to reality when sitting in the United States I saw the following scene exhibited on television.
A group of about fifty of police force smartly dressed led by their superior officers with Gullu Butt leading them and reaching the destination, ruthlessly smashing all the cars parked there, finally to be embraced by one superior and to be given a pat of approval by the higher one.
There is a precedent of our Supreme Court as hereunder
Compensation under Section 544-A Cr.P.C.- PLJ 1974 SC 25 at 34.
“Its provision is mandatory. Compensation is a very well understood expression. It is something to be paid which makes up for the loss — the court at the penultimate stage of the case may have to receive evidence to determine the question of compensation—financial position of the accused is not material—power to conduct such inquiry—will be necessarily read into it so as to advance the remedy and to give effect to legislative intent”.
The police and the courts remain oblivious of this precedent, and those performing well, get protective postings, mostly away from public view. Now all such activities are admirably encapsulated in the expression “collusion of the elite” a variety of corruption.
Experiences of a Lifetime 