Daily Times

A couple of weeks ago I attended a meeting at Harvard Law School on the history of the Indian Supreme Court and its foundations. Even as someone who has obsessed over Jinnah’s career as a politician and a lawyer, I was unaware of one of his most substantial contributions to the future Republic of India i.e. the idea of a Supreme Court of India. Famous legal historian of South Asia Mitra Sharafi of University of Wisconsin described Jinnah as ‘the dynamo barrister of Bombay High Court’ whose contributions could never be underplayed and that history would ultimately remember him for these contributions as much as his later role in the making of Pakistan.

The point here is not go into the hackneyed and much debated issue of why Jinnah ultimately resorted to the Pakistan demand but simply to remind the readers of the extraordinary legislative contributions he made to the subcontinent. His mark on the legislative history of the subcontinent is indelible, especially when it came to women’s rights, minority rights and the rights of marginalised groups such as Dalits. Both Indians and Pakistanis only deny these contributions to their peril. In doing so Indians only deny the long career of a man who had proclaimed several times that he was an Indian first second and last. To them the real question should be why such a man, a secularist to the core, an eloquent defender of individual rights and liberties and such a strong proponent of India was lost to communal separatism but that is a question very few in that country dare to ponder or ask. When they do, they are promptly sidelined from their political parties as was the case with Shri Jaswant Singh of BJP. Meanwhile Pakistanis deny this aspect of Jinnah’s career to the peril of the very state of Pakistan. Pakistan is in the midst of unprecedented legal constitutional and social upheaval and almost all of these problems emanate from the unwillingness of the state to follow the wisdom that Mr Jinnah imparted on the new state, most notably on 11 August 1947 but also in about 33 other clear pronouncements with respect to citizenship and the role of the state. Perhaps even more egregious a violation of Jinnah’s vision comprises the recent antics of our apex court, which I am not going to get into because I realise that I have to make a living as member of the Pakistani bar.

Pakistan is in the midst of unprecedented legal constitutional and social upheaval. Almost all of these problems emanate from the unwillingness of the state to follow the wisdom that Jinnah imparted

Jinnah’s speech on the issue of Supreme Court of India was made on February 17, 1925. Ironically Pakistani versions and collections of this speech for some reason usually omit this speech, skipping directly to his speech on the Finance bill from the same day. Sir Hari Singh Gour, a notable jurist and a lawyer of great standing, had moved the resolution on the establishment of the Supreme Court. He was promptly supported by Jinnah who threw in the lot of his independents with Gour. Jinnah began by this extraordinary criticism of the Privy Council: “Then you find in the Privy Council, for which I have great respect — although I have no hesitation in saying that the Privy Council have on several occasions absolutely murdered Hindu law and slaughtered Muhammedan law — with regard to common law the English law, of which they are the masters, undoubtedly they command the greatest respect of every practitioner and of every judge in this country.”

Jinnah was opposed by none other than Swarajist leader Pandit Motilal Nehru, Pandit Jawaharlal Nehru’s father and a distinguished lawyer statesman in his own right. The British came up with a ridiculous administrative argument that Delhi was too small to house a Supreme Court. To the British argument Jinnah replied: “Delhi is big enough and long enough. Miles and miles of buildings are cropping up, which are enough to dazzle anybody, and why cannot we locate the court in a small building?” To Motilal Nehru, whose arguments were equally absurd, Jinnah replied: “I have great respect for Pandit Motilal Nehru, but I most emphatically differ from him on this subject. He said that as long as we have not got Swaraj, the federal state of government that Sir Hari Singh Gour contemplated, we must wait… We must get power in our hands and then immediately we will consider the question of establishing a Supreme Court.” Jinnah then called upon Motilal Nehru “to hesitate and think before he goes into the government lobby on this question. Sir, I want the Supreme Court to be established. I ask the Members of this Assembly not to be led away and I also appeal to my Swarajist friends not to go into the government lobby and vote. I am always afraid of government when they agree with me.”

Jinnah believed that responsible government in India was impossible without a Supreme Court at home. Like any Indian Nationalist, he was wary of the idea of appearing before the Privy Council in a distant land instead of having jurisprudence developing at home. It was this idea that shaped the Supreme Court in India when it later came into being many years after Jinnah had fought valiantly for it alongside Sir Gour and lost the battle to both the British and the Indian Swarajists in the legislative assembly. The establishment of Supreme Court there and then might have actually helped resolve many of the questions that were to plague British India later. The greatest contribution that Supreme Court of India made to the jurisprudence arguably is the basic structure doctrine. It is a doctrine that works well in India because the basic structure includes ideas of secularism and democracy. What would that basic structure look like in Pakistan is a question that is enough to keep any practitioner of law up at night.

Talented young lawyers returning armed with American LLMs to Pakistan seek to import American legal ideas such as Originalism to Pakistan. It is almost ridiculous that these lawyers who have spent less than a year in the US come back to Pakistan to cite examples of people like Justice Antonin Scalia. Having worked in the Gore campaign in 2000 as a young college student in New Jersey I had seen what such odious interpretations of Constitution could do especially in a case like Bush v. Gore. I therefore find it demeaning to my person as a Pakistani that the latest trend in Pakistan is to ignore the great legal contributions of a towering figure like Jinnah, arguably the greatest lawyer produced by the British Empire and certainly India, but to extol the virtues of a Catholic conservative like Scalia. What we need in Pakistan now is a Jinnah redux in law and constitution. We already of odious interpretations of law and constitution ala Scalia in Pakistan. Indeed it is Antonin Scalia like figures in the Pakistani judiciary that have stunted all progress and growth of jurisprudence of rights in Pakistan at the altar of originalism of Pakistani constitution. A constitution must be a living and breathing document used to maximise the people’s rights instead of curtailing them in the name of ridiculously flawed legal theories that have only caused damage and nothing but even in the US. So I call upon all Pakistani lawyers returning to Pakistan from the US to abandon this mimicry. The only originalism we can afford in Pakistan is Jinnahism and that means unstinted march of humanity and progress unfettered by spurious legal theories of the past.

The writer is a practicing lawyer and a Visiting Fellow at Harvard Law School in Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com, twitter @therealylh

Published in Daily Times, April 16^th 2018.