Legal wisdom – 19 Jul 2022
It is high time that legal fraternity in Pakistan, especially the bar and the bench review the style of legal drafting
If you can’t explain it simply, you don’t understand it well enough.
— Albert Einstein
A lot of the legal wisdom comes from the correct use of the English language in countries where it is an official language. Unfortunately, the jurisprudence in Pakistan has not even attained a level of mediocrity, except for some streaks of brilliance, despite evolving for almost seventy-five years since independence. Immersed in the British colonial laws and constantly vying for the glorious Muslim justice system of the seminal era, we have lost the goodness of both. As if to say:
Na Khuda hi mila na visal-e-sanam;
Na idhar kay rahay na udhar kay rahay
The legislature consists of law makers who are mostly unaware of the intricacies of legal debate and refinement whenever a draft law is tabled in the National Assembly or the Senate. Except for political wrangling on party lines, no one, barring a few sound heads, is capable of understanding the intent and purposes of the proposed draft law in the making. Consequently, the legislation that attains finality is, therefore, invariably vulnerable to interpretative wisdom of our superior judiciary, which undermines the supremacy and independence of our highest forum of Parliament.
What baffles me most are the well-written short orders and the judgements of the larger bench of the superior courts, comprising of good jurists who at times also fail to clearly specify the enforceable portion of their judgements in such matters. A lot of appeals and reviews are resultantly filed seeking further clarifications on the operative part of their judgements. For instance, if the honourable bench of the Supreme Court had added a line or two to the short order given on the holding of the no-confidence motion against the then Prime Minister Imran Khan, the midnight sitting of the bench would not have taken place.
The reason for our legal deficit perceivably has a great deal to do with the use of excessive adverbs that are toxic and tortuous for legal expression. The adverbs usually intensify the verbs, adjectives and adverbs for emphasising the essence of a sentence. It is much more relevant and lucid to use a precise verb instead. The legal drafting should be clear, concise and engaging. Currently, we are witnessing a disunion between the legal profession and its education in the country. Moreover, I am presently visiting my son in Canada and have had the opportunity of coming across many types of agreements and contracts concerning an average Canadian. Their language is simple, direct and self-explanatory. It doesn’t mean that legal issues cease to exist; they just do not emanate from the construction of the language and its communicative import. Here the legal artifice is mostly camouflaged in the fine print. So, one has to be smart enough to read each and every word carefully.
It is high time that the legal fraternity in Pakistan, especially the bar and the bench, review the style of legal drafting in their profession and re-invigorate their communication, keeping in with the present day requirements. Unnecessary adverbs such as wherefrom, hereupon, thereto, hereinbefore, hereunto and plenty other similar expressions need to be done away with for unburdening the verbiage and bringing in more clarity and comprehension. For me, Diwan-e-Ghalib is an oracle and I find it all encompassing to quote a verse and complete my discourse.
Dekhna (tahreer) ki lazzat keh jo us ne (likha)
Main ne ye jaana kay goya ye bhi mere dil mai hai