Wednesday, January 11, 2017


Man, the noblest of animals is at his worst when separated from law and justice: Aristotle

Law tries to prevent as much of the failings of the human mind as possible, while allowing for genuine human frailties. One major human failing is the tendency towards sentimentality and emotion at the cost of what is right and just. One genuine human frailty is a tendency to panic under stress. A trained legal mind will take both these tendencies into consideration, and keep them in mind when writing or applying a law. This is not an easy task and it requires many years of study for a person to learn the letter and principle of law, and a lifetime to understand it.
Quoted below is a case that actually occurred in Britain in the 1960s. The ruling is given later in the column. You will realise that it is easy for a layperson to support or reject a defendant’s version, but in a legal case there must be reasons provided for any given ruling using certain legal precepts. The ruling can then be passed and examined rationally and objectively (rather than emotionally and subjectively), and used as precedent if similar incidents takes place in future.
Mr. Fagan, who had parked his car in the wrong spot, was asked by a police officer to move it. Mr. Fagan obeyed and reversed his car to remove it, and accidentally reversed it onto the officer’s foot.
There is probably not a minute in any day that is free of crime. People are killed, injured, robbed, defamed, cheated, and discriminated against all the time. What appears to have happened is not always what actually happened, or what is claimed to have happened.  Any ruling regarding a case must therefore be made with skill and care.
When the police officer asked Mr. Fagan to move the car off his foot, Mr. Fagan told him to wait, and did not move the car. He was arrested and charged with assaulting a police officer during the course of the officer’s duties.
If you were to judge, how would you rule? If you lift the charges and allow Mr. Fagan to go, why would you do that? If you confirm the charges and convict him, why would you do that? There must be reasons that are not based on ‘but of course!’ rather, clear objective reasons that can be applied to another similar case.
Mr. Fagan’s defense said that ‘the act’ and ‘the mental state’ (there are legal terms for these two things), two crucial elements to this event, had not occurred at the same time. In other words it said that when he drove onto the officer’s foot he did not intend to harm him (although it caused harm), and when he did intend to continue harming him (by not removing the car; mental state: guilty mind), he only omitted to move his car, which was not ‘an act’ because remember, omission is not an act.
Under law an ‘omission’ is not ‘an act’. Also, legally ‘an act’ and ‘state of mind’ must both be present and must take place simultaneously for an event to be a crime. So, now what would your ruling be? If you made up your mind prior to the defense that Mr. Fagan was obviously guilty, then it would be a verdict of ‘guilty.’ If what he said made sense, it would be ‘not guilty.’
It was a cunning defense. But the court refused to accept it. The judge in his ruling said that driving onto the officer’s foot and continuing to stay there constituted one long act of unlawfully touching another (assault) which included the intention to hurt because one overlapped the other towards the end. Mr. Fagan was therefore convicted of assault.
It is possible to agree with this judgement based on a general idea of right and wrong, a normal degree of indignation and a vague concept of what is due to law and order, and law enforcement authorities. But it is not possible for the non-legal mind to arrive at such a judgement (whether right or wrong) based on the reasons given by the court. This is because the non-legal mind is not trained to think this way. It requires a degree of training – or let’s just say, a degree, which the non-legal mind does not possess.
Much less a military mind, which is primed to think in terms of ‘shoot’.
On Saturday the 7th of January 2017 (this year) Pakistan’s special military courts ran out of their lease of life which granted them permission to exist, and pronounce judgement on criminal cases, which would normally fall under the remit of civil courts. May this be the last we see of military courts in the civil sphere of this country’s life. Just as we civilians can ill appreciate military law and requirements, military courts with judges untrained in law cannot adjudicate civil life, and should not ever again. It is frightening to see the support these courts have received from the public. A reason is ignorance but it is also that the civilian government and courts have failed to meet the needs of the people of this country.
So this prayer comes with a clause: may the civilian government realise the importance of doing its job, and get down to doing it. May it also realise the importance of a judiciary trained in law and justice. May it ensure that only trained and experienced judges sit in civilian courts, judges who are allowed to be neutral and dispense justice as they should.  And may the civil courts, including the Supreme court of the land come to understand that to hand over its job to military courts is an abrogation of justice by any definition of the term.

No comments:

Post a Comment

If you have any comments, please leave them here. They will be published after moderation. Automated comments will be deleted.To contact me please leave a comment. If you do not wish that comment to be published please say so within the message. Thank you.