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| File Photo: Amjad Khan testifying at Capitol Hill - Photo VOA |
Source/Credit: Richmond Journal of Global Law and Business
By Ahmadiyya Times | January 16, 2011
New scholarship in international law journal scrutinizes Pakistan's notorious 1993 Supreme Court decision upholding the constitutionality of Ordinance XX
U.S. attorney and legal scholar Amjad Mahmood Khan has penned a new article critiquing Pakistan Supreme Court Justice Abdul Qadeer Chaudhry's notorious 1993 majority opinion in Zaheeruddin v. State. The article illustrates in exhaustive detail how Justice Chaudhry grossly misapplied U.S. trademark and constitutional law to render one of the most legally dubious and intellectually dishonest judicial opinions in Pakistan's history.
ABSTRACT
This article explores the risks and limits of transjudicial communication. In particular, I critique the scholarly contention that transjudicial communication can be built upon commonly accepted methods of legal reasoning. I argue that transnational courts do not uniformly understand or apply commonly accepted methods of legal reasoning, especially legal argument by analogy. As a result, transnational courts that utilize transjudicial communication can and do render specious, even destructive, judicial opinions. I analyze the case of Zaheeruddin v. State—a controversial decision by the Supreme Court of Pakistan that upheld the constitutionality of Pakistan’s antiblasphemy ordinances. The Supreme Court of Pakistan poorly analogized to numerous U.S. Supreme Court authorities to bolster and legitimize its deeply flawed decision.[...]
CONCLUSION
In his majority opinion in Printz v. United States, Justice Antonin Scalia remarked: “Comparative analysis [is] inappropriate to the task of interpreting a constitution.”89 One factor that makes comparative analysis inappropriate is the inherent difficulty for judges to properly employ legal argument by analogy. I have demonstrated that legal argument by analogy is inconsistently understood and applied, and when used transjudicially, can lead to destructive outcomes, particularly with contentious and weighty constitutional cases like Zaheeruddin in Pakistan. Legal argument by analogy in the transjudicial context prompts judges to affirm their own country’s legislative or public mandate more than it prompts them to tether to international norms. In short, legal argument by analogy is an ill-perceived instrument to further judicial globalization.Original link: http://rjglb.richmond.edu/wp-content/uploads/2013/03/rgl_10-4_khan.pdf
Alternate download available here.
Read the entire article here: Misuse and Abuse of Legal Argument by Analogy in Transjudicial Communication: The Case of Zaheeruddin v. State
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