WHEN America was a new nation, foreign observers usually remarked on the widespread popularity of the legal profession in the new state.In 1968, American political scientist Ralph Braibanti observed a similar phenomenon in new states like Pakistan and India: a remarkably large number of people seemed to be involved in the legal profession and the “legal mode of thought” seemed to be a distinguishing feature of the new nations. Braibanti also noticed a difference. While most studies about the United States in its early days had paid attention to the role of the legal profession in shaping society, “the study of legal institutions and the legal community [had] been neglected in analyses of the political development of new states” (such as Pakistan). Unfortunately, this area remains conspicuously absent from our studies even today: except for a few politically significant events, we seldom bother to learn about how our legal institutions have developed and affected our society.
Understandably, the “legal mode of thought” in the first 20 years was dominated by two opposite currents: pro-secular and pro-Islamic. A peaceful co-existence of these two currents is precisely what distinguishes the first 20 years (1947 to 1966) from the next twenty (1967-1987), when the two currents became increasingly divergent in Pakistan.
The pro-secular tendency was apparently inherited from the colonial past, and was widespread among the intelligentsia and the educated. For a number of reasons it has been epitomised by Justice Muhammad Munir (1895-1979), who was the main author of the Munir Report (1954) about the anti-Ahmedi riots in Punjab. The report has long been hailed as a masterpiece of secular values.
Therefore, it is often seen as a matter of surprise that the same judge, after being promoted as the Chief Justice of Pakistan, upheld the dissolution of the Constituent Assembly by Governor-General Ghulam Muhammad soon thereafter. Yet, it might help to remember that Munir's argument in favour of dictatorship — his famous 'Doctrine of Necessity' that provided excuse to all subsequent dictators — was also rooted in his western learning just like his secularism (he supported his argument on a maxim of the 13th century British jurist Henry de Bracton).
That it was left to a Christian to present the case of Islam at the highest ladder of jurisprudence in the formative phase of the Pakistan would be regarded by some as a paradox, and by others as corroboration of Quaid-i-Azam's dream. Alvin Robert Cornelius (1903-1991), Chief Justice of Pakistan from 1960 to 1968, was a relentless defender of Sharia, and arguably played the most important role in inculcating some Islamic values in the legal institutions of Pakistan.
The cornerstones of his legal philosophy may be summarised in three points: (a) Law has a moral function in society; (b) Law should be culture-sensitive; and (c) Islam is a valid foundation for a universal society. How he built upon these simple ideas in his 57 speeches and papers, and how he demonstrated them through his judgments, is what makes him arguably one of the greatest legal philosophers.
In 1954, when the bench headed by Chief Justice Munir upheld the decision of the Governor-General to dissolve the constituent assembly, Cornelius was the only judge to write a note of dissent. Four years later, when the same court upheld the case of Dosso against the martial law authorities, Cornelius wrote a concurrent judgment (i.e. he agreed with the decision but felt the need to explain himself separately). He observed that fundamental human rights are inalienable, and cannot be suspended even by martial law. This point of view was so different from the rest that it was later seen as a “note of dissent”.
However, Cornelius' concept of inalienable rights seems to be slightly different from how the issue is usually projected. He was of the opinion that the people deserved to feel secure that law shall safeguard their cherished values and norms. In 'Crime and Punishment of Crime', the paper which he read at an international conference in Sydney in August 1965, he mentioned several cases to indicate “the extent to which the law supports the indigenous disciplines operating in our society, through the authority of the elders.” For similar reasons, he defended the indigenous institution of jirga as well as the punishments prescribed by Sharia for crimes like theft and robbery.
Acutely aware of the tendency to treat each individual as an island, Cornelius offered a few words of caution to his international audience, and his words reflected the ethos of his new nation that had come into being with the specific goal of rediscovering society as an organic unity. “It must be recognised that crime is a biological fact of society, whether ancient or modern,” he said. “It grows out of social condition and is not to be contained without the most careful examination of its etiology… In that process, it would be well not to reject, out of hand as being out-dated, the principles and techniques laid down and applied by the ancients, for dealing with the problem in their times. They may have their uses, and certainly in eastern countries, they still possess validity.”
The writer is the author of Iqbal: an Illustrated Biography (2006) . KhurramsOffice@yahoo.com