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Justice Alvin Robert Cornelius and Pakistan
by saiyan0312
Introduction
When you open the book of Pakistan studies, an important subject that finds place at most of the educational levels of Pakistan, you would come to read the history of many men that played a role that led to the formation of Pakistan as well as how they shaped Pakistan. This role from minimal to great, is taught to students all over Pakistan. However the role of non-muslims in the struggle for Pakistan is often side stepped and barely given a sentence and most cases earning a minimal honorary mention. This is a grave injustice to those men that believed in the vision of Pakistan despite difference of religion and played an active against all odds to bring Pakistan into fruition as well committed extensive time and effort towards its growth and evolution and one of those men was Alvin Robert Cornelius.
The name Alvin Robert Cornelius is very famous amongst the legal fraternity as one of the leading cases in Pakistan was decided by him and he is the fourth chief justice of Pakistan serving from 1961 till 1968. Plus one of the leading firms in Pakistan is called “Cornelius mufti and lane”. Just like major brown, the hero of Gilgit baltistan, the name is finds little to no mention in Pakistan history books and little is known outside the legal fraternity.
Early Life
Alvin Roberts Cornelius was born on 8 may 1903 at Agra in Utter pardesh which was at that time under the British Raj. Coming from a well established and educated family of catholic descent, Cornelius was admitted into Allahabad University in 1920 where he did his BS in mathematics and LLB in civil law along with a thesis on history of religious law in 1924. Cornelius joined the law faculty of the university and his exemplary work earned him the chance to pursue his studies abroad at Cambridge University, where he completed his LLM by writing a thesis on western law in 1926. He returned back to India where he gave Civil services exam and joined the civil services in the law department of Punjab.1
He served in Punjab where he held the position of Additional and district judge till 1943. In 1946 he was elevated to the Lahore bench of High court.
Cornelius and the Pakistan movement
Cornelius was one of the leading Christian figures in the Pakistan movement and his active role towards the formation of Pakistan is exemplary. He stood as one of the top figures for the movement of Pakistan as he rallied support for the cause. Cornelius believed that a muslim homeland was the only feasible and realistic answer to the plight of muslims under british raj. This believe would gather strength with time as he constantly worked for the creation of Pakistan and for the rise of Pakistani nationalist feelings. He again and again pointed that not only Muslims but also non-muslims would be treated harshly and for this a separate state was the need of the hour.
During the drafting of Pakistan resolution, he played an important role as he guided Quaid e Azam on many of its legal points.
Cornelius and early days of Pakistan
The early days of Pakistan are recorded as chaotic as a country formed of two wings separated by over 2500km2 with millions of refugees coming in and with little administrative experience. Cornelius in these times was a breadth of fresh air as a top jurist and legal mind of the subcontinent, he played a pivotal role in the formation of early judicial system and its judiciary. He opted for Pakistan and was one of its earliest citizens as he worked closely with Jinnah and Liaqat ali to help the formation of the legal sector in Pakistan.
From 1950-51 he served as secretary of Law and Labour at the ministry of law headed by Jogendra nath mandal and after the assassination of liaqat ali he was appointed as an associate judge at the Supreme Court of Pakistan and in 1953 he was confirmed as a senior judge at the Federal court of Pakistan. A year later he would play an important in a land mark case of 1955 and 1958.
The state vs Moulvi Tameez ud din PLD 1955 FC 240
Pakistan saw great crisis in its governance after the assassination of Liaqat ali. The struggle between the constituent assembly and the governor general reached its peak as the governor general Ghulam Muhammad dissolved the constituent assembly. The constituent assembly was looking to make amendments into the indian act 1935 ( which was the governing law in pakistan) to create restrictions on the governor general and for this reason ghulam Muhammad dissolved the assembly. The president of the constituent assembly was maulvi tameez ud din and he filed to writs (writ of mandamus to restrain the proclamation of the governor general and the writ of quo warranto that the new council of ministers should be asked under which authority they are holding those positions), under section 223-A in the Sindh high court.
Sindh high court ruling
The chief justice of the Sindh high court George Constantine heard the arguments of both sides as the state argued that the dissolution was legal and the chief court has no jurisdiction. He founded that the writs were valid and when the constituent assembly was not working as the legislature, all laws passed by the constituent assembly were not required to get the assent of the governor general.2
Appeal to federal court.
Dissatisfied by the verdict, the state filed an appeal to the federal court where the bench of chief justice Muhammad munir, S A rehman, S M akram, Muhammad sharif and A R Cornelius heard the case.
Judgment
In its shortest terms the court pointed out that the constituent assembly also performs its functions as the legislature and all laws passed by the assembly require the assent of the governor general. The section 223-A is not a law since it did not receive the assent of the governor general thus the writs issued by the chief court are without effect and the assembly has no sovereignty and cannot go beyond its limitations.
We are not concerned with the consequences, however beneficial or disastrous they may be, if the undoubted legal position was that all legislation by the Legislature of the Dominion under subsection (3) of section 8 needed the assent of the Governor‑General. If the result is disaster, it will merely be another instance of how thoughtlessly the Constituent Assembly proceeded with its business and by assuming for itself the position of an irremovable legislature to what straits it has brought the country.
The remarks of the honourable judges were thus
1. SM Akram: The effect of conferring Dominion Status was that certain rights and liabilities as between the Dominion and the United Kingdom came into existence, for instance, if the Dominion by its legislation negated allegiance to the Crown or severed' connection with it, such a legislation perhaps could not be considered as legally valid or justified. The expression, "Independent Dominion" has, therefore, been purposely used in the Independence Act in order to give to the Dominion a freedom of choice either to remain or to refuse to remain within the British Commonwealth of Nations.
I am of the view that in the absence of any express or implied provision in any enactment to the contrary, the assent of the Governor‑General is necessary before any constitutional measure framed under section 8 (1) of the Independence Act, 1947; can pass into law.
2. AR Cornelius: he Indian Independence ,Act, 1947, possessed in several respects the same character as the Statute of Westminster, 1931, but with one major difference . . . .. . . . the extent of freedom accorded to the countries which, as Dominions, were to replace the Indian Empire, was in very material degree greater than that which the older Dominions had gained in 1931. That, in my view, is the circumstance which justifies the application of the special description "Independent Dominions" to the two new States which were brought into existence by means of this highly effective instrument.
The Governor‑General owes nothing to the British Sovereign except his warrant of appointment, issued upon the recommendation of the Government of Pakistan. No duty of any kind is prescribed which he owes to Her Majesty, except that of being "faithful", appearing in the oath which Her Majesty is pleased to accept. The appointment, by its terms affirms and emphasises that the Governor‑General's duty, or as it might be termed "allegiance", is to the Constitu*tion, as in existence from time to time.
The Constituent Assembly was, as a body, not a creation of the British Parliament. It is, in my opinion, to be regarded as a body created by a supra‑legal power to discharge the supra‑legal function of preparing a Constitution for Pakistan. Its powers in this respect belonged to itself inherently, by virtue of its being a body representative of the will of the people in relation to their future mode of Government. In relation to constitutional provisions, it (Constituent Assembly) exercised the powers of the British Parliament, which were in that respect, untrammelled by any laws.
With respect to the necessity of assent by the Governor. General to laws of a constitutional nature passed by the Constituent Assembly, this doubt arose at a very early stage. The Court is indebted to the learned Advocate‑General of Pakistan for the assertion, made on more than one occasion, that the Late Ministry of ‑the Government of Pakistan (by which was meant the body of permanent officials constituting the staff of the Ministry under the Law Minister) had consistently advised the Minister that ‑such assent was sine` qua non. On the other hand, the Constituent Assembly had throughout maintained the view that assent was not necessary, and acting on that view had made and promulgated a rule, No. 62 in the Rules of the Constituent Assembly, to give formal expression to that view.
The major limb (Constituent Assembly) of the three great limbs of the autonomous State of Pakistan had clearly expressed in 1948 its view on this question, which has now assumed so high an importance. I place the Constituent Assembly above the Governor‑General, the Chief Executive of the State, for two reasons, firstly that the Constituent Assembly, was a sovereign body, and secondly because the Statutes under and in accordance with which the Governor‑ ‑General was required to function, were within the competence of the Constituent Assembly to' amend.
The second great limb of the State, namely the Executive 'Government of the Federation, has never, until after the event of the 24th October 1954, shown any sign, of doubt on this point.
The Government of Pakistan, composed of the Governor *General and his Ministers, , have, throughout the relevant period, been aware that the Constituent Assembly had formally declared that its constitutional laws became law under its own Rule 62, without the need of the Governor‑General's assent.
In illustration of the view of the third great limb of the State, His Lordship referred to the three cases : M. A. Khuhro v. The Federation of Pakistan 1950‑51 F C R 24= P L D 1950 F C 15. Khan Iftikhar Hussain Khan of Mamdot v. The Crown, P L D 1950 Sind 49, ex‑Major‑General Akbar Khan and Faiz Ahmad Faiz v. The Crown P L D 1954 F C 87 and observed
For the first seven years of Pakistan's existence, the three great limbs of this new "autonomous community" exhibited complete harmony of view in regard to the point this Court is now. called upon to decide.
The Constituent Assembly . . . . . . was a supra‑legal body, not acting in its constitution‑making capacity within the Constitution. It was not to be presumed that,' in this capacity, its proceedings and decision were subject to the qualified negative of the Governor-General, who was a statu*tory authority, owing existence ‑ to the interim Constitution.
With reference to the argument ab inconvenienti His Lord*ship observed : -
The present is not a case where a mere "departmental construction", or even a judicial or legislative construction is put forward, as a caution against lightly disturbing .that which has been accepted and acted upon as settled law for a period, leading to development of vested rights. The rule of stare decisis is altogether too small in its content to fit the case. Here, the greatest organs and agencies of the State have been consciously and unanimously holding a certain belief, and have been acting upon it, in numerous respects affecting the most fundamental rights of the entire people, It is difficult to imagine a law which affects so large a pro*portion of the public as does a law designed to grant adult suffrage, and to determine the composition of Provincial Legislatures on that basis. The Delimitation of Constituencies (Adult Franchise) _Act, 1951, was procured by the Federal Government, was passed by 'the Constituent Assembly, was put into operation by the combined labours of the Federal and Provincial Governments, and has borne fruit in the shape of new Legislative Assemblies, which have been, busy ever since passim; .new laws and in other ways; regulating the lives of the people. It is beyond conception to tabulate all the vested . rights and interests which have been developed in conseclimice of this law. And there are many other laws which have produced 'extensive effects, which cannot possibly be ascertained with exactness. These circumstances should; in my opinion, furnish an argument of almost insuper*able character, in favour of. upholdihg what has been the practice hitherto in regard to assent to constitutional laws,
The effect of section 6 (3) read with section 8 (1) and section 5 of the Indian Independence Act, 1947 was stated thus by His Lordship The Constituent Assembly being designed to be a sovereign body and to exercise sovereign power, including power to alter the Constitution subject to which the Governor‑General was intended to act, it would clearly be inconsistent with that design and purpose if the "qualified negative" of assent by the Governor‑General were imposed upon its constitutional laws. Secondly, it being within the complete power of thg Constituent Assembly to determine the constitution of the "Legislature of the ~ Dominion", or Union Legislature, and to determine the scope of its legisla*tive competency as well as the mode in which its laws should be enacted, the British Parliament could' not affect to prescribe the requirement of assent, as an essential formality, in respect of the laws made by such a Legislature. This would be to usurp the functions of the Constituent Assembly. To impose such a requirement upon laws of a constitutional nature made by the Constituent Assembly would be a direct affornt to the position and authority of that body. Hence the careful use of expressions in section 8,‑ Indian Independence Act, to indicate that the necessary powers of legislation should be exercisable by the Constituent Assembly. The words signify the courtesy owed by one sovereign body to another. There was no direct imposition of obligations, but the need being indicated, it was indicated also that the Con*stituent Assembly, as previously agreed upon by the pleni*potentiaries in the negotiations between' the United Kingdom Government and the representatives of the Indian people, might fulfil the need.
Section 5, Indian Independence Act, cannot operate to confer any right to grant assent beyond that conveyed by the relevant words in section 6 (3). Therefore, to draw the right of assent from section 5 seems to me to be impossible.
In the context, (of section 6 (3) "any law" must mean "any law requiring assent for it to become operative", i.e., any Bill passed by the "Legislature of the Dominion", which under any provision of law required to be presented to the Governor‑General for his assent, and to receive assent before it could become operative.
The term "Legislature of the Dominion", cannot be, and was not intended to be, regarded as equivalent, at any time, to the Constituent Assembly.
Neither the British Sovereign nor the Governor‑General, as such, was a part of the Constituent Assembly.
His Lordship arrived at the conclusion
There is nothing in section 6 (3), Indian Independence Act, or in the status of Pakistan as a Dominion which creates the obligation that all laws made by the Constituent Assembly, of a constitutional nature, require the assent of the Governor‑General, for their validity and operation.
3. S A Rehman: The words "full power" (in section 6 (3) ) amply connote discretion to give or withhold assent, beside indicating freedom from extraneous control, in full measure. The pre*sumption is implicit in the subsection that all such laws shall be submitted to the Governor‑General for his assent.
A reading of sections 5 and 6 together, would lead to the inference that henceforth the prerogative of the Crown as respects assent, would, in the case of each new Dominion, be exercised by the Governor‑General as representing His Majesty.
4. Muhammad Munir CJ: For the reasons given, I hold that the Constituent Assembly when it functions under subsection (1) of section 8 of the Indian Independence Act, 1947, acts as the Legislature of the Dominion within the meaning of section 6 of that Act, that under subsection (3) of the latter sections the assent of the Governor-General is necessary to all legislations by the Legislature of the Dominion, that since section 223-A of the Government of India Act under which the Chief Court of Sindh assumed jurisdiction to issue the writs did not receive such assent, it is not yet law, and that therefore, that Court had no jurisdiction to issue the writs. In view of this conclusion we cannot go into the other issues in the case whatever their general importance may be. [p. 315] A
Accordingly the position of the Constituent Assembly is that it is the Legislature of the Dominion when it makes laws for the constitution of the Dominion and the Federal Legislature when it functions under the limitations imposed upon it by the Government of India Act, 1935. [p. 278] B
The restrictions are, therefore, illustrative of the constitutional position that assent to the Dominion legislation by the Crown or its representative is indispensable and has in no instance ever been dispensed with by the Crown. [p. 285] C
The true position is that the provisions of those statutes relating to assent do not create in the Crown or in its representative a new right, but confirm an existing right and merely provide the manner in which that right is to be exercised. Thus if the right to withhold assent to Dominion legislation is inherent in the Crown and the statute that legislates on that right merely says that a bill after it has been passed by the popularly elected House or Houses shall be presented for assent to the Governor-General, who will give assent to that bill or withhold it therefrom, the statute does not create the right to withhold assent but merely describes the manner in which that right is to be exercised. Similarly the provisions in the Government of India Act which give to the Governor-General the right to withhold assent from legislation do not confer on, or create a new right in, the Crown; on the contrary, they implicitly recognise such right and regulate the manner in which it is to be exercised. It is for this reason that the fiction of making the Crown a constituent of the Legislature is resorted to because neither the King nor his representative, the Governor-General, is a member of the Legislature like other members. The King or the Governor-General is a part of the Legislature only in the sense that all bills passed by the Legislature are presented to him, so that he may exercise his right of giving or withholding assent. Thus subsection (3) of section 6 produces the same result by giving to the Governor-General full power to assent in His Majesty’s name to any law of the Legislature of the Dominion. It makes the Governor-General a constituent part of the legislature inasmuch as the right to give assent necessarily includes in it the right to withhold assent. Every bill must therefore be presented to him to provide him an occasion to exercise that right, and unless a bill is so presented a constituent part of the legislature does not function and the proposed legislation does not become law. There is, therefore, no distinction between those constitutions where the Crown is a constituent part of the legislature and the Legislature of the Dominion of Pakistan whose functions are being exercised by the Constituent Assembly and to whose legislation assent is enacted by subsection (3) of section 6 as a necessary condition.[p. 286] D
I have already pointed out that the words “the powers of the Legislature of the Dominion” in subsection (1) of section 8 refer back to the powers of the Legislature of the Dominion defined in section 6, which the Constituent Assembly was to exercise in its capacity of Legislature of the Dominion.[p. 288] E
If this relation of the two provisions was correctly stated by the Attorney-General, as I think it was it could only mean that the provision of section 6 were applicable to the powers given to the Constituent Assembly by sub-section (1) of section 8 and that the restriction as to the Governor-General’s assent to legislation by the Legislature of the Dominion, whatever may be the character of that legislation was applicable when the Constituent Assembly exercised the powers of the Legislature of the Dominion under section (1) of section 8. That subsection does not say that the constitution of the Dominion shall be made by the Constituent Assembly. It assumes that the powers of the Legislature of the Dominion include the power to make provision as to the constitution of the Dominion, declares that those powers shall be exercisable in the first instance by the Constituent Assembly and directs that references in the Act to the Legislature of the Dominion shall be taken as references to the Constituent Assembly. It was contended both by Mr. Chundrigar and Mr. Mahmud Ali that the Constituent Assembly, though it exercises the powers of the Legislature of the Dominion, is not itself the Legislature of the Dominion. This to my mind is tantamount to a refusal to read sub-section (1) of section 8, the only purport of which can be that the Constituent Assembly shall be the first Legislature of the Dominion, competent to exercise all the powers given to that Legislature by section 6 including the power to make laws as to the constitution of the Dominion. Learned counsel for the appellants therefore rightly contended that the plain words of subsection (1) of section 8 that “reference in this Act to the Legislature of the Dominion shall be construed accordingly” have the effect of substituting the Constituent Assembly for the words “the Legislature of each of the new Dominions” in subsections (1) and (3) of section 6. That being the position, there can be no escape from the conclusion that the Governor-General’s assent to the laws made by the Constituent Assembly is as necessary as his assent to any future Legislature of the Dominion brought into existence by the Constituent Assembly to replace itself. [p. 288 & 2890]F
The necessity of the Governor-General’s assent to legislation is, as I have already said, based on aswell-understood principle which is known to every constitutional lawyer conversant with constitutional practice in the United Kingdom and the Dominions. Legislation is the exercise of a high prerogative power and even where it is delegated by statute or charter to a Legislature, in theory it is always subject to assent whether that assent be given by the King or by a person nominated by the King. In the British system there is not a single instance to the contrary. That necessity was enjoined in the case of Pakistan so long as it continued to be a Dominion, though it was open to that Dominion, if the Governor-General gave assent to a bill of secession to repudiate its Dominion status. The force of the words ‘full power to assent’ would be realised if a situation arose where a bill of secession came up before the Governor-General for assent. So far as His Majesty was concerned he had given full powers to his Governor-General to assent to any legislation of the Dominion; but the Governor-General, though he was a representation of the King, was also be representative of the Dominion in the sense that he was a person in whom the majority party of the Assembly had confidence. He would, therefore, have no hesitation and would also have the requisite authority to give assent. If, however, he withheld assent, his immediate recall by His Majesty would have been successfully insisted upon by the Assembly and the assent could them have been obtained from his successor. [p. 289 & 290] G
The word ‘law’ in the subsection has been used in a general sense, namely, any proposed legislation which has not as yet received the assent of the Governor-General[p. 290] H
The marginal note to section 8 “temporary provision as to the government of each of the new Dominions” shows that the legislation of the Constituent Assembly under subsection (1) of section 8 is a part of the government of the Dominion and the whole scheme of the Government of India Act proceeds on the assumption that the Governor-General represents the Crown when he assents in Her Majesty’s name to the laws of the Federal Legislature. Therefore it seems to me to be an impossible proposition to assert the making of laws is not a part of the government of the Dominion, and that being so no reason whatsoever has been suggested why the making of constitutional laws should not be a part of the government of the Dominion. If the Governor-General represents the Crown for the purposes of the government of the Dominion when he gives assent to the laws passed by the Federal Legislature, it must a fortiori follow that he represents the Crown for the same purpose when he assents to constitutional laws, because in a State like ours it is impossible to conceive of a government without there being a constitution. [p. 294] I
A mere Rule o Procedure cannot amend the Constitution Act any more than a Resolution by the Assembly that a person named shall be stoned to death for an act that is not an offence under the substantive law of crimes and without his being tried in accordance with the law relating to criminal procedure.[p. 296] J
Therefore to apply the principle of contemporaneous and practical exposition to the present case, we shall first have to say that there is a doubt in our mind as to the true meaning of sections 6 and 8 as a whole, and particularly as to the meaning of subsection (3) of section 6 and subsection (1) of section 8. [p. 298] K
In my opinion, it is a mistake to suppose that sovereignty in its larger sense was conferred upon the Constituent Assembly, or that it could function outside the limits of the Indian Independence Act. The only power given to that Assembly was the power to make laws, constitutional or federal. In the former case, it exercised the power to make provision as to the constitution of the Dominion which had been included in the generality of the powers conferred by section 6 on the Legislature of the Dominion, and in the latter it acted as the Federal Legislature with all the limitations to which that Legislature was subject. Apart from these powers, it had no other power and it lived in a fool’s paradise if it was ever seized with the notion that it was the sovereign body in the State. It had, of course, Legislative sovereignty as the Legislature of the Dominion but then the Governor-General was a constituent part of the Legislature. Every Act passed by it required the Governor-General’s assent, consistently with the position that prevails throughout the Dominions, the Colonies and the Possessions, settled or ceded or conquered, where the Crown still retains to itself or has delegated to its representative the high prerogative right of assenting to bills.
If this basic position was misunderstood or misconstrued, there is neither any estoppel nor is the argument ab inconvenienti applicable. On its interpretation of the Indian Independence Act, the Constituent Assembly attempted to function outside the Constitution, and it was the right not only of the Governor-General to object to such unconstitutional activity, but the right of every citizen in the State to demand that the Assembly must function within its constitutional limits. [p. 298 & 299] L & M
Any attempt therefore to construe the Governor-General’s power to withhold assent as a veto on legislation proceeds on a mis-apprehension and cannot be made a ground for the inference that power is an infringement of the legislative sovereignty of the Legislature of the Dominion and thus of the Constituent Assembly. [p. 304] N
I am quite clear in my mind that we are not concerned wit the consequences, however beneficial or disastrous they may be, if the undoubted legal position was that all legislation by the Legislature of the Dominion under subsection (3) of section 3 needed the assent of the Governor-General. If the result is disaster, it will merely be another instance of how thoughtlessly the Constituent Assembly proceeded with its business and by assuming for itself the position of an irremovable Legislature to what straits it has brought the country.[p. 299] O
The Governor-General of Pakistan is appointed by the King or Queen and represents him or her for the purposes of the Government of the Dominion (section 5 of the Indian Independence Act). The authority of the representative of the King extends to the exercise of the royal prerogative in so far as it is applicable to the internal affairs of the Member, State or Province, even without express delegation, subject to any contrary statutory or constitutional provisions. [p. 311] P
Mr. Chundrigar is, however, right in the contention that in Pakistan no particular form for assent is prescribed, and that it need not be in writing. [P. 299] q
The above created a constitutional crisis in Pakistan as many laws did not receive the assent of the governor general and ripples of this decision were felt all over Pakistan. 3
In Just a period of three years A R Cornelius would once again find himself part of a landmark case and would play a part in its split decision.
The state vs Dosso and the others PLD 1958 SC 533
A historic event came to pass in 1958 when the 1956 constitution came to an end. The political quagmire was once again boiling as Iskander mirza and the parliament found each other at odds with one another with Iskander Mirza criticizing the constitution he had himself passed. On 7th October 1958 Iskander mirza dissolved the assemblies by declaring martial law and making ayub khan the chief martial law administrator. He cited failure of provincial democracy and with it abrogated the constitution of 1956 as he dissolved the central legislature, the central cabinet and the provincial legislature and the provincial cabinet. Ayub khan took control of the legislative functions as well as the administrative powers of the state becoming the head of the state.
He introduced the promulgation of order 1958 whose effects were that all laws with the exception of the 1956 constitution and restored the jurisdiction of the court.
Case
A murder took place in the Lora lai district of Balochistan by a person named as Dosso.He was arrested and was handed over to the Council Of Elders(Loya Jirga).The Tribal authorities charged him under FCR, 1901.The relatives of Dosso upon this filed a writ petition in Lahore High court against the decision of Loya Jirga. Dosso and other were convicted under Section 11 of FCR 1901, and handed over to Loya Jirga. The Jirga convicted Dosso. The relatives of Dosso filed a petition against the proceedings of council of elders regarding Dosso case in Lahore High Court. They challenged the references and the convictions on the grounds that the relevent provision of the FCR were void being repugnant in the " Equity before Law" and the equal protection of Law" and the right to counsel embodied in Articles 5 and 7 of the 1956 Constitution. The writs were writ of certiorari and writ of mandamus.
High court
The High Court decided the case in favour of Dosso and declared FCR repugnant to 1956 constitution. Article 5 and 7 of which ensured the equality of all before the law. Thus Lahore High Court decided the proceedings of council of elders as null and void under FCR, 1901. The effects of this decision were that,after the declaration of FCR as repugnant to the constitution;then the validity of those cases were questioned, which were decided under FCR since long befor it was enacted, and especially since 1956 when the new constitution was promulgated.4
Appeal to Supreme Court.
The state of Pakistan went into appeal against the decision and the Supreme Court set the date for the hearing on the 13th of October 1958 but on 7th October martial law was declared. The promulgation of law order came on 11th October and was declared as the new legal order and the previous legal order the 1956 constitution was struck down.
The hearing
The Supreme Court looked to answer the question of the FCR, the fundamental rights and the position of martial law. The decision based itself on legal positivism of kelson. The decision would give rise to the doctrine of necessity which would then be used by all dictators in the future to exert their rule. The bench comprised of chief justice Muhammad munir, Ameer ud din, Shahab ud din and A R Cornelius.
The decision
The decision created ripples that effected the very democratic and political foundation of Pakistan. The judgment points were:
1. LEGALISATION OF 1958 martial law
the judgment held that 1958 Martial law imposition is a kind of revolution (peaceful revolution) which is not resisted or opposed by the common people; this clearly defines that the people are happy with this change, thereafter this revolution or martial law is legal as long as it satisfies the common people.
2. The Supreme Court held that the Laws (continuance in Force) order 1958 was the NEW LEGAL ORDER and the validity of laws and the correctness in the judicial decisions would be determined according to it.
3. The Supreme Court also held that as the 1956 constitution was abrogated therefore FCR 1901 was still in force in accordance with the laws (continuance in force) order, 1958.
4. The court also made a reference to the decision of council of elders, that its decision is valid and upto the mark.
Chief justice Munir and AR Cornelius
The two legal heavyweights provided their own understanding of the laws and how they perceived the event.
Chief Justice Munir: that since Article 5 of the late Constitution itself had now disappeared from the new legal order the Frontier Crime Regulation (III of 1901) by reason of Article IV of the Laws Continuance in Force Order, 1958, was still in force and all proceediongs in cases in which the validity of that Regulation had been called in question having abated, the convictions recorded and the references made to the Council of Elders were good. [p.542]
A victorious revolution or a successful coup d’ E’tat is an internationally recognised legal method of changing a Constitution.
After a change of that character has taken place, the national legal order must for its validity depend upon the new law-creating organ. Even Courts lose their existing jurisdictions, and can function only to the extent and in the manner determined by the new Constitution.[p.539]
If the territory and the people remain substantially the same, there is, under the modern juristic doctrine, noi change in the corpus or international entity of the State and the revolutionary government and the new Constitution are, according to International Law, the legitimate government and the valid Constitution of the State. [p.539]
[Hans Kelsen: “General Theory of Law & State” translated by Anders Wedberg; 20th Century Legal Philosophy Series pp.117-118]
Where revolution is successful it satisfies the test of efficacy and becomes a basic law-creating fact. On that assumption the Laws Cointinuance in Foirce Order, however transitory or imperfect, was a new legal order and it was in accordance with that Order that the validity of the laws and the correctness of judicial decisions had toi be determined.[p.540]
Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan & Secretary, Finance and Revenue (Revenue Department, Government of East Pakistan PLD 1957 SC.(Pak) 9 ref.
The Order applied to the situation that came into existence under the President’s Proclamation of October 7. The Laws that were in force after that date were enumerated in Article IV, but form the list of such laws the Constitution of 23rd March 1956 had been expressly excluded. This meant that when under clause (4) of Article II of the Order the Supreme Court or the High Court was moved for a writ, the ground for the writ, could only be the infraction of any of the laws mentioned in Article IV, or any right recongnised by that order and not the violation of a right created by the late Constitution. The so-called fundamental rights which were described in Part II of the late Constitution were therefore no longer a part of the national legal order and neither the Supreme Court nor the High Court had under the new Order the authority to issue any writ on the ground of the violation of any of the fundamental rights……. Under the new legal Order any law could at any time be changed by the President and therefore there was no such thing as a fundamental right, there being no restriction on the President’s law-making power. Under Article 4 of the late Constitution there was a restriction on the power of the legislature to make laws involving breaches of fundamental rights and invalidity attached to all existing laws, customs and usages having the force of law if they were inconsistent with any of the fundamental rights. This test to determine the validity of the laws and the fetters on the power of the legislature to make laws had both disappeared under the new Order. Unless therefore the President expressly
enacted the provisions relating to fundamental rights, they were not a part of the law of the land and no writs could issue on their basis. [p. 541]E.
It was true that Article II provided that Pakistan shall be governed as nearly as may be in accordance with the late Constitution but this provision did not have the effect of restoring fundamental rights because the reference to Government in this Article was to the structure and outline of Government and not to the laws of the late Constitution which had been expressly abrogated by Article IV. Article II and Article IV could therefore stand together and there was no conflict between them. But even if some inconsistency be supposed to exist between the two, the provisions of Article IV which were more specific and later must override those of Article II.[pp. 541, 547, 553, 569]F,L,O to P; AA,BB,CC.
Position in regard to future applications for writs, therefore is that they lie only on the ground that any one or more of the laws, Constitution in Force Order has been contravened. [p.541]G.
As regards pending applications for writs or wirts already issued but which are either sub judice before the Supreme Court or require enforcement, the relevant provision is clause (7) of Article II. This provision means that, excepting the writs issued by the Supreme Court after the Proclamation and before the promulgation of the Order, no writ or order for a writ issued or made after the proclamation shall have any legal effect unless the writ was issued on the ground that any other or more of the laws mentioned in Article IV or any other right kept alive by the new Order had been contravened. And if there be a pending application or proceeding in respect of a writ which is not covered by clause (4) of Article II, or any other provision of the new Order, that is to say the application or proceeding relates to a writ sought on the ground that a fundamental right has been contravened, then the application or the proceeding shall abate forthwith. This means that not only the application for the writ would abate but also the proceedings which require the enforcement of that writ. The abatement must therefore be held to govern all those writs which were the subject-matter of appeal before the Supreme Court either on certificate or by special leave. [p. 542]H.
No judgment, order or writ of a High Court can be considered to be final when either that Court has certified the case to be a fit one for appeal and proceedings for appeal have been taken or when the Supreme Court itself has granted special leave to appeal from that judgment, order or writ. [p.542,547]I&M.
The thing is that a year ago the honourable justice had highlighted that no law or amendment can take away the fundamental rights of a person. In his words "The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of the Constitution to say that a right is fundamental but may be taken away by the law. I am unable to attribute any such intent to the makers of the Constitution who in their anxiety to regulate the lives of the Muslims in Pakistan in accordance with the Holy Qur’an and [the] Sunnah could not possibly have intended to take away from Muslims the right to profess, practice and propagate their religion and to establish, maintain and manage their religious institutions, and who in their conception of the ideal of a free, tolerant and democratic society could not have denied a similar right to the non Muslim citizens of the State."5
This placed his statements in the case at a questionable position.
A R Cornelius: was unable to hold beyond doubt that the concluding words of subsection (7) of S. 2 of the Laws (Continuance in Force) Order, 1958 had the effect of bringing to an abrupt end in the circumstances of the two cases, the proceedings in the High Court which were under examination before the Supreme Court in Appeals No. 1 of 1957 and 60 of 1958. [pp.555,561]R to TT.
Per Corneliu, J., – ” I am unable to hold beyond doubt that the concluding words of subsection (7) of section 2 of the Order of the 10th October 1958, have the effect of bringing to an abrupt end the proceedings in the petitions before the High Courts commenced by the convicted persons in the two cases here under consideration. I do not therefore consider that it is open to me to reverse the judgment of the High Court on the point of repugnancy to Article 5 of the Constitution of 1956 is not tenable”. [p. 561]TT.
His Lordship held that that view was not tenable. [p.566]V,W.
[Full discussion of above question][pp.555,566,567]R to X;Z.
(h) Constitution of Pakistan (1956) Art. 178 – High Court not competent to declare invalid a conviction had in a “special area” though the convicted person was later confined in a place within jurisdiction of the High Court – Prisoners Act (III of 1900), Ss. 15 & 16. [p.567]Z.
Justice Cornelius argued a dissenting opinion basing it on natural law and he would go on to argue for fundamental rights during the rule of ayub khan. He stated “By the Constitution of 1956, the highest authority of an overriding character, governing all laws and legislation in the country, had been given to the principles which were set out and enumerated as Fundamental Rights in Part II thereof. No law could be made in contravention of those rights on pain of validity.”6
You see according to his opinion human rights did not depend on written guarantee because they were elementary rights that did not disappear only because the legal instrument that contained them was no longer in force. His approach of natural law had the advantage that one could have fundamental rights even without the constitution of 1956 as these rights were ever present.
The judgments of Cornelius and fundamental rights
In both the judgments Cornelius foresaw the negative effect they would have on Pakistan as the first case law created and continued the fight between the legislative and the executory and this along with the second case law was used by subsequent dictators to not only usurp power but also curtail the fundamental rights of the people of Pakistan and his remarks point to the fact as he stated that fundamental rights were always part of the people irrespective of a legal framework. His remarks would have ended the horrible FCR which would then continue on to haunt the frontier tribal areas to this day.
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 recognized 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 outdated, 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.”7
Cornelius and Islamic Shariah
Early Pakistan was home to two groups of intelligentsia. One pro-secular which found its roots in the age of British raj and was widespread amongst the top intelligentsia of that time. Justice Muhammad munir report on anti-ahmiddya riots of 1954 is considered a great piece of secular work. However the irony was that the pro-islamic intelligentsia had catholic man as its legal stalwart and heavyweight and he was A R Cornelius. The chief justice of Pakistan from 1960 till 1968 (AR Cornelius) brought forward many thoughts that of Islamic legal framework and how it could be beneficial for the state of Pakistan. His opinion was not only accurate and in-depth but also provided a way where the courts could easily provide natural justice whilst working under the injunctions of Islam.
The cornerstones of his legal philosophy was based on three principles.
1. Law has a moral function in society
2. Law should be culture sensitive
3. Islam is a valid foundation for universal society.
His 57 speeches and his judgment showcase how greatly he developed those principles and this development makes him one of the greatest legal philosophers.
The questions come to pass is where did this development come to pass. Two events were very clear in Pakistan. One that Islamist political power was growing in Pakistan and the people truly appealed to Islam and second was the fall of liberal democratic structure in Pakistan and replaced with a secular autocracy which was illiberal in nature.
At the very same time the success of reforms in the Arab world which reconceptualized the European legal systems into Islamic legal systems. Infact he called upon legal professionals and judges and others with a vested interest in the preservation of the liberal rule of law to support the Islamization of the legal system so long as they, the judiciary, retained the authority to define the government’s official interpretation of Islamic law.
During ayub era, Cornelius would provide speeches that and reminded them that (as he understood it) British judges had learned how to articulate their notions of “justice” in religious terms that impressed both rulers and the ruled. In a 1964 speech he told his audience:
‘’In the year 1653 a Judge in England did not hesitate to pronounce that: “There is no law in England, but is as really and truly the law of God as any Scripture phrase, that is by consequence from the very texts of Scripture: for there are very many consequences reasoned out of the texts of Scripture; so is the law of England the very consequence of the very Decalogue itself: and whatsoever is not Consonant to Scripture in the law of England is not the law of England . . . be it Acts of Parliament, customs or any judicial acts of the Court, it is not the law of England.” That was said at a stage when the Courts of England being dissatisfied with the legislation of the time, were searching for grounds on which they could declare the legislative dictates as invalid.’’
Cornelius also pointed out that obedience to these religiously-grounded rule of law principles became so habitual that judges stopped having to justify their laws in religious terms. Furthermore, even after judges had come to formally recognize the supremacy of parliament, no one challenged them when they interpreted statutes creatively so as to ensure that they never violated judicial notions of justice.
Cornelius point of utilizing natural law and explaining it under Islamic terms was perhaps the most sensible of all methods to formulate the judiciary of Pakistan. The Muslim family ordinance is perhaps its most perfect example. Infact even in the munir report it was highlighted, “If there is one thing which has been conclusively demonstrated in this inquiry, it is that provided you can persuade the masses to believe that something they are asked to do is religiously right or enjoined by religion, you can set them to any course of action . .’’
Cornelius seemed to be wondering whether Pakistani judges could follow the lead of British judges centuries earlier and convincingly argue that violation of court orders represented a repudiation of God’s command. If so, the Pakistani government might come to obey judicial orders protecting fundamental rights in the same way that the British government did. We can see it today as the very Islamic laws of the parliament are being used against the parliament as Nawaz sharif finds himself disqualified based on the fact that he is not “sadiq and ameen” and this very definition was used in the most recent judgment to annul the election act of 2017 as being against the injunctions of Islam thus a disqualified person cannot become party leader and these Islamic injunctions have been highlighted as showcase that parliament is not supreme. We can see how far reaching and effective Cornelius thinking was. As Cornelius put it a few years later, fundamental rights principles had come to be recognized as “higher law” in early modern Britain as binding on rulers and ruled alike only because judges had successfully “sanctified” them in religious terms.
In speeches, he began to cite the recent history of Arab legal reform (and the writings of Mahmassani) to support his claim that in countries where Islamist pressure was strong, liberal legal professionals with proper training and drive could build popular support for progressive legal rules. To do so, they would have to reconceptualize those rules in Islamic terms as rules consistent with core Islamic principles and then “sell” their interpretation of Islamic law to the public
In 1962, Cornelius began explicitly to argue that the only hope for a re-empowerment of the judiciary and the legal profession and the re-establishment of liberal constitutionalism would come through liberal Islamization. Pakistani liberals, particularly those in the legal profession, should engage in a two-part program. First, they should use their institutional prestige to support Islamization by arguing that it was only through Islamization that a stable legal order could emerge. At the same time, they should establish themselves as legitimate interpreters of Islamic law and establish fundamental rights principles as essential principles of Islamic law.
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 validity8
Cornelius at one point stated, ‘’if lawyers took the time to express, as they clearly could, the genius of liberal democracy in Islamic terms, then enlightenment would follow and thus the way of appreciation and adoption of the basic norms which are the requisite of our Constitution will be cleared and made to appear easy. . . . Where [the] law has grown out of the religious consciousness of the peoples, a tie would emerge which no one could possibly break. ‘’
It perhaps the most accurate thing to state that Cornelius understood the very essence of Pakistani society and he understood exactly thinking of the people of Pakistan and it was his philosophy that truly highlighted how governance and judiciary can work in Pakistan.
Conclusion
Many cite that islamization was a disaster in Pakistan but to them he would always state that this form of Islamization was merely a step and the lawyers and judiciary and legal thinkers must step forward to define Islam in a liberal fashion to create natural Justice for all. It is perhaps now that is the perfect time for courts to point out and take charge of definition of Islamic laws and provide for Pakistan the true concept and method of governance.
In a country where simply changing the word “oath” to “declaration” created such a mess, Cornelius concepts and philosophies find even more support.
He joined the Law Firm mufti & lane which became Cornelius, Mufti&lane.
He was Awarded Hilal-e-Imtiaz
He passed away on 21 December 1991 at the age of 88 in Lahore and was buried at the Christian cemetery.
He inspired many educated minds and he and kiyani were famous for their legal lectures and speeches as students would come from far and wide to listen to their views. His absence is felt today even more so.
It is stated as law of this world that nations which forget their heroes cease to exist. We must remember all those that sacrificed time, effort and energy to not only fight for our country but to help in its development and evolution.
Sources
1. Chief Justice Cornelius of Pakistan: An Analysis with Letters and Speeches
2. Chak, farhan mujahid 2015, the constitutional cases
3. http://www.cssforum.com.pk/css-optional-subjects/group-vi/constitutional-law/ maulvi tameez ud din case.html
4. http://www.cssforum.com.pk/css-optional-subjects/group-vi/constitutional-law/98162-state-v-s-dosso-case-updated.htmldf
5. Jibendra Kishore Achharyya Chowdhury and 58 others v. Province of East Pakistan,PLD1957SC 9at p.41
6. http://www.kpja.edu.pk/sites/default/files/training-resources/The%20Role%20of%20Jurisprudence%20in%20Adjudication%20by%20Muhammad%20Munir.%2018-11-13.pdfddf
7. https://www.dawn.com/news/598409f
8. Khuram ali shafique: Cornelius of Pakistan
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