Democracy and Fundamental Rights in Political Development: A Critical Appraisal of Munir, Cornelius and Kayani CJs

In the minds of the judiciary, like that of executive and bureaucracy, the idea was not the project of securing democracy but of planting a democracy that would slowly emerge. Cornelius’ later court decisions can be better understood in their relation to the Basic Democracy system. According to him, the Basic Democracies Order of 1959 gave power to the people who were supportive of the 1962 Constitution, and would get rid of the colonial legacies of ancestry, wealth and class.

The involvement of the entire population in political life in post-colonies was a serious issue for modernization scholars. This participation of the population in the social order in the form of ‘popular sovereignty’ is usually called power sharing, power diffusion, politicization, mobilization or participation explosion. According to Braibanti, the ruling elite had no concern about the quality of participation in regards to “literacy, responsibility, understanding of issues, to the quality of civic culture generally”.^[354] The only emphasis was on increasing participation. Participation as power sharing was good but “nevertheless, we cannot overlook the stress and crisis caused by accelerated power- sharing”.^[355] Braibanti is very clear, the collapse of systems of newly independent states are not caused by corruption or infiltration or even institutional weakness but accelerated participation. He called it ‘demand-conversion crises’. The solution is either to control this demand-conversion crisis through the bureaucracy and increasing the strength of the judiciary to handle crises like in Pakistan or prevent them as in India. In India, according to Braibanti, demand is contained, diffused and spatially diverted by a competent single mass party.^[356] Ayub and Cornelius in Pakistan faced the same problem.

How did Chief Justice Cornelius view democracy? He found that elections, which raise ideological differences, were dangerous, for there was the “virus of revolution just below the surface”.^[357] Socialism was not an option for him, as Muslims did not have freedom there.

One should not be mistaken that Kayani CJ was against Ayub and hence was a democrat. He looked down upon the legislature, voters and the people and only CSP in leading the country for him.^[360] In his political hierarchy there was contempt for the assembly. Courts are better and should exercise writ jurisdiction against administration/executive- who are politicians and technocrats. The Bar was worse than the administration in this formation.^[361] We’ll see how the bar was the most potent voice for participation, which annoyed juridico-bureaucratic structure. Kayani was not hopeful about the BD system, which was trying to bring “Churchills to the forefront”.^{[362] [363] Apart from Munir CJ’s decisions against democ­racy, he believed that there could not be a participatory democracy due to lack of education etc. Therefore a form of government, which can promote growth, should be the priority that can bring conditions for the change in the form of 230}

government.

To sum up, during modernization, all the jurists, including Cornelius, supported the notion of a controlled democracy—a version of U.S. liberal democracy with, indirect elections of the president, a strong presidential system like the U.S., bureaucracy leading modernization and judicial review vested in SuperiorCourts, and fundamental rights as a substitute for the deficit in the above controlled democracy.

2.10.2 The Cornelius ‘Rights' Approach to Substitute for the Democratic Deficit?

This part of the book will attempt to understand the exaggerated difference of the Cornelius Courts with Ayub on the issue of fundamental rights, which is widely cited in regards to cases like the Moudoodi case and Shorish Kashmiri case.^[364]

Ayub’s modernization was liberal and some of its aspects were not liked by the Islamic forces, such as the family ordinance.

There are some other cases where the judiciary’s defence of fundamental rights is exaggerated under the leadership of Chief Justice A.R. Cornelius, like in the Malik Ghulam Jilani's case, Shorish Kashmiri's case and Abdul Baqi Balooch case. Through these cases, according to Hamid Khan, a strong foundation of ‘judicial review’ and ‘due process of law’ was laid down by the courts of Pakistan.^[367] During protests against the Tashkent Declaration,^[368] many political leaders like Jilani, Nawabzada Nusrullah and Sardar Shaukat Hayat Khan were kept in deten­tion under the Defence of Pakistan Rules and the Defence of Pakistan Ordinance of 1965. The West Pakistan High Court rejected their petitions. The Supreme Court, in its judgment, accepted Nawabzada’s appeal and rejected that of Hayat and Jilani.^[369] Here, the court laid down some broad principles and guidelines for cases of political detainees. Against the detention of a known journalist, Shorish Kashmiri, the High Court of West Pakistan accepted the petition and the Supreme Court upheld this judgment.^[370] Abdul Baqi Balooch, as a Baloch activist and a strong opponent of Ayub, was under detention. West Pakistan High Court (Karachi Bench) rejected his appeal.^[371]

These judgments defended against the arbitrary use of laws like the Defence of Pakistan Ordinance.

First of all, the strong presidential design of the constitution half-heartedly wanted a legislature and now the grip around it was tightened by the juridico-bureaucratic design of fundamental rights. Second, this ‘supremacy of judiciary’ is a part of political but not economic modernization. This means that the judiciary was tied with a ‘qualifying clause’ not to interfere in economic mod­ernization, which included the ordinances and regulation regarding land reforms, family ordinance, and other socio-economic concerns within the design of capitalist modernization. The interesting point to be noted here is the perceived contrast in the views of Chief Justices Munir and Cornelius around their approaches towards rights and democracy. Both were the part of the same project of political development from Ayub to Yahya. After retirement, Chief Justice Munir became the Law Minister for Ayub’s government and Cornelius was the Chief Justice.

First of all, the nature of rights in Cornelius’s Court is not very different from that of Munir’s Courts. In the Dosso case,^[377] Cornelius believed that the natural rights theory in the absence of fundamental rights guarantees a positivist form in a constitution. He found rights apart from the 1956 constitution. Chief Justice Munir, on the other hand, relied on legal positivism, but did not refute Cornelius’s concept of natural rights. What happens when the constitution is abrogated? Munir was of the opinion that these rights are fundamental, cannot be taken away and do not need the law. Justice Shahabuddin, Amiruddin Ahmad and Cornelius agreed on that point, but Cornelius wrote a separate opinion. He based his opinion on natural rights but noted that when the constitution is not in force, there is concern about violation. This position is not very different than Munir’s.

The difference between the Chief Justices became clearer in the Mehdi Ali Khan case. The courts retained the position in regards to fundamental rights established in the Dossocase and declined to review it.^[378] Justice Cornelius accepted the presence of fundamental rights as natural rights in the Dosso case, but argued they were not justiciable. They could only be justiciable when present in a constitution. Chief Justice Munir was clear not to challenge the regime and allowed it to alter the state structure. Thus, the court accepted the presence of fundamental rights but absence of judicial powers. This shows the extent of the difference between Cornelius and Munir’s courts. Even in the Mia nIftikhar-ud-din case,^[379] courts refused their power to challenge the regime. In appeal, Justice Kaikaus accepted the plea of the govern­ment to amend and interfere with the fundamental rights and gave immunity to those acts from judicial scrutiny, stating, “[e]ven if the central government did contravene a principle of natural justice, its order would not be liable to challenge in a court”.^[380]

After the promulgation of the 1962 constitution, the Cornelius court began a review of cases involving justiciable rights.^[381] S.M. Haider showed, by statistical analysis, how the rights cases based on natural justice doctrine increased under Cornelius courts after the 1962 constitution.^[382] The first case was Fuzlul Quader Chowdhury wherein the court looked at the power of the president to amend the constitution. Ayub wanted his members of the executive body to speak in the National Assembly though they were not members, and hence he tried to amend the constitution accordingly. A member of the assembly moved the point in the Dacca High Court as to whether the president can make such amendments. The Dacca High Court held that the constitution should not be so easily changed.^[383] The Supreme Court did not accept the appeal and Chief Justice Cornelius warned the government about the powers of the courts to judicially review any changes in the constitution.^[384]

To sum up our departing position, the nature of the controversy was that the judiciary should act more as a custodian of the operational form of the Constitution than as the guardian of fundamental rights. Chief Justice Cornelius strongly defended the presidential form of the government against ‘anomalous Parliamentary form’ or a ‘semi-Parliamentary form of Government’. For the judges, according to the ‘main fabric’^[385] in the presidential form, a government minister should not be a member of the House, cannot have the right to vote, does not depend upon support of the assembly, nor are they responsible to the assembly. The point I want to make is that the Justice Cornelius, who later became the Chief Justice of the Supreme Court in cases regarding such rights, protected the presidential form of the gov­ernment and the consequent necessary rights for democratic deficit in this form of government, and not the rights themselves.

Now let me move to the next level of evaluating these rights, that is procedural and substantive rights. The courts in the Moudoodi case and the Sorish Kashmiri case, according to Newberg, differentiate between procedural right of review and how the protection provided to substantive rights is possible with this review. Then, in Ghulam Jilani, Fazlu IQauder Chowdhry, and Sirajul Haq Patwari cases, the courts stood away from contestable substantive rights guarantees and only extended judicial review in formal sense. In a way, the judiciary stuck to procedural rights and refused to enter the domain of substantive rights, seeing that domain as an exclusive arena of legislature and politics.

Newberg objected to this ‘deliberate judicial strategy’ to use judicial review as “strange and twisted compact as any attempt to build democracy from authoritar­ianism without revolution must surely be”,^[386] and “courts put reform before rev­olution as an acceptable mode for political change”.^[387] Disappointed, Newberg came to the conclusion that “while an independent judiciary might be a prerequisite for the life and sustenance of a developing country, it could neither create the conditions for equity and development nor guarantee those results”.^[388] Newberg is correct here but this rubs against her problematic regret that the judiciary could not properly judge the state. The evidence so far shows that the judiciary (in the Cornelius tradition) aimed only to protect the presidential form of constitution and rights. Let us explore the nature of politics underlying these rights cases.

2.10.3 The Nature of Politics in Rights Cases

In order to add some structural context to this rights discourse, it is necessary to study the nature of the political and economic evolution behind Ayub’s opposition. Islamists were among the ‘cultural’ opposition to the modernization project. During Ayub’s regime, the All-Pakistan Women Association started a campaign against polygamy and for the right to divorce. The response was the Family Laws Ordinance of 1961. Its evaluation is a compromise between Ayub’s liberal agenda and the religious opposition. The legal system was split: issues regarding the personal status of women such as marriage, divorce, inheritance and custody of the child were included under Islamic Law, whereas all other issues came under secular legal tradition.^[389] Maulana Maudoodi, the founding leader of Jamaat-i-Islami, opposed the ‘enlightened modernization’ of Ayub. The government used the Political Parties Act of 1962 and the Criminal Amendment Act of 1908 to ban the party. Jamaat-i-Islami contested this decision in East as well as West Pakistan in criminal and civil petitions. The West Pakistan High Court dismissed the criminal petition,^[390] but the East Pakistan High Court admitted the appeal.^[391] The Supreme Court heard both in a joint appeal. The court upheld the rights of forming a political party and particularly the right to do the activities for which the party is formed. The court examined the nature of new ongoing political developments under Basic Democracy, a kind of guided and controlled democracy. The court looked at the cases in terms of rights, and how these rights allow political parties and their activities and the courts’ role in protecting these rights. Courts were confronted between the controlled nature of democracy and the absolute nature of these rights. Cornelius was of the opinion of an independent judicial investigation into govern­ment complaints about Jamaat-i-Islami and hence, probably wanted a context for these absolute rights on which they could be evaluated and tested. The court did not accept this proposal. In the Moudooi case, not only was the right of judicial review of legislative acts was asserted by courts, but the principles in this regard were enu- merated.^[392] Thus, from a political analysis, the Moudood icase represented the mild opposition against Ayub by Islamists and an inclination of Chief Justice Cornelius towards Islamization. This may not be irrelevant to make connection of Mouddodi’s model of political development and constitutional understanding with that of Cornelius and his collective. This does not mean political agenda and politics.

Leonard Binder elaborated Mouddodi’s importance for the controversy he cre­ated over an Islamic constitution. Mouddodi sidelined the orthodox ulema and modernist secular politicians and forced the Constituent Assembly to consider four points which became the basis of Objectives Resolution in 1949. When Jinnah’s speech to the Constituent Assembly left confusion,^[393] Mouddodi came out with his four points of Islamic law and constitution in early 1948 in his address to law students. These four points became the basis of Objectives Resolution.^[394] In his model of political development, ‘nationalism’ is the anti-thesis of Islam. The community had the right to rule, but through believers of Sharia and un-believers were not allowed to influence state policy. At the same time there was an amir (ruler), advisory council, and ‘limited government’ by elected representatives.^[395] Readers will see these ideas common to the understanding of Cornelius collective comprising Hamoodur Rahman, A.K. Brohi, Sharifuddin Pirzada, and Khalid M. Ishaque. Opposition to this project is ‘secular’ Munir and Kayani but within liberal tradition. Sharifuddin Pirzada wrote in 1995 that Mouddodi relied on his book to challenge the banning of Jamaat-e-Islami in the Moudoodi case.^[396]

Actual opposition to Ayub since 1958 came from the National Awami Party, which was an alliance of communists and nationalists. These two forces were resisting the state-building project of the juridico-bureaucratic structure as we have already discussed. So in the Siraj Pitwari case, the Cornelius court failed the test of fundamental rights as the attack was on the constitutional design and BD system. Chief Justice Cornelius and Justice Hamood-ur-Rahman of the Supreme Court defended the Basic Democracy (BD) system, while Chief Justice Murshad of the East Pakistan High Court reflected the unrest of East Pakistan. The division of provincial and legislative powers in the BD system and the executive were the issue in the Sirajul Haq Patwari case in East Pakistan High Court in 1965.^[397] Chief Justice Murshad of the East Pakistan High Court made clear the separation of central and provincial powers in the 1962 constitution and argued that the Act of 1965 transgressed these powers. He relied on the Fazlul Qauder Chowdhry case and exercised the power of judicial review. The court decision strongly protected provincial autonomy. In an appeal in 1966, the Supreme Court of Chief Justice Cornelius reversed the judgment.^[398]

I agree with the Newberg that, “when the court took on Ayub Khan, it was for his transgression of private rights, not the organization of his state”.^[399] But one can add that both of these are not separate, for we keep emphasizing ‘more rights’ in exchange for the lack of democracy. The Cornelius tradition of judicial review and rights discourse proved antithetical to the notion of a broader and deeper popular democracy, which could not accommodate other, small and oppressed nationalities. Actually, the Islamic ‘national’ spirit of Cornelius and his ‘collective’ could not accommodate the nature of contradiction involved in politics of suppressed nationalities. Justice Murshad resigned on 6 January 1967. Ayub received his resignation through the law minister and commented that he was brilliant but ‘impulsive and unstable’ and that he was very doubtful from the beginning of his success as a Chief Justice of East Pakistan.^[400] Later, Chief Justice Murshad entered Bengali politics and participated in the negotiations of the independence of Bangladesh.

A further test came for the Cornelius court in the Roshan Khan case.^[401] Here, once again, the court was to decide between public order and individual rights. Chief Justice Cornelius was of the opinion that if a bona fide arrest is made, there is no question of individual rights and judicial review. Justice S.A. Rahman thought that executive action should be within constitutional and legal confines. Justice Hamood-ur-Rahman and Justice Kaikaus dismissed the case. Herein, the court hardly passed its own test established in the Moudoodi case.

But the judiciary failed the test in the Malik Ghulam Jilani case.^[402] Ayub signed the Tashkent Declaration with India after the 1965 war. The opposition protested and arrests were made. The Lahore High Court considered police action justified in light of concerns of public order. The Supreme Court also upheld detention to prevent disturbance in public order but found the Lahore High Court’s approach restrictive, as it should have looked into the reasonableness of the government action. The decision in the Shorish Kashmiri case^[403] upheld its right to review executive actions that are arbitrary, unguided and uncontrolled. Two points are worth mentioning here, one that Shorish Kashmiri was a right wing anti-communist like Moudoodi of Jamaat, and secondly, Chief Justice Cornelius had now retired. Ayub’s protective constitutional structure was deteriorating with his downfall.

Again in the Agarthala conspiracy case, the judiciary was tested around nationality politics. Mujeeb-ur-Rahman (who was leading the movement for Bangladesh), was accused of revolting and was taken into custody under DPR, along with 35 other individuals. Ayub’s intention was to try such people under Court Martial. Ayub immediately called General Yahya and informed him that DPR had been destroyed by the Supreme Court at the behest of Cornelius, and Yahya should take them in military custody lest the High Court will let them go.^[404] No one was convicted as the trial was not completed after Ayub Khan resigned. Mujeeb was tried by a special tribunal, headed by Chief Justice S.A. Rahman, and Chief Justices M. Khan and Muksumul Hakim of East Pakistan. The making of this tribunal under the 1968 Special Criminal Law Amendment (Special Tribunal) ordinance was challenged in High Court and refused.

The judiciary also supported Ayub in this most aggressive anti-communist act after the Pindi Conspiracy case. In the Mian Iftikhar-ud-din case, the Progressive Papers Ltd (PPL), a privately owned newspaper, was led by left-leaning socialists including landmark writers like Faiz Ahmad Faiz, Syed Sibte Hassan and Ahmad

Nadeem Qasmi.^[405] The government removed the owners and director of the newspaper on the ground of 1952 Security of Pakistan Act.^[406] The High Court accepted the order of the Govt under the Dosso case and Mehdi Ali Khan case.^[407] S.M. Haider, being the main proponent of Cornelius’ tradition of rights, accepted that the doctrine of natural justice “lost its prestine vigor” in this case.^[408]

Newberg’s analysis is worth summarizing to properly evaluate the rights dis­course under Chief Justice Cornelius and later in a brief period of Chief Justice S.A. Rahman. For her, it was a mixed bag of decisions oscillating between judicial reviews of constitutional rights and accepting state limits on politics. Chief Justice Cornelius did not go beyond constitutional limits while defining natural rights. S.A. Rahman was more into positive rights and judging the law by its letters. On the civil liberties front, Cornelius was in favour of the Frontier Crimes Regulations, which were ruthlessly used by Ayub to suppress opposition, particularly for the nation­alists and the communists in National Awami Party—NAP. Similar provisions were in the Criminal Code of West Pakistan. This means that rights protections and procedures are not guaranteed if not applied fairly.^[409]

The analysis so far tried to establish how the debate and liberal analyses around the rights discourse in these cases hides the politics behind them (by omitting any analysis of class formations and class struggle), but also obscures what is going on with state apparatuses and their politics.

Chief Justice Cornelius’s position on rights can also be understood from his speeches.^[410] He criticized the universality of the United Declaration of Human Rights (UDHR) and its authoritative form and found that some of its Articles were explosive.^[411] He rejected Article 21 of the UDHR, which declared the will of the people as the basis of authority of the government and this will is only made possible through free, secret voting in periodic general elections. Cornelius’s objection to this was its validity as a human right being questionable and that people could be and had been happier and well governed under other modes of governance than democratic systems. He objected to the fact that the UDHR ignored a nation’s right to choose its own form of government and ideologies (political and economic).^[412] He went further and declared this type of democracy as divisive and in opposition to integration.^[413] Article 19 (freedom of opinion and expression), Article 13 (freedom to leave the country) and Article 14 (right to seek asylum) were also contentious for him. For him, these Articles were averse to the concept of loyalty with country and community. In the Articles of the UDHR, Cornelius found “over-stress on the freedom of the individual citizen” at the price of the individual’s obligations to the state or nation to which he or she belongs.^[414]

Cornelius did not accept the U.S. human rights discourse. His view was that the inclusion of human rights in written constitutions was a local phenomenon of democracy and not necessarily based on the Magna Carta and the Bill of Rights of 1688 in England, for those were between kings and privileged nobles. Based on the work of A.K. Brohi, Cornelius made it clear that fundamental rights in the written constitution are meant to stop the interference of majority rule in individual matters, as the people are distrustful of legislative supremacy in newly independent coun­tries. It seems that the greater rights in the hands of the courts were another form of stress on the already weak legislature, as in Pakistan.

As far as the relation of rights with popular democracy is concerned, the position of Chief Justice Cornelius is illustrative and very conclusive for our proposed analysis. It speaks for itself. For Cornelius, the rights in the constitution of newly independent countries like Pakistan are remedies “necessary for dealing evils that follow on each other, all stemming from the same source, namely, popular democracy”.^[415] For him, democracy based on the social contract and participation in representative government was an illusion. He wrote, “[t]he price of democracy is partisan politics”.^[416] Cornelius is very clear that developing countries had shown that self-government per se is no substitute for good governance. He claimed further that good government cannot be assured under self-government but only under autocratic rule.^[417]

In a nutshell, we can see that the rights discourse of Cornelius courts stood behind the nation-building project in postcolonial development. Due to his religious inclination, he stood for the rights of the Right wing opposition. His rights dis­course failed when the rights of the oppressed nationalities were presented. After reading his views on rights, we can see that he places rights above popular democracy. This is done under the veneer of Islamism. Let me show more closely the manifestation of Islam with a controlled liberal democracy. This way we can understand the rights discourse as a stopgap remedy for a democratic deficit. Let us add another cultural layer to this formation.

2.10.4 Islam and Jirga System in Nation-Building

The nation-building project under modernization in post-colonies lacked the cohesion that underpinned the West during the Industrial revolution.^[418] To create this cohesion, Cornelius, in line with Liaqat’s Objectives Revolution,^[419] used Islam. In order to accommodate local hierarchies, the Jirga (in the North West Frontier Province) or the Panchayat (in Punjab-Sindh) was kept intact. This is the judicial system Cornelius had in mind under the Basic Democracy system. It is best illustrated in his essay about giving judicial responsibility to the people.^[420] He concluded that the best arrangement would be a mix of the Jirga system and Islam.

First of all, he appreciated communal or village courts as they could dispose of cases without any expense and enforce a solution that was purely punitive or a deterrent. Imprisonment was needed only in cases of serious nature or public danger. He complained that British colonizers took away this judicial responsibility of the people suddenly, rather than in stages, as had been the case in England. Later, political responsibility was returned, though only partially, in the Reforms Act of 1919, but judicial responsibility was never returned to the people of India, for instance, the jury system was never tried in India.^[421]

Ayub’s Basic Democracy system, for Cornelius, was the only attempt made to return justice to the people.^[422] Cornelius found an ‘indigenous’ justice system in the Panchayat system, which offered a design of a controlled democracy. He appreci­ated the Jirga system in the Northwest Frontier Crimes Regulation, which he had appreciated seven years earlier in the Dosso case.^[423] At that time he valued the patriarchy in the Jirga system and kinship system as leading to less juvenile crimes. Similarly he found that “there are restraints imposed upon the freedom of behavior of women, which are effective to lessen the need for law to intervene for the purpose of checking excesses by both”.^[424] He admired the work of British legal commissions to codify these laws.^[425] But, the critique of Cornelius remained, namely that the justice system was imposed upon the people and “did not derive from the life of the people themselves”.^[426]

Rather than looking at the culture of his own country and its people, he saw the roots of culture in the ‘universality’ of Islam and hence the Middle East.^[427] He confused the concept of Islam with that of culture. His quest for the roots of the culture led him to “the external source of all legality”, that is, wahdat (oneness of God) and Islam,^[428] as opposed to his own claim of the law as growing out of the society, he found the sources of Muslim Common Law (Sharia) in ‘advanced’ middle Eastern Countries. The Iraqi ambassador pointed him to Mujallah and gave a copy. Cornelius started translating it in English.^[429] This was an effort of the Turkish Sultans in the nineteenth Century to frame a general law of the Empire on the lines of the Napoleonic Code of France. Mujallah was abolished after the secular revolution of Atta Turk. Cornelius thought that this spirit was the basis of Sharia and was uncommon in our law as it was based on British Common law.^[430] He went to the extent of favouring the amputation of hands as a deterrent, which according to him, could be done with a small surgery instead of by cutting the hand. He appreciated the Saudi system of criminal justice administration on the ground of deterrence. He also advocated the Jirga system, amputation, and Zakat.^[431]

On the other hand, the Jirga system, for Braibanti, was a blending of the elite and popular will and spheres of juridical norms.^[432] The Frontier Crimes Regulation of 1901 was not a ‘return’ to simple tribal justice, but according to Braibanti, the “institutional and normative adjustment” of tribal law and British criminal law.

Here, normative content is more western than tribal. One of the problems of a written constitution based on western values for nation-building was its con­frontation with indigenous values.^[433] This grafting of Islam onto the justice system paved the way for a state-Islamization by Zia in the 1980s and onward.^[434]

Apart from this, did Cornelius really want to return justice to people? His slogan of “Justice of the People, By the People, for the People”^[435] seemed a counter narrative of ‘judicial democracy’ as opposed to ‘people’s democracy. He placed judicial conscience above social and political conscious. Rejecting political con­scious meant individual rights ranked superior to political and economic rights (rights of the people).^[436] To make this proposition clearer, he stated in another speech that the law is made by the Legislature or Ordinance, but “it is only in the hands of Superior Judges, that such a rule takes the authentic shape, which is the hall-mark of pure law.” [my emphasize] ^[437] But how do judges decide and where are the people in this picture? People only come, for him, as clarifying commercial, social, public interests in courts, then a spark from the light of God while delivering judgment as a manifestation of Divine purpose of the Universe. For him, funda­mental rights in 1962 Constitution on American pattern were “for the implemen­tation of the whole principles of the Objectives Resolution.” [my emphasis].^[438] He felt sorry that in Pakistan’s superior courts, judges were facing hundreds of cases of fundamental rights but they did not understand them in the lights of Holy Scriptures of Islam. In that sense there is a conflict between foreign interpretation of these FRs and their true interpretation according to the dictates of Islam.^[439] As opposed to foreign countries like U.S., who use in the expression ‘moral responsibility’ to differentiate it from natural justice which is based on religious conscience, Cornelius used natural rights theory.

To sum up Munir (1950s) and Cornelius (1960s) CJ courts, analysis in this chapter tried to debunk the famous liberal position that Cornelius CJ defended democracy and rights as opposed to Munir CJ. Analysis tried to show how Cornelius was against popular democracy and favoured of a very controlled democracy with a strong presidential system and limited electorate under BD system. In this political formation, strong emphasis on rights is to address this democratic deficit. In the presence of a weak legislature, the judiciary’s use of Islam as law in the name of Sharia and right of its interpretation above legislature added to this democratic deficit. Cornelius also included the patriarchy of Jirga system in his political and legal formation. To counter the pressure of land reforms and nation­alist cum socialist forces, an alliance of Muslim clergy and feudals under Liaqat Ali Khan in the form of Objectives Resolution finally adopted an intellectual political discourse in the leadership of Cornelius. But this use of Islam led to confusion as per Munir CJ.^[440] Cornelius’ tradition had to be defensive in the face of rising socialism after the overthrow of Ayub in 1968 but it strongly continued under Chief Justices S.A. Rahman, Hamoodur Rahman and leading jurists like A.K. Brohi, Sharifuddin Pirzada, and Khalid M. Ishaq. I call this Cornelius collective. Resisting and overthrowing Bhutto in the 1970s, this tendency got an official legal and constitutional position under Zia dictatorship when parliamentary democratic constitution of 1973 was turned into a presidential one and the Objectives Resolution became the substantive part of the constitution along with other Islamization clauses (details to be followed in the next chapter). Later in the 1980s and 1990s, CJs Anwar, Haleem, Afzal Zullah, Nasim, Ajmal continued this quasi-liberal tradition. We saw that Munir and Kayani CJs, though gave decisions against legislature and fundamental rights, yet they were secular and liberal. As a whole, Munir and Cornelius CJs were within the liberal tradition of law standing together against socialist modernization, popular democracy, and deeper and broader participation of masses. Both of these CJs and the courts under them worked with the civil-military bureaucracy in advancing the hegemonic project of capitalist modernization. That is why I call it juridico-bureaucratic structure. But this project failed to stop popular participation and made modernization theorists like Huntington to re-evaluate the role of law in political development.

2.11