Contribution Of Justice A.R. Cornelius To The Jurisprudence Of Pakistan
It is true that the underdevelopment of jurisprudence owing to a lack of juristic work has been a norm since the creation of Pakistan. Making references to Western jurisprudence and legal theories is still prevalent in our judicial system. In order to critically analyze existing jurisprudence surrounding the development of law, we can turn to the judges who have contributed through precedents commonly followed and discussed in legal discussions, such as suo moto actions, the doctrine of necessity, etc. This article will discuss the contributions made by former Chief Justice A.R. Cornelius.
Chief Justice Alvin Robert Cornelius (1903-1991) was a Pakistani jurist, legal philosopher and judge, who served as the fourth Chief Justice of Pakistan from 1960 to 1968. Moreover, he briefly served as the Law Minister in the Cabinet of former President Yahya Khan.1
Despite being a follower of the Christian faith, he was very open-minded about embracing the admirable tenets of other religions. He always supported Shariah Law for social development and considered it instrumental for the elimination of crime.
Since he closely used to link law with morality, he was considered by many to be a naturalist. He believed that in order to prevent crime in the society, it was necessary to frame laws that had both legal and moral aspects. The importance of morals and social norms was also reflected in his judgments, especially in cases involving the death penalty for convicts who were sentenced to death for murder under section 302 of the Pakistan Penal Code (PPC).
One such case was about preserving a family’s ‘honour’. The deceased had an affair with a girl belonging to the convicts’ family. The convicts tricked and lured the deceased to an abandoned place and later stabbed him. In this case, Justice Cornelius referred to a similar case, Fazal Khan vs The State, in which following the observation had been made:
“…It must be remembered that the questions of family honour, touching the females of a family, are almost of overpowering importance to the tribes of the western regions. To vindicate that honour, they feel bound in duty to go to very great lengths.”
The court was of the view that the deceased had concealed the exact reason for going to the abandoned place because he himself had something discreditable to conceal. Therefore, the appeals of the convicts were accepted and their death sentence was altered to a life sentence.2 In this judgment, Justice Cornelius explicitly defined the prevailing cultural narratives and the impact of family values and social norms on law and precedent. It must be noted, however, that this ratio decidendi was based on the prevailing societal norms of the time (which will hopefully not be accepted anymore, such as victim blaming or honour killing, etc.) and may have unfortunately resulted in privileges being given to the convicts.
Legal Approach and Theory of Punishment
The writer feels that the research articles of Justice Cornelius were far more reflective of his legal approach as compared to his judgments and case-law.
While addressing a seminar organized by the Pakistan Bar Council, he presented a paper on the topic of crimes and their punishments, which questioned whether the law served the needs of the community. He briefly explained some of the causes that obstructed the prevention of crimes, including the concept of ‘diminished responsibility’ used as a defense by criminals. He was of the view that our law protected criminals by misusing the concept of human rights and thus limited the scope of police investigation, thereby giving special privileges to serious criminals and reducing the rate of conviction.
He also supported the deterrent theory of punishment to prevent crime. While supporting the concept of deterrence in Shariah Law, he derived a deterrent-rehabilitative concept of punishment. For hardened criminals who behaved in a violent anti-social manner, he suggested amputation or disablement of a body organ, either by way of surgery or by injecting certain types of chemicals to cause the criminals to be temporarily or permanently disabled. He regarded such measures to be effective in controlling frequent crimes and recidivism. On the other hand, he also proposed rehabilitation centers for criminals who could earn by working and thus wouldn’t become a burden on the society and on taxpayers’ money.3
He opposed restrictions on police inquiries in the guise of securing liberties. In his view, the restrictions caused more delays in the judicial proceedings and resulted in very few convictions. He favoured the Criminal Law (Amendment) Act of West Pakistan through which an ancient and traditional method of dealing with a crime, namely ‘trial by jirga’, followed by an imposition of punishment by an executive authority, was reintroduced, because according to him the proportion of success in controlling crime, achieved through courts, was not enough due to restricted police investigations.4
He also wanted lawyers to shoulder some responsibility in trying to protect criminals from investigation by misusing the concept of human rights.5 While emphasizing the responsibility of the legal profession, he quoted Mr. Skelhorn’s words:
“Since all legal sanctions carry with them a professional imprimatur, i.e. a warranty by professional opinion of their fitness for the purpose for which they are employed, the whole problem of criminal punishment falls properly within the field of professional appraisal.”6
Supremacy of Judiciary
It may be inferred from the information available that to some extent he believed in the arbitrary and unrestricted exercise of authority by law enforcement agencies and judicial institutions to prevent crime. He also seemed to decide cases with an aim to protect the integrity of the the court and its meaningfulness as an institution, as is evident from a case involving judicial bias and contempt of court where he made the following observations:
- It was open to the litigant to raise in court an allegation of bias in that court, regardless of whether it was a superior or subordinate court. If such a plea was not raised before the court as as soon as the facts on which it was based became known to the litigant, he or she would find himself or herself barred from seeking relief under the provisions of Article 98.
- The plea of bias involved criticism of a superior court regarding its capacity to do justice. Confidence in that court was not only essential to public interest but also vital to the proper functioning of the judiciary and even its continued existence. But the burden of establishing bias totally lied upon the litigant.
- The mere apprehension in the mind of a litigant that he or she might not get justice would not justify the raising of the plea. The facts adduced must have been such that the conclusions of bias followed necessarily therefrom. On no weaker ground could any person be permitted to attack the impartiality of a superior court and if the proof failed to satisfy the requisite standard, the litigant might be found in contempt.7
In another case involving the Election Commission, he emphasized that the role of the judiciary was not only to provide justice but also to protect public interest and faith in the independence of institutions.8
Justice A.R. Cornelius appeared to believe in social justice, public order and the integrity of the court. He favored hard punishments and advocated for the elimination of restraints on law enforcement agencies in order to protect citizens and maintain public order. The writer believes that such an approach is against what Bentham introduced in the theory of utilitarianism, according to which the law ought to minimize pain and maximize happiness through individual freedoms. In contrast, Justice Cornelius believed that law ought to maintain social order and communal peace even if through apprehension or at the expense of individual liberties.
2 Muhammad Ramzan Vs The State, PLD 1966 SC page 129
3 Inaugural Address, PLD 1965 Jour, 172
7 M.H Khondar Vs The State, PLD 1966 SC page 140
8 Mian Jamal Shah Vs The Election Commission, Government of Pakistan, PLD 1966 SC page 1
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