By Yasser Latif Hamdani
September 16, 2019
Lawyers, historians and political scientists often have to deal with ideas that do not fit the Occam’s razor test and whose nuance is often overlooked by a person unwilling to properly consider their merits. This article deals with an idea I am not entirely at home with but one that is so fascinating that it deserves to be discussed. The foremost proponent of this idea was Justice Alvin Robert Cornelius, the only Christian Chief Justice we have had in this country.
Justice Cornelius, born and brought up in UP in what is now India, went on to become one of the leading legal minds. Both at Allahabad University from where he received LLB and later at Cambridge University, he was very interested in religious law and western law. In 1947 he chose Pakistan and was soon the foremost judge in the then Federal Court. Here he was a relentless defender of democracy as was obvious from his dissenting opinions that clashed with the then Chief Justice. Federal Court became the Supreme Court of Pakistan and in 1960 Justice Cornelius became the Chief Justice. As a legal jurist he sincerely believe that Islamic legal tradition can be the basis of a universal and inclusive society in Pakistan. He argued this with great verve and given that Field Marshal Ayub Khan was of a modernist Muslim bent, they together introduced the idea of an Islamic ideology based on universal values informing the legal and political system of Pakistan.
The implications and logical extension of this was clear. Justice Cornelius was arguing that Islam could be two different things simultaneously, first being faith personal to a believer (Islam A) and the second being a political and legal ideology more public and therefore political (Islam B). From this flowed the category of legal and political Muslim. A legal and political Muslim need not have been a Muslim by faith or even a believer but rather someone who believed in the idea that Islamic values, inherently progressive and subject to the same rigors of evolution, can create a humane and inclusive society. Cornelius himself while a devout Christian by faith was a legal and political Muslim. He was not alone in arguing that universal human rights and democratic values could be inspired by Islam. Sir Zafrullah Khan had done precisely that but while Zafrullah had done so out of sincere religious belief (quite a different matter that his sect was later declared Non-Muslim by an unthinking government) Cornelius argued this remaining a practising Christian man. In those days this was not anomaly. After all the best book on Muslim personal law had been written by a Parsi lawyer D F Mulla, a member of the Indian legislative assembly before partition.
Now this opens up a very interesting new vista, a secular view of Islam B. For example Justice Cornelius, a Christian, was a legal and political Muslim by subscribing to Islam B as his legal and political ideology. By the same token there could be Muslims who were Muslim by faith but may not ascribe to Islam B as their political ideology. In this rendering of a Muslim state the idea that the President and Prime Minister can only be Muslims takes a whole new meaning. It would mean that a Hindu or a Christian or even an atheist can still qualify as a legal and political Muslim and therefore become the President or Prime Minister of the country so long as he or she subscribes to Islam B. Complicated and fantastic but nevertheless a logically consistent model. Obviously it must be stated that Cornelius’ idea of Islamic ideology was of a progressive and liberal ideology and had little or nothing to do with the extremism that fanaticism that has become commonplace in our country. It stood for human rights, equality and constitutional democracy in the country with every citizen of Pakistan being given equal rights.
As it happens starting in the 1970s, having lost its Eastern Wing and therefore the Two Nation Theory now under a question mark, the Pakistani state adopted the idea of Islamisation and a religious rationale for the country’s existence. It was not longer simply a state created as a homeland for South Asia’s Muslims which was now challenged on the basis that more South Asian Muslims lived outside borders of Pakistan in India and Bangladesh. Instead the state adopted the idea that Pakistan was created to implement Islamic law. Cornelius’ ideas found new currency initially but the result was deeply shocking and one that Cornelius certainly would not have anticipated. The distinction between a Muslim by faith and a legal and political Muslim was erased and by General Zia’s time the idea that a practising Christian could be a legal and political Muslim became a laughable proposition, not that there were any takers for it even earlier. Instead of being a vehicle for change and basis for a universal society, Islamisation meant marginalization of Non-Muslims as well as any Muslims who dared disagree with it. Far from becoming a model liberal democratic state, Pakistan plunged into a theocratic abyss from which it is still incapable of coming out.
Cornelius probably had John Locke and his ideas on toleration in his mind when he ventured forth with the idea that a liberal democracy could be rooted in religious principles and law. After Christianity was considered part of English Common Law till not long ago. He did not appreciate however that there were religious wars and conflict in the history of England during the 16th and 17th century that had frightening consequences. I have no doubt that if given time in two or three centuries from now Pakistan would emerge as a modern liberal democracy but what matters is the damage and the cost that will be incurred in the process. A much easier solution is to revert to the founding father’s 11 August speech which did speak of Catholic and Protestant conflict in England and which gave a principle that ensures success: You may belong to any religion, caste or creed that has nothing to do with the business of the state. Unfortunately there are no takers for it, just as there are no takers for Cornelius’ idea of Islamic law as the basis for liberal democracy.
Yasser Latif Hamdani is an Advocate of the High Courts of Pakistan and a member of the Honourable Society of Lincoln’s Inn in London
Original Headline: Justice Cornelius and Islamic Law as foundation for liberal democracy
Source: The Daily Times