The role of Pakistan’s judiciary has been central in determining the country’s political course, particularly during the formative years of its constitutional development. Carved as an independent nation out of British India in 1947, Pakistan struggled from the outset with the transplanted Westminster-style constitutional system of democratic governance. Political failure and constitution-formation lag swung the country into authoritarianism in 1954.
Central to this discourse are two towering judicial figures: Justice Muhammad Munir and Justice Alvin Robert Cornelius. Munir’s jurisprudence facilitated the erosion of democratic principles, paving the way for military interventions, while Cornelius remained a steadfast dissenter, upholding constitutionalism and judicial independence.
Justice Munir’s judicial career was marked by his close alignment with executive authority, often at the cost of constitutional principles. He was appointed Chief Justice of the Federal Court in 1954, superseding 4 senior judges, by Governor-General Ghulam Muhammad, in violation of the principle of seniority. The rightful contender for the position was Justice A.S.M. Akram.
Munir’s decisions fundamentally disfigured Pakistan’s constitutional development and paved the way for successive authoritarian regimes, undermining the rule of law and parliamentary supremacy.
His most infamous ruling came in the case of Maulvi Tamiz-ud-Din Khan v. Governor General of Pakistan, where he overruled the Sindh Chief Court decision and upheld the dissolution of the Constituent Assembly on technical grounds. Munir held that S.223(A) Govt of India Act 1935 was not yet law as it had not received the assent of the Governor-general, thus writs issued by Sindh court (of quo warranto to new cabinet ministers and writ of mandamus restoring Tamizuddin as President Constituent Assembly) were overruled, stating lack of jurisdiction.
In the Tamizuddin case, the judiciary prioritised technicalities over constitutional safeguards, marking a turning point in Pakistan’s constitutional history, as it failed to act as a check on executive overreach. As a result, the country faced a legal vacuum as 46 statutes became invalid as not having received assent. Munir’s ruling set a precedent that allowed future authoritarian regimes to dissolve assemblies and abrogate constitutions under legal justifications.
The judiciary must choose whether to repeat Munir’s deference to power or uphold Cornelius’s principled defiance
In his infamous invocation of the doctrine of necessity in The State vs, Dosso and Other, Munir relied on Hans Kelsens, General Theory of Law and the State, and validated the first military coup d'etat. He misapplied Hans Kelsen’s theory, arguing that a successful coup d’état was a legitimate means of altering constitutional order. By equating military takeovers with revolutionary changes driven by popular will, Munir provided legal cover for Ayub Khan’s military regime and birthed a legal doctrine that successive regimes would invoke to justify their unconstitutional rule.
Yet not all judges succumbed to the pressures of authoritarianism. Among them, Justice Cornelius stood firm in his commitment to the rule of law and emerged as a lone voice of dissent. With his judicial integrity and independent legal reasoning, he managed to stay on the right side of history and consistently defended judicial independence, constitutionalism, and the rule of law.
He upheld the judgment of the Sindh Chief Court in Tamizudin, stating there was no requirement for assent by the Governor General for all laws of a constitutional nature and highlighted that the legal framework had been functioning under the Constituent Assembly without Acts being previously assented to. Justice Cornelious was the sole dissenting judge and refused to acknowledge the ‘colonial reading’ of the Act.
Similarly, in Dosso, Cornelius refused to endorse Munir’s application of Kelsen’s theory, contending that fundamental rights were natural rights that could not be extinguished by authoritarian rule. His dissent underscored the judiciary’s duty to uphold constitutional principles, irrespective of the prevailing political climate.
Unlike Munir, Cornelius viewed the judiciary as a guardian of democracy rather than an enabler of authoritarianism. During his tenure as Chief Justice (1960–1968), he attempted to reverse the judiciary’s decline into subservience. In Saiyyid Abul A'la Maudoodi v Government of West Pakistan, he ruled against the government’s suppression of political parties, reaffirming the constitutional right to freedom of association stating, ‘Any law in conflict with the fundamental right of freedom of association guaranteed by the Constitution would be void.’
Cornelious’s judicial philosophy was rooted in an unwavering commitment to constitutionalism, fundamental rights, and the separation of powers—values Munir’s rulings had systematically eroded. His dissents are a powerful reminder that the judiciary can and should resist authoritarian encroachments on constitutional governance.
Justice Cornelious’s rulings have inspired later judgments, such as Miss Asma Jilani v Government of Pakistan, where the Supreme Court finally repudiated Munir’s doctrine of necessity and declared Yahya Khan’s regime unconstitutional. This decision marked a shift towards a more assertive judiciary, albeit one that continues to struggle against political pressures.
Pakistan’s judiciary is now at a crossroads. Munir’s legacy of judicial acquiescence remains a cautionary tale, demonstrating how judicial subservience to authoritarian power was developed, which eroded judicial credibility in the eyes of the public, and infested mold into democratic institutions. In contrast, Cornelius’s unwavering commitment to constitutionalism highlights the judiciary’s potential to uphold democratic principles in the face of executive overreach.
As Pakistan navigates an era of political turmoil and judicial challenges, the lessons of the past remain clear. The judiciary must choose whether to repeat Munir’s deference to power or uphold Cornelius’s principled defiance. The future of Pakistan’s democracy depends on this choice.