Would Justice Cornelius Have Pardoned FATA Militants?

I'm undecided as to whether the Pakistani legal system, in its entirety, is a bit like a monkey in a suit. Or like W, looking ridiculous in his Vietnamese Ao Dai. Or like Wasi Zafar, pretending to be a Law Minister. In each instance, you have an already strange creature made to wear something that just doesn't fit because the whole outfit is designed for something altogether different.

Consider this news item, published without a blink of a reaction from anyone (including the lawyer's movement):

"PESHAWAR: Another eight alleged militants surrendered to police here Wednesday and were freed after they swore on the Holy Quran to refrain from any terrorist activity in future."

Before the occasional reactionary reader starts making presumptions and frothing at the mouth, I am not mocking the oath on the Quran or even expressing outrage at their pardon. I am simply questioning a legal system that permits police officers the power to pardon individuals who have admittedly been involved in shootings, killings and perhaps bombings. What about common murderers, or decoits, or carjackers? Slaps on the wrist and oaths on the Quran all round?

And I'm not even being sarcastic or facetious. The latter may actually be part of a better solution. Let me lend some authority to the notion. Even Justice A.R Cornelius, a former Chief Justice of Pakistan - who was both a student of the Shariah and a Christian - asserted:

"[The British] did great work in establishing a complete system of courts and judiciary, and furnishing an example to the people ,over about 200 years of how such a system can be run.

[However] they were operating a system of justice which was imposed upon the people and did not derive from the life of the people themselves.

...To a community, a wrong by one of its members of a nature which disturbs its peace would always appear in a limited light, namely in those lights which derive from considerations of the common welfare of the community. They would not be included to exaggerated the offense, but always to minimize it and keep it at a proper level. Thus for instance, any breach of the peace can be regarded either as a breach of the local peace or reach of the kings peace. The community would tend to keep it at the former level, but the laws are devised so that the State steps in to deal with all except the most trivial breaches and the matter assumes an extra communal aspect by the intervention of Police and magistrates in many cases where such intervention might have been avoided"

Some would say that Cornelius was a tad too enthusiastic in his efforts to establish symbolic continuity between the the Pakistani Legal System and the populace's Muslim heritage. At one stage he famously suggested that Pakistan should adopt a modernized version of the classical Quranic Hadd punishment for theft, namely severing the thief's arm. Rather than sever the arm altogether (a bit hardcore for Cornelius's liking), he proposed that the 'motor nerves' connecting the brain to the arm be disconnected, thereby rendering flaccid and inoperative.

Personally, I'd disagree with Cornelius's proposal. Hazrat Umar suspended the Hadd punishment of arm severance (for the crime of theft) during a famine, arguably on the basis of Istihsan (Juristic Preference), as societal circumstances prevented the Quranic rule from being applied without the contravention of core Quranic values of social justice and fairness. Justice is not a price that is paid for lip service to Quranic formalism, let alone for some false notion of continuity. As for the whole severance of the motor nerves business, it's creepy and lacks any sort of cultural resonance or logic, so it adds zero value.

And if, according to a Rashidun, juristic preference can dictate that the operation of a Quranic rule is to be suspended in the broader interests of justice and social utility, then why not suspend the law of the land of Pakistan? Why not pardon militants who have committed crimes against the state, but repented? If their repentance is bona-fide, then surely a pardon serves the agenda of reconciliation, cools temperatures in the NWFP, and its good for the country.

In that sense, I don't take issue with the pardon. I actually think its a good idea. I just wish that the administration of justice in Pakistan was more systematic and consistent. The real injustice for our people results not from the exercise of discretion itself, but the extra legal ad-hoc-ism that characterizes its application. It is the reason our common law system is yet to fit us, in our 60 years of independence.

Consider this:

"...Mr Bush grimaced repeatedly and shifted from foot to foot, a portrait of embarrassment in turquoise blue brocade with yellow trim. It was obvious he couldn't’t wait to get it off and sure enough, moments after the official photographs were taken, he strode away, ripped it off and folded it up."

Now just imagine if he had been wearing it faithfully and consistently for 60 years. And he fully intended to do so for the indefinite future. Maybe then he wouldn't have looked like a complete idiot masquerading as a statesman.