The Judicialization Of Politics In Pakistan

Since 2007, the Supreme Court of Pakistan has emerged as a dominant force in Pakistani politics through its hyper-active use of judicial review, or the power to overrule Parliament’s laws and the Prime Minister’s acts. This hyper-activism was on display during the Supreme Court’s unilateral disqualification of Prime Minister Yousef Raza Gilani in 2012 under the leadership of Chief Justice Iftikhar Chaudhry. Despite the Supreme Court’s practical adoption of restraint subsequent to the retirement of Chief Justice Chaudhry in 2013, the Court has once again disqualified a prime minister, Nawaz Sharif, due to allegations of corruption in 2017. While many critics have focused on the substance of the Court’s decisions in these cases, sufficient focus is not paid to the amorphous case-selection process of the Supreme Court of Pakistan. In order to compare the relatively unregulated process of case-selection in Pakistan to the more structured processes utilized by the Supreme Courts of the United States’ and India, this book aims to understand the historical roots of judicial review in each country dating back to the colonial era extending through the foundational period of each nation impacting present-day jurisprudence. As a first in its kind, this study comparatively examines these periods of history in order to contextualize a practical prescription to standardize the case-selection process in the Supreme Court of Pakistan in a way that retains the Court’s overall power while limiting its involvement in purely political issues. This publication offers a critical and comparative view of the Supreme Court of Pakistan’s recent involvement in political disputes due to the lack of a discerning case-selection system that has otherwise been adopted by the Supreme Courts of India and the United States’ to varying degrees. It will be of interest to academics in the fields of Asian Law, South Asian Politics and Law and Comparative Law.

The political history of Pakistan is characterised by incomplete constitution-making, a process which has placed the burden of constitutional interpretation on state instruments ranging from the bureaucracy to the military to the judiciary. In a penetrating and original study of the relationship between state and civil society in Pakistan, Paula Newberg demonstrates how the courts have influenced constitutional development and the structure of the state. By examining judicial decisions, particularly those made at times of political crisis, she considers how tensions within the judiciary, and between courts and other state institutions, have affected the ways political society views itself, and explores the consequences of these debates for the formal organisation of political power.

Since 2004, the Supreme Court of Pakistan has emerged as a dominant force in the tri-partite constitutional system in Pakistan. In some instances, the Court has engaged in hyper-active use of judicial review over the laws passed by Parliament or the policies of the Prime Minister. This trend was perhaps most obvious in two cases decided by the Supreme Court under the leadership of Chief Justice Iftikhar Chaudhry: a) the unilateral disqualification of Prime Minister Yousef Raza Gilani in 2012, b) the Court's invalidation of a constitutional amendment as a means to ensure the Chief Justice of Pakistan's near-complete control over judicial appointments without substantive involvement from elected officials. These two cases demonstrate one of the many dangers posed by a Supreme Court that lacks a self-restraining justiciability standard and procedure: namely, without a standard or procedure, the Court will always be open to politicization under the leadership of an overly-active Chief Justice. This study uses the counter-examples of India and the United States in order to present a justiciability standard and procedure for the Supreme Court of Pakistan to adopt. Rather than attempting to apply American or Indian jurisprudence wholesale to Pakistan, the study begins by tracing the divergent development of judicial review in each country based on the impact of colonial judicial systems. The study then moves onto comparing the roles of the courts in each country as envisioned by their respective Constitutional Founders. Next, the structural differences in the constitutions of each country will be compared, which leads to an examination of justiciability doctrines developed by the Supreme Courts of the United States, India, and Pakistan. Lastly, the study will propose a justiciability standard and the creation of a Justiciability Council as a companion organization to the Supreme Court of Pakistan. In order to test the effectiveness of the proposed Council and test, two narrow legal questions will be examined: whether the Court should exercise judicial review over a) disqualifications of the Executive and b) appointment of judges. The aim of this study is to take into account Pakistan's unique political and legal development and suggest a method to regulate and solidify the recently-established power of the Supreme Court.

Over the last two decades courts have become major players in the political landscape in Asia. This book assesses what is driving this apparent trend toward judicialization in the region. It looks at the variations within the judicialization trend, and how these variations affect political practice and policy outcomes. The book goes on to examine how this new trend is affecting aspects of the rule of law, democratic governance and state-society relations. It investigates how the experiences in Asia add to the debate on the judicialization of politics globally; in particular how judicial behaviour in Asia differs from that in the West, and the implications of the differences on the theoretical debate.

This book examines constitutional law and practice in five South Asian countries: India, Pakistan, Sri Lanka, Nepal, and Bangladesh.

The emergence of the judiciary as an assertive and confrontational center of power has been the most consequential new feature of Pakistan's political system. This book maps out the evolution of the relationship between the judiciary and military in Pakistan, explaining why Pakistan's high courts shifted from loyal deference to the military to open competition, and confrontation, with military and civilian institutions. Yasser Kureshi demonstrates that a shift in the audiences shaping judicial preferences explains the emergence of the judiciary as an assertive power center. As the judiciary gradually embraced less deferential institutional preferences, a shift in judicial preferences took place and the judiciary sought to play a more expansive and authoritative political role. Using this audience-based approach, Kureshi roots the judiciary in its political, social and institutional context, and develops a generalizable framework that can explain variation and change in judicial-military relations around the world.

Presents a deeply contextualized account of public law and judicial review in Pakistan.

Through a detailed historical and empirical account of post-independence years, this book offers a new assessment of the role of the judiciary in Pakistani politics. Instead of seeing the judiciary as helpless or struggling against an authoritarian state, it argues that the judiciary has been a crucial link in the creation of state and political inequality in Pakistan. This rubs against the central role given to the judiciary in developing countries to fix the ‘corrupt politicians and stubborn bureaucracies’ in the World Bank’s ‘Good Governance’ paradigm and rule of law initiatives. It also challenges the contemporary legal and judicial discourse that extols the virtues of Public Interest Litigation. While the book’s core analysis is a critique of the contemporary liberal legal project, it also adds to the critical tradition of social theory by linking political economy to a social theory of law. The theoretical aspect of the study is applicable to any developing society whose judiciary is going through foreign-sponsored ‘rule of law’ judicial reforms.