The Judicialization of Politics in Pakistan by Waris Hussain.Pdf
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e 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. is 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 Iikhar 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 ea country, dating ba to the colonial era and extending through the foundational period of ea 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. is publication offers a critical and comparative view of the Supreme Court of Pakistan’s recent involvement in political disputes due to the la 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. Waris Husain is a comparative constitutional law expert with a focus on South Asia, having wrien on legal developments in Pakistan, India, and Nepal. He teaes international legal advocacy and advises the international moot court program at the Howard University Sool of Law. Routledge Contemporary South Asia Series Sri Lanka’s Global Factory Workers (Un)Disciplined Desires and Sexual Struggles in a Post-Colonial Society Sandya Hewamanne Migration of Labour in India e Squaer Selements of Delhi Himmat Singh Ratnoo Gender, Nation and Popular Film in India Globalizing Muscular Nationalism Sikata Banerjee Media as Politics in South Asia Edited by Sahana Udupa and Stephen D. McDowell Death and Dying in India Ageing and End-of-Life Care of the Elderly Suhita Chopra Chatterjee and Jaydeep Sengupta Documentary Film in India An Anthropological History Giulia Battaglia e Rule of Law in Developing Countries e Case of Bangladesh Chowdhury Ishrak Ahmed Siddiky New Perspectives on India and Turkey Connections and Debates Edited by Smita Tewari Jassal and Halil Turan e Judicialization of Politics in Pakistan A Comparative Study of Judicial Restraint and Its Development in India, the US and Pakistan Waris Husain e Judicialization of Politics in Pakistan A Comparative Study of Judicial Restraint and its Development in India, the US and Pakistan Waris Husain First published 2018 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 ird Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2018 Waris Husain e right of Waris Husain to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, meanical, or other means, now known or hereaer invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Husain, Waris, author. Title: e judicialization of politics in Pakistan : a comparative study of judicial restraint and its development in India, the US and Pakistan / Waris Husain. Description: New York, NY : Routledge, 2018. | Series: Routledge contemporary South Asia series ; 123 | Includes bibliographical references and index. Identifiers: LCCN 2017058534 | ISBN 9780815392705 (hardba) | ISBN 9781351190114 (ebook) Subjects: LCSH: Political questions and judicial power — Pakistan. | Political questions and judicial power — India. | Political questions and judicial power — United States. | Judicial process — Pakistan. | Judicial process — India. | Judicial process — United States. | Law — Political aspects. Classification: LCC KPL3409. H87 2018 | DDC 347.5491/05 — dc23 LC record available at hps://lccn.loc.gov/2017058534 ISBN: 978-0-8153-9270-5 (hbk) ISBN: 978-1-351-19011-4 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC To my family, wife, and dog Brooklyn. Contents List of illustrations Preface Acknowledgments 1 Introduction I. Chaudhry court II. Global growth of judicial review III. Defining activism IV. Method of analysis and spectrum graph comparison V. Scope and limitations of the study VI. Colonial judicial inheritance and Lord Coke’s impact VII. Constitutional structure and judicial procedures VIII. Executive disqualification IX. Prescription 2 Colonial justice I. Introduction II. The American experience with colonial justice A. Native justice B. Development of colonial courts and the blurring line between branches C. Public perception of colonial courts D. Legal education E. Impact on founders III. Indian subcontinent’s expansive experience with colonial justice A. Native justice B. Development of colonial courts C. Public perception of colonial courts D. Legal education and native lawyers E. Impact on founders IV. Conclusion 3 e origins of judicial review I. Parliamentary supremacy II. Ultra vires: forbearer of judicial review III. Lord Coke’s introduction of judicial review IV. Vindication of Lord Coke in the United States V. Early review cases in the United States A. Common right B. Early constitutional cases VI. Origins of judicial review in Indian colonies VII. Early post-colonial judicial review in India VIII. Early post-colonial judicial review in Pakistan IX. Conclusion 4 Structural and constitutional differences I. United States A. Presidential system and parliamentary supremacy B. Establishment of the Supreme Court and federal judiciary C. Federalism D. Jurisdictional limitations on U.S. Supreme Court II. India and Pakistan A. Parliamentary system B. Establishment of courts C. Federalism D. Jurisdictional limits III. Pakistan A. Fourth branch B. Constitutional breaks C. Dissolution of Pakistan D. Conclusions IV. Conclusion 5 Modern justiciability standards and procedures I. Introduction II. United States A. Case or controversy B. Political question doctrine C. Writ of certiorari procedure III. India A. Standing B. Public interest litigation (PIL) C. Political question doctrine D. Pendency and procedure for case selection IV. Pakistan A. Standing/public interest litigation (PIL) B. Suo motu C. Procedure for case selection and role of Registrar D. Ripeness E. Political question doctrine F. Pendency and backlog V. Conclusion 6 Executive disqualification and judicial review I. Introduction II. Pakistan A. Timeline of events for Prime Minister Gilani’s disqualification B. President Zardari and the National Reconciliation Ordinance C. Non-implementation of Supreme Court’s NRO verdict D. Supreme Court overrides constitutional provision for disqualification of Prime Minister E. Critics of the Court emerge F. Legitimacy lost by the Court G. Nawaz Sharif and Panamagate III. United States A. The constitutional impeachment clause B. Framers’ intent C. Judicial function D. Nixon v. United States E. Theory on expanding American Supreme Court judicial review to impeachments F. Comparative conclusions IV. India A. Timeline of events B. Constitutional provisions for disqualification C. Legal aspects of Gandhi v. Raj Narain D. Comparative conclusions 7 A proposed solution: Justiciability Council and four-element justiciability test I. Challenges and opportunities for establishing repeatable restraint in Pakistan’s Supreme Court A. Challenges B. Opportunities II. Context for judicial review III. Repeatable restraint standard A. Elements 1 & 2: matter of public importance for enforcement of a fundamental right B. Element 3: alternative remedies C. Element 4: trichotomy of powers IV. Creation: constitutional amendment, law, or Supreme Court Rules change V. Composition and appointment of the Justiciability Council VI. Rule of Three and short order VII. Review by three-judge Supreme Court bench VIII. Application IX. Conclusion References Chapter 1 references Chapter 2 references Chapter 3 references Chapter 4 references Chapter 5 references Chapter 6 references Chapter 7 references Index 1 List of illustrations Figures 1.1 Method of analysis 1.2 Judicial review spectrum 4.1 Pakistan: timeline for the doctrine of necessity 4.2 Constitutional ronology 6.1 Events leading to Prime Minister Gilani’s