COURTING CONSTITUTIONALISM THE POLITICS OF JUDICIAL REVIEW IN PAKISTAN MOEEN H. CHEEMA November, 2018 87,394 words A thesis submitted for the degree of Doctor of Philosophy at The Australian National The Australian National University University. provided by View metadata, citation and similar papers at core.ac.uk CORE brought to you by © Copyright by Moeen H. Cheema, 2018 All Rights Reserved Except where otherwise indicated and duly referenced, this thesis is my original work. Parts of the thesis have been published in identical or similar form in the following articles: - Moeen Cheema, ‘Two Steps Forward One Step Back: the Non-Linear Expansion of Judicial Power in Pakistan’ (2018) 16 International Journal of Constitutional Law 503 - Moeen Cheema, ‘Pakistan: The State of Liberal Democracy’ (2018) 16 International Journal of Constitutional Law 635 - Moeen Cheema, ‘The ‘Chaudhry Court’: Deconstructing the ‘Judicialization of Politics’ in Pakistan’ (2016) 25 Washington International Law Journal 44 - Moeen Cheema, ‘Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan’s Law’ (2012) 60 American Journal of Comparative Law 875 ------------------------- MOEEN H. CHEEMA 6 November, 2018 2 ACKNOWLEDGEMENTS This thesis has been a labour of love and there are many people without whose help, support and encouragement it would not have been possible. Foremost amongst the people to whom I owe a debt of gratitude is the chair of my supervisory panel, Professor Peter Cane. Peter has always been a source of inspiration and set very exacting standards which, while somewhat intimidating, pushed me to try to produce my best work. Peter’s generosity with his time, constructive feedback and detailed comments enabled me to produce a thesis I can be proud of. I would also like to thank other members of my supervisory panel, Professor Michael Coper and Associate Professor Leighton McDonald, whose advice and support was vital at critical junctures of this project. In addition, there are many other colleagues and members of the executive who deserve credit for creating a wonderfully collegial and enabling intellectual environment at the ANU College of Law. Among such colleagues Professor Anthony Connolly, Associate Professor Asmi Wood, Professor James Stellios, Professor Stephen Bottomley, Professor Peta Spender, Associate Professor Miriam Gani, Professor Fiona Wheeler, Dr Anne Macduff, Dr Rebecca Monson, Associate Professor Matthew Zagor, Professor Mark Nolan and Professor Donald Rothwell deserve a special mention. The Australian National University is a great place to work at and indeed there are many colleagues across the campus who helped shape my ideas over the years. I am thankful especially to Professor William Maley, who has been incredibly supportive. I have also benefitted from the work of Associate Professor Björn Dressel and Dr Nick Cheesman. Beyond the ANU, I am indebted to people such as Professor Martin Krygier, Professor Andrew Harding, Professor Richard Albert, Professor Clark Lombardi, Professor Theunis Roux, Professor Jamal Greene, Professor Marc Galanter, Mr Madhav Khosla, Associate Professor Tarunab Khaitan, Justice, (Retd.) Jawwad S Khwaja, Assistant Professor Sadaf Aziz, Professor Po Jen Yap, and others who have facilitated my 3 scholarly development through reviews of draft articles, constructive feedback on conference papers, and illuminating discussions on comparative constitutional law. I am most indebted to my partner Faiza Cheema, who not only supported me through the best and the toughest of times. A special thank you to my daughters, Zenovia and Zariya Cheema, who were a constant source of joy and for their wonderful reminders that love and life are bigger than work. To my family and friends, especially my parents, who are still wondering if I will ever finish my PhD. 4 ABSTRACT This thesis presents a deeply contextualized account of law in postcolonial Pakistan and situates the judicial review jurisprudence of the superior courts, in particular their recent activism and populism, in the contexts of historical developments in constitutional politics, evolution of state structures and broader social transformations. It shows how in each epoch of the postcolonial state’s history the superior courts positioned themselves within the state and vis a vis the demands that different segments of the society placed upon the state and its institutions. It brings forth evidence that the courts did not define their role in accordance with certain abstract theories of constitutionalism, rule of law and separation of powers that had been deeply imbricated in the postcolonial state’s self-justifications. Rather, these courts re-fashioned their role in accordance with fundamental shifts in constitutional politics, state structure and state-society dialectics. In the process, these courts re-cast the theoretical conceptualizations of constitutionalism, rule of law, and separation of powers to better reflect their evolving role and jurisprudence. A deeper understanding of these phenomena – the evolution of judicial role in response to shifts in socio-political context, and the re-crafting of theoretical frameworks to justify it – will enable us to meaningfully scrutinize the courts’ recent jurisprudence and evaluate the judiciary’s future role in Pakistan’s governance scheme. As such, it will be argued that the courts’ role is deeply political in terms of defining the nature and relevant powers of state institutions and the imperatives for their actions. Perhaps the Pakistani situation is unique in this respect, but it might be worthwhile speculating if theory is often an articulation of such deeply contextualized public law jurisprudence elsewhere as well. 5 TABLE OF CONTENTS I. INTRODUCTION 9 A FRAMEWORK FOR ANALYZING JUDICIAL POLITICS IN PAKISTAN 11 A CONTEXTUALISED HISTORY OF PUBLIC LAW AND JUDICIAL REVIEW 15 KEY THEMES OF CONSTITUTIONALISM IN PAKISTAN 20 II. COLONIAL STATE-FORMATION: FIGMENTS AND FRAGMENTS OF THE RULE OF LAW 25 A BRIEF HISTORY OF COLONIAL RULE 28 From the East India Company to the British Raj 28 Indian Nationalism, Civil Disobedience and Communal Politics 32 The Twilight of the Raj: Constitutional Deadlock and Partition 37 THE COLONIAL STATE AND LEGAL SYSTEM 41 The Indian Civil Service and Bureaucratic Authoritarianism 41 Foundations of the Anglo-Indian Legal System 44 Codification of the ‘Rule of Difference’ 49 FIGMENTS AND FRAGMENTS OF THE RULE OF LAW 53 Systemic Corruption and Rule of Administrative Law 53 Colonial Courts, Rule of Law and Indian Nationalism 57 THE COLONIAL INHERITANCE OF PAKISTAN 63 III. POSTCOLONIAL LEGALITY: TRANSITIONAL STATE-BUILDING SANS CONSTITUTIONALISM 65 THE RESURRECTION OF BUREAUCRATIC AUTHORITARIANISM 67 Fragmentation of the Muslim League and Centralization of Power 67 The Struggles over Constitution-making 73 THE FOUNDATIONS OF THE WRIT JURISDICTION IN POSTCOLONIAL LEGALITY 78 Continuation of Colonial Legality under the Government of India Act 78 Doctrine of State Necessity: Learning to Mediate Constitutional Crises 82 Writ Jurisdiction and the Foundations of Administrative Law 86 THE END OF THE CONSTITUTIONAL INTERLUDE 91 6 IV. MARTIAL RULE: MILITARY-BUREAUCRATIC AUTHORITARIANISM AND ‘BASIC’ CONSTITUTIONALISM 94 ‘REVOLUTIONARY LEGALITY’ AND ‘REFORM’ 96 The First Martial Law 96 Writ Jurisdiction: The Bridge Across the Chasm of Martial Law 101 CONSOLIDATION OF THE WRIT JURISDICTION UNDER THE 1962 CONSTITUTION 106 ‘Basic Democracy’ and Formal Constitutionalism 106 The Expansion of Judicial Review under Military Rule 112 THE UNCONSTITUTIONAL END OF THE ‘GREAT DECADE’ 117 V. ELECTIVE DICTATORSHIP: SOCIALIST POPULISM AND THE MYTH OF A CONSENSUS CONSTITUTION 120 CIVIL WAR AND THE TRANSITION TO ‘CIVIL’ AUTHORITARIANISM 122 Failure in Constitution-making and Secession 122 A Civilian Martial Law 125 THE FRAMING OF THE 1973 CONSTITUTION AND THE MYTHOLOGY OF CONSENSUS 129 Constitutionalizing Elective Dictatorship 129 Judicial Opposition and the Contestation over Judicial Review 134 POSTCOLONIAL PAKISTAN: A REGIME OF COERCIVE LAWS 140 VI. PRAETORIAN GOVERNMENTALITY: ISLAMIZATION OF LAWS AND THE GENESIS OF SUBSTANTIVE CONSTITUTIONALISM 143 ISLAMIZATION AND THE CONSOLIDATION OF PRAETORIAN GOVERNMENTALITY 145 State Necessity and Judicial Review 145 Islamization of Law, State and Politics 153 THE CONSTITUTIONAL DESIGN OF INDIRECT PRAETORIANISM 159 The Eighth Amendment and a Civilian Façade 159 The Contours of an Islamic Judicial Review 165 JUDICIALIZATION OF POLITICS UNDER INDIRECT PRAETORIANISM 170 VII. INDIRECT PRAETORIANISM: ‘PUBLIC INTEREST LITIGATION’ AND THE FIRST WAVE OF JUDICIAL ACTIVISM 172 THE CONSTITUTIONAL POLITICS OF INDIRECT PRAETORIANISM 174 Judicial Review of Government Dissolutions 174 7 Public Interest Litigation and a Dramatic Expansion in Judicial Review 181 JUDICIALIZATION OF POLITICS AND THE POLITICIZATION OF JUDICIAL REVIEW 189 From a Mediator to a Party in Constitutional Conflict 189 Elective Dictatorship and Constitutional States of Emergency 194 END OF CIVILIAN RULE AND THE LEGACY OF JUDICIAL ACTIVISM 199 VIII. MILITARY-CIVIL COMPOSITE: ‘MILITARY INCORPORATED’ AND THE FOUNDATIONS OF THE LAWYERS’ MOVEMENT 202 THE CONSTITUTIONAL POLITICS OF MILITARY INCORPORATED 204 Transition to Hybrid Government 204 Political Economy of Military Incorporated 209 JUDICIAL REVIEW AND THE CONTRADICTIONS OF THE HYBRID COMPOSITE 214 The First Tenure of Chaudhry, CJ and the Lawyers’ Movement 214 The Emergency and another Democratic Transition 220 A PRAETORIAN