The Judicialization of Politics in Pakistan: A Comparative Study of Judicial Restraint and its Development in India, the US and Pakistan

204 Pages·2018·1.98 MB·English

by  Waris Husain

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 dis-
qualified 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 pro-
cess 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
and 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.
Waris Husain is a comparative constitutional law expert with a focus on South
Asia, having written on legal developments in Pakistan, India, and Nepal. He
teaches international legal advocacy and advises the international moot court pro-
gram at the Howard University School of Law.
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The Judicialization of Politics in Pakistan
A Comparative Study of Judicial Restraint and Its Development in India,
the US and Pakistan
Waris Husain
The 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 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa
business
© 2018 Waris Husain
The 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, mechanical, or other means, now
known or hereafter 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: The 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 (hardback) | 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 https://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 xi
Preface xii
Acknowledgments xiii
1 Introduction 1
I. Chaudhry court 1
II. Global growth of judicial review 2
III. Defining activism 3
IV. Method of analysis and spectrum graph comparison 4
V. Scope and limitations of the study 6
VI. Colonial judicial inheritance and Lord Coke’s impact 7
VII. Constitutional structure and judicial procedures 7
VIII. Executive disqualification 8
IX. Prescription 9
2 Colonial justice 14
I. Introduction 14
II. The American experience with colonial justice 15
A. Native justice 15
B. Development of colonial courts and the blurring line
between branches 16
C. Public perception of colonial courts 17
D. Legal education 18
E. Impact on founders 19
III. Indian subcontinent’s expansive experience with colonial
justice 22
A. Native justice 22
B. Development of colonial courts 24
C. Public perception of colonial courts 25
D. Legal education and native lawyers 26
E. Impact on founders 27
IV. Conclusion 28
viii Contents
3 The origins of judicial review 34
I. Parliamentary supremacy 34
II. Ultra vires: forbearer of judicial review 36
III. Lord Coke’s introduction of judicial review 37
IV. Vindication of Lord Coke in the United States 38
V. Early review cases in the United States 39
A. Common right 40
B. Early constitutional cases 40
VI. Origins of judicial review in Indian colonies 42
VII. Early post-colonial judicial review in India 45
VIII. Early post-colonial judicial review in Pakistan 46
IX. Conclusion 48
4 Structural and constitutional differences 54
I. United States 54
A. Presidential system and parliamentary supremacy 54
B. Establishment of the Supreme Court and federal
judiciary 56
C. Federalism 58
D. Jurisdictional limitations on U.S. Supreme Court 59
II. India and Pakistan 61
A. Parliamentary system 61
B. Establishment of courts 64
C. Federalism 65
D. Jurisdictional limits 67
III. Pakistan 68
A. Fourth branch 69
B. Constitutional breaks 72
C. Dissolution of Pakistan 74
D. Conclusions 75
IV. Conclusion 75
5 Modern justiciability standards and procedures 81
I. Introduction 81
II. United States 81
A. Case or controversy 81
B. Political question doctrine 85
C. Writ of certiorari procedure 87
III. India 89
A. Standing 89
B. Public interest litigation (PIL) 91
C. Political question doctrine 91
D. Pendency and procedure for case selection 92
Contents ix
IV. Pakistan 93
A. Standing/public interest litigation (PIL) 93
B. Suo motu 95
C. Procedure for case selection and role of Registrar 97
D. Ripeness 98
E. Political question doctrine 99
F. Pendency and backlog 100
V. Conclusion 100
6 Executive disqualification and judicial review 109
I. Introduction 109
II. Pakistan 110
A. Timeline of events for Prime Minister Gilani’s
disqualification 110
B. President Zardari and the National Reconciliation
Ordinance 112
C. Non-implementation of Supreme Court’s NRO verdict 113
D. Supreme Court overrides constitutional provision for
disqualification of Prime Minister 113
E. Critics of the Court emerge 114
F. Legitimacy lost by the Court 116
G. Nawaz Sharif and Panamagate 116
III. United States 118
A. The constitutional impeachment clause 119
B. Framers’ intent 120
C. Judicial function 120
D. Nixon v. United States 121
E. Theory on expanding American Supreme Court judicial
review to impeachments 122
F. Comparative conclusions 123
IV. India 123
A. Timeline of events 124
B. Constitutional provisions for disqualification 125
C. Legal aspects of Gandhi v. Raj Narain 126
D. Comparative conclusions 128
7 A proposed solution: Justiciability Council and four-element
justiciability test 137
I. Challenges and opportunities for establishing repeatable
restraint in Pakistan’s Supreme Court 137
A. Challenges 137
B. Opportunities 139
II. Context for judicial review 142