A Departure from a ‘Liberal’ Analysis About Pakistan
This book has sought to empirically substantiate the theoretical claim that the judiciary had been a crucial link in the reproduction of the state and political inequality in Pakistan.
Even a strong judiciary is not a substitute for a truly repÂresentative legislature and the dominant rights discourse cannot replace the demand for a deeper and broader democracy. This conclusion challenges the dominant liberal and Islamic approaches to state and judiciary of Pakistan which play within dichotomies of democracy versus dictatorship and liberalism versus Islam. The supposedly neutral managerial solution of ‘good governance’ is only the latest instance of the liberal approach, and it forms the common sense of the elite whose constant concern is the deviation from ‘ideals’ of state and society as found elsewhere.Drawing on Gramsci’s idea of classes and hegemony, the book has argued that a large majority of the population was excluded and marginalized during periods of both democracy and dictatorship, while the ruling classes jointly established hegemonic control over the society. It has aimed to show how a hybrid of a U.S. type liberal legal and constitutional arrangement and a local Islamic law in Pakistan together glossed over the structural exploitation, marginalization and exclusion in society and came to further undermine a weak legislature. Contrary to dominant critical perspectives, the book has argued that it was not the civil-military bureaucracy which alone shaped the hegemonic terrain, but the judiciary has been the architect of the prevailing political design and discourse. I have identified therefore a juridico-bureaucratic structure in the post-colonial state of Pakistan.
The popular discourse around the judiciary is that it is considered as under attack by the dictators and corrupt politicians in the legislature and deserving support, protection and autonomy.
Or, it elicits complaints that it has not risen to the occasion to save democracy. The book has aimed to show how judiciary was not only a crucial part of postcolonial state structure but was the main architect of© Springer Nature Singapore Pte Ltd. 2017 263
M. Azeem, Law, State and Inequality in Pakistan, International Law
and the Global South, DOI 10.1007/978-981-10-3845-7_6 constitutional and legal arrangements during modernization of 1950s-60s. Apologetic arguments for when the judiciary supported dictatorial regime goes along the lines of though it could not save democracy, yet it saved itself and protected fundamental rights of the people. This claim is largely derived from the decisions of the Chief Justice Cornelius ‘collective’, and is uncritically accepted in legal circles in Pakistan and abroad. The book has sought to closely analyze and deconstruct this assumed connection of rights with democracy to argue that, judges first wanted a controlled democracy and then were in favour of rights to address any democratic deficit. A mix of a liberal US type presidential system and Islam was used to restrict popular participation and a strong judiciary was instituted to protect rights.
Drawing insight from a detailed legal history of Pakistan, therefore, this book contributes to the ‘law and development’ literature an analysis of the changing role of law and the judiciary, from the period of collapsing modernization to the current stage of globalized capitalism. Most law and development scholarship cannot adequately explain why law has become central in current phase of New Institutionalism. The modernization theorist Ralph Braibanti, in the tradition of Samuel Huntington, discusses the possibility of law to stop popular participation in Pakistan, promoting ‘institutionalism’ (particularly legal institutions) as a response to failed modernization and the consequence of increasing political resistance and participation. Braibanti accuses participatory, popular and agitational politics for the declining role of law, but also illustrates how Pakistani courts used law to pacify the demand for popular participation (the details are in Chap.
2).The book explains the techniques of the rise of the judiciary in 1990s and 2000s. The rights discourse in the form of Public Interest Litigation came in the wake of the demise of working class politics and in the presence of a meager welfare state. In this period, an alliance of International Financial Institutions with a rising middle class (petit bourgeoisie) served as check on corrupt political elite and stubborn bureaucracy. Foreign funded NGOs with a very thin mass base crowded courts, and romanticized the rule of law, human rights, PIL and the devolution plan. The state (legislature and civil bureaucracy) weakened ideologically in that process and the judiciary rose in this gap. Its height took the form of the Lawyers’ and Judges’ Movement. All this was the development a new complex hegemony. Sadly missing was an organized working class and a thrust towards deeper and broader democracy and substantive economic equality. They were now ‘legal subjects’ with formal rights entitlements, and more to come in abundance, if there were only ‘rule of law’. Yet this book suggests to legal theorists to go around and beyond law to address political and social issues, given the hitherto self-serving role of the judiciary.
I will briefly now touch on the theoretical implications of this study for interÂnational legal scholarship in the area of law and development. To more fully ‘engage’ with this literature is beyond the scope of this book.
6.2