From the 1940s to 1960s, Pakistan moved from being under British colonial rule to coming under the influence of the United States (U.S.).
Jinnah, the ‘founder’ of Pakistan was a Lincoln’s Inn graduate, as was his successor and the first Prime Minister, Liaqat Ali Khan. The major jurists in Pakistan were either British lawyers hired by the government or local barristers who trained at Lincoln’s Inn and cited Privy Council decisions.
The colonial state legacy continued to affect the civil servants who served in the judiciary, the number of these rising to 65 members in 1964. Pakistan at this point experienced the imposition of modernization under the guidance of experts from Harvard and Massachusetts Institute of Technology (MIT). The transition was seamless and the existing judiciary facilitated the assimilation of ‘modern’ U.S. legal norms in Pakistan. After the writing of the 1956 constitution, judicial decisions in Pakistan started leaning towards U.S. Supreme Court precedents on the issue of the arbitrary use of administrative and legislative powers against fundamental rights, claiming it was because of the written constitution. Politically, Pakistan adopted a presidential system in the 1962 constitution.This chapter will argue that during this period of transition, the juridico-bureaucratic structure came to undermine the legislature, not because “it did not like politicians” as is commonly stated,[134] but rather because it surmised that the legislature could not be trusted to control the population. The general thrust of legal discourse in the 1950s was in support of a move from Privy Council decisions to ‘modern’ U.S. legal norms as a way of accommodating political and economic change. The main legal issue raised before the courts in this period was not regarding the supremacy of the legislature or bureaucratic dictatorship (as goes the common explanation), but rather, which arrangement could best keep the structure of the government intact against popular struggle.
Navigating through the confusion of the 1950s, legal discourse and constitutional arrangements in Pakistan ended with a set of institutions not dissimilar to that of the U.S. presidential system, with indirect elections, controlled democracy, and rights as a substitute for this democratic deficit. The idiom of Islam was deployed both as a cohesive force for the nation-building project and as a substitute for ‘morality’ in U.S. legal discourse. But in its ‘particular’ materiality, it was to achieve the same end along with the U.S. type of legal system, that is to stop deeper and broader democracy unleashed by anti-colonial struggle and socialist ideas. The judiciary, drawn from the civil bureaucracy and leading the process of modernization, was an indispensable part of the project.Before moving on, let us briefly unpack the use of the terms ‘capitalist modernity’, ‘socialist modernity’, and ‘modernization theory’. At the end of the first quarter of the twentieth century, world politics saw two competing models of political modernity, namely socialist and capitalist models. Most anti-colonial struggles came to be inspired by the experience of socialist modernity in the middle of the twentieth century. These national mobilizations hoped for real democracy, economic and political, in the newly independent countries. To counter these hopes, the capitalist bloc, under the hegemony of the U.S., theorized its own experiences of ‘colonization’ into what it pushed as ‘modernization theory’, or the material benefits of the capitalist path to modernity.
Both models were linked to different laws and development theories, as theorized by David Trubek.[135] For the socialist model, law was an instrument of a vanguard party and legitimacy came from faith in the vanguard and/or from popular participation, rather than constitutional fidelity. Both models assumed a dissolution and transformation of pre-capitalist society and social structures.[136] Hamza Alavi, the best-known Pakistani theorist, was clear that theories of “modernization” are implicitly or explicitly theories of capitalist development because they were based on the premises of capitalist societies, such as private property and mass consumption. He wished for Pakistan to see a ‘revolutionary change’, to break with its internal feudal structures as well as from the encompassing global capitalism. He wished, in other words, for a version of a socialist modernization model.
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