The Liberal Legal Project in Pakistan
In 2007, the world saw a gigantic and powerful lawyers’ and judge’s movement led by the Pakistani Chief Justice against the military ruler, General Pervaz Musharraf. It lasted for two years and seemed to shake the foundations of the society.
Harvard Law School was quick to award the Medal of Freedom to Supreme Court Chief Justice Iftikhar Chaudhry and the Canadian Bar Association President participated in a march of Ontario lawyers in solidarity with the Pakistani lawyers. The Quebec Bar and Law Society of Upper Canada also responded strongly and favourably to this movement. No doubt the lawyers’ movement was historic, its aims laudable, and the image of Pakistan presented to the world through the media refreshingly different. The aim of this book, however, is to demonstrate that such praise for the legal profession and judiciary from global elite legal sectors arise from a highly limited grasp of the complexity of state and society in Pakistan. Identifying a ‘rise of the judiciary’ is a flawed basis for optimism for a country’s development. The source of this limited understanding is the extant abundant law and political science ‘liberal’ literature about postcolonial Pakistan. The dominant legal and social sciÂence literature takes ‘liberal’ democracy, ‘rule of law’, ‘separation of powers’, ‘independence of judiciary’, and ‘human rights’ as inherently good institutions and ‘values’. Governmental regimes are measured as greater or lesser deviations from these ideals. A dictatorial regime is a large deviation from an ‘ideal’ type of democracy. The horizon for political scientists, therefore, is limited to the perceived attack on the judiciary by the military or civilian authoritarian governments. The judiciary in this analysis is always under attack, though at times compelled to support dictators.[1] The judiciary is seen as deserving support and its independence is to be guarded. Pakistan is itself seen as a ‘constitutional state’ only when it absorbs political and economic changes through the judiciary.[2]The place of the judiciary is thereby inherently vaulted and its decisions or even inclinations are viewed as portentous for the country’s history. This is particularly true for Pakistan with its fragile and continuously threatened foray into democracy over the past 60 years. For example, it is popularly said within Pakistan that if the Pakistani judiciary under Chief Justice Munir in the 1950s could have been pro-legislature, the entire postcolonial history of Pakistan could have unfolded differently.[3] Or, there is much regret that the judiciary did not step forward to ‘save democracy’ at various junctures.[4] The judiciary, hence, has seemingly played a central role in the dynamics of regime change, with both political actors seeking favours from it or seeking to limit its legitimizing potential.
My argument is that the liberal narrative, which identifies a dichotomy between dictatorship and democracy[5] or between modernity and Islam (which we will get to later in the text), only tells one part of the story. It fails to understand the class nature of the state, and grasp more fundamental contradictions in the state and society. It also fails to identify the limited role of law and the judiciary in the state structure of Pakistan. In explaining why the judiciary in fact cannot defend democracy, this book explores the nexus between elite institutions, their compoÂsition, and their interests. It shows that laws and decisions were blunted at the legislative level or at the implementation stage, leaving no further remedy. It also shows that the judiciary was only seriously engaged with struggles around accountability of politicians and constitutional engineering. Where the legislature made legislation after successful class struggle and reproduced the political power of the common man (like during a brief period of nationalization and land reforms), the judiciary strongly resisted these.[6] Whereas the judiciary struck down many laws, calling inter-elite struggles as unconstitutional, it never declared any labour law unconstitutional despite considerable evidence to the contrary.[7] To simply find the judiciary as worthy of defense then is to play on a wicket far removed from daily struggles and popular democracy.
Academic legal literature analysing law and state in Pakistan can be divided into two eras: that which was produced before the mid-1990s, which saw the judiciary as being under pressure, and the other as post-mid-1990s, where the judiciary is supposed to foster good governance. Tayyab Mahmud’s writings fall in the former category and offer a common sense liberal ‘constitutionalist’ explanation of the times.[8] Paula Newberg’s study of state and judiciary of Pakistan offers the most nuanced attempt yet to understand the state of postcolonial Pakistan, though it too is confined within liberal tradition in legal literature. It identifies a mismatch of people’s ideals in a constitution with the politics in an executive dominated state of postcolonial Pakistan and the judges’ interpretation of it according to their ideals. Her work has a strong view of judicial capacity and clearly argues that the courts have influenced the development of the constitution and the state structure of postcolonial Pakistan.[9]
After the judiciary’s rise as an institution in the 1990s and its decisions around the separation of power, appointment of judges, and public interest litigation (PIL) confronting elected governments of Benazir Bhutto and Nawaz Sharif as well as military ruler Musharraf, launched a second type of literature. Anil Kalhan found Pakistan’s lying in a ‘grey zone’ between authoritarianism and democracy, with an ‘institutional imbalance’ or ‘a persistent institutional disequilibrium’.[10] He urges for a balance between judicial autonomy and constraint. His work borrows heavily from proponents of common sense liberal projects in Pakistan. Its theoretical framework explains the causes of disequilibrium as flowing uni-directionally from ‘military and deep state interests’ to judiciary and from judiciary to representative interests.[11] Osama Siddique’s work analyses the different interpretations of dissoÂlutions of assemblies’ cases by different judges. He explains how the contradictory and inconsistent interpretations led to an adverse impact on judicial neutrality and its public perceptions.[12] Articles on the lawyer’s movement have stayed within the dichotomy of democracy and dictatorship (detail in Chap 5).[13]3
Another parallel trend is a critique of Islamization of Pakistani laws, launched most strongly in the 1980s by the women’s movement and subsequent feminist analyses.
This approach gained hugely in ‘market value’ after 9/11 and the entrapment of Pakistan as a state that produces global terrorists. Charles H. Kennedy, an eminent scholar on Pakistani state and politics, commenting Islamization of laws since Zia’s time, argues that support for Islamic law, though loud and strong, was not enough for the adherents in public policy and imple- mentation.[14] According to him, being discouraged at the legislative level, Islamists started using the superior judiciary with an activist approach to scrutinize laws repugnant to the injunctions of Islam.[15] Martin Lau’s research concurs with this and usefully shows how the Islamization of laws in Pakistan has been primarily a judge-led process. Judges use the vocabulary of Islam consciously as a way of enhancing judicial power and independence.[16] These writings correctly pointed out the rise of judiciary and its use of Islam but as a deviation from liberal arrangement. Counter to the liberal framework, Shaheen Sardar Ali, Rubiya Mehdi, Ralph Briabanti, and Clark B. Lombardi relate Islam with the liberal legal project in Pakistan justifying it with reference to Islam’s compassion, pluralism, and cultural and traditional roots.[17] Shaheen Sardar Ali’s argument is that women’s human rights in Islam are not irreconcilable with UN mandated fundamental rights. What is needed is ‘progressive’ as opposed to ‘literalist’ interpretation of the sources of Islamic law.[18] Shoaib, using an ‘institutionalist’ approach, argues that Sharia’s courts are ‘the least dangerous branch’ because political regimes kept them under their control.[19] In the same vein, Werner Menski’s tries to ‘indigenize’ the liberal tradition of human rights public interest litigation in Pakistan.[20] To sum up, this stream of critical literature in the name of ‘tradition’ does not escape the theoretical confines of Islam versus liberalism. It seeks to institutionally modernize Islam, and more pertinently, as it understands secularism and Islam as linked respectively to democracy and dictatorship respectively.The quest for an alternate theoretical approach in this book emanates from three interlocked questions: first, if the judiciary in Pakistan has indeed risen, why have the lives of people not been changed by an activist judiciary? Second, does the class nature of this judicial activism, meaning, who are the judges matter? What is the significance that they are mostly from certain families and chambers only? Third, what is the significance of the same sitting judges during both dictatorial and democratic regimes, and no shift in political balance despite a few ‘bold’ and celebrated decisions?[21] Two small examples point to how the law is itself caught up in a machinery far larger than its making. After the passage of the Bonded Labour Liberation Act 1991, as bonded labourers were freed from brick kilns, soon after they were caught up in another debt bondage situation. Despite laws with clauses in their favour, like the Industrial Relations Act, 2012; The Payment of Wages Act, 1936; The Workmen's Compensation Act, 1923, the working class on the whole has not received favourable results.[22] Rather it has been extremely vulnerable under local bureaucratic control, despite ILO and IFIs pressure.[23] This book is an attempt to get at how underlying political-economic structures shape the terrain of legal struggles, cause the rearrangement of legal institutions, which lead in turn to the daily complaints about bad judges, poor laws and the need for ‘governance’. In terms of practice, this means primacy of political struggles over legal struggles and this is particularly the only way for the most marginalized sections of society.[24]
I also hope to challenge the belief of my law colleagues in the ‘rule of law’ which gives law ‘a life of its own’ in ‘in terms of its own logic’.[25] These issues are unexplored in Pakistan.
There is little critique of modernity from within. ‘India’ as a foil for Pakistani sensibility has added its own gloss to this—as Pakistan did not experience a sustained liberal democracy and a period of secularism (as compared to India) such institutional arrangements have only gained in status. The liberal understanding in political science and law is presented as the virtue of its own, and blame for the lack of progress is placed on dictators or religious figures or mullahs alone.Theoretical framework in this book draws on Gramsci’s idea of hegemony as a political practice of state formation, which is different from the commonsense descriptive approach to political events in prevalent legal analyses. When analysing law and judiciary, this analysis connects them to ideological, political and economic instances of the social whole in a detailed, expository fashion and through complex mediations. Later it links judges’ legal ideologies and ideals of political developÂment as gleaned from their judicial biographies, speeches and writings to their legal decisions. Decisions, in turn, are related to events, and events to the political hegemonic project. Finally, the analysis is linked with the deep structures within which these institutions were enabled or restrained, such as the unequal distribution of land and wealth, and Pakistan’s imperialist hegemonic centre-periphery dependency relations over the decades from modernization to current global ‘good governance’.
1.2