Decoding Authoritarian Legalism and Political Control in Pakistan (original) (raw)
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The Pakistani tribal areas of FATA and PATA are perpetually in the international headlines for Taliban activities, U.S. Drone attacks, NATO supply lines and a whole host of political and military events that contribute to the current milieu in Afghanistan and the escalating instability in neighboring Pakistan. What is less known is that all these areas have been historically governed by a special set of laws and regulations in the colonial period as well as the post-colonial era. This in turn has contributed to a very differential set of rights, reduced access to justice, and asymmetric social and economic development. Furthermore, this has had a direct impact on the human rights protection regime in the region, especially for the more vulnerable groups. In this context, the article looks in particular at the Taliban insurgency in the valley of Swat in 2009 which called for the reform of the extant legal system as well as the government and the judiciary’s response to the same – based on an actual visit to the valley during the time and interviews with the local judiciary. The article uses the Swat experience as a case study for the historic constitutional, legal, and administrative treatment of these areas and the multiple issues that such treatment has spawned. In particular, there are the issues of deliberate governmental avoidance of the real underlying causal factors that have stemmed a strong popular resistance to the existing legal system, the use of Islam as a slogan for reform by both the Taliban as well as the government, the various inadequacies of the governmental reform package including erosion of the due process of law and other ad hoc measures, the presence of the army in the area and its controversial investigation and treatment of suspected Taliban insurgents or sympathizers which is not conducted under the rubric of the Pakistani legal system and is also beyond the pale of any international human rights accountability, the special anti-terrorist legal regime in the areas and its various challenges and other significant human rights themes. The article also provides a snap shot of the various additional special legal regimes in the areas of FATA and PATA (including the infamous Frontier Crimes Regulation 1901) that promote undesirable forms of tribal justice, various colonial forms of punishment including collective punishment to the whole tribe for an individual crime, several additional administrative powers and measures that lead to the human rights violations of women, children, and other innocent civilians, and other archaic aspects of a colonial legal regime introduced during the 'Great Game' that persists in the twenty-first century. While written against the backdrop of significant current events that have a resonance for an international affairs audience, the article endeavors to conduct a scholarly historical, sociological and legal analysis of the legal and administrative system of a region that is currently the focus of international attention as it has become a hot bed of militancy – especially since there is hardly any available rigorous literature on these significant themes. At the same time, it highlights various human rights themes that are consistently neglected by relying on diverse literature, empirical work, and different research methodologies that ought to make it compelling for human rights scholars, comparative lawyers, international public policy and justice sector reform experts and any social scientists who are generally interested in this highly complex, ill-understood and fascinating region.
Judicial activism and the evolution of Pakistan's culture of power
The Round Table The Commonwealth Journal of International Affairs, 2020
The emergence of an assertive judiciary in Pakistan is an apparently anomalous development given the broader trajectory of the collapse of institutional autonomy in the civilian sphere of governance. This paper examines the changes since 2005 by placing them in a broader historical context and argues that a Pakistani variant of a rule of justice tradition that employs the metaphor of the colonial rule of law tradition is emerging. Under this hybrid, the formal apparatus of colonial constitutionalism is employed using expansive, almost despotic, discretion by the superior judiciary, in order to hold the executive to the account. The judiciary draws popular support from such exercises as the spectacle created resonates with the public, and thus support is the fuel upon which judicial independence rests.
International Journal of Multidisciplinary Research and Growth Evaluation, 2024
In this scholarly exploration, we delve into the intricate interplay between political dynamics and legal decision-making within the context of Pakistan. Our analysis draws inspiration from Chantal Mouffe's agonistic theory of democracy, which posits that inherent conflicts (antagonisms) are an essential dimension of the political landscape. These conflicts, while requiring tempering for the functioning of a pluralist democracy, remain unalienable and ever-present. Within the juridical domain, judges occupy a unique position. Cloaked in legal form, their pronouncements extend beyond mere legal interpretations. Instead, they adjudicate individual instances of ongoing collective conflicts-pitting workers against employers, consumers against traders, tenants against landlords, and moral progressives against traditionalists. These decisions, seemingly juridical, are inherently political. Judges wield a "relative sovereignty," navigating institutional imperatives while being influenced by ideological currents. However, legal determinacy remains relative. Judges, through rigorous interpretive work, can diverge from prima facie interpretations. The collective conflicts, once juridified, crystallize into temporary hegemonic fixations. Our critical legal scholarship endeavors to destabilize these hegemonies in pursuit of justice. This task necessitates not only external critique but also internal scrutiny. We propose evaluating judicial decisions by considering all plausible alternatives, weighing conflicting interests and ideologies. In summary, our examination underscores the dual nature of judicial decisionssimultaneously juridical and political. By embracing this complexity, we contribute to a nuanced understanding of legal reform processes in Pakistan, advocating for justice beyond mere legal formalism.
Two steps forward one step back: The non-linear expansion of judicial power in Pakistan
ICON, 2018
Pakistan's superior courts have evolved from marginal state institutions to key players mediating the balance of powers in a deeply divided and politically fragmented polity during seven decades of the country's postcolonial history. Although the political salience of the Supreme Court's recent actions-including the disqualification of two elected prime ministers-has created the sense of a sudden and ahistorical judicialization of politics, the courts' prominent role in adjudicating issues of governance and statecraft was long in the making. The perception of an historically docile and subservient court which has suddenly become activist has been shaped by an undue focus on the big constitutional moments of regime or governmental change in which the Apex Court has more often than not sided with the military or military-backed presidency. While these constitutional cases and crises are important, an exclusive focus on this domain of judicial action hides the more significant and consistent developments that have taken place in the sphere of "administrative law." It is through the consistent development of the judicial review of administrative action, even under military rule, that Pakistan's superior courts progressively carved an expansive institutional role for themselves. This article highlights the progressive, though non-linear, expansion of judicial power in Pakistan and argues that despite some notable and highly contentious moments of judicial interference in mega politics, the bedrock of judicial review has remained in administrative law-i.e., the judicial review of executive action.
The Debate on Law and Order and Development: Pakistani State Elite’s Orientation
The Journal of South Asian and Middle Eastern Studies Villanova University, PA, The United States of America, 2009
“The Debate on Law and Order and Development: Inside the Mind of the Pakistani State Apparatus” draws on primary sources to discuss and analyze the mentality of Pakistan’s ruling elite. It argues that grave distortions were introduced into the though processes of the Pakistani elite owing to the close relationship with the United States. This reflected both on the weakness of the Pakistani elite as well as the heedlessness of its American patrons. After decades of failed experiments, Pakistan is facing administrative breakdown that threatens to plunge its entire neighborhood into chaos. Before, however, attempting a solution, there is a need to understand the problem and Zaidi’s papers do precisely that. They therefore merit further study and analysis.
DEMOCRACY AND RULE OF LAW IN PAKISTAN
https://www.grin.com/login/#document/1502593, 2019
The root meaning of democracy is the “power of the people” to govern the state directly or through their representatives. These representatives are chosen by means of free and fair elections. Although, they represent the will of the majority people, assurances are also made, in a democratic system, to safeguard the fundamental rights the minority groups. Thus, democracy, which is the most popular system of government in the contemporary world, means the people’s capacity for making decisions for themselves, as well as for the wellbeing of the entire public realm. Adherents of democracy and rule of law insists that a government must be run based on predictable, general, and easily applicable rules that have been determined in advance, and which serve to ensure the equality of individuals, the supremacy of the laws and human rights, and the delivery of prompt justice. Therefore, both concepts are treated as inseparable and interdependent by academics of politics, analysts, and politicians. The political history of Pakistan, one of the under-developed countries of the world, has been fraught with complications with regards to democracy and rule of law ever since its inception in 1947. Military coups, authoritarian rule, bureaucratic interference and political intolerance have been the cause of the failure of the state to form stable political institutions. The civil and military dictators, on more than one occasion, restrained political and civil freedoms through the imposition of military rule. In the past, they have strengthened their rule through the promulgation of excessive Presidential Ordinances at the expense of the performance of the legislature. Judicial independence has been curbed many times when the institution has been used as a tool to prolong dictatorial rule and to legitimate the arbitrary decisions of army officers in the name of serving the doctrine “state necessity”. However, despite these trends, the period from 2008-2013 has seen a shift in the political tide in favor of democratic principles. During this time, national integrity was strengthened through the establishment of a coalition-based government, and there was promotion of political tolerance by both treasury benches and the opposition. The parliament was effectively able to pass a number of laws and resolve the years old demand of smaller provinces to abolish the concurrent list and change the resource allocation formula. This, eventually, improved the situation of rule of law through valuable initiatives taken by the judiciary. Prima facie, the military did not directly interfere, and the parliament completed its legally specified term. This changed dynamic of democracy and rule of law has been explained and analyzed through a qualitative approach and by utilization of both primary and secondary sources. Primary sources of this research have been included in official reports, judicial verdicts, questioner based semi-structured interviews of prominent personalities, an examination of parliamentary debates, and legal and historical documents. The secondary sources used in this research have included newspaper articles, popular research journals, magazines, and books of various types.
2021
In constitutional history of Pakistan, judiciary significantly contributed in shaping and re-shaping of state organs. After restoration of de jure judiciary in 2009, it has exceptionally secured autonomy from military as well as civilian governments. The emergence of proactive judiciary divided legal scholarship into two competing discourses: proponents and opponents of judicial activism. The proponents justified this judicial activism for democratic consolidation and constitutionalism whilst the opponents considered it as a tool to undermine civilian government at the expense of its autonomy with the help of selective adjudication. Excessive judicial activism creates impediments for other state organs and may create public distrust in elected representatives at the cost of nonelected despots. The research at hand aims to investigate both these concepts with the help of qualitative research methodology and identifies potential issues associated with the prevalent institutional trans...
Constitutionalism: Theory and Issues from Pakistan's Perspective
Pakistan Perspectives, 2017
ABSTRACT In a recent publication South Asian constitutionalism has been aptly described as ‘unstable constitutionalism’ wherein wide disagreements on a single institutional design often lead to “recurring tensions that lie at the intersection of law and politics”. These disagreements seem to be more conspicuous in Pakistan with a wide variety of opinions but little interest regarding the constitutional matters. While Article 5(2) of the Constitution clearly establishes the compulsory obedience to the Constitution and law as ‘inviolable obligation of every citizen’, instances of indifference towards the sanctity of the Constitution abound. Hence constitutionalism in its own right has been reduced to a subject of occasional judicial reviews. A large part of the recent South Asian literature seems to be rather focused on comparative constitutional studies which seldom tend to imply the theoretical issues pertinent to the developing world whereas our legislators often seem to be preoccupied with day-to-day matters rather than theoretical underpinnings of the constitutional issues. Hence the solemn parliamentary debates that shaped the democratic discourse in the west are almost absent in our legislatures. In this context this paper aims at a theoretical overview of the major tenets of classical constitutionalism with an attempt to finding their implementation in Pakistan’s constitutional issues. It also seeks to trace the extent and consequences of ‘instability’ in Pakistani constitutionalism. The paper is organized in two main sections: the first overviews the theoretical aspects of the idea of constitutionalism and its major tenets as developed over the last two centuries. The second explores the relevance of those classical concepts of constitutionalism in the political setup of Pakistan highlighting the issues and hurdles in the way. The paper depends on the existing literature on constitutionalism with particular reference to Pakistan along with interviews and discussions with relevant persons in Pakistan. Keywords: Constitutionalism, Constitution, Rule of Law, Sovereignty, Entrenchment, Executive, Legislative and Judiciary, Limited Government