Book of Abstracts - Conference: International Conference on Transformation of Ideas in Pakistan's Political Culture (ICTIPPC-24) (original) (raw)
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.
In process of submission to journals
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.
2016
The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iflikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that...
Courting Constitutionalism: The Politics of Judicial Review in Pakistan
2019
Peter Cane. Peter has always been a source of inspiration and set very exacting standards which, while somewhat intimidating, pushed me to try to produce my best work. Peter's generosity with his time, constructive feedback and detailed comments enabled me to produce a thesis I can be proud of. I would also like to thank other members of my supervisory panel, Professor Michael Coper and Associate Professor Leighton McDonald, whose advice and support was vital at critical junctures of this project. In addition, there are many other colleagues and members of the executive who deserve credit for creating a wonderfully collegial
Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan's Law
60 American Journal of Comparative Law 875 (2012)
The discourse on the 'Islamization' of laws in the legal systems of post-colonial Muslim states is dominated by two conflicting narratives. The dominant Western narrative views the Islamization of laws as the reincarnation of narrow and archaic laws embodied in discriminatory statutes. In contrast, the dominant narrative of political Islam deems it as the cure-all for a range of social, political and economic ills afflicting that particular Muslim state. This Paper presents a deeper insight into the Islamization of Pakistan's law. Pakistan has three decades of experience with incorporating shari'a law into its Common Law system, an experience which has been characterized by a constant struggle between the dominant Western and Islamist narratives. Pakistan's experience helps us deconstruct the narratives and discourses surrounding Islamization and understand that the project of incorporating Islamic laws in a modern Muslim society must be based upon indigenous demands and undertaken in accordance with the organically evolving norms of recognition, interpretation, modification and enforcement in that society. Furthermore, substantive law cannot be understood or enforced outside of a legal system, its legal culture(s) and professional discourse(s), and of the broader socio-political dialectics that give context and relevance to it. Therefore, we need to shift focus to the systemic problems deeply ingrained in Pakistan's legal system that allow law and legal processes to be used to prolong disputes and cause harassment. Islamic legality can, in fact, play a significant role in breaking down the resistance that vested interests may offer to such a restructuring of the legal system along more egalitarian lines.
Title: Unraveling Pakistan's Constitution Tapestry
The Constitutional History of Pakistan is a riveting narrative that spans from the country's inception in 1947 to the present day. Shaped by visionary leaders and marred by intermittent military interventions, Pakistan's constitutional journey reflects a constant struggle to balance democracy, governance, and societal values. The initial constitutional framework, influenced by the Government of India Act, of 1935, set the stage for subsequent developments. From the milestone of the first constitution in 1956 to the tumultuous eras of Ayub Khan, Zulfikar Ali Bhutto, and military rule, each phase left an indelible mark. The 1973 Constitution marked a return to parliamentary democracy, yet challenges persisted, including periods of constitutional suspension and the influence of Zia-ul-Haq's Islamization policies.
The Debate of Differences between International Law and the Civic or Constitutional Laws in Pakistan; A Way Forward, 2023
Universally and locally, all the courts regard international laws. However, many scholars have traced differences in practices while following civil or constitutional laws in Pakistan. According to them, several constitutional rules create confusion regarding following either international law or local laws (inspired by religion or sect). Similarly, they also criticize the practices of courts for manipulating their verdicts for the sake of satisfying religious sentiments. Therefore, this study tries to investigate whether this allegation can be proved academically, or is there any connection between courts’ verdicts and religious culture. At the same time, this study also evaluates whether there can be differences between international law and civic laws in any state like Pakistan, or whether this practice causes the emergence of a theocratic state.