Waris Husain - The Judicialization of Politics in Pakistan: A Comparative Study of Judicial Restraint and its Development in India, the US and Pakistan

Since 2007, the Supreme Court of Pakistan has emerged as a dominant force in Pakistani politics through its hyper-active use of judicial review, or the power to overrule Parliaments laws and the Prime Ministers acts. This hyper-activism was on display during the Supreme Courts unilateral disqualification of Prime Minister Yousef Raza Gilani in 2012 under the leadership of Chief Justice Iftikhar Chaudhry. Despite the Supreme Courts practical adoption of restraint subsequent to the retirement of Chief Justice Chaudhry in 2013, the Court has once again disqualified a prime minister, Nawaz Sharif, due to allegations of corruption in 2017.

While many critics have focused on the substance of the Courts decisions in these cases, sufficient focus is not paid to the amorphous case-selection process of the Supreme Court of Pakistan. In order to compare the relatively unregulated process of case-selection in Pakistan to the more structured processes utilized by the Supreme Courts of the United States and India, this book aims to understand the historical roots of judicial review in each country, dating back to the colonial era and extending through the foundational period of each nation impacting present-day jurisprudence. As a first in its kind, this study comparatively examines these periods of history in order to contextualize a practical prescription to standardize the case-selection process in the Supreme Court of Pakistan in a way that retains the Courts overall power while limiting its involvement in purely political issues.

This publication offers a critical and comparative view of the Supreme Court of Pakistans recent involvement in political disputes due to the lack of a discerning case-selection system that has otherwise been adopted by the Supreme Courts of India and the United States to varying degrees. It will be of interest to academics in the fields of Asian Law, South Asian Politics and Law and Comparative Law.

Waris Husain is a comparative constitutional law expert with a focus on South Asia, having written on legal developments in Pakistan, India, and Nepal. He teaches international legal advocacy and advises the international moot court program at the Howard University School of Law.

Sri Lankas Global Factory Workers

(Un)Disciplined Desires and Sexual Struggles in a Post-Colonial Society

Sandya Hewamanne

Migration of Labour in India

The Squatter Settlements of Delhi

Himmat Singh Ratnoo

Gender, Nation and Popular Film in India

Globalizing Muscular Nationalism

Sikata Banerjee

Media as Politics in South Asia

Edited by Sahana Udupa and Stephen D. McDowell

Death and Dying in India

Ageing and End-of-Life Care of the Elderly

Suhita Chopra Chatterjee and Jaydeep Sengupta

Documentary Film in India

An Anthropological History

Giulia Battaglia

The Rule of Law in Developing Countries

The Case of Bangladesh

Chowdhury Ishrak Ahmed Siddiky

New Perspectives on India and Turkey

Connections and Debates

Edited by Smita Tewari Jassal and Halil Turan

The Judicialization of Politics in Pakistan

A Comparative Study of Judicial Restraint and Its Development in India, the US and Pakistan

Waris Husain

First published 2018
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

and by Routledge
711 Third Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

2018 Waris Husain

The right of Waris Husain to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

Names: Husain, Waris, author.

Title: The judicialization of politics in Pakistan : a comparative study of judicial restraint and its development in India, the US and Pakistan / Waris Husain.

Description: New York, NY : Routledge, 2018. | Series: Routledge contemporary

South Asia series ; 123 | Includes bibliographical references and index.

Identifiers: LCCN 2017058534 | ISBN 9780815392705 (hardback) | ISBN 9781351190114 (ebook)

Subjects: LCSH: Political questions and judicial power Pakistan. | Political questions and judicial power India. | Political questions and judicial power United States. | Judicial process Pakistan. | Judicial process India. | Judicial process United States. | Law Political aspects.

Classification: LCC KPL3409. H87 2018 | DDC 347.5491/05 dc23

LC record available at https://lccn.loc.gov/2017058534

ISBN: 978-0-8153-9270-5 (hbk)
ISBN: 978-1-351-19011-4 (ebk)

Typeset in Times New Roman
by Apex CoVantage, LLC

To my family, wife, and dog Brooklyn.

Since 2007, the Supreme Court of Pakistan has emerged as a dominant force in the tripartite constitutional system in Pakistan. In some instances, the Court has engaged in hyper-active use of judicial review over the laws passed by Parliament or the policies of the Prime Minister. This trend was perhaps most obvious when the Supreme Court, under the leadership of Chief Justice Iftikhar Chaudhry, unilaterally disqualified Prime Minister Yousef Raza Gilani in 2012. The long-term impact of this decision led to the ouster of Prime Minister Nawaz Sharif in 2017. These decisions demonstrate one of the many dangers posed by a Supreme Court that lacks a self-restraining justiciability standard and procedure: namely, without a standard or procedure, the Court will always be open to politicization, especially under the leadership of an overly active Chief Justice. This study uses the counter-examples of India and the United States in order to present a justiciability standard and procedure for the Supreme Court of Pakistan to adopt.

Rather than attempting to apply American or Indian jurisprudence wholesale to Pakistan, the study begins by tracing the divergent development of judicial review in each country based on the impact of colonial judicial systems. The study then moves onto comparing the roles of the courts in each country as envisioned by their respective constitutional founders. Next, the structural differences in the constitutions of each country will be compared, which leads to an examination of justiciability doctrines developed by the Supreme Courts of the United States, India, and Pakistan. Lastly, the study will propose a justiciability standard and the creation of a Justiciability Council as a companion organization to the Supreme Court of Pakistan. In order to test the effectiveness of the proposed Council and test, the application section of the study will evaluate potential future petitions that request for the Court to disqualify a democratically elected Prime Minister.