Routledge Contemporary South Asia. London and New York: Routledge, 2020. x, 189 pp. (Tables, figures.) US$48.95, paper. ISBN 978-0-367-59177-9.
Waris Husain’s The Judicialization of Politics in Pakistan was a timely book when it was published in 2020 and continues to be both relevant and illuminating. In fact, reading this book now reveals a prescience regarding the escalating tendencies towards institutional conflict embedded within the Pakistani system. There is nothing novel to drawing on the past two decades of Pakistan’s judicial and political history to argue that the judiciary has a steering effect on questions of meta-politics in Pakistan, yet, despite the considerable lacunae in how Husain approaches the question of judicialization, there is also a great deal to be valued in the project he has undertaken.
A major contribution the book makes is in providing a comparative study of both US and Indian standards to guide judicial review. Divided federal jurisdictions and the innovation of the political question doctrine are indicated as amongst the primary mechanisms to constrain the expanse of judicial powers in these systems and it is worthwhile to introduce a diverse readership to these formal features of constitutional design and adjudication. While the comparison is informed by an implicit assertion about the interwoven nature of political stability and legal certainty and the slippery slope to judicialization of the political sphere in the absence of bright line rules for restraining judicial powers, it is also unfortunately the case that the comparative dimension is not invigorated beyond the realm of inferences. Also, given that the title promises a study of judicialization in Pakistan, a more expansive engagement with the much-studied phenomenon is elided in favour of a more limited study, one that leaves the question of standard setting in Pakistan unexplored in historical context.
Husain has focused his enquiry on two instances in which the Supreme Court of Pakistan pursued cases filed against heads of government, occupants of the office of prime minister, to the point that their terms in office were truncated. In the first case, Prime Minister Yousif Raza Gillani was found guilty of contempt of court for refusing the court’s directions to reopen corruption and graft cases against his political boss, President Asif Zardari. In the second case, Prime Minister Nawaz Sharif was found guilty of owing assets beyond known sources of income, thereby disqualifying him from electoral politics for life. Focusing more on the first instance than the latter, Husain asserts that the Supreme Court’s disqualification judgement resulted in a destabilization of judiciary/executive relations, weakened an elected government, created space for the military in matters of governance, undermined public support of the judicial branch and, finally, skirted the constitutionally designated disqualification process for the prime minister.
Husain’s work is aimed at laying out a corrective formula and providing a technical fix to constrain the judicial powers. According to the author, this should consist of a more rigorous parsing of what counts as an issue of public importance and to establish relevance with the respect or recognition of fundamental rights. In addition, his suggestion for the establishment of a justiciability council within the highest court provides the mechanism for this more strenuous review and for questioning whether alternate remedies have been exhausted by petitioners. The most important consideration, Husain posits, is whether the court proceeding with a given petition may negatively affect the trichotomy of powers. All of the considerations highlighted are of course criteria for determining the court’s jurisdiction and constitutional cases are replete with judicial ruminations on their application and expanse. As Husain rightly notes, however, the standards are uncertain and veer considerably and somewhat erratically. Thus, while there is clearly value in introducing clearer standards, Husain has somehow failed to account for the multiple constituencies in Pakistan who have championed the laxity that the court has displayed. These include a range of marginalized groups and those who have no recourse against what remains a highly centralized and unaccountable executive branch of government (Moeen H. Cheema and Ijaz S. Gillani, The Politics and Jurisprudence of the Chaudhry Court 2005-2013, Oxford University Press, 2015).
The broader societal and political forces that have recreated the terrain of judicial decision making so that complex policy decisions as well as budgetary decision making are domains into which the judiciary has stepped might be better accounted for by looking at the Westminsterian inheritance of Pakistan’s political structure and its somewhat syncretic realization through a written constitutional document.
Importantly, the field of comparative constitutional law is replete with studies to indicate or schematize some of the causative factors for the phenomenon of judicialization. Husain fails however to situate Pakistan’s trajectory in such a field of study and thereby to chart it as an expression of a global phenomenon that has been proceeding from the mid-1990s onwards. Similar phenomena have also been observed in Egypt (Tamir Mostafa, “Law versus the State: The Judicialization of Politics in Egypt,” Law & Social Inquiry 883, no. 4, 2003) and Thailand (Duncan McCargo, “Competing Notions of Judicialization in Thailand,” Contemporary Southeast Asia 417, no. 3, 2014) as well as across Western Europe and other regions of the world. The absence of references to this literature has led to a failure to account for the broader causative factors cited by other theorists, including the rise of the regulatory state, the proliferation of rights statements and obligations, and the manifestation of autocratic, state-led developmentalism.
The instance that Husain presents might be responsibly characterized as judicial overreach or might even incur the denunciation that they are instances of abusive judicial review. While it is possible to see how his specific prescriptions for constraining judicial review may provide redressal in such cases, it is still the case that the broader phenomenon of judicialization escapes scrutiny in his analysis. This leads this reader to the conclusion that a perhaps narrower title to align with the study that is actually undertaken may have been more appropriate. Overall, though, this is an excellent work that adds considerable value to the fields of comparative constitutional study and judicial functioning in Pakistan.
Sadaf Aziz
Lahore University of Management Sciences, Lahore