Courting Constitutionalism: The Politics of Public Law and Judicial Review in Pakistan
Abstract
Over the last decade, the Supreme Court of Pakistan has emerged as a powerful and overtly political institution. While the strong form of judicial review adopted by the Supreme Court has fostered the perception of a sudden and ahistorical judicialisation of politics, the judiciary's prominent role in adjudicating issues of governance and statecraft was long in the making. This book presents a deeply contextualised account of law in Pakistan and situates the judicial review jurisprudence of the superior courts in the context of historical developments in constitutional politics, evolution of state structures and broader social transformations. This book highlights that the bedrock of judicial review has remained in administrative law; it is through the consistent development of the 'Writ jurisdiction' and the judicial review of administrative action that Pakistan's superior courts have progressively carved an expansive institutional role and aggrandised themselves to the status of the regulator of the state.
... While the Supreme Court's dismissals of prime ministers from political office were perhaps the most spectacular assertion of its power during this period, it was the management of the state's bureaucracies that invited the court's most frequent interventions (Cheema 2021). Between 2009 and 2018, about a quarter of public interest litigation pertained to scrutinizing executive appointments and promotions. ...
What is a populist judge, and when do judges embrace populism? Populist judges bypass legal and procedural constraints, seek an unmediated relationship with the public, and claim to represent the public better than political elites. Judicial populism can emerge in response to institutionalized dissonance in the political system. Dissonant institutionalization facilitates contestation between state institutions and can undermine the legitimacy of political institutions. This legitimacy crisis can imbue judges with a belief in their role as representatives of the public interest. In Pakistan, the dissonance caused by unresolved differences between the civil-military bureaucracy and the elected political leadership—differences that were embedded into the constitutional framework, facilitated the rise of judicial populism. I outline the key features of judicial populism and study the dynamics surrounding the rapid expansion of populist jurisprudence between 2005 and 2019 in Pakistan, with a focus on public interest litigation that became the cornerstone of the judiciary’s populist turn. Through case analysis, archival research, and semi-structured interviews, I discuss features of the populist approach to jurisprudence and trace how dissonance within Pakistan’s political system created new opportunities for the judiciary and changed judicial role conceptions within the legal and judicial community.
This chapter considers the convergences between colonial “lawfare”, (post)colonial counterinsurgency, and domestic policing to explore how such convergences facilitate the criminalization and punishment of dissent and activism within contemporary undemocratic or authoritarian contexts. Using colonial-era legislations found in Pakistan, I explore how such frameworks are deployed as part of a postcolonial state’s overarching counterinsurgency warfare against citizens. I employ postcolonial perspectives to show how such colonial institutions legitimise and weaponise the state’s militarised lawfare against its people and frame socio-political activism and critical resistance as conspiracies amounting to national security threats, revealing continuities between colonial and postcolonial policing of resistance. Such securitized narrative-framing, coupled with the deployment of colonial-era techniques of control, further ensures an ongoing conflation of “police power” and “war power”.
The Supreme Court of Pakistan, under article 184 (3) of Pakistan, can act on its own or on the application of any person with the condition that if the SC considers that any of the rights mentioned in the Fundamental Rights Chapter, is violated and that rights involve the public importance. The invocation of the original jurisdiction of the Supreme Court, also known as Suo Motu under article 184 (3), is a buzzword known to all and sundry in the country. The excessive invocation of this article 184(3) generates a debate in the legal community about whether Apex Court is encroaching on the legislature and executive functions. The debate involves judicial activism and judicial restraint. One common objective exists that by taking excessive Suo motu, there is no appeal against the order of SC; hence fundamental rights of access to justice are violated, and on the other hand, the doctrine of separation of power though not expressly embodied in our Constitution but exist; that every organ of the State should remain within its sphere and mutual respect be given to every other organ of the State. Another restriction in taking Suo motu is the express word of article 184 (3) says that without the prejudice of the provisions of article 199, the SC can act.
The emergence of the judiciary as an assertive and confrontational center of power has been the most consequential new feature of Pakistan's political system. This book maps out the evolution of the relationship between the judiciary and military in Pakistan, explaining why Pakistan's high courts shifted from loyal deference to the military to open competition, and confrontation, with military and civilian institutions. Yasser Kureshi demonstrates that a shift in the audiences shaping judicial preferences explains the emergence of the judiciary as an assertive power center. As the judiciary gradually embraced less deferential institutional preferences, a shift in judicial preferences took place and the judiciary sought to play a more expansive and authoritative political role. Using this audience-based approach, Kureshi roots the judiciary in its political, social and institutional context, and develops a generalizable framework that can explain variation and change in judicial-military relations around the world.
The causal logic behind many arguments in historical institutionalism emphasizes the enduring impact of choices made during critical junctures in history. These choices close off alternative options and lead to the establishment of institutions that generate self-reinforcing path-dependent processes. Despite the theoretical and practical importance of critical junctures, however, analyses of path dependence often devote little attention to them. The article reconstructs the concept of critical junctures, delimits its range of application, and provides methodological guidance for its use in historical institutional analyses. Contingency is the key characteristic of critical junctures, and counterfactual reasoning and narrative methods are necessary to analyze contingent factors and their impact. Finally, the authors address specific issues relevant to both cross-sectional and longitudinal comparisons of critical junctures.
Since WWII there has been a profound shift in power away from legislatures and toward courts and other legal institutions around the world. It is no surprise that appointments to both the US Supreme Court and to other federal courts have become partisan political issues. Ferejohn argues that what is at stake, institutionally, is the allocation of legislative power--the power to establish general rules of prospective application.
Even before an anthropologists tour de force underlined the power of imagination as creation in narrative constructions of the “nation,” memory, myth, and might had been triumphantly parading the realm of historical scholarship. The torch of objectivity did not have to go cold for the heat of subjectivity to captivate and command audiences through print and signs, visual or aural. It is simply that the cornmodification of the past by the marketplace and the expansive imaginings of power have combined to reduce the once revered craft of the historian to a battlefield where mired imaginings posture as interpretations in a contest in which there are no umpires, only partisans. So it is not necessary to claim objective ground when presumably no such domain exists or even to spin yarns about “authenticity” and “falsification.” But it is possible to make an analytical distinction between the past as invention and the past as inspiration without denying the role of creativity or power in either conception.
On July 10, 1833, an aspiring young English lawyer named Thomas Babing-ton Macaulay stood before the Parliament and presented an impassioned argument about the future role of British governance in India. Whereas in Europe, as Macaulay saw it, "The people are everywhere perfectly com-petent to hold some share, not in every country an equal share, but some share of political power," in India, Macaulay asserted, "you cannot have representative institutions." Thus the role of the British colonizers was "to give good government to a people to whom we cannot give a free govern-ment." 1 At the core of Macaulay's good but not free government stood what he saw as one of England's greatest gifts to the people of India: a rule of law. Later that year, Macaulay set sail for the subcontinent charged with the momentous task of codifying the law of India, creating in his words "one great and entire work symmetrical in all its parts and pervaded by one Elizabeth Kolsky is an assistant professor of South Asian History at Villanova Uni-versity <elizabeth.kolsky@villanova.edu>.
The courts are often a key site in the struggle for the protection and enforcement of constitutional rights and accountability. In this article, I draw attention to an important avenue for both the historical and contemporary study of comparative administrative law: the incorporation of the prerogative writs into written constitutions. I offer a global genealogy of the writs as a colonial common law transfer that took on a new life in written constitutions across former British colonies, particularly across South Asia, including India, Pakistan, Bangladesh, Sri Lanka and Myanmar, as well as parts of Africa, the Pacific and the Caribbean. I illustrate the history, development and variations of this model, transforming from the common law remedies of England to a constitutional means of protecting rights. Through the case of Myanmar, I demonstrate the history of transnational constitutional borrowing and innovation in former British colonies. The importance of the writs lies in their symbolic status as a constitutional remedy and, despite present limitations, comparative experience offers future scope for judicial activism in Myanmar.
Both New Zealand and the United Kingdom challenge assumptions about how a bill of rights functions. Their parliamentary bills of rights constrain judicial review and also look to parliament to play a rights-protecting role. This arises from the requirement to inform parliament if legislative bills are not compatible with rights. But are these bills of rights operating in this proactive manner? Are governments encountering significantly stronger pressures to ensure legislation complies with rights? Are these bills of rights resulting in more reasoned deliberations in parliament about the justification of legislation from a rights perspective? Through extensive interviews with public officials and analysis of parliamentary debates where questions of compliance with rights arise (prisoner voting, parole and sentencing policy, counter-terrorism legislation, and same-sex marriage), this book argues that a serious gap exists between the promise of these bills of rights and the institutional variables that influence how these parliaments function.
The legal profession as it exists in India today had its beginnings in the first years of British rule. The Hindu pandits, Muslim muftis and Portuguese lawyers who served under earlier regimes had little effect upon the system of law and legal practice that developed under British administration. At first, the prestige of the legal profession was very low. From this low state and disrepute the profession developed into the most highly respected and influential one in Indian society. The most talented Indians were attracted to the study and practice of law. The profession dominated the public life of the country and played a prominent role in the national struggle for freedom. “There was no movement in any sphere of public activity—educational, cultural, or humanitarian—in which the lawyers were not in the forefront.” However, after independence the relative prestige and public influence of the profession declined.
This article examines the policy environment and implementation of President Zia's Islamic legal reforms in Pakistan during the past decade. It argues that such legal reforms have had only a minor impact on Pakistan's legal system either in regard to legal structures, or in regard to criminal law. The article further argues that the policy environment facing Pakistani decision makers helps to explain the slow pace of implementation.
The root causes of identity mobilization are related to the underlying characteristics of politics in a weak state and its susceptibility to the intrusion of outside forces into its body politic. Sectarianism in Pakistan demonstrates that the imperatives of politics in such a state combine with the interests of international actors to entrench identity cleavages in the political process. Instrumentalist and primordial explanations of identity mobilization are insufficient. The behavior of international and state actors, in the context of the structure of state-society relations, is also a causal factor.
The paper examines the reasons that India, Pakistan and Ceylon chose to become Dominions within the Commonwealth instead of becoming republics on independence as many expected. Each of these South Asian states had different motives that compelled them to take on a form of government more associated in areas where the British had settled in significant numbers. The ‘Tropical Dominions’ differed from the settler cases and tested this vague British concept. The British and South Asians had to compromise their wishes in order to satisfy their wants. India is characterised here as the ‘Expedient Dominion’, Pakistan the ‘Siege Dominion’ and Ceylon the ‘Imitation Dominion’. This paper focuses on the years immediately prior to independence to understand the various objectives of the South Asian elites that negotiated with the British for their sovereignty and how they varied from each other and from the Dominion ideal.
This paper takes a critical look at a recent attempt by the Pakistani state to manage religious thought and practice, under the broad banner of ‘Enlightened Moderation’. One of the key Islamic thinkers associated in popular imagination with this project is Javed Ahmed Ghamidi. In contextualizing the work and role of Ghamidi, it is tempting to work backwards from his opinions on Islamic truth to situate him as a reformer whose interventions are primarily oriented to the task of reconciling Islam to conditions of liberal modernity. Against such a tendency it is argued here that such an exercise of classification and categorization needs to be undertaken with greater care as against a critique of the imperialist typology of ‘good’ and ‘bad’ Islams, a project of delineating authentic from inauthentic Islams has also more recently been activated.
THE Raj still has a peculiar fascination for the British public, judging by the stream of popular books, radio and television programmes whose constant themes are the panoply of empire and the life-style of imperial rulers. Among English-speaking historians, however, approaches to Britain's Indian empire have changed markedly in the last twenty years. By the 1950s ‘Imperial history’ was a thing of the past. Gone was its admiring concentration on the men who ruled India and their measures as a way of understanding political change in the subcontinent. Attention shifted to indigenous initiatives and growth points. At first the emphasis was on India's western educated as organizers and spokesmen of a new kind of overtly nationalist politics. In the late 1960s the focus altered to whole localities within the subcontinent as it became clear that the western educated were not elites divorced from local, more traditional societies, but were still subject to its pressures, influenced by its perceptions and involved in its webs of patronage and alliance. In such an environment apparently nationalist politics were shot through with conflicts and contraditions: they were only one aspect of diverse manoeuvres for influence in society and the state structure. In the present decade the wheel has almost come full circle. Imperial overlords again receive attention: not now as architects and guardians, but as elements essential in the analysis of the changing style and content of Indian politics to the extent to which they created the framework of political life, defined its categories, means and ends.
While suggestions were made in the 1990s that Pakistani and Indian political trajectories were converging as Pakistan took steps towards democratisation and India showed increasing signs of authoritarian centralisation, the following analysis offers a more historically sensitive view that suggests the opposite is true. In over fifty years of independence, institutional and societal structures have worked to create the political systems that we see on the Indian subcontinent today, and have helped define the potentially explosive Indo-Pakistan relationship so threatening in today's world. By analysing the ways in which different historical legacies act upon the current political cultures in both India and Pakistan, we engage in a fuller understanding of the contributing factors to the status quo in each. Further, historical analysis may shed some light on the expected trajectories of these two countries as they attempt to reinvent themselves at the beginning of the twenty-first century.
This essay is a study of the philosophy of state craft of Pakistan's most eminent Chief Justice — A.R. Cornelius, whose tenure on the Supreme Court was from 1951 to 1968. The analysis is based on a remarkable friendship between Cornelius and the author which started in 1960 when the author was an advisor to the Government of Pakistan. It continued with a series of letters from Cornelius through 1970. These sources are augmented by analysis of hundreds of court decisions, speeches and articles by Cornelius. Cornelius developed a profound admiration for Islam which deepened towards the end of his life. He died in 1991 at the age of 88. As a self‐described ‘Neo‐Thomist’ he synthesized Christian and Islamic values through the medium of natural law. This synthesis is a case study in the compatibility of Islam and Christianity developed not on theological grounds but within the context of jurisprudence. It negates the contention that Islam and the West are necessarily at odds and that their interaction will result in a ‘clash of civilizations’. This essay is an adaptation of the first chapter of the author's Chief Justice Cornelius of Pakistan: an analysis with letters and speeches (Karachi, Oxford University Press, 1999). It appears here with permission of the publisher. The text of Cornelius’ letters and speeches and the memorial lecture referred to as ‘Appendix’ and ‘Letter to the Author’ in notes 2, 32, 40, 47, 60, 65, 66, 75, 84, 91, 122, 135, 139 are included in that volume.
India's courts have been playing a growing role in the country's political life. Defenders of the judiciary often focus on the few success stories that result from judicial decisions. Yet there is a glaring lack of concrete, empirical data on the effects of court intervention. Courts can proclaim new rights as much as they want, but the proclamation of rights by itself does not produce results. Judges have an important role to play in strengthening our democracy. But they will have to exercise great discretion and resist the intoxication which comes from the view that judges are the last, best hope of the republic.
The indigo plant, the original source of the dye used for bluing cotton textiles, formed the basis of a flourishing sector of commercial agriculture in Bengal by the beginning of the nineteenth century. From the very outset, however, the ryots, that is, the tenant cultivators were made to grow indigo under much coercion, for the surplus appropriated by the planters, mostly Europeans, and the methods they used, made this crop most uneconomic for the producers. A slump in the London prices of indigo between 1839 and 1847, the fall of the Union Bank of Calcutta, a consequent credit squeeze and the takeover of smaller concerns by larger ‘indigo seignories’ increased the pressure on the ryot and his misery still further. By 1860 the regional grievances and localized acts of resistance among the peasantry snowballed into a general uprising in nine Bengal districts. Later on that year Dinabandhu Mitra published a play, Neel‐darpan, with the planters’ atrocities as its theme. Translated into English, the play soon became the focus of a legal and political contest between the Calcutta liberals and European planters. For over a century this play has enjoyed the reputation of a radical text. How radical was it? In an exegesis undertaken in answer to this question an attempt has been made in this essay to document the response of Indian liberalism to one of the mightiest peasant revolts in the sub‐continent. A glossary of Indian terms has been inserted at the end of the essay.
During the early years of British expansion in Bengal, from the 1770s to the 1840s, British courts ruled on at least three dozen domestic violence cases. In the process of ruling on crimes in which native women were victims of burglary, rape, and murder at the hands of European men, judges on the Supreme Court of Calcutta became intimately involved with enforcing domestic peace and containing the social threat posed by interracial conjugal relationships between lower-class European soldiers and merchants and the native women with whom they cohabited or married. While high-ranking, upper-class men may have also physically abused native women with whom they were intimate, these relationships were rarely the subject of judicial scrutiny. Through criminal trials of domestic crimes or ‘intimate violence’, British judges and magistrates, who were among the highest status positions in the civil service, managed the sexual and familial transgressions of lower-ranking European soldiers, merchants and civil employees, thereby ‘making empire respectable,’ while simultaneously enabling lower-ranking men to enjoy continued sexual access to local women.
Islamic revivalism is often believed to be solely committed to the Islamization of society, viewing politics as merely an instrument in the struggle to realize its aim. The record of Islamic revivalist movements—as exemplified by one of the oldest and most influential of them, the Jamaat-i Islami, or Islamic party of Pakistan—however, brings this presumption into question. The nature of the linkage between Islamic revivalism as a particular interpretive reading of Islam and politics is more complicated than is generally believed. Political interests, albeit still within an Islamic framework, play a more important and central role in the unfolding of revivalism—even overriding the commitment to Islamization—than is often ac knowledged. Participation in the political process eschews a blind commitment to Islamization and encourages adherence to organizational interests, and as is evi dent in the case of Pakistan, to the democratic process, characteristics that are not usually associated with Islamic movements. The dynamics and pace of this pro cess are controlled by the struggles for power within an Islamic movement as well as vis-à-vis the state. It is through grappling with these struggles that the commit ment to Islamization is weighed against the need to adhere to organizational and political interests; this is the process that governs the development of Islamic re vivalism. Beyond this general assertion, the manner in which the struggle for power unfolds, the variables that influence it, and the nature of its impact on the development of revivalism need to be explored further.
This essay is an enquiry into the context, nature, and significance of militant sectarian conflict in Pakistan. The parties to the conflict are the Sunnis, who constitute the majority of Muslims in Pakistan, and the Shi‘a, a small but influential minority. Conflict between these two religious communities has deep roots in the history of Islam and of South Asia. In Pakistan, which aspires to be in some sense an ‘Islamic state’, sectarian conflict is part of, and interacts with, broader issues concerning the place of Islam in public life. This essay seeks to analyse some of factors which have contributed, especially in the past twenty-five years or so, to militant sectarian conflict in Pakistan and to assess the significance of this rather neglected form of Islamic radicalism.
The past two decades have witnessed a notable escalation in sectarian violence in Pakistan. Since 1979 doctrinal disputes between Sunnis (who constitute the majority of Pakistan's population) and Twelver Shi‘is (who number between 15% and 25% of the population, and are to be distinguished from Islami‘ili, Khoja and Bohri Shi‘is) has given place to full-fledged sectarian conflict. Militant Sunni and Shi‘i organizations have carried out assassinations and bombing campaigns that have killed political rivals as well as children and the innocent at prayer in mosques. In the first seven months of 1997 alone—the year when sectarian conflict reached its apogee—one hundred people died in such attacks in Punjab. The violence escalated further when in the first ten days of August 1997 (immediately preceding the celebration of the fiftieth anniversary of the country's independence) another seventy people were killed in incidents of sectarian violence.
In an age sceptical of the historic role of great men there is universal agreement that Mahomed Ali Jinnah was central to the Muslim League's emergence after 1937 as the voice of a Muslim nation; to its articulation in March 1940 of the Pakistan demand for separate statehood for the Muslim majority provinces of north-western and eastern India; and to its achievement in August 1947 of the separate but truncated state of Pakistan by the Partition of India. Subcontinental judgements of Jinnah are bound to be parti pris and to exaggerate his individual importance. While Pakistanis generally see him as the Quaid-i-Azam, Great Leader, or father of their nation, Indians often regard him as the Lucifer who tempted his people into the unforgivable sin against their nationalist faith. Among distinguished foreign scholars, unbiassed by national commitment, his stature is similarly elevated. Sir Penderel Moon has written:
There is, I believe, no historical parallel for a single individual effecting such a political revolution; and his achievement is a striking refutation of the theory that in the making of history the individual is of little or no significance. It was Mr Jinnah who created Pakistan and undoubtedly made history.
Could Britons in India commit murder? More precisely, could they be prosecuted and sentenced for doing so? As these epigraphs suggest, the Raj was deeply preoccupied with elaborating minute taxonomies of violence and death. In a variety of ways, British violence toward indigenes was made an object of policy initiatives by the Government of India. Defining violence, both indigenous and foreign, was one key task of the Raj, along with clarifying the boundary between legitimate and illegitimate violence. But this boundary shifted constantly over the colonial period, and indeed, it has continued to do so ever since. Given the extensive legal violence of colonial conquest, when and why were specific acts of white violence defined as murder?
The necessary vocabulary has not yet been created to encompass both the ‘informing spirit’ and ‘whole social order’ of British India. In part, at least, this is because research has generally concentrated on either British or Indian realms of action, rather than the interaction between them. But British colonial rule shaped a distinctive social system in India, one that drew on both British and indigenous values as well as notions of authority. This essay analyzes aspects of this colonial social order by focusing on its legal system, particularly that portion designed to deal with what the British identified as ‘extraordinary’ crime. Indeed, criminal law may be among the most revealing aspects of a social order. For, as Douglas Hay has observed for a similar elaboration of the English legal structure, ‘criminal law is as much concerned with authority as it is with property … the connections between property, power and authority are close and crucial.’
Among anti-colonial nationalists, Bhagat Singh and M.K. Gandhi are seen to exemplify absolutely contrasting strategies of resistance. Bhagat Singh is regarded as a violent revolutionary whereas Gandhi is the embodiment of non-violence. This paper argues that Bhagat Singh and his comrades became national heroes not after their murder of a police inspector in Lahore or after throwing bombs in the Legislative Assembly in New Delhi but during their practice of hunger strikes and non-violent civil disobedience within the walls of Lahore's prisons in 1929–30. In fact there was plenty in common in the strategies of resistance employed by both Gandhi and Bhagat Singh. By labelling these revolutionaries ‘murderers’ and ‘terrorists’, the British sought to dismiss their non-violent demands for rights as ‘political prisoners’. The same labels were adopted by Gandhi and his followers. However, the quality of anti-colonial nationalism represented by Bhagat Singh was central to the resolution of many of the divisions that racked pre-partition Punjab.
Perhaps the most intransigent problem in the recent history of Indian society remains an adequate understanding of the processes of social change which took place under colonialism. As the continunig controversies within, as much as between, the traditions of modernization theory, Marxism, and the underdevelopment theory make plain, the Indian historical record is peculiarly difficult to grasp with conventional sociological concepts. In the study of Western European society, a focus on the evolution of legal ideas and institutions has proved a useful entry point to social history.The law may be seen to represent a set of general principles through which political authority and the state (however constituted) attempt to legitimize the social institutions and norms of conduct which they find valuable. As such, its history reflects the struggle in society to assume, control or resist this authority. Its study should help to reveal the nature of the forces involved in the struggle and to suggest the implications for social development of the way in which, at any one time, their struggle was resolved. The condition of the law may be seen to crystallize the condition of society. This, of course, could be said of any governing institution. But where the law becomes uniquely valuable is in that, because of its social function, the struggle around it is necessarily expressed in terms of general statements of principle rather than particular statements of private and discrete interest. At the most fundamental level, these principles demarcate the rules on which the contending parties seek to build their versions of society and provide useful clues to their wider, often undisclosed, positions.
Since 1947, the relationship between Indian society and the British empire has provided the most important frame of reference for scholars writing about the history of modern India. India is often treated merely as an exemplar of the colonial condition. As a result, scholars have failed properly to examine modern India's participation in global processes of historical change, and been reluctant adequately to ‘provincialize’ Europe. This review argues that historians need to move beyond this imperial frame of reference if they are to explain the transition to, or characteristics of, British rule in the subcontinent. Placing modern India in a broader comparative context allows one to see how the colonial subcontinent participated in an uneven but broadly comparative set of processes which occurred across Asia as well as Europe in the eighteenth and nineteenth centuries. There are, for example, important parallels between the process of active state-, economy-, and culture-formation occurring in France, Germany, and India in the nineteenth century, for example. This comparative approach would not denigrate the importance of ‘colonialism’ as an analytical category. It might, though, allow historians to produce a more satisfying interpretation of the difference between colonial and non-colonial states and societies.
In recent years, studies of the mechanics of European colonialism in Asia and Africa have largely focused on the creation of collaborative systems and dependent economic structures within the colonized societies. The part that troops played in carving out a colonial territory and crushing primary resistance is often described, but seldom do accounts of colonial rule examine in detail the means of coercion employed to maintain a favourable political and economic environment. If, however, it is even partly true that power grows out of the barrel of a gun, then discussion of colonial situations must take into consideration the role that the régime's armed agencies played in containing indigenous political movements and in themselves constituting one of the principal pillars of collaboration.
“You have given India,” Secretary of State Sir Samuel Hoare once told his officers, “justice such as the East has never known before.” For most Englishmen, having established therule of law” on the Indian subcontinent was probably the proudest achievement of the British raj. They believed that they had substituted legal security for disorder, predictability for uncertainty, and impartiality for whim and nepotism.
Until 1793, the judicial policy of the Company's Government in Bengal was guided only by expediency and tradition. The tradition was that of the Moghul government which entrusted the management of civil justice to the Executive and those in charge of collection of revenue; 1 and the expediency—that of discharging the responsibilities of the Diwani with as little spending from the profits as possible. This is clearly visible in Warren Hastings's administrative arrangements of 1772 under which the civil judiciary in the mofussil was consigned to the District Collectors of revenue. With few interruptions marked by Hastings's administrative experiments,2 the practice of keeping the revenue and judicial functions united continued for the following twenty years. In 1790, when for the first time the Company took over the administration of criminal justice, the District Magistracy was also vested with the Collector. He thus became the Judge, Magistrate and Collector, all in one. This ‵single officers′ plan for the Districts had been advocated by Sir John Shore as being in conformity with the tradition with the Indians looking up to a single despotic authority for the redress of all their grievances,3 and had found favour with the Directors4 for the economy involved.
In recent years, the judicialization of politics worldwide has expanded its scope to encompass what we may term "mega-politics"-matters of outright and utmost political significance that often define and divide whole polities. In this article, I explore the scope and nature of judicialization of this kind. I begin by identifying the characteristics of the judicialization of mega-politics and by surveying the main explanations for its emergence. I then illustrate the various forms and manifestations of the judicialization of mega-politics through recent examples drawn from jurisprudence of courts and tribunals worldwide. Next, I explore recent studies that advance a strategic "judicialization-from-above" account, which emphasizes support from the political sphere as a necessary precondition for judicialization of pure politics. To further illustrate this point, I survey patterns of political reaction to recurrent manifestations of unsolicited judicial intervention in the political sphere in general, and unwelcome judgments concerning contentious political issues in particular.
Constitutional ethnography is the study of the central legal elements of polities using methods that are capable of recovering the lived detail of the politico-legal landscape. This article provides an introduction to this sort of study by contrasting constitutional ethnography with multivariate analysis and with nationalist constitutional analysis. The article advocates not a universal one-size-fits-all theory or an elegant model that abstracts away the distinctive, but instead outlines an approach that can identify a set of repertoires found in real cases. Learning the set of repertoires that constitutional ethnography reveals, one can see more deeply into particular cases. Constitutional ethnography has as its goal, then, not prediction but comprehension, not explained variation but thematization.
Politics and Judicialization
- Law
Deconstructing the Dominant Narratives of the Islamization of Pakistan’s Law
- Beliefs