Miscarriage of Chief Justice

Shoaib Ghias in a prize winning essay in the Law and Social Inquiry puts forward an interesting set of arguments explaining recent judicial activism in Pakistan.

This study explains the rise and fall of judicial power in Pakistan under Musharraf focusing on two questions. First, how did pro-regime judges expand judicial power leading to a confrontation with the regime? Instead of supporting economic liberalization in a period of economic growth, I find that the Court expanded power by scrutinizing privatization and deregulation policies as part of public interest litigation. Second, how were the bar and the bench mobilized in the struggle for judicial power? I find that the bench consolidated the legal fraternity, while the consolidated lawyers organized a social movement to support the bench. The Pakistani case challenges some of our basic assumptions about the factors at play in the judicialization of authoritarian politics. The case also invites scholars to explore the role of courts in judicial support consolidation and the role of lawyers in social movements.

Ghias’s work poses challenges conventional writing on judicial politics in authoritarian regimes based on Egypt, Malaysia and Singapore which have suggested that judicial independence is linked to economic growth. Since investors want credible commitments to protect property, the authoritarian regime are pushed to establish an independent judiciary capable of enforcing legal rules. Once such a judiciary is in place, it will make a push for political reform, which in the case of Singapore might face a backlash.

Ghias uses the Pakistani experience to challenge this reading, by arguing that it is the discontents of economic liberalization which gave the Chaudhary court the legitimacy to challenge the authoritarian regime. Secondly, he shows how the “lawyer’s movement” was not just about confronting the Musharaff regime but also about allowing one section of the bar to establish its dominance over the others.

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1 comment
  • Thanks, Rohit, for pointing to this excellent analysis (and kudos also for the great title). Many of us on the blog have been posting about the trajectory of events described in this piece over the last two years, but clearly, the LAOT blog posts only covered a small part of the picture. This piece does an excellent job of providing a fuller, more complex account of the legal and judicial politics in Pakistan that formed the backdrop. While Justice Chaudhry has been valourised in the global media, this piece, through its gripping and thickly descriptive narrative, draws attention to his less-than exemplary record in bolstering the Musharraf regime in its early years. Quite often, he was presented in the media as a simple, straightforward man of the law who believed in the simple ideal of the 'rule of law' and sought to defend it in Pakistan. This account may well win him even more admirers for his near-Machiavellian understanding of legal and judicial politics in Pakistan. I also found Ghias’ account of the ‘regional influences’ (primarily emanating from India’s experience with PIL) fascinating. The piece ends around early 2009, and does not cover subsequent developments (which will hopefully be analysed in the final, published version), but I think those will not affect the overall argument.

    I was a bit disappointed, however, with the 'theoretical' hook of the piece. I am not sure that Moustafa, Silverstein and Ginsburg were actually laying out a theoretical claim or asserting that a particular practical trend occurs to explain the evolution of judicial power in authoritarian regimes generally. In fact, Moustafa and Ginsburg, in their superb edited volume seem to use their analysis to call into question the more conventional accounts of judicial power in democratic regimes, and urge scholars to also focus on lessons about judicial power that emerge from authoritarian experiences. Silverstein’s analysis of the Singapore judiciary, and Moustafa’s account of the Egyptian judiciary have some important similarities, but both authors are also careful to assert the jurisdictional peculiarities of each experience. I found myself wondering whether Ghias should not be similarly cautious in drawing theoretical and/or practical lessons from the Pakistan experience. His richly descriptive account served to remind me that in our bid to increase interest in comparative law and politics, we may be downplaying the inherently local factors which are hard for outsiders to fully grasp.