International Law and the Global South

Transcription

1 International Law and the Global South Perspectives from the Rest of the World Series editor Associate Prof. Dr. Leïla Choukroune, Director of the Centre for Social Sciences and Humanities (CSH - a French CNRS Research Unit), New Delhi, India; Maastricht University Law Faculty, The Netherlands International Editorial Board Prof. Dr. Balveer Arora, Former rector and Pro-vice Chancellor, Jawaharlal Nehru University, New Delhi, India Hon. Justice Prof. Eros Roberto Grau, Former Minister, Brazilian Supreme Court; and Emeritus Professor, Faculty of Law, University of Sao Paulo, Brazil Associate Prof. Dr. Denise Prévost, Maastricht University Law Faculty, The Netherlands Prof. Dr. Carlos Miguel Herrera, Director of the Centre for Legal and Political Philosophy, University of Cergy-Pontoise, France Hon. Justice Robert Ribeiro, Permanent Judge, Hong Kong Court of Final Appeal, Hong Kong, SAR China

2 This book series aims to promote a complex vision of contemporary legal developments from the perspective of emerging or developing countries and/or authors integrating these elements into their approach. While focusing on today s law and international economic law in particular, it brings together contributions from, or influenced by, other social sciences disciplines. Written in both technical and non-technical language and addressing topics of contemporary importance to a general audience, the series will be of interest to legal researchers as well as non-lawyers. In referring to the rest of the world, the book series puts forward new and alternative visions of today s law not only from emerging and developing countries, but also from authors who deliberately integrate this perspective into their thinking. The series approach is not only comparative, post-colonial or critical, but also truly universal in the sense that it places a plurality of well-informed visions at its center. The Series Provides a truly global coverage of the world in reflecting cutting-edge developments and thinking in law and international law Focuses on the transformations of international and comparative law with an emphasis on international economic law (investment, trade and development) Welcomes contributions on comparative and/or domestic legal evolutions More information about this series at

3 Muhammad Azeem Law, State and Inequality in Pakistan Explaining the Rise of the Judiciary 123

4 Muhammad Azeem Shaikh Ahmad Hassan School of Law Lahore University of Management Sciences Lahore Pakistan ISSN ISSN (electronic) International Law and the Global South Perspectives from the Rest of the World ISBN ISBN (ebook) DOI / Library of Congress Control Number: Springer Nature Singapore Pte Ltd This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore , Singapore

5 To my family, Sara and Sumana

6 Acknowledgements This book is, in a way, an outcome of my long legal and political practice with workers, peasants, students and marginalized sections of Pakistan. The list of friends is long, ranging from the 1950s peasant leaders Ghulam Nabi Kallu to present day Allah Buksh Baloch in southern Punjab and includes especially, former student activists, Sabir Ali Haider and Mushtaq Chaudry, as well as lawyer Abid Hasan Minto. The Progressive Writers Association and its poets Abid Hussain Abid, Afzal Saahir, Maqsood Khaliq, IftikharBaig and many others were apart of struggles against privatizations, peasant ejectments by land mafia and the firings from these processes. During these struggles, I learnt from the experiences of the working class and where I could, I carried them to courts as a part of the overall struggle. Khawaja Imran Advocate always tolerated and helped me in the courts. Based on my experiences, my quest in Ph.D. was to theoretically understand the limits of liberal legal project and the role of the judiciary for the emancipation of the marginalized. During my years of graduate study, I frequently visited Pakistan, and critically engaged with my prior perceptions. The critical environment of Osgoode Hall School, and York University in the Toronto area was very conducive to my quests. I thank my supervisor Ruth Buchanan and supervisory committee Liora Salter and especially the kind support and encouragement of Dr. Tariq Amin-Khan. They let the project originally grow and kindly nourished it with their insights and also trimmed its excesses. I thank Dr. Kamran Asdar Ali for being the external reader and for debating my views vigorously with me. I would like to thank my political friends and family who stood with me in the disappointments and joys of producing this piece of literature. I would specially like to thank my loving daughter Sumana Abraham and wife Sara Abraham who supported me throughout these past years as I was doing my research. In Sara, I was greatly fortunate to have an activist and a critical observer look over and contribute to my writings. My sister Farida patiently waited for me to return to Pakistan. Other critical scholars in Toronto are Profs. Raju Das, Obiora Okafor, Peer Zumbensen, Greg Albo, Sam Gindin, Aparna Sundar, Malavika Kasturi, Alok Johri, Kajri Jain, Dhruv Jain, Horace Campbell and Shubhra Gururani, and I thank vii

7 viii Acknowledgements them for their intellectual engagement with my project. While studying law my political engagement with peoples rights in Toronto was possible through a wonderful galaxy of graduate students and friends. Here I thank Steve de Silva running a community newspaper promoting peoples journalism, Basics. I thank Noaman, Arsalan and Urooj for running a campaign against drones in Pakistan, Mike and Kabir for organizing black neighbourhood against the police, as well as Laura working with indigenous people. Sukhdev, Navkiran and Punjabi struggles in Brampton offered lessons at a very different level. After week-long hectic intellectual engagements, my creative writers and poets offered cheerful compounds with soothing effect. Amir Jaffery and Seemi, Khalid Sohail, Rafiq Sultan, Malik Khan, Rasheed Nadeem, Askariand Zehra with their poetry, fiction and songs kept my soul alive and steady for the time I was researching, during those eight years. I was fortunate to have a few graduate students as my friends and want to thank Qamar, Humayun, Tahir Amin, Paula, as well as Aqeel, Nadeem, Halida and Ahamad. After completing my research, I was fortunate to move back to Pakistan, Lahore for a job at LUMS University. These past two years I have worked on changing my thesis into this book. I found new empirical evidence to fill some gaps. During this time, my colleagues Dr. Zubair Abbasi, Sadaf Aziz, Dr. Ali Qazilbash, Sikandar Shah, Uzair Kayani, Khyzer, Dean Martin Lau and Vice Chancellor Dr. Sohail Naqvi were very supportive and I want to thank them. Rizwanna, Sadaf Shahjehan, Yumna Arshad and Asad Ullah Khan really worked hard on editing and other support. Dr. Itty Abraham deserves a special thanks, for he guided me in a very special way at every stage of my work. Finally, the staff of Sheikh Ahmed School of Law (SAHSOL) Shah Nawaz, Imran, Khalid and Iftikhar have kept things working smoothly around teaching and dealing with students. I thank them for making such a peaceful environment.

8 Contents Part I Law Under Modernization: Foundational Discourse ( ) 1 The Law and Judiciary in Pakistan: Beyond a Liberal Understanding The Liberal Legal Project in Pakistan Theoretical Grasp of the Liberal Legal Project in Pakistan Institutionalism and Functionalism of Liberal Understanding Institutionalism and Functionalism in Postcolonies Critique of Institutionalist-Functionalist Paradigm: The Issue of Change in Postcolonies Legal Analysis in Relation to State and Society: Theoretical Departure from Liberal Legal Analysis Few Comments About Methodology A New Theoretical Understanding of State and Politics of Postcolonial Pakistan Liberal Understanding of Law and State in Postcolonial Pakistan From a Legal State to a Class State Postcolonial Pakistani State: Factual or Theoretical Departure? Hegemonic Class?: Redefining the Place of Centre Periphery Relations in State Formation Myth of Miserable Politicians vis-a-vis Military: Nature of Hegemony Crisis of the Hegemony as the Crisis of the State Bringing Class Struggle Back in State Formation References ix

9 x Contents 2 Law in the Era of Capitalist Modernization ( s) Law and State During Colonial Rule Did Pakistan Inherit a Good Judicial System? Modernizers Even Before Modernization Class Formation Behind Overdeveloped State Pindi Conspiracy Case Moulvi Tamizuddin Khan Case The Judiciary as a Part of Juridico-Bureaucratic State Structure The Significance of the Shift in Hegemonic Influence from U.K. to U.S General Ayub s Coup (Dosso Case) Revolution/Evolution or Preventing Revolution Ayub the Modernizer and Pakistan as the Experimental Lab Judiciary s Modernization Coalition Democracy and Fundamental Rights in Political Development: A Critical Appraisal of Munir, Cornelius and Kayani CJs Presidential System Like U.S.: Elite Democracy or Controlled Democracy? The Cornelius Rights Approach to Substitute for the Democratic Deficit? The Nature of Politics in Rights Cases Islam and Jirga System in Nation-Building The Collapse of Modernization and Revisiting the Role of Law References Law Under Bhutto s Socialism ( s) Judiciary Confronting Popular Democracy: The Rising Class and National Liberation Struggles and Changing Place of Law in Political Development Asma Jilani Case: For Democracy or Just Against a Dictator? Zia-ur-Rahman Case: A Judicial Retreat on the Face of Popular Democracy Democratic Deficit Under Bhutto and the Return of Strong Judiciary: Judicial Reaction to Bhutto s Socialism There Is a Need of Check on the Legislature Recall for a Presidential System Rights Under the Bhutto Regime: Confrontation or a Substitute for Democratic Deficit

10 Contents xi Legislature s Reaction Liberal Rights, But No to Ethno-nationalism The National Awami Party Case Bhutto s Downfall: Countering the Suppression Explanation Juridico-Bureaucratic Cornelius Tradition Restored (1980s) Rehabilitating the Old State Structure Rolling Back Popular Democracy to the Extent of Judicial Murder of Bhutto Zia s Constitutional Engineering: Fine Tuning of the Juridico-Bureaucratic Structure Revival of the Constitution of 1973 Order, 1985-RCO: A Perfection of the U.S. Type Presidential System and Islam of Cornelius Tradition ( ) Public Interest Litigation (PIL): A Deficit for Democracy, Dying Working Class Politics and the Emergence of Middle Class Benazir Bhutto Cases PIL, Islam and Judiciary s Rise The Rise of Liberal and Quasi-liberal (Islamic) Legalism and the Dying Working Class Struggle References Part II Law Under Neo-Liberal Development: Rights for Democratic Deficit ( ) 4 A Strong Judiciary in a Weakening State (the 1990s) Class Formations Under Neo-liberalism The Start of Neo-liberal Globalization and the Rise of New Institutionalism s: The State for the Market and not for the People Changing State Formation and Class Formation in Pakistan Judiciary in Transitional Governance ( ) Class Formation: Which is the Hegemonic Class? The Cornelius Tradition in the Judicial Office The Dissolution of the Benazir Bhutto Assembly Case Did the Legislature Not Legislate or Were There Legislative Hurdles? Political Defection: A Weak Democracy in a Strong State Appointment of Judges ( )

11 xii Contents Not the Unconstitutional Act but Constitution Itself was a Problem The First Regime of Nawaz Sharif ( ): Separating the Powers in a Weakening State Contours of the Liberal Legal Project in Pakistan Separation of Power and Independence of the Judiciary: A Gap in Parliamentary Democracy Bar s Politics: Constitutional Politics and Rising Petit Bourgeoisie What About the Working Class in the Liberal and Quasi-liberal Project? Public Interest Litigation: A New Level of the Juridico-Bureaucratic Structure in the Cornelius Tradition Dissolution of Nawaz s Assembly (1993) Benazir Bhutto s Second Term ( ): The Judiciary and Democracy Confrontation Appointment of Judges: The Democratic Regime Exercising Constitutional Power? Judges Case: Appointment of Judges Is not the Right of a Democratic Regime Dissolution of Assembly at the Altar of Independence of Judiciary State Capture : Disenchantment with the Washington Consensus and Subalterns Nawaz Sharif s Second Term ( ) Independence of the Judiciary to Judicial Activism: Confronting Democracy Actively Old Juridico-Bureaucratic Structure Reacting to Democracy Resisting a Parallel Judicial System of Special Anti-Terrorist Courts Tools Beyond Judicial Means: From Suo Moto to Social Investigation and the Organ for National Integration Appointment of Judges: The Judiciary s Exclusive Right Challenging the Supremacy of the Legislature : Supremacy of the Parliament? The Mid-1990s: Crucial Years for Public Interest Litigation Good Governance : A Class Explanation of Musharraf s Coup (October, 1999) References

12 Contents xiii 5 Good Governance by Judiciary The 2000s Institutional Rearrangement: Installing the Governance Structure State Formation in the Era of Good Governance Judicial Decisions Under Dictatorship: Restoring the Juridico-Bureaucratic Structure Class Formations Under Good Governance An Undermined Legislature Struggle Against the Judiciary s Encroachment on the Legislative Powers Supremacy of the Constitution as Supremacy of the Judiciary Opposition: Correcting the Judiciary Before Democracy The Liberal Legal Project Judiciary as Custodian of Global Modernity Under Good Governance : Steering the Juridico-Bureaucratic Structure ( ) Public Interest Litigation Until 2006: A Comfortable Substitute for Democracy : The Judiciary s Own Consciousness of Its Linear Development and Weaknesses in Leading Global Modernity Lawyers Movement: From Supremacy of the Constitution to Supremacy of the Rule of Law Emergency Against Judicial Activism and Public Interest Litigation Rule of Law or Politics: Class Formation and the Lawyers Movement Lawyers Movement: A Political Movement for a Non-Political Judiciary? After the Lawyers Movement: Reclaiming Parliamentary Sovereignty From Parliamentary Democracy to Constitutional Democracy Loud Rights in a Shallow Democracy : A Structural Analysis Bonded Labour Gender and Public Interest Litigation Public Interest Litigation and the Environment Conclusion References

13 xiv Contents 6 Some Theoretical Implications A Departure from a Liberal Analysis About Pakistan Theoretical Implications for Law and Development, Looking at the Work of Douglas North, Brian Tamanaha, David Trubek Douglas North Brian Tamanaha David Trubek Post-Development, TWAIL and Critical Legal Studies Social Change Beyond Law: Final Reflections References

14 About the Author Muhammad Azeem is Assistant Professor at Shaikh Ahmad Hassan School of Law, Lahore University of Management Sciences (LUMS), Lahore, Pakistan, where he teaches Labour Law, Critical Legal Theory, as well as International Law from the South: A Critical Perspective to Decolonize. He has published multiple books on political economy in Urdu and was a political activist in subaltern sectors, particularly bonded labour, before becoming more theoretically engaged and writing about judicial activism in his Master of Laws (LLM) and Ph.D. at the Osgoode Hall Law School, York University, Toronto. xv

15 Abbreviations AJP ANP APSEUA BD BLLF CDF CJ CJBHC CJLHC CJSHC CMLA COAS HDI ICS IFIs IMF JJs LFO LHC MLD MNAs MPAs MRD NAB NAP NGOs NRO NSC NWFP PCO Access to Justice Program Awami National Party All-Pakistan Small Enterprises Unions Association Basic Democracy Bonded Labour Liberation Front Comprehensive Development Framework Chief Justice Chief Justice Baluchistan High Court Chief Justice Lahore High Court Chief Justice Sindh High Court Chief Martial Law Administrator Chief of the Army Staff Human Development Index Indian Civil Service International Financial Institutions International Monitory Fund Justices Legal Framework Order Lahore High Court Monthly Law Digest Member of the National Assembly Member of the Provincial Assembly Movement for the Restoration of Democracy National Accountability Bureau National Awami Party Non-Governmental Organizations National Reconciliation Ordinance National Security Council North-West Frontier Province Provisional Constitutional Order xvii

16 xviii Abbreviations PCS PHC PIA PIL PLC PLD PLJ PM PML PML-N PML-Q PNA PTV PWA RCO SAP SCMR SHC WAPDA WB Pakistan Civil Service Peshawar High Court Pakistan International Airlines Public Interest Litigation Pakistan Labour Cases Pakistan Legal Decisions Pakistan Law Journal Prime Minister Pakistan Muslim League Pakistan Muslim League Nawaz Pakistan Muslim League-Quide-i-Azam Pakistan National Alliance Pakistan Television Progressive Writers Association Restoration of the Constitution Order Structural Adjustment Policy Supreme Court Monthly Review Sindh High Court Water and Power Development Authority World Bank