Courting Constitutionalism: The Politics of Judicial Review in Pakistan

Abstract

This thesis presents a deeply contextualized account of law in postcolonial Pakistan and situates the judicial review jurisprudence of the superior courts, in particular their recent activism and populism, in the contexts of historical developments in constitutional politics, evolution of state structures and broader social transformations. It shows how in each epoch of the postcolonial state's history the superior courts positioned themselves within the state and vis a vis the demands that different segments of the society placed upon the state and its institutions. It brings forth evidence that the courts did not define their role in accordance with certain abstract theories of constitutionalism, rule of law and separation of powers that had been deeply imbricated in the postcolonial state's self-justifications. Rather, these courts re-fashioned their role in accordance with fundamental shifts in constitutional politics, state structure and state-society dialectics. In the process, these courts re-cast the theoretical conceptualizations of constitutionalism, rule of law, and separation of powers to better reflect their evolving role and jurisprudence.

A deeper understanding of these phenomena - the evolution of judicial role in response to shifts in socio-political context, and the re-crafting of theoretical frameworks to justify it - will enable us to meaningfully scrutinize the courts' recent jurisprudence and evaluate the judiciary's future role in Pakistan's governance scheme. As such, it will be argued that the courts' role is deeply political in terms of defining the nature and relevant powers of state institutions and the imperatives for their actions. Perhaps the Pakistani situation is unique in this respect, but it might be worthwhile speculating if theory is often an articulation of such deeply contextualized public law jurisprudence elsewhere as well.