Moeen Cheema’s book ‘Courting Constitutionalism’ is a vital contribution to the study of public law and constitutional politics in Pakistan. Pakistan’s superior judiciary has played a crucial role in shaping the trajectory of national politics and state-society relations in Pakistan, and, in recent years, the actions of the Supreme Court have repeatedly made headlines and dominated the national conversation. But why is Pakistan’s Supreme Court such an impactful and consequential institution? This is a question that Cheema’s book seeks to answer through a rich and meticulously researched study of the history of public law in Pakistan. He argues that it is through the judicial review of administrative action and the steady expansion of its writ jurisdiction, that the Court has carved out such a role in Pakistan’s political development. And, he says, if we want to understand today’s Court, we must understand the history of judicial review of administrative law through periods of democracy and dictatorship.
In charting the seventy-five year history of the Supreme Court, Cheema responds to and challenges the dominant discourse that claims that Pakistan’s judiciary suddenly departed from a tradition of apolitical adjudication, passivity and subjugation to enter the realm of active politics as an assertive and impactful institution in 2007. Instead, he endeavours to show that, since Pakistan’s early years, and even during early periods of martial law, the judiciary continued to exercise judicial review of executive action through its writ jurisdiction. As long as the judiciary was willing to provide legal validation and legitimacy to successive authoritarian formations in Pakistan’s history, Pakistan’s rulers were willing to allow it to develop its administrative law jurisdiction.
The book takes a chronological approach to tracing the development of judicial review of the executive in Pakistan. In the introduction, Cheema introduces his conception of ‘postcolonial legality’, which he says is the dominant ideological framework within which Pakistan’s courts have operated, and he argues that the Supreme Court has demonstrated a continuing fidelity to ideas regarding the separation of powers and independence and integrity of bureaucracies that developed in, and were inherited from, the colonial era. In chapter 2, he fleshes out the legal frameworks and values inherited from the colonial era which shaped the exercise of judicial review in Pakistan’s early postcolonial years. Cheema highlights the close connections between the colonial and post-colonial models of bureaucratic authoritarianism and the state’s reliance on legal processes and instruments for structuring and consolidating the bureaucratic authoritarian state. The legalistic form of this authoritarianism ensured the courts had an important role in state-building in the new state.
In chapter 3, Cheema discusses the surprisingly lively jurisprudence during Pakistan’s first decade of military rule under Ayub Khan, demonstrating how the Court managed to preserve and then expand the judicial review of bureaucratic action and establish the foundations of Pakistan’s writ jurisdiction. The chapter first focusses on how the Court reviewed actions of state bureaucracies, a service that actually benefited the regime as a means for monitoring the different echelons of the administrative state. With the restoration of a constitution, Cheema then outlines the expansion of the Court’s writ jurisdiction to also check the executive’s increasingly coercive approach towards the political opposition. The chapter’s study of the Court’s jurisprudence on procedural due process under the Ayub regime provides an interesting case study of judicial vitality and innovation during a period of repressive authoritarian rule. At times the author seems a bit charitable regarding the judges’ intentions, as the dominant narrative of the chapter seems to be that judges restrained the authoritarian impulses of the military regime wherever they could, and only failed to do so when the regime’s actions and authority made this impossible. But there may have been issues on which judges aligned with the regime and approved of a strong and repressive executive, and perhaps it would also have been interesting to consider the impactful judgments where the court chose to validate and legitimise executive authority and discretion.
Chapter 4 discusses public law jurisprudence after the establishment of Pakistan’s first constitution by an elected assembly in 1973. Cheema discusses the fractious relationship between a judiciary with expanded powers, and the progressively authoritarian Bhutto government, termed by the author as an elective dictatorship.
Chapters 5 and 6 develop the most interesting thesis of the book. The chapters discuss the rise of Islamic legality in the context of General Zia’s military rule and Islamisation drive. The study of, and scholarship on, Shariat courts has largely been siloed from the broader study of Pakistan’s judicial politics, but Cheema outlines a key bridge between the jurisprudence of the Shariat courts during and immediately after Zia’s regime and the jurisprudence of the Supreme Court in the subsequent decade. Under Zia, Shariat courts were given unprecedented powers of judicial review of legislation for conformity with Islamic requirements. In the absence of any writ jurisdiction, the Shariat courts used Islamic law as the touchstone for reviewing executive action. In the years following Zia’s regime, Cheema explains how Shariat courts bolstered judicial review of executive action and enhanced due process requirements, and once the superior judiciary saw its powers restored in the 1990s, the Supreme Court built on the precedents set by the Shariat courts. The Court started adopting Islamic law arguments in their jurisprudence and expanded the writ and public interest jurisdiction of the courts. Thus, Cheema shows how Islamic legality provided the tools for the public law explosion that took place in the 1990s while also explaining how the growing involvement of the judiciary in matters of pure politics undermined the legitimacy of the judiciary. For me, the connections he sheds light on between the jurisprudence of the Zia-era Shariat courts and the Supreme Court’s public law jurisprudence in the 1990s is the most compelling section of this book.
In each chapter, Cheema identifies the political and institutional dynamics of the respective regime structures within which the judiciary operates and uses these dynamics to explain the directions in which the judiciary expands its public law jurisdiction. In Chapter 7, he explains how differences between the Musharraf regime and earlier Zia and Khan regimes provided the Court more space to challenge its actions and interests, encouraging a more aggressive form of judicial review. He then charts the events surrounding the famous clash between General Musharraf and Chief Justice Chaudhry, which led to the mobilisation of the Lawyers’ Movement and catalysed the downfall of the regime. In Chapter 8, he discusses how the Court built upon the gains it made during the final years of the Musharraf regime, namely an expanded jurisdiction as well as widespread public legitimacy and support, to take on a role as the regulator of the state, shaping national politics and governance. Cheema argues that the real turf of institutional struggle during this period was in the domain of administrative law, as the Court was now making proactive use of its original jurisdiction to exercise judicial review powers to an unprecedented extent. He thus argues that the Court intervened in the governance of the state to an extent Pakistan had not seen before, but that its focus continued to be on administrative law; fixing the administrative structure of the state and holding the government accountable for politicising the administration.
The common thread running through this extensive history is the judiciary’s continuing focus on the administrative law and the administrative structure of the state. Cheema does an impressive job weaving together the vast and confusing field of administrative law jurisprudence in Pakistan into a coherent, historical narrative, rich with discussion of case law. Students of Pakistani law will find this book to be a rigorous and informative resource that will almost certainly contribute to a more thoughtful debate regarding public law and the role of the Supreme Court in Pakistan.
Beyond Pakistan, the book makes a valuable contribution to a growing field of literature on courts in authoritarian regimes by enhancing our understanding of judicial innovation and ambitions in authoritarian and hybrid regime contexts. The book ably demonstrates that authoritarian regimes often tolerate courts expanding their jurisdiction over the administration of the state, as courts help ensure that the different echelons of the state structure are monitored and held accountable, thus actually contributing to regime stability and legitimacy.
The book begins and ends with a discussion of Cheema’s concept of postcolonial legality, a set of ideas that he says have guided the Court’s public law jurisprudence since independence and that better explain the direction the court has taken than any regime-related or judicial strategy-related explanations. Cheema argues that even as regimes, constitutions and global politics have shifted, the Court demonstrated a fidelity to the rationales of post-colonial legality, namely a limited procedural version of rule of law, and an interest in keeping bureaucracies inherited by the post-colonial state independent and functioning. This ideational framework of ‘post-colonial legality’ could make a valuable contribution to both the fields of comparative constitutional law, and post-colonial studies. I was hoping therefore the book would provide a thicker description of what ‘post-colonial legality’ meant and more evidence that it was indeed this ideological framework guiding the courts. The book provides clear evidence of this up till the 1970s, but the connection between the earlier history of enforcing a procedural rule of law and the later history of Islamic legality and public interest litigation from the 1980s onwards becomes more tenuous. Perhaps therefore, future scholarship by Cheema, or even by other public law scholars could build on the foundation of this book to further develop this idea of post-colonial legality and consider some of the questions raised by this book, such as: what are the jurisprudential connections between postcolonial legality and Islamic legality? If there is a conception of post-colonial legality underpinning public law jurisprudence in Pakistan, what are its features, and how has it manifested itself in more recent jurisprudence? And how do ideological frameworks get entrenched in the judiciary?
All in all, this book is both informative and timely. As the world witnesses the rise of new autocratic regimes, it gives us useful insights into the roles constitutional courts can play in shaping and constraining authoritarian formations. It also helps establish Pakistan as a crucial site for a more sophisticated examination of the role of law and courts in the post-colonial polity.
© Bloomsbury Pakistan 2022