Thursday, September 03, 2009

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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