Over the last decade, Pakistan’s superior judiciary has emerged as a powerful and overtly political institution. In his new book, Associate Professor Moeen Cheema examines the power and politicisation of the judiciary and presents a deeply contextualised historical account of judicial review in postcolonial Pakistan.
The ‘judicialisation of politics’ in Pakistan has been an ongoing focus for Dr Cheema, who built on his doctoral research in a new book, Courting Constitutionalism: The Politics of Public Law and Judicial Review in Pakistan (Cambridge University Press, 2021). It aims to answer two key questions: under what circumstances – particularly focusing on Pakistan, but with an eye to comparative constitutional law – do courts become more powerful? And when they have that power, how do they exercise it?
“Those are the questions I’ve really focused on for the book. I’ve tried to be as least evaluative and normative as possible about whether what happened was a good thing or a bad thing, and rather try to understand why it happened,” Dr Cheema explains.
The book has been described as “a landmark contribution to the study of public law” by Professor Richard Albert of the University of Texas. “(It is) at once a rich contextual inquiry into the construction of judicial power in Pakistan, a superb exemplar of the best traditions of historical institutionalism, and an outstanding model for the next generation of constitutional studies,” he says.
When Dr Cheema was undertaking his PhD at The Australian National University (ANU) College of Law, his research into the judicial review in Pakistan took an unlikely turn amid the country’s political and judicial upheaval.
“We had this former chief justice (Iftikhar Muhammad Chaudhry) who was deposed twice by the military-civilian hybrid regime led by Musharraf, and twice reinstated after a fairly popular mobilisation often referred to as the ‘Lawyers’ Movement’. When the chief justice was restored, the courts started behaving almost like an elected institution. They referred to having a ‘public mandate’ to do certain things. All of a sudden it became, in many people’s imagination but also to a great extent in reality, a very activist court,” he says.
“While the strong form of judicial review adopted by the Supreme Court since the Lawyers’ Movement has fostered the perception of a sudden and ahistorical judicialisation of politics, the judiciary’s prominent role in adjudicating issues of governance and statecraft was long in the making.”
As Emeritus Professor Peter Cane FBA FASSA FAAL of the University of Cambridge observes: “In this beautifully written and meticulously researched book, Moeen Cheema complicates and enriches common narratives of judicialisation of politics by showing how, since independence, the Supreme Court of Pakistan has creatively built on foundations laid in the colonial period using materials and resources provided by concepts and tools of administrative legality. This is a gripping and important story.”
The judicialisation of politics has played out increasingly across the globe and even in Asia in recent years. “Pakistan is hardly the exception. We’ve seen many examples of constitutional courts disqualifying heads of state on corruption or other charges, or intervening in disputes about whether elections were valid or fair. It’s very interesting to see and investigate why it happens.”
Other constitutional law scholars highlighted the book’s comparative relevance, lauding it as a “must-read” for anyone interested in constitutionalism in South Asia.
“In this important new book, Moeen Cheema explains the history of constitutional review by the Pakistani Supreme Court and their broader social and political context, giving us insight into how constitutional law has shaped politics, and politics constitutional law, in modern Pakistan,” says Professor Rosalind Dixon of the University of New South Wales.
“Moeen Cheema’s account of the Pakistani judiciary’s evolution is thoughtful, rigorous, and informative,” notes Professor Tarunabh Khaitan, head of research at the University of Oxford’s Bonavero Institute of Human Rights.
“Its contribution to scholarship is not restricted to Pakistani or subcontinental constitutionalism alone. This study of the dramatic growth of judicial power in a context that has oscillated between military, quasi-military, and hybrid-civil regimes is a serious provocation to a field that continues to debate the legitimacy of judicial review. The book’s historical institutionalist method offers rich insights for appreciating how courts, as strategic constitutional institutions, manage not only to survive but also to thrive in seemingly inhospitable ground.”
Justice and rule of law reform in Northwest Pakistan is the focus of Dr Cheema’s current research, which received funding in 2020 under the Federal Government’s Discovery Early Career Researcher Awards (DECRA) awards scheme. His research aims to provide a valuable assessment of the process of establishing criminal justice institutions in what he described as “a highly understudied part of the world despite its strategic … and geopolitical significance”.
Dr Cheema will discuss his book as part of the ANU College of Law Research Seminar Series at the Phillipa Weeks Staff Library from 5.30-7.30pm on Wednesday 11 May 2022. Register here.