Avoiding the Judicialization of Politics in Pakistan's Supreme Court

Download or read book Avoiding the Judicialization of Politics in Pakistan's Supreme Court written by Waris Husain and published by . This book was released on 2017 with total page 322 pages. Available in PDF, EPUB and Kindle. Book excerpt: Since 2004, the Supreme Court of Pakistan has emerged as a dominant force in the tri-partite constitutional system in Pakistan. In some instances, the Court has engaged in hyper-active use of judicial review over the laws passed by Parliament or the policies of the Prime Minister. This trend was perhaps most obvious in two cases decided by the Supreme Court under the leadership of Chief Justice Iftikhar Chaudhry: a) the unilateral disqualification of Prime Minister Yousef Raza Gilani in 2012, b) the Court's invalidation of a constitutional amendment as a means to ensure the Chief Justice of Pakistan's near-complete control over judicial appointments without substantive involvement from elected officials. These two cases demonstrate one of the many dangers posed by a Supreme Court that lacks a self-restraining justiciability standard and procedure: namely, without a standard or procedure, the Court will always be open to politicization under the leadership of an overly-active Chief Justice. This study uses the counter-examples of India and the United States in order to present a justiciability standard and procedure for the Supreme Court of Pakistan to adopt. Rather than attempting to apply American or Indian jurisprudence wholesale to Pakistan, the study begins by tracing the divergent development of judicial review in each country based on the impact of colonial judicial systems. The study then moves onto comparing the roles of the courts in each country as envisioned by their respective Constitutional Founders. Next, the structural differences in the constitutions of each country will be compared, which leads to an examination of justiciability doctrines developed by the Supreme Courts of the United States, India, and Pakistan. Lastly, the study will propose a justiciability standard and the creation of a Justiciability Council as a companion organization to the Supreme Court of Pakistan. In order to test the effectiveness of the proposed Council and test, two narrow legal questions will be examined: whether the Court should exercise judicial review over a) disqualifications of the Executive and b) appointment of judges. The aim of this study is to take into account Pakistan's unique political and legal development and suggest a method to regulate and solidify the recently-established power of the Supreme Court.