VOL.6 NO. 7 (July, 1996) PP. 109-112

JUDGING THE STATE: COURTS AND CONSTITUTIONAL POLITICS IN PAKISTAN by Paula R. Newberg. Cambridge: Cambridge University Press, 1995. xi + 284 pp. Reviewed by C. Neal Tate, Department of Political Science, University of North Texas.
 

We have so few treatments (in English) of the governmental and political roles of courts and judges outside the context of North America and Western Europe that any competent addition to the literature is welcome. To have a contribution that focuses explicitly on the interplay of courts and other institutions in constitutional politics in an Asian country that has been dominated by authoritarian regimes is much rarer and, consequently, a special intellectual treat. Paula Newberg's JUDGING THE STATE thus deserves the attention of anyone who wants to understand, even to build scientific theory about, the functions, capabilities, and operational behaviors of judiciaries at the most general level. These are questions about which Newberg has thought deeply and concluded forthrightly, while anchored firmly in an analysis of the historical and legal details of Pakistan's history.

Paula R. Newberg is a Senior Associate at the Carnegie Endowment for International Peace in Washington, DC. Her book is based on more than a decade of research and residence in Pakistan as a human rights and policy analyst. JUDGING THE STATE is volume 59 in the Cambridge South Asian Studies series. Newberg previously authored ZIA'S LAW: HUMAN RIGHTS UNDER MILITARY RULE IN PAKISTAN (New York: Lawyer's Committee on Human Rights, 1985), and other works on Pakistan.

JUDGING THE STATE focuses on the difficult, delicate, ironic position of (potentially) independent courts and judges in political systems in which formal and, to some extent, informal constitutional rules are constantly being renegotiated in an environment where there is little or no agreement on what those rules shall be. Pakistan is also an environment where corruption is rampant; where rulers with short memories nearly always proceed on the (sometimes justified) assumption that the political opposition is subversive and, therefore, fair game for oppression, apparently forgetting what happened to them when they were the opposition; where soldiers regularly, and with stunning self-righteousness, step in to cleanse government of the stains of civilian politics and end up fouling the constitutional environment even more than their predecessors.

Pakistan's courts and judges are cast as protectors of the constitution in a separation of powers system. But in circumstances such as those just described they have usually found it expedient or necessary to accommodate wrenching alterations of the constitution or grossly un- or anti-constitutional actions by the rulers of the day. They have done so because they thought such deeds or misdeeds essential to the survival of the state or, more likely and more often, to their own survival as at least partly independent governmental actors or, at the extreme, as living, unimprisoned human beings. Successive accommodations to the rulers progressively weakened Pakistani constitutionalism and provided the tools and rationalizations for ever more repressive and arbitrary rule, even by elected governments. But the accommodations also kept the courts open when legislatures were closed or ignored, parties banned or opposition parties suppressed, news media muzzled, and expressions of citizen interests and opinions repressed, strictly regulated, or limited to violent outbursts. The open courts did provide a forum in which the actions of the rulers could be challenged and occasionally legally denounced, even if not often altered. The accommodating courts legitimized regimes that had few other claims to legitimacy.

JUDGING THE STATE is organized chronologically. An important Introduction lays out the book's principal themes. Some of the these are:

In [Pakistan's] executive-dominated state, the superior courts in particular have played unusually important parts in determining the country's political fate. (2)
 
 

Courts everywhere live in a delicate balance between upholding and challenging the distribution of power, but courts in authoritarian states carry extra burdens. If constitutions and executives allow them to function, they must in some way heed them. (4)
 
 

[In Pakistan] limits on judicial independence have always influenced the force of judicial judgments, and they in turn have determined the strategic calculations that underscore judicial doctrine. In this sense, by occasionally accepting -- both politically and jurisprudentially -- the fact that they function on the basis of privilege as much as right, courts have both reflected and determined the ways that power works. (5)
 
 

The superior courts have often been handmaidens of political change, and always guardians of legal transition. It is small wonder that by 1993 "... almost every major political issue in the country found its way to the courts." (5)
 
 

At times, judges and courts have by their undue prudence contributed to the uncertainty of Pakistan's experiments with democracy. At other times, their continued functioning has provided a tentative model of an open institution when others are absent or inadequate. As such, the judiciary's attempts to grapple with conflicts intrinsic to the process of building a state provides lessons, both inside and outside Pakistan, about the ways that courts speak to the state on behalf of society, and the ways that law tries to offer a meaningful context for politics. (6)
 
 

Chapter 1 introduces the central constitutional problem of "structuring the state." It depicts this problem as reflecting tensions between the executive- and center-dominated "vice-regal" model of governance of colonial India and the liberal and representative tradition of the opposition to that colonial government. "Conflicts between vice-regal and liberal views have been expressed consistently, if not entirely accurately, as contests between executive and parliamentary power, and between central authority and local self-rule". (10)

While all political institutions have been drawn into these conflicts,

Only the superior courts have been able to mediate such discord, and then only incompletely. Building on the [not necessarily accurate] perception that colonial courts were impartial and independent arbiters ... Pakistan's judiciary has consistently been treated as an institution apart from the tainted tussles of politics. The courts have tried to bridge the breach created by institutional incompatibilities and have provided a forum for society to articulate its demands. They have therefore acquired a place of primacy in society and politics quite apart from their modest constitutional profile and government efforts to restrict their purview. (11)
 
 

This has made the courts a "crucial vehicle" of legitimacy for the Pakistani state and put them in a role in which they have "literally judged the state" on the most critical constitutional issues, deciding

conflicts between heads of state and government resulting in the dissolution of legislatures (1954, 1988, 1990, 1993), the validation of a coup d'etat (1958, 1977), efforts to restructure transitions between civil and military governance (1972, 1986-88), and continuing attempts to define substantively and procedurally the meaning of politics, of constitutional governance, and occasionally, of democracy. (11-12)
 
 

Chapters two through seven then lead the reader progressively though the period of struggle over constituting the state (1947-1958), the legalized military rule and "basic democracies" of Ayub Khan (1958-69), the brief period of renewed military rule and civil war under General Yayha Khan (1969-72) that led to the secession of East Pakistan (and the creation of Bangladesh), the turbulent five year regime of the democratically-elected but arguably dictatorial Prime Minister Zulfikar Ali Bhutto (1972-77), the brutal martial law dictatorship of General Zia ul Haq (1977-88), and, following Zia's death, the renewal of a still turbulent civil state since the late 1980s (1988-93).

Each chapter reviews the political and constitutional history of its period, including the principal constitutional cases and controversies through which the judiciary "judged the state" in its period. For example, Chapter two assesses TAMIZUDDIN KHAN'S CASE and the FEDERATION APPEAL of that case that developed the doctrine of "necessity" as a justification for the dissolution of assemblies by executives, a doctrine that has served to justify the actions of numerous subsequent authoritarian rulers. Chapter three discusses DOSSO'S CASE which justified a military coup on grounds of "revolutionary legality." Chapter five describes and appraises the litigation surrounding Zulfikar Ali Bhutto's efforts to eradicate his political opposition. Chapter seven recounts the judiciary's efforts to restore its independence in the wake of the Zia ul Haq dictatorship while it and other government institutions struggle with the inappropriate constitutional legacy of the Zia regime.

Newberg's book concludes with a summary chapter on the historic and prospective performance of Pakistan's courts in "judging the state." As her final word on the contemporary role of those courts, Newberg notes no decline in their potential importance:

Prudence in the service of self-preservation may now require a new voice of assertion rather than self-restraint, providing conceptual content to the strategic choices that make the state governable, and helping to orchestrate understanding and consensus when other state institutions cannot. Construed optimistically, this contribution may help to define the principles and practice of democracy in Pakistan. (250)
 
 

Despite its use of chronology as its organizing principle, JUDGING THE STATE will not be an easy read for many who should find it useful and rewarding, especially for those who know little about Pakistan's political history. Though often elegant, Newberg's prose is also dense; it requires careful, serious concentration. In addition, Newberg too often gives insufficient detail to help the reader understand the context, personalities, and issues of Pakistan's history, constitution-making, politics, and law. The appearance of the book in a South Asian Studies series is not coincidental; Newberg's intended audience must be one with significant knowledge of South Asia in general and Pakistan in particular.

The argument of JUDGING THE STATE is based mostly on Newberg's readings of the case law of Pakistan's Superior Courts, the various High Courts and the Supreme Court, legal and journalistic commentaries on constitution making and constitutional politics, interviews with judges and other legal notables, government documents and white papers, and a very broad range of secondary sources. The book is pleasingly composed, with footnotes at the bottoms of its pages, a Table of Reported Cases, an extensive bibliography, and a substantial index.


Copyright 1996