Twin births, divergent democracies: The social and institutional origins of regime outcomes in India and Pakistan, 1920-1958 by Tudor, Maya Jessica PhD Thesis Princeton University, 2010

Abstract

The central puzzle motivating this study is, why did the regime trajectories of India and Pakistan quickly diverge within a decade of their twin independences in 1947? Empirically, both India and Pakistan seemed equally unlikely to create stable and democratic regimes. Upon independence, both countries had emerged from an extended period of British colonial rule with low levels of economic development and broadly similar state institutions. Both states were governed as infant democracies under the same legal instrument until their sovereign constituent assemblies promulgated new constitutions. Both countries were beset by refugee crises, food insecurity, as well as security challenges. And both countries were governed by single dominant parties that were supported by multi-class coalitions and which had some experience governing at provincial levels prior to independence.

Yet, within a decade of their independence, the regime trajectories of India and Pakistan had radically diverged. India promulgated a constitution enshrining elections based on universal adult franchise, held national elections in the context of full civil and political liberties, and installed an elected chief executive. Pakistan's constitution-making process stalled, with its sovereign constituent assembly being twice dismissed by an autocratic chief executive, and with eight national administrations cycling through power with increasing rapidity until the military coup of 1958 formally ended its tentative democratic experiment. These different regime trajectories involved variation in both regime type as well as regime stability.

Drawing on elite interviews, an extensive analysis of colonial government records and party documentation, among other sources, I show how the most common explanations for democratization, such as low levels of economic development or high levels of inequality, cannot convincingly account for these divergent outcomes. Instead, I argue that two inter-related but causally independent variables provide the most compelling account of the divergent outcomes: the class compositions of their independence movements and the strength as well as content of their dominant political party at independence. Class interests had a powerful but historically conditioned impact on the type of post-independence political regime each independence movement was likely to establish. Because a landed aristocracy with disproportionate access to material resources and social status led its independence movement, Pakistan was very unlikely to create a post-independence regime which institutionalized opportunities for the redeployment of resources and status to other social groups, namely a democracy. Because an urban, educated middle class with a distinct material interest in creating more representative political institutions led its independence movement, India was substantially more likely to create a post-independence democracy.

Different social classes were motivated by their class interests to strategically create political parties of varying strength (along the dimensions of ideology, alliances, and organization) which directly impacted the likelihood of post-independence regime stability. First, the creation of a programmatic nationalism in India made its political party substantially more able to broker state-building compromises (providing for regime stability ) while the content of Indian nationalism meant that its regime was likely to be a democracy. Second, while the pursuit of class interests led to an alliance between segments of the middle class in India, the same pursuit in Pakistan led to the creation of an alliance between a landed aristocracy and a peasant movement, an alliance with diametrically opposed redistributive interests. Stable, shared redistributive interests within its alliance meant that India's dominant political party was better able than Pakistan's to broker state-building compromises after independence, thus providing for regime stability . Third, while India's independence movement created a centralized and disciplined party organization, Pakistan's independence movement remained a top-heavy party organization with little institutional independence from its charismatic leader. Upon independence, the presence of a centralized, representative intra-party organization in India meant that its dominant political party was more able to quickly and decisively broker state-building compromises after independence, providing for regime stability.

This dissertation provides an original explanation for a puzzling divergence in regime outcome which remains insufficiently explained by extant scholarly literature on democratization. The argument developed here highlights that while regime outcomes hinge on redistributive conflicts, that social groups choose alliances, espouse ideologies, and build political institutions in response to a status quo distribution of power. Once created, these political institutions can affect, sometimes deeply, group understandings of whether democratization and regime stability is desirable.

Judicial independence: The judge as a third party to the dispute Neudorf, Lorne, McGill University, LLM Thesis 2009

Abstract

In this thesis, the author sets out a conceptual framework for judicial independence. From the starting point of adjudication as the basic function of the judiciary, the author embarks on an historical inquiry to shed light on the judicial determination of disputes. This inquiry reveals an ancient tradition of adjudicative impartiality stretching back to ancient Egypt. This tradition of impartiality is the unifying theme in Hobbes' theory of law. In the state of nature, each person possesses complete liberty. In order to enter into a peaceful society, persons must give up the right to decide their own disputes. Since persons can no longer act as their own judges, a third party must resolve legal conflict. Given this understanding, the author proposes the perception of impartiality as the fundamental rationale of judicial independence. Judicial independence creates the necessary space between judges and potential sources of undue influence to preserve the status of the judge as an impartial third party to the dispute. Finally, the author critiques the doctrine of judicial independence in Canadian law from the perspective of this conceptual framework.

Recently completed PhD Theses on Law in Pakistani Universities

Munir, Muhammad (2010) Precedent in Pakistan Legal System. PhD thesis, University of Karachi, Karachi.

Khan Sherwani, Zafar Ahmed (2009) The Laws of Probation and Parole, Their Applicability and Effects in Pakistan Vis-A.Vis Third World Countries. PhD thesis, University of Karachi, Karachi.

Khan Sherwani , Shafaat Nabi (2009) White Collar Crimes in Pakistan and Anticorruption Laws Vis-A-Vis to SAARC Countries. PhD thesis, University of Karachi, Karachi.

M. Shamim, Rana (2005) THE ROLE OF JUDICIARY IN ENFORCEMENT OF FUNDAMENTAL RIGHTS. PhD thesis, University of Karachi, Karachi.

NOOR MUHAMMAD , MUHAMMAD NAWAZ (2005) THEORY OF EXCUSE ITS EFFECT ON OBLIGATION: COMPARATIVE STUDY OF ISLAMIC, EGYPTIAN AND PAKISTANI LAW. PhD thesis, International Islamic University, Islamabad.

Niazi, Muhammad Mustafa Jan Muhammad (2004) RIGHT OF PERMANENCY: A COMPARATIVE STUDY BETWEEN ISLAMIC JURISPRUDENCE & PAKISTAN AND EGYPTIAN LAWS. PhD thesis, International Islamic University, Islamabad.

Sayah , Muhammad Ben (2002) (Arabic) Personal Civil Rights in Islamic and Positive Law. PhD thesis, International Islamic University, Islamabad.

Naeem, Muhammad (1991) SCOPE AND APPLICATION OF LAW OF TORT IN PAKISTAN. PhD thesis, University of the Punjab, Lahore.

For free download
http://eprints.hec.gov.pk/view/subjects/g11.html 

INTERNATIONAL HUMAN RIGHTS LAW AND ISLAMIC THEORY OF LEGISLATION: INSTITUTIONALIZATION OF IJTEHAD, A WAY FORWARD FOR A MODERN MUSLIM NATION STATE By Abdur Rauf Khatana

Introduction
Having sought the consent of states through treaties, International Human Rights Law (IHRL) is devoted to achieve its universal scope and jurisdiction. Muslim States are well behind from the others in showing their adherence to fully preserve the spirit of IHRL treaties. Critics blame the arguable rigidity of Islamic law and its mixture with patriarchal culture being a suggested reason for the failure of Muslim States in adopting domestic legislation in order to protect and promote the international standard of human rights. Islamic scholarship pursues this debate in variant ways. Modernists stress on the evolution of Islamic law to be taken as a tool of reformation in that regard. Traditionalists accept the progressive nature of Islamic law in principle however remain stuck with the classical positions. The institutionalization of Ijtehad, as I deem it a new mode of ‘Islamic theory of legislation’, seeks an articulation of the eternal principles of Islamic law for law making on one hand while on the other elicits for the restoration of the role of scholars/jurists in process of main stream legislation tacking place in the legislatures of the contemporary Muslim States. The work in hand attempts to bring both legal and historic evidence in order to establish the very progressive nature of Islamic law that is inherently capable of reflecting any development on the ground. After sketching a brief account of background of Islamic Law in first section, the second section evaluates a state of human rights in contemporary Muslim World and invokes the treaty obligations on states seeking domestic legislations to rescue international standards of human rights. Third section portrays the picture of legislative mechanism taking place in different stages of the history of Islam. Sections four and five co-relate the modern principles of legislation with theory of the higher objectives of Shariah. Section six gives an account of the qualifications set for the legislators while section seven consists of my suggestion how Ijtehad can be institutionalised and what variables are available for adopting a contemporary ‘Islamic theory of legislation for a modern Muslim state’.

Conclusion
The 21st century is dedicated to human rights, declared to be universal for every human regardless of his creed, cult, region, race and nation. An achievement of the stated objective of the regime of international human rights would certainly be considered the greatest triumph of this century. The human rights discourse finds almost common precepts of human interests across the nations and regions therefore some elements of its universality can never be simply overruled. However the manner, in which such common interests of humanity have been addressed in international human rights treaties, has invited different reactions from the prevalent theologies, civilizations and politics in different communities of the world. Particularly in the Muslim world, on one hand the states have joined the treaties and rendered their alliance for the preservation of human rights therein while on the other these rights continue to suffer resistance in their smooth application on account of religio-cultural pluralism embedded in the Muslim civilization. Islam, a fourteen hundred year aged religion that occupies one fifth of entire human population, is capable to provide its followers a complete code of life through its ever growing legal system. The doctors of Islamic Law however vary while approaching international human rights, particularly the provisions dealing with gender equality, freedom of religion, minorities’ rights and prohibition of corporal punishments. Diversity in legal thought of Islam is not unique to the current century rather it has been an ongoing process right from the beginning. This is why the Prophet of Islam (PBUH) described such a pluralism not to be harmful for his community but a source of blessing from the Almighty. Islamic literature as a whole and Islamic legal tradition in particular is therefore very much capable of adaptability and development. Unlike other religions, Islam never leaves its subjects unguided whatever situation they are confronted with.
Until medieval times, the Muslim intellect adherent to the cause of Islam openly accepted every challenge of the time and put their best of endeavour in interpreting the eternal principles enshrined in divine texts and maintained the growing momentum of Islamic sciences. However, by the end of medieval age of Islam, due to various ex-factors, some of which have been discussed in this study, Islamic law became stagnant. Ijtehad, the “principle of movement in the structure of Islam” could keep itself alive only in letter but not in finest practice.
The century we are living in, poses the challenge of human rights before the world of Islam. The human rights regime as indicated in this study can be rightly termed as an advanced phenomenon of democracy. Democracy is a system of government that embodies the rule of the “general will” through social contract between the rulers and the subjects. Such a system in the current world is dynamically practiced in a “nation-state”. Islamic principles such as, Ra’y ul jamhoor/majority opinion, Consensus of community/Ijma’ or Shura, the community of Islam/Ummah, are taken by Islamic Modernists as parallel to the idea of democracy and nation-state only subject to ‘divine will’. Despite of many differences between scholars, the majority of Muslim States have generally accommodated these two vital philosophies in their respective polities in order to pursue the political fate of Islam. However, the state of law has not been brought out of slumber yet. The current abuse of public and private rights throughout the Muslim world, therefore, is worst demonstrated in the whole history of Islamic legal regime. Though, by the virtue of the divine mandate, the Islamic State had to be most efficient and dynamic in protecting human honour.
The “Islamic theory of legislation” needs to articulate the principles of Islamic jurisprudence to govern the legislative process functioning in modern Muslim nation-states. In my opinion, by restoration of the traditional role of the scholars/jurists in mainstream legislation provides the only efficient and workable way-out in order to achieve the necessary reformation in all social, political, religious and legal institutions of contemporary Muslim world. This will help modern Islamic thought to absorb and “Islamicize” the notion of democracy, pluralism and human rights.

This is the introduction and conclusion of the article published in the JOURNAL OF LAW AND SOCIAL POLICY, Vol 1, Issue 1, January 2012, 13-56

Imprudent, Inappropriate and Uncalled for!

Some may rejoice it as another landmark decision by the Supreme Court of Pakistan. This is indeed audacious. However, for any student of political science and law, this is not an appropriate step, which a prudent judge might have taken in these circumstances. This is not merely because of the timing of the decision, it is also because of its content. Corruption is indeed a big issue in this country and it should be rooted out. But the deeper roots of corruption go back to the very foundations of the system, to which, unfortunately, the superior judiciary is an integral part.

If a government passes a bad law, we have a mechanism of judicial review to get the law right. Likewise, if a military rule is imposed we can have a recourse to superior courts. If a government is doing badly, we can oust it in the next elections. But where should we go if the Supreme Court errs?

The worst dilemma in this country is that everyone is claiming to have the mandate of the people, except the politicians who are in fact elected by the public. This might be a reflection of how unrepresentative the political system is. It is also true that the judges were restored as a result of popular movement, which was resisted by the current government. However, this does not give the judges an authority to super impose themselves on all state institutions. 

The power vacuum created by inept politicians does not provide a justification to other state institutions to cross their limits. An encroachment on the powers of legislature and executive is condemnable, whether it is by the army or the judiciary. We cannot accept it as a necessary evil.

On Imposition of Governor Rule in Baluchistan

Whereas the satisfaction of the demand of mourning and protesting Hazaras is a good news, it is yet another sad day in the constitutional history of Pakistan. It is a depiction of the fact that our politicians are inept to run a government. Despite the fact that law and order situation in Baluchistan was in an extremely bad conditions, the CM Aslam Raisani was not even present in Quetta. This speaks volumes about who run the government in the province.

Whether the dismissal of the political government in the province will bring a positive change in the province, especially regarding protection of the prosecuted Hazara community? Let's hope for the best. However, this appears to be a cosmetic change. One need not make a hard search in order to establish that who has the writ in that province. It is a sad fact that democratically elected governments in Pakistan lack the moral authority. The dismissal of an inept toothless political government in Baluchistan has removed the difference in de facto and de jure authority. This will send a strong signal to those who are bent upon challenging the writ of the state in Baluchistan.

However, let this emergency measure of governor rule be temporary. A road map should be prepared in order to have a transformation to a representative political set up. In the end, these are the people who can best protect their interests. We have had many benevolent rulers. No more please.

It is lamentable that the PM Raja Pervez Ashraf took this decision after the advice of MQM chief Altaf Hussain, ANP chief Asfandyar Wali and PML-Q leader Chaudhary Shujaat Hussain. Let our politicians remember that in our history an imposition of governor raj in one province has almost always led to an imposition of military rule in the whole country, sooner or later. It is the politicians, not military, who can solve our political problems and ensure a smooth working of democratic system in Pakistan.

Transformation of Sharia into State Law in British India and its Current Relevance in Pakistan

Under the English legal system in British India Sharia was transformed into the state law to suit the requirements of the colonial state. The state wanted certainty of law. Therefore, classical legal texts such as the Hidaya and the Fatawa al-Alamgiriyya were translated and transformed into the ‘codes of law’. This adversely affected the traditional role of ulama as the custodians of Fiqh and intermediaries between the state and community.

Further, adjudication of legal disputes also played an important role in the transformation of Sharia because of the binding legal nature of the decisions of higher courts. Legal commentaries systematically organised these decisions in the form of textbooks. These textbooks were used by lawyers and judges. Some of the important legal commentators included Macnaghten, Ameer Ali, Wilson, Tyabji, Mulla, Abdur Rahim, Vesey-Fitzgerald and Fyzee. These textbooks were also taught at law schools. The graduates of local and foreign law schools replaced ulama as the cultural intermediaries between the colonial state and native community. This changed the pre-colonial arrangement between rulers, as the representatives of political power, and ulama, as the representatives of moral authority. This also diminished tri-laterial categorisation of Sharia (Fiqh), Qanun (rulers ordinances) and Urf (custom), which prevailed in the pre-colonial judicial system. The result of the interaction between Islamic and English legal systems was Anglo-Muhammadan Law, later called Muhammadan law or Muslim Personal law. This system did not require the participation of ulama in its operation.

The current legal and judicial system of Pakistan inherited this heritage from the colonial state. However, ulama tried hard to get their share in this system. In the 1980s they achieved considerable support from the state. The establishment of the Federal Shariat Court and the Shariat Bench in the Supreme Court gave them the position of judges, albeit their judicial powers remain limited. Ulama could have contributed in lessening the judicial problems by providing an alternate dispute settlement mechanism at least in family law cases. However, no substantial step in this respect has yet been taken. 

During the last couple of decades, a surge in Islamic banking and finance has given traditionally trained ulama an unprecedented leverage to influence the commercial activities and simultaneously improve their economic conditions. However, the chances of ulama getting back their moral authority over the society depend on their probity and piety as observed by the masses. 

In the socio-political context of Pakistan, it is hard, though not impossible, for an honest religious scholar to win political sympathies of the public. In this scenario, whether ulama would do better by staying away from dirty politics and by performing their historical and traditional function of guiding the society by setting personal example of piety and honesty? Ideally this should have been better for them and the society. Yet Pakistani political history has shown, time and again, that religion motivates the masses more than anything else. Therefore, as the custodians of faith, ulama can hardly keep themselves off politics. They will continue to play an important role in the political and legal system of Pakistan.