"Gray Zone" Constitutionalism and the Dilemma of Judicial Independence in Pakistan

Author:Anil Kalhan
Position:Associate Professor of Law, Drexel University. A.B., Brown University; M.P.P.M., Yale School of Management; J.D., Yale Law School
SUMMARY

Many countries exist in a "gray zone" between authoritarianism and democracy. For countries in this conceptual space-which is particularly relevant today given the halting path of change in the Arab world-scholars, judges, and rule of law activists conventionally urge an abstract notion of "judicial independence" as a prerequisite for successful democratic transition. Only recently, for example, Pakistan’s judiciary was widely lauded for its "independence" in challenging the military regime. However, judicial independence is neither ... (see full summary)

 
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Vanderbilt Journal
of Transnational Law
VOLUME 46 JANUARY 2013 NUMBER 1
“Gray Zone” Constitutionalism
and the Dilemma of
Judicial Independence in
Pakistan
Anil Kalhan*
Many countries exist in a “gray zone” between
authoritarianism and democracy. For countries in this
conceptual space—which is particularly relevant today given the
halting path of change in the Arab world—scholars, judges, and
rule of law activists conventionally urge an abstract notion of
“judicial independence” as a prerequisite for successful
* Associate Professor of Law, Drexel University. A.B., Brown University; M.P.P.M.,
Yale School of Management; J.D., Yale Law School. I am very thankful to Tabatha Abu
El-Haj, Manan Ahmed, Ali Ahsan, Jasmeet Ahuja, Elizabeth Angell, Aslı Bâli, Elena
Baylis, Shikha Bhatnagar, Nandini Chaturvedula, Chapin Cimino, Meg deGuzman,
Mike Dorf, Martin Flaherty, Jean Galbraith, Alex Geisinger, Tom Ginsburg, Maryam
Khan, Jay Krishnan, Kalsoom Lakhani, Holning Lau, Tayyab Mahmud, Milan
Markovic, Mary Mitchell, Fernanda Nicola, Phil Oldenburg, Dana Remus, Pam
Saunders, Payal Shah, Shylashri Shankar, Faisal Siddiqi, Osama Siddique, Arun
Thiruvengadam, Anita Weiss, Akbar Zaidi, and David Zaring for valuable feedback on
earlier drafts and insightful exchanges on the issues in this Article; to Nicole Aiken,
Sunita Balija, John Cannan, Raj Datta, and Faye Hellman for excellent research
assistance; and to the staff of the Vanderbilt Journal of Transnational Law for their
careful and thorough editorial work. I am also thankful to presentation attendees at
symposiums held at the University of California at Davis School of Law, the University
of North Carolina School of Law, and the National University of Singapore Faculty of
Law; at faculty workshops at the Drexel University Earle Mack School of Law and the
Rutgers School of Law-Camden; and at the University of Wisconsin Annual Conference
on South Asia and the Association for Asian Studies Annual Meeting for their feedback
at various stages of this project.
2 vanderbilt journal of transnational law [vol. 46:1
democratic transition. Only recently, for example, Pakistan’s
judiciary was widely lauded for its “independence” in
challenging the military regime. However, judicial
independence is neither an all-or-nothing concept nor an end in
itself. With the return of civilian rule in Pakistan, a series of
clashes between Parliament and the Supreme Court has raised
concern that the same judiciary celebrated for challenging the
military regime—while invoking exactly the same abstract
notion of judicial independence—might now be asserting
autonomy from weak civilian institutions in a manner that
undermines Pakistan’s fragile efforts to consolidate democracy
and constitutionalism.
In this Article, I challenge the conventional view by
examining these recent developments in Pakistan, which are
instructive for other countries in this gray zone. Over many
decades, as Pakistan has cycled between military and weak
civilian rule, the military and its affiliated interests have
entrenched their power, and the judiciary has played a central
role in facilitating that process. The result has been an enduring
institutional imbalance that has undermined Pakistan’s weak
representative institutions. This process of entrenchment has
never gone entirely unchallenged, and Pakistan’s current shift to
civilian rule offers genuine potential for the long-term
consolidation of democracy and constitutionalism. But this
persistent institutional imbalance and continued military
dominance remains a significant obstacle to fully realizing that
potential. Accordingly, I urge an understanding of judicial
independence that goes beyond abstract, unqualified notions of
judicial autonomy and instead contemplates an appropriate
balance between autonomy and constraint—one that not only
enables representative institutions to strengthen their
governance capacities and power to rein in the military, but also
enhances mechanisms of judicial accountability to reinforce the
democratic legitimacy of the judiciary’s role. Pakistan’s
experience also has broader significance, suggesting lessons—or
at least notes of caution—about the relationship between
entrenched status quo interests and an “independent judiciary”
in other countries, such as Egypt, that risk languishing in the
gray zone between authoritarianism and democracy but seek a
more complete shift to democracy.
2013] gray zone constitutionalism and the judiciary 3
TABLE OF CONTENTS
I. INTRODUCTION .............................................................. 3
II. TRANSFORMATIVE PRESERVATION AND
INSTITUTIONAL DISEQUILIBRIUM .................................. 13
A. From Viceregal State to Deep State ................... 14
B. Constitution, Extraconstitution, and
Transformative Preservation ............................. 24
1. Extraconstitutional “Necessity” .................. 25
2. Constitutionalized “Necessity” .................... 28
C. The Effect on Judicial Independence and
Constitutionalism ............................................... 33
III. RESISTING THE MILITARY: THE ANTI-MUSHARRAF
MOVEMENT .................................................................... 42
A. The “Lawyers’ Movement” .................................. 43
B. The Charter of Democracy .................................. 46
C. Emergency and Elections ................................... 52
IV. NAVIGATING PARTIAL REGIME SHIFT AND ROLLING
BACK EXTRACONSTITUTIONALISM ................................. 55
A. Constitution vs. Extraconstitution ..................... 56
B. The Judiciary’s Great Leap Forward ................ 61
C. The Eighteenth Amendment ............................... 67
V. BALANCING AND REBALANCING JUDICIAL
AUTONOMY AND CONSTRAINT ....................................... 72
A. Transplanting Basic Structure? ........................ 73
B. Interpreting and Adjudicating “Judicial
Independence” ..................................................... 77
C. The Judiciary and the Deep State ..................... 82
D. Judicial Populism and Judicial
Accountability ..................................................... 88
VI. CONCLUSION .................................................................. 95
I. INTRODUCTION
Discussions of constitutional change often assume a model of
progression along a straight line, moving from authoritarianism
through a standard sequence of steps that, if successful, results in
consolidation of democracy, constitutionalism, and the rule of law.1
1. See Thomas Carothers, The End of the Transition Paradigm, 13 J.
DEMOCRACY 5, 6–7 (2002) (discussing the conventional assumption that
“democratization tends to unfold in a set sequence of stages”); Kristen A. Stilt,
Constitutional Authority and Subversion: Egypt’s New Presidential Election System, 16
IND. INTL & COMP. L. REV. 335, 336 (2006) (“Most recent scholarship on constitutional

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