"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

1

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. INT’L & COMP. L. REV. 335, 336 (2006) (“Most recent scholarship on constitutional