'Gray zone' constitutionalism and the dilemma of judicial independence in Pakistan.

• Author: Kalhan, Anil
• Position: I. Introduction through II. Transformative Preservation and Institutional Disequilibrium B. Constitution, Extraconstitution, and Transformative Preservation, p. 1-33

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 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.

TABLE OF CONTENTS I. INTRODUCTION II. TRANSFORMATIVE PRESERVATION AND INSTITUTIONAL DISEQUILIBRIUM A. From Viceregal State to Deep State B. Constitution, Extraconstitution, and Transformative Preservation 1. Extraconstitutional "Necessity" 2. Constitutionalized "Necessity" C. The Effect on Judicial Independence and Constitutionalism III. RESISTING THE MILITARY: THE ANTI-MUSHARRAF MOVEMENT A. The "Lawyers' Movement" B. The Charter of Democracy C. Emergency and Elections IV. NAVIGATING PARTIAL REGIME SHIFT AND ROLLING BACK EXTRACONSTITUTIONALISM A. Constitution vs. Extraconstitution B. The Judiciary's Great Leap Forward C. The Eighteenth Amendment V. BALANCING AND REBALANCING JUDICIAL AUTONOMY AND CONSTRAINT A. Transplanting Basic Structure? B. Interpreting and Adjudicating "Judicial Independence" C. The Judiciary and the Deep State D. Judicial Populism and Judicial Accountability VI. CONCLUSION 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) The model also rests on certain premises concerning the processes and institutions these transitions require, with "judicial independence" often understood as especially crucial. (2)

However, the trajectories of constitutional development can be nonlinear, fitful, ambiguous, and protracted. (3) While scholars increasingly have studied the role of courts in authoritarian regimes, (4) many countries exist in a "gray zone" between authoritarianism and democracy, where they may evolve for indefinite periods of time. (5) For these regimes, conventional premises--including assumptions about judicial independence--might either not apply or demand ongoing reassessment. The questions arising from this gray zone are particularly salient today in the Arab world, where in the wake of the 2011 popular mobilizations in Tunisia, Egypt, Morocco, Algeria, Bahrain, Libya, Yemen, and Syria, the path of change remains halting and its ultimate direction uncertain. (6)

This Article examines the relationship between constitutional change and judicial independence within this gray zone by analyzing recent developments in Pakistan, whose evolving circumstances have foreshadowed events in the Arab world. (7) While in recent years Pakistan has drawn attention in the United States to an extent unparalleled in its history, that discourse has erased much complexity, focusing almost exclusively on war, terrorism, religious extremism, and most fundamentally, the specter of existential state "failure." (8) This narrow scope of attention is hardly new. Observers have long reduced Pakistan's history to a static narrative involving crisis, instability, and failure. (9) In the context of more dynamic discussions addressing the prospects of an emerging "Asian Century," (10) Pakistan exists at Asia's margins--not just geographically, but also conceptually.

Without question, as Pakistani observers regularly lament, the trajectory of Pakistan's constitutional development has been "checkered," cycling through periods of military and weak civilian rule for decades. (11) However, recent events paint a more complex picture. Indeed, the only recent exception to these standard narratives of Pakistan's "failure" is revealing. In 2007--four years before the protests in Cairo's Tahrir Square--Pakistan's lawyers took to the streets to oppose the attempt by its President and Army Chief, General Pervez Musharraf, to remove the nation's chief justice, under whom its Supreme Court had asserted unprecedented autonomy from the military regime. This "lawyers' movement" in support of the judiciary triggered a broader movement for democracy and constitutionalism. Musharrafs subsequent crackdown failed, and while neither the regime's legal and institutional edifice nor the military's entrenched power was entirely dislodged, the movement prompted elections that repudiated Musharraf and ultimately forced him from power. (12)

Since then, Pakistan's lawyers and judges have been lauded for their commitment to "judicial independence." (13) But abstract invocations of judicial independence offer little guidance on the forms it should take in any given context to advance democracy, constitutionalism, fundamental rights, the rule of law, or other socially desirable ends. And in the wake of Pakistan's return to civilian rule in 2008, a series of clashes among Parliament, the Supreme Court, and the military has raised concerns that the same empowered judiciary that, only a few years ago, was widely celebrated for challenging Musharrafs military regime might now-while invoking the same basic conception of judicial independence (14)--be undermining Pakistan's weak, post-Musharraf civilian government. (15)

Both descriptively and normatively, an adequate assessment of these concerns demands a more concrete and contextualized understanding of judicial independence than the black-and-white, all-or-nothing conception typically invoked. (16) Judicial independence entails neither "maximal autonomy" nor an end in itself, but rather, as Stephen Burbank emphasizes, arises from a dynamic web of "relationships and interdependencies." (17) A more complete understanding of judicial independence, therefore, requires contextualized attention to the overall balance between judicial autonomy and constraint across multiple dimensions and its relationship to the ends it exists to serve. (18) In circumstances involving shifts in constitutional arrangements, a deeper understanding of judicial independence also requires attention to temporal relationships between those shifting regimes, including the manner in which laws, institutions, and interests evolve over time. (19)

However, scholarship on constitutionalism and the judiciary in Pakistan has not fully addressed these issues. A significant body of work addresses how the military has used the judiciary to facilitate direct seizures of power. (20) Important consideration has also been given to aspects of the judiciary's role during periods of civilian rule. (21) Recent literature on Pakistan, however, largely has not considered the implications of the relationship between periods of military and civilian rule for constitutionalism and judicial independence, or the conception of judicial independence best suited to reinforce democracy and constitutionalism. This gap is striking in the wake of the anti-Musharraf movement--which itself is only beginning to draw scholarly attention (22)--and given the relevance of Pakistan's experiences to other countries in this gray zone.

In this Article, I argue that Pakistan's evolution through...