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

• Author: Kalhan, Anil
• Position: II. Transformative Preservation and Institutional Disequilibrium C. The Effect on Judicial Independence and Constitutionalism through IV. Navigating Partial Regime Shift and Rolling Back Extraconstitutionalism A. Constitution vs. Extraconstitution, p. 33-61

3. The Effect on Judicial Independence and Constitutionalism

   Transformative preservation has shaped the judiciary's role, institutional identity, and independence in important ways, contributing to a disequilibrium that has hindered consolidation of democracy, civilian rule, and constitutionalism. While observers frequently state that Pakistan's judiciary has traditionally lacked "independence," (127) that characterization, though not altogether inaccurate, paints an incomplete picture. Although often discussed as an abstract, unitary ideal, judicial independence is not a static, all-or-nothing concept, or even a concept that exists along a one-dimensional continuum, akin to the commonplace depiction in Figure 1. Rather, as Stephen Burbank has explained, it arises from the evolving aggregation of "relationships and interdependencies" within which the judiciary is embedded, more akin to the depiction in Figure 2.12s Judicial independence is also not an absolute end in itself, but exists to serve other normative goals--democracy, constitutionalism, fundamental rights, the rule of law, and others. (129) Those ends may vary in importance from one context to another. For gray zone countries such as Pakistan or Egypt, for example, strengthening civilian representative institutions and enhancing mechanisms of judicial accountability may be more important than in other settings--suggesting a conception of judicial independence and the judicial role more oriented toward "representation reinforc[ement]" than may appear necessary in other contexts. (130)

   Both descriptively and normatively, therefore, a more complete understanding of judicial independence demands attention to the evolving balance between judicial autonomy and judicial constraint across an array of dimensions, and the extent to which that balance advances the particular ends it exists to serve in any given context. The relationships from which the judiciary's independence or lack of independence arises are manifold: for example, between the judiciary and other government actors, private interest groups, lawyers and bar associations, the media, the people at-large, and, for many gray zone countries, the military. (131) Within each of these relationships, the balance between autonomy and constraint may be shaped at many points of potential influence--including the judiciary's institutional structure, the processes of appointing and removing judges, the regulation of judicial conduct, the administration of judicial business, and the means of responding to substantive judicial decisions. The overall balance also may be affected by other laws, institutions, and norms, including the scope of judicial power, and even (as depicted in Figure 2) by the relationships among nonjudicial actors themselves. (132)

   This multidimensional conception of judicial independence complicates some conventional assumptions underlying discussions of the judiciary and is particularly useful in understanding the role of the judiciary for countries within the gray zone. (133) Given the role that status quo interests can play in undermining constitutionalism and representative institutions, the overall balance between judicial autonomy and constraint for gray zone countries must contemplate and serve the long-term objective of reining in and ultimately rolling back the power of those entrenched interests. (134) For Pakistan, understanding judicial independence within this disaggregated conceptual context shows that the process of transformative preservation, along with the resulting power of the military and deep state interests, has been crucial in shaping the overall balance between judicial autonomy and judicial constraint. When these components are foregrounded, a picture emerges of institutional imbalance or disequilibrium among the judiciary, Parliament, and the military, as depicted in simplified form in Figure 3: the judiciary has been subject to enduring, long-term constraints by military and deep state interests, but nevertheless has been periodically empowered and encouraged (in part by those very constraints) to assert its autonomy from representative institutions.

   On the one hand, at times the military's constraints upon the judiciary have fully risen to the level of political capture, effectively enlisting judges as deep state actors. (135) During periods of direct rule, the military often has ensured the judiciary's allegiance to the extraconstitution and alignment with its interests--sometimes formally, by manipulating and reshaping judicial composition or placing limits on its jurisdiction, but in other instances more informally. (136) Not surprisingly, the military's ability to constrain the judiciary has not been terribly difficult under its direct rule. (137) But even well short of these extreme moments, the judiciary has still remained vulnerable to military and deep state constraints--even when civilian rule has formally returned, and even in the absence of direct, ongoing control or collaboration. At a basic level, the judges in office under military rule, whose general alignment with the military regime's interests often has already been assured, have remained in office once civilian rule has returned. (138) Given the powerful role of the chief justices of the Supreme Court and High Courts with respect to new appointments, the administration of judicial business, and case assignment, these matters also have been subject to significant influence by military and deep state interests via executive influence over the chief justices. (139) And as with civilian politicians, the specter of possible extraconstitutional intervention has loomed over judicial decision making.

   To be sure, the extent of the judiciary's vulnerability to constraints imposed by the military has never been total, but rather has varied in strength over time. Both individual judges and the judiciary as an institution have always attempted to assert some measure of autonomy from the military--and even when validating military rule, the scope of that legitimation has tended to become narrower over time. (140) Until recently, however, the judiciary's most significant assertions of autonomy from the military have tended to come either after the particular regimes being challenged were safely out of power or when they appeared to be soon on their way out the door. (141) Given the nature and extent of entrenched military and deep state power, even the strongest assertions of judicial autonomy have never been strong enough to withstand military and deep state interests capable of backing up constraints upon the judiciary with extraconstitutional action and, ultimately, force--as both Zia's and Musharraf's coups demonstrate at one end of that spectrum, but as even more limited forms of coercion, such as influence by intelligence agencies over appointments, demonstrate well short of that. (142) And in any event, as the court's Article 58(2)(b) jurisprudence illustrates, the overall patterns shaping judicial composition have yielded a judiciary that has regularly exhibited ideological affinities toward deep state interests--and against political parties and interests less closely associated with the military--even in the absence of direct military efforts to influence or control judges. (143)

   On the other hand, although often submerged beneath undifferentiated descriptions of its "lack of independence," the judiciary in fact has exhibited significant autonomy from civilian political actors--not just under military rule, where the very purpose of military constraints on the judiciary has obviously been to displace representative institutions, but even under civilian rule, as the experience between 1988 and 1999 illustrates. (144) For example, following clashes with the governments of both Bhutto and Sharif over judicial composition, the judiciary seized control over the judicial appointments process. Under the constitutional provisions then in place, the President (on advice of the Prime Minister) appointed judges to the Supreme Court after "consultation" with the chief justice of Pakistan, and to the High Courts under a similar process. (145) Bhutto aggressively sought to pack the courts with judges regarded as loyal to her party's interests--ignoring basic rules concerning qualifications for appointment and seniority-based conventions for elevating judges, and further manipulating judicial composition by appointing ad hoc judges and transferring judges between courts. (146) Sharif proved no less aggressive, clashing with the Supreme Court over appointments and other issues and later engaging in an ugly effort to remove the chief justice, which culminated in a physical attack on the Supreme Court building by a mob of Sharif's supporters. (147)

   Although the judiciary had never effectively resisted the military's manipulation of its composition, it fared better vis-a-vis these civilian governments. In the so-called Judges' Case, the Supreme Court invalidated many of Bhutto's judicial appointments and announced detailed rules governing the appointments process. (148) Guided by analogous developments in India, the court held that recommendations for appointment by the chief justice of Pakistan and High Court chief justices would ordinarily be binding, absent "very sound" reasons recorded by the President, which would then be justiciable. (149) The court also required the most senior High Court judge to be appointed chief justice of that High Court in the absence of "concrete and valid reasons" (150)--a seniority principle it later extended to ordinarily require appointment of the...