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

• Author: Kalhan, Anil
• Position: IV. Navigating Partial Regime Shift and Rolling Back Extraconstitutionalism B. The Judiciary's Great Leap Forward through VI. Conclusion, with footnotes, p. 33-61

2. The Judiciary's Great Leap Forward

   Almost immediately after Chaudhry's reinstatement, the Supreme Court began to reassert itself, making clear its intention to resume a forceful role as both a guardian of constitutionalism and an arbiter of core questions of "pure politics." (247) However, in a series of major decisions, the court elided any distinction between the autonomy and power it claimed vis-a-vis the erstwhile military regime and the autonomy it now began to assert, even more forcefully, vis-a-vis the post-Musharraf civilian government. In the process, the court's jurisprudence--though resting on different premises from its earlier jurisprudence, which openly and self-consciously justified military supremacy--both contributed to and reinforced the antidemocratic logic of the military's legitimating discourse. (248)

   First, in two decisions normalizing the Sharifs' political status, the court indirectly chipped away at the quasi-legal basis for Musharraf's extraconstitution. In May 2009, the court reversed its previous judgment disqualifying the Sharifs from elective office. (249) In July 2009, the court went further, vacating Nawaz Sharif's 2000 conviction for "hijacking" altogether. (250) This latter decision unmistakably, if obliquely, turned the court's extraconstitutional jurisprudence of necessity on its head--gesturing instead at a principle of necessity in defense of constitutionalism by concluding that under applicable civil aviation law, Sharif was justified by the need to protect "public safety and tranquility" in trying to prevent Musharraf from returning to Pakistan to carry out his coup. (251)

   Second, in July 2009, a fourteen-judge bench led by Chaudhry issued a landmark judgment holding the entire legal edifice of Musharraf's emergency--including the initial proclamation of emergency; the PCO; and all orders, laws, constitutional amendments, and other actions by Musharraf during the emergency--unconstitutional and void ab initio. (252) The court reiterated its order enjoining the emergency when it was declared and held that the subsequent validation of the emergency under the doctrine of necessity by PCO judges unlawfully appointed in the face of that order was a nullity. (253) Since Parliament had not acted to endorse and indemnify Musharraf's extraconstitutional laws and actions, the court stated, they could be afforded no legal effect. (254)

   The court's judgment amounted to a complete unwinding of the judiciary's composition to its pre-emergency state. For the judges ousted by Musharraf, the court swept away the PPP-led government's strategy of selective "reappointment," since it deemed those judges never to have been terminated in the first place. (255) Since the position of chief justice had never become vacant, the court invalidated Musharraf's appointment of Dogar as chief justice. And on that basis, the court invalidated all judicial appointments from November 2007 to March 2009--whether by Musharraf or the PPP-led civilian government, over 100 positions in all--since they were never made "in consultation with" a lawful "Chief Justice," as constitutionally required. (256) The court also invalidated the civilian government's law expanding the size of the Supreme Court, principally on technical legislative process grounds, but also because Parliament's increasing the size of the court had "militate[d] against the independence of the judiciary." (257) Those PCO judges who already were judges when they took extraconstitutional oaths of office were restored to their previous positions, but also were referred for judicial misconduct proceedings and, in some cases, charged with contempt of court. (258)

   At one level, these cases may simply be understood as the judiciary getting its own constitutional house in order, decisively repudiating its longstanding extraconstitutional jurisprudence of state necessity and sanctioning individual judges whose conduct had enabled Musharraf's intervention. However, the Supreme Court simultaneously asserted its autonomy from civilian political actors--implicitly, but unmistakably rebuking the PPP-led government for not fully (or more quickly) reinstating the ousted judges and forcefully reasserting its equally longstanding role as arbiter of Pakistan's core questions of pure politics. (259) The court's decision in the PCO Judges Case displaced a political settlement--which, after protracted contestation and negotiation, had finally, if imperfectly, resolved the conflict over the judiciary--in favor of its own resolution. While framed in legal terms, the necessarily political nature of the court's own resolution was manifest, especially since it too had stopped short of wiping Musharraf's extraconstitutional slate entirely clean. The court extended recognition to orders, judgments, and administrative matters by PCO judges during their unlawful terms and explicitly protected the validity of the 2008 elections, even though they were held under partially extraconstitutional auspices. (260) Moreover, even though it invalidated an amendment giving permanent legal effect to several temporary ordinances, including the NRO, the court nevertheless also extended their life, ostensibly to give Parliament an opportunity to decide whether to adopt them as ordinary laws. (261) While the government publicly welcomed and adhered to it, the court's decision amounted to an unmistakable assertion of autonomy not just from the previous military regime, but also from the present civilian government, anticipating the prospect of further conflict. (262)

   That conflict openly erupted in a third case in December 2009, when a seventeen-judge bench declared the NRO unconstitutional and ordered the government to reinstitute all cases withdrawn or vacated under the ordinance, including those against Zardari and other politicians. (263) As observers have noted, the NRO--which the PPP-led government not only could not successfully get reenacted by Parliament but also did not even defend before the court--was vulnerable to straightforward invalidation on the comparatively narrow ground that it had arbitrarily defined the categories of individuals benefiting from its protections and, therefore, violated the right of equality. However, in a 287-page opinion by Chaudhry, the court also declared the ordinance inconsistent with a slew of other constitutional provisions, leveling it, as I.A. Rehman describes, with a "fusillade from heavy cannons," even though it was "such an easy target that a single shot ... was enough to demolish it." (264) Once again, the court displaced a negotiated political settlement (in this instance, between Bhutto and Musharraf) with its own resolution, articulated in legal terms but no less political. Indeed, at points in its decision the court seemed to justify its conclusion almost directly in political terms. For example, the court concluded, based on excerpts from Bhutto's posthumously published memoir, that despite the ordinance's title, the NRO did not genuinely provide "reconciliation" in the "national interest," but rather was "the result of [a] deal between two individuals for their personal objectives." (265) As Ayaz Amir observes, this conclusion rests on a "selective reading" of the various roles played by different actors in the transition away from Musharraf's regime, failing to sufficiently acknowledge that "[d]ifferent chapters were written by different authors"--including actors outside the lawyers' movement and judiciary--in effecting that transition. (266)

   While invalidating an order issued under Musharraf's military regime, the court's decision also converged with the military's own legitimating discourse. The court discussed at great length the importance of prosecuting corruption by politicians, devoting specific attention to charges against Zardari in Pakistan and abroad and ordering the government to write Swiss officials to seek their assistance in pursuing corruption cases against him. The court specifically emphasized the NRO's inconsistency with the National Accountability Ordinance, which was adopted by Musharraf's military regime soon after his 1999 coup and is widely understood to have been used by his regime arbitrarily to coerce and manipulate political opponents. (267) The court also drew upon the discussion of corruption in Zafar Ali Shah, an extraconstitutional decision that invoked the military's allegations of corruption by civilian politicians as a basis to validate Musharraf's 1999 coup. (268) Finally, the court held that the NRO violated constitutional provisions imposed by Zia that require members of Parliament to be "sagacious, righteous and non-profligate, honest and ameen"--provisions premised upon a presumptive mistrust of the integrity of elected politicians and self-consciously adopted as an instrument of deep state control of civilian politics. (269)

   The NRO was unpopular, and the court--increasingly understanding its legitimacy in the aftermath of the anti-Musharraf movement to derive directly from the public--was applauded by many for striking it down. But what could have been a judgment sounding in more limited principles of equality and nonarbitrariness instead became a wide-ranging decision decrying corruption and a presumptive lack of morality among Pakistan's civilian politicians. In this manner, the court suggested a role for itself not simply as a referee of central political questions, but as an arbiter of political integrity and morality--a role wholly congruent with the military's self-conception of its own role and the deep state's antidemocratic legitimating discourse. (270) Later, when the PPP-led government opted to aggressively resist the court's judgment, balking in particular at the court's order to write Swiss officials concerning corruption allegations against Zardari, the court's projection of that self-conception of its role and identity intensified to a breaking...