One of the most salient features of the contemporary Pakistani political system has been the emergence of the superior judiciary – made up of its provincial high courts, the Federal Court of Islamic Law and the Supreme Court – as a center of assertive power and active. Historically, the Pakistani military was the dominant center of power in the country, but with elected institutions and political parties seeking more government space, inter-institutional conflict has become the norm. In this competitive space, Pakistan’s superior judiciary has played a central role in the Pakistani political system, arbitrating contestation between political elites and state elites.
Inside the Judiciary
Why has the judiciary become an assertive and active center of power in Pakistani politics after a history of collaboration and deference to the powerful civil-military bureaucracy? To see also : Is politics a problem for markets?.
First, a combination of constitutional articles and judicial innovations allowed the judiciary to intervene in the actions of other branches of government. The 1973 Constitution strengthened the supervisory powers of the judiciary. The Constitution granted the High Courts jurisdiction to enforce respect for fundamental rights by state institutions. The Supreme Court could now also make orders on matters it deemed to be of “public importance” with reference to the application of fundamental rights. Public interest litigation began in the late 1980s and grew significantly after 2006, becoming a tool used by the court to intervene in executive and legislative arenas on behalf of the public interest. The Chief Justice began taking suo moto cases (in the absence of a petitioner), often based on newspaper and television reports. Discretion as to when to use suo moto powers rested with the Chief Justice, allowing him to cater to popular sentiments and maximize the court’s visibility and impact.
Second, the judiciary separated from the executive, taking control of judicial appointments from the executive. The formal role of executive institutions was first reduced by legal action in the 1990s and then again by a constitutional amendment in 2010. The Judicial Commission responsible for managing judicial appointments and promotions is made up of multiple stakeholders, but it is dominated by the Chief Justices of the Supreme Court and High Courts.
Third, high court judges are primarily recruited from a legal profession where the legal culture has increasingly shunned procedural restraint and favored confrontation with executive leadership, whether elected or military. During the democratic decade of the 1990s, when political parties were weakly institutionalized and inter-institutional conflict was the norm, the fragmented political landscape and the growing importance of the courts as sites for the management of political conflict generated a perception among judges and lawyers regarding the limited legitimacy of state political leadership and the potential of the justice system to shape national politics and policies. direction.
With the impact and intervention of the judiciary in political processes and outcomes, the role and authority of chief justices has become particularly important. Beyond public interest litigation and judicial appointments, the chief justices of the high courts and the Supreme Court also came to decide when cases would be accepted for hearings and how many and which judges would hear those cases. Thus, chief justices can set the agenda for their court and indirectly influence the outcome of cases through the selection of judges. Given the centralized structure of the judiciary, a flexible chief justice co-opted by the military or a political party can now have a significant impact on the jurisprudence of a particular court.
However, the judiciary’s close relationship with the bar associations complicates efforts by military and political elites to co-opt and control the judiciary. While judges train and socialize as professional lawyers, bar attorneys are the primary audiences with whom judges seek to build their reputations. The bar is politically committed and has effectively mobilized around political and professional issues. The bar’s propensity for collective action and disruption was most apparent in the lawyers’ movement in 2007, and it can act as a counterbalance to efforts by political and military leaders to tame the justice system. Recognizing this, political parties and the military are increasingly making efforts to pressure and persuade bar leaders to indirectly influence judges. The close, if often antagonistic, ties between the bar and the judiciary and the overlapping legal culture have each played some role in the increasingly divisive orientation of the judiciary.
The Judiciary and the Two Executives
How have changes within the judiciary impacted its relationship with executive institutions? Historically, the upper judiciary was viewed by Democrats as the military’s junior partner, providing legal cover for the military’s political actions. During the 1990s, Pakistan’s national politics were shaped by the relationship between three offices known as the “troika”: the Prime Minister, the President, and the Chief of Army Staff. This may interest you : All Politics Must Be Local – And Response. Clashes between the elected executive office headed by the prime minister and the unelected executive leaders of the presidency and the military regularly resulted in constitutional disputes until the 1999 coup in which General Pervez Musharraf took over. presidency.
From the 1990s, for the reasons discussed above, the courts gradually began to chart a more independent and interventionist course, culminating in a confrontation between the superior judiciary and Musharraf’s regime in 2007. An interventionist Supreme Court challenged the fundamental interests of the regime, including the interests of Musharraf. power to remain president while serving as army chief of staff, prompting the regime to suspend Chief Justice Iftikhar Muhammad Chaudhry and attempt to purge the judiciary. Judges resisted and lawyers rallied in support of the upper judiciary, galvanizing a nationwide movement for democracy that led to the downfall of Musharraf. The court’s resistance and its impact on Musharraf’s regime cemented the upper judiciary as a center of power in its own right.
After Musharraf’s exit and with the return of elected civilian rule, judges began to play their own role as guardians of the political system, challenging what they saw as the excesses and corruption of other centers of power in the Pakistan. A “new troika” has emerged in Pakistani democratic politics: the Prime Minister, the Chief of Army Staff and the Chief Justice of Pakistan. The shifting alignments and conflicts between these three office holders shaped national politics during this decade. The higher judiciary, particularly the Supreme Court, has adopted the mission of improving governance and combating corruption by frequently intervening and reversing bureaucratic transfers and assignments to limit the interference of elected politicians in the unelected bureaucracies. The courts have also formulated policy on socio-economic issues and prosecuted the political leaders of the ruling parties, the Pakistan People‘s Party (PPP) and the Pakistan Muslim League Nawaz (PML-N), in corruption cases. The Supreme Court’s focus on political corruption and the broad interpretation of its authority led to the removal of two elected prime ministers, Yousuf Gilani and Nawaz Sharif. While political and administrative corruption were serious issues that needed to be addressed, repeated judicial interventions in the realm of executive and legislative institutions undermined elected civilian supremacy. In contrast, there were relatively fewer confrontations between the military and the judiciary after 2010. The Supreme Court not only allowed the military to play a role in homeland security as part of the war on terror , but it has also given itself a role in overseeing certain aspects of and these operations. The courts have tried to draw some red lines against the military’s political interference, even accusing now-deposed Musharraf of treason for his past actions, but the courts have not pushed for the implementation of the judgments related to the military as they have done in cases related to civilian government. judgments.
The position of the judiciary against the political interventions of the army and its interference in the executive and the civilian legislature were the essential elements of its jurisprudential strategy to carve out a role as the legitimate authority of intervention of the country. He adopted the selfish, anti-corruption rhetoric of the military and used constitutional and popular support to legitimize himself in this role. The courts’ tactics, combined with their softer approach to the military, left democracy unconsolidated and after 2017 weakened the elected system of government and facilitated the return of the military to political primacy, to the detriment of both democracy and judicial independence.
The Judiciary and the Same-Page Regime
In 2017, military leaders, several senior Supreme Court justices and the political party Pakistan Tehreek-e-Insaf (PTI) developed a consensus that the various players in the political system should be put on the same pitch. wave with institutional stakeholders. See the article : Dobbs rule is an attack on women’s health, a healthy health culture. aligned around a common platform. These stakeholders agreed that the root of Pakistan’s problems was a corrupt political class personified by the leaders of the main political parties (the PML-N and the PPP). The solution was to rescue state institutions from their control and influence, by any means necessary.
From 2017 to 2018, the Supreme Court’s anti-corruption jurisprudence focused on the PPP and the PML-N, often hearing petitions filed against them by members of the PTI. This concentration led to the disqualification of the leaders of these parties from political office, including Sharif. Led by Khan, the populist PTI took advantage of these disqualifications. The party hitched its wagon to court interventions, using court judgments to validate PTI claims that mainstream political parties were corrupt. Khan’s popular appeal, the Supreme Court’s anti-corruption jurisprudence, and the military’s efforts to stage the election in favor of the PTI helped secure the party’s victory in 2018. With elected leaders, military and judiciaries aligned around key policy issues, the new arrangement was popularly known as the Same Page regime. Under the PTI, military authority and influence over state institutions increased dramatically, and democratic backsliding set in with the growing suppression of opposition and dissent. It seemed that the new troika in Pakistani politics was the prime minister, the army chief of staff and the director general of Inter-Services Intelligence.
The military was happy to allow the powers of the courts to be asserted so long as the judges exercised those powers against the elected executive and legislature. While some judges have willingly aligned themselves with the military to regulate political branches, judges have also come under the growing influence of an increasingly authoritarian executive and its watchdog apparatus. As the public profile of judges increased, they became more vulnerable to threats from executive agencies holding information that could damage their reputations and careers. Through a combination of an alignment of interests between judicial and executive elites and executive pressure on judges, a significant faction of judges became unwilling to confront military power.
Members of opposition parties, including the PPP and PML-N, have spent time inside and outside courtrooms and jail cells on corruption charges. With many judges under executive influence, the likelihood of a high court upholding a detention order or rejecting a bail request for an opposition member could almost be predicted by the state of relations between the leaders in power. and this opposition party. While the Supreme Court remained relatively reserved towards the federal executive institutions during the reign of the PTI, it regularly clashed with the provincial government of the PPP in the province of Sindh. The Eighteenth Amendment to the Constitution strengthened provincial authority and autonomy, but the federal political and bureaucratic elites who opposed the PPP found the superior judiciary a useful tool to constrain the government of Sindh. Especially during the pandemic, the Supreme Court has castigated the PPP government and commented on the limits of provincial autonomy. Such court disclosure has eroded provincial discretion in critical policy areas.
However, some judges were less willing to acquiesce in autocratization. The High Courts of Islamabad and Peshawar, headed by more independent chief justices, have become important sites for opposition parties and dissidents to fend off the worst excesses of executive institutions. On the Supreme Court, there was a growing polarization between justices who were willing to align themselves with political and military leaders and those who were not. These cracks became more apparent in the case of Judge Qazi Faez Isa. Isa’s willingness to deal with military interference in politics made him a target, and a citation was filed with the Supreme Court to have him thrown out for alleged financial misconduct. During the proceedings, some justices who sided with the executive called for judicial accountability, while others who sided with Isa called the reference an attack on independence. judicial. In the end, Isa’s supporters on the bench overturned the case against him, but the polarization within the judiciary was now evident, as was the growing fatigue of the judiciary and the bar in the face of increasing autocratization. and the crisis of legitimacy of the court caused by the fact that it allowed this autocratization.
In 2021, the relationship between the military rulers and Khan frayed, providing an opportunity for opposition parties to push back against the PTI and leading to Parliament’s vote of no confidence in April 2022 in Khan. When Khan attempted to block that vote, it was apparent that the military did not side with the PTI, but there were fears that several bench judges who were involved in judgments that helped bring the PTI to power would still come out in favor of the PTI. . Khan’s defense of blocking Parliament’s vote rested on flimsy legal grounds, including allegations of foreign conspiracy, restrictions on the judiciary to intervene in parliamentary affairs and the need to allow elections in the so-called national interest. But the tutelary court was reluctant to accept limitations on its prerogative to intervene in parliamentary affairs. And given that the foreign conspiracy allegation remained unsubstantiated and there was broad legal consensus that Khan’s actions constituted an attack on the constitutional order, a ruling in favor of Khan would have further harmed the legitimacy of the court in the legal community. Bar leaders and several judges pushed the Chief Justice to learn of Khan’s actions. The reopening of the court at midnight on the night of the vote, on the advice of the Supreme Court Bar Association, was intended to show the court’s strength in upholding the law by a recalcitrant PTI. But it convinced PTI supporters of judicial bias.
The guardianship of the judiciary and the associated political interventions have helped both to establish and dismantle the hybrid of the same page, but they have also exposed the judiciary to threats against its authority and legitimacy.
Toward Elections and Beyond
Going forward, the courts may continue to play a vital role in shaping the rocky path to the upcoming elections in Pakistan and beyond. When courts embark on resolving major political issues, some stakeholders may be disappointed with their decisions; judges risk damaging their credibility and legitimacy with these constituencies. As Khan’s supporters rallied across the country following his ousting, Khan questioned the court’s motives, leading PTI supporters to launch a smear campaign against the judges. Broad segments of the bar saw the court’s actions as an assertion of constitutionalism in the face of a populist attack on constitutional norms. However, outside the legal community, Pakistan’s broader urban middle classes have long supported Khan’s anti-corruption populism. Thus, judges will have to balance the conflicting expectations of their primary constituents: their professional networks in the legal community and their social networks of middle-class urban households.
Judicial reputation and legitimacy are being tested by a series of political disputes brought to court during this complicated and contested transition. Already we have seen lawsuits over the chief ministry and governorship in Punjab, the fate of elected officials who turn against their party leadership, the process of delimiting electoral constituencies and the treatment of PTI staff. , to name a few. As PTI amplifies foreign conspiracy claims and demands immediate elections, PTI urges courts to review judgment on no-confidence vote, pursue corruption charges against PML-N leaders, challenge the electoral commission, to facilitate new elections, to investigate Khan’s allegations of a foreign conspiracy and to ensure that Khan can organize demonstrations and sit-ins in the capital without hindrance. Meanwhile, as the new PML-N-led government seeks to consolidate power, it seeks to pursue corruption and treason charges against PTI leaders in court and wants the courts to deal with PTI petitions in such a way as to allow the stability of the political transition.
The PTI has developed a strategy to pressure judges through social media. As the party files petitions in court, its social media activists are slamming judges for not accepting their petitions quickly or giving them a fair hearing. Pakistan’s unelected judges and generals are less vulnerable to electoral pressure than to pressure from their social, professional and institutional networks. Targeting forensic reputations within pro-PTI social networks has paid off; many recent PTI petitions have been heard quickly. This strategy is similar to that used by bar associations: appointing and humiliating judges when they act against the interests of bar leaders. The current leadership of bar associations in most high courts is opposed to the PTI (although, over time, more bar associations are willing to hear Khan’s narrative). The increasing public visibility of judges in electronic and social media has made them more vulnerable to reputational pressures from these constituencies.
The pressures exerted by Khan’s effective mobilization since his impeachment, combined with the judiciary’s continued mistrust of the main political parties, particularly the PPP and PML-N, and an ongoing judicial interest in restraining power Political discretion and holding politicians accountable means that the new PML-N government cannot expect much relief from the courts. The Supreme Court, responding to Khan’s requests, ordered that there be no withdrawal or government interference in corruption proceedings against members of the new government. The Supreme Court has also ruled that the votes of party members who contradict their party leader – known as party defection – should not be counted in a vote of no confidence, which effectively means that a Prime Minister with a party majority can never be dismissed. . The judges who handed down the ruling argued that it would deter elected politicians from supposedly trading votes for private benefits, illustrating the judges’ continued mistrust of politicians’ motives. Parliament was weakened because the Court circumscribed parliamentary responsibility for the political executive and weakened the constituency-based model of parliamentary representation. Military and judicial leaders seem eager to steer the state toward political dispensation with a reformed institutional structure, perhaps with a new troika that better suits their preferences. If the current government is replaced by an interim government before new elections, the courts are likely to receive petitions regarding the actions of the interim government from across the political spectrum, giving judges a new opportunity to maneuver political dynamics in their preferred direction, but at the risk of angering political elites aggrieved by their decisions.
The court can also hear important cases relating to the military, in particular relating to Musharraf’s treason conviction and the military’s internment centers and real estate empire. The relationship and divisions between civilian and military leaders will continue to influence the approach of justice to these cases.
How the justice system responds to these challenges will also depend on the judges themselves. It is apparent that many judges disapprove of mainstream political parties and sympathize with Khan’s anti-corruption rhetoric, even as they objected to Khan’s blatantly unconstitutional actions in April. But there are also judges who focus on ensuring judicial independence rather than participating in greater autocratization. To predict which direction the courts will take, observers can look at which judges, and their associated normative positions, are elevated to positions of authority. With the current leadership of the Supreme Court, the trend of constraining political institutions run by the PML-N and PPP is likely to continue. But Justice Isa, of different spirit, is nominated to be the next chief justice of Pakistan in 2023. elections. Beyond this transition, some judges are concerned about the courts’ entwinement in politics and policy-making, but for now the judiciary is unlikely to reverse that role.
Today, the government and opposition parties seek support from both the military and the higher judiciary. Political elites criticize these institutions for their overreach when the institutions intervene against their interests and celebrate the role of these institutions when the institutions act in their interests. Pakistan now has two supervisory institutions: the army and the higher judiciary. Although the military remains the most powerful, the interests of these two institutions, their disregard for political elites and their mutual relations will shape Pakistan’s political future.
This article is part of the Politics of Opposition in South Asia initiative led by Carnegie’s South Asia Program.
Carnegie does not take institutional positions on public policy issues; the views expressed herein are those of the authors and do not necessarily reflect the views of Carnegie, its staff, or its directors.