As the country’s opposition looks to its next moves, the courts may have a key role to play.
One of the most consequential features of Pakistan’s contemporary 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 an assertive and active center of power. Historically, Pakistan’s military was the country’s dominant power center, but with elected institutions and political parties pursuing more governing space, inter-institutional conflict has been the norm. In this competitive space, Pakistan’s superior judiciary has played a central role in Pakistan’s political system, arbitrating contestation between political elites and state elites.
In the past fifteen years, however, the superior judiciary has moved beyond just arbitrating political disputes to playing a tutelary role of its own within the political system: constraining the authority and vetoing the policies and actions of elected institutions in order to shape politics and policies in line with its own preferences. This newfound initiative has meant the judiciary frequently opposed, constrained, and undermined elected and unelected institutions. Opposition parties and state officials hoping to challenge civilian and military governments have turned to the increasingly assertive courts.
The superior judiciary’s central place and tutelary ambitions in Pakistan, and the challenges the body faces in its relationships with state institutions and society, were most evident in the events surrounding the end of former Prime Minister Imran Khan’s government this year. The Supreme Court compelled Khan to face a parliamentary no-confidence vote from a coalition of opposition parties by ruling that his efforts to block the vote and call early elections were unconstitutional. The decision polarized public opinion between those who thought the court protected the constitutional order and those who viewed the move as “a judicial coup.”
Understanding this decision and its political impact requires examining how the superior judiciary evolved into and operates as a more independent and assertive actor. Through changes in the judiciary’s structure and culture, the superior judiciary has joined the military as a key, nonelected power holder. It alternates between confronting, constraining, and collaborating with elected and nonelected centers of power as it seeks to leave its imprint on politics and policymaking, while political and military elites work to co-opt or control judges in order to align the judiciary’s burgeoning authority and ambition with their own interests and ambitions. This interplay shapes the contours of Pakistan’s politics. However, the judiciary’s interventions also raise expectations and generate political discontents, creating a complex blend of power and vulnerability from growing judicial assertion.
INSIDE THE JUDICIARY
Why did the judiciary emerge as an assertive and active center of power in Pakistan’s politics after a history of collaboration with, and deference to, the powerful civil-military bureaucracy?
First, a combination of constitutional articles and judicial innovation empowered the judiciary to intervene in the actions of other branches of government. The 1973 Constitution enhanced the judiciary’s powers of review. The Constitution granted the high courts the jurisdiction to enforce the observance of fundamental rights by state institutions. The Supreme Court could now also make orders on questions it deemed of “public importance” with reference to enforcement of fundamental rights. Public interest litigation began in the late 1980s and advanced significantly after 2006, becoming a tool the court has used to intervene in the domains of the executive and legislature in the name of public interest. The chief justice began taking on cases suo moto (in the absence of a petitioner), often based on newspaper and television reports. The discretion about when to use suo moto powers lay with the chief justice, enabling them to respond to popular sentiments and maximize the court’s visibility and impact.
Second, the judiciary separated itself from the executive, taking control of judicial appointments from the executive. The formal role of executive institutions was first reduced through judicial action in the 1990s and then again through a constitutional amendment in 2010. The Judicial Commission for handling judicial appointments and promotions is composed 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 eschewed procedural restraint and favored confrontation with executive leadership, whether elected or military. In the democratic decade of the 1990s, where political parties were weakly institutionalized and inter-institutional conflict was the norm, the fragmented political landscape and growing prominence of courts as sites for managing political disputes generated a perception among judges and lawyers regarding the limited legitimacy of the state’s political leadership and the potential for the judiciary to shape national politics and policies. This combination—new jurisdictional discretion, executive separation from the judiciary, judicialization of politics, and a shifting legal culture—helped move the judiciary in a more ambitious, confrontational direction.
With the judiciary impacting and intervening in political processes and outcomes, the role and authority of chief justices has become especially significant. Beyond public interest litigation and judicial appointments, the chief justices of the high courts and Supreme Court also came to decide when cases would be accepted for hearings and how many and which judges heard those cases. Thus, chief justices can set their court’s agenda and indirectly impact case outcomes through bench selection. Given the judiciary’s centralized structure, a pliable chief justice co-opted by the military or a political party can now significantly impact the jurisprudence of a particular court.
However, the judiciary’s close relationship with bar associations complicates the efforts of military and political elites to co-opt and control the judiciary. As judges train and socialize as professional lawyers, the lawyers of the bar are the primary audiences with which judges seek to build their reputations. The bar has become politically engaged and 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 counterweight against efforts by political and military leaders to tame the judiciary. Recognizing this, political parties and the military increasingly expend their efforts to pressure and persuade bar leaders to indirectly influence judges. The close, though often antagonistic, ties between the bar and the bench as well as the overlapping legal culture have each played some role in shaping the judiciary’s increasingly confrontational direction.
THE JUDICIARY AND THE TWO EXECUTIVES
How did shifts within the judiciary impact its relationship with executive institutions? Historically, the superior judiciary was seen by democrats as the junior partner of the military, providing the military’s political actions with legal cover. During the 1990s, Pakistan’s national politics were shaped by relationships among three offices that came to be known as the “troika”: the prime minister, the president, and the chief of army staff. The clashes between the elected executive office led by the prime minister and the unelected executive leadership in the presidency and the military regularly resulted in constitutional disputes until the 1999 coup through which General Pervez Musharraf took over the presidency.
After Musharraf’s exit and with the return of elected civilian rule, judges began to play a tutelary role of their own in the political system.
From the 1990s onward, for the reasons outlined earlier, the courts gradually began to chart a more independent and interventionist direction, culminating in a confrontation between the superior judiciary and Musharraf’s regime in 2007. An interventionist Supreme Court challenged the regime’s core interests, including Musharraf’s power to remain president while being chief of army staff, prompting the regime to suspend Chief Justice Iftikhar Muhammad Chaudhry and attempt to purge the judiciary. Judges resisted, and lawyers mobilized in support of the superior judiciary, galvanizing a national movement for democracy that led to Musharraf’s downfall. The court’s resistance and impact on Musharraf’s regime solidified the superior judiciary as a power center in its own right.
After Musharraf’s exit and with the return of elected civilian rule, judges began to play a tutelary role of their own in the political system, challenging what they saw as the excesses and corruption of Pakistan’s other power centers. A “new troika” emerged in Pakistan’s democratic politics: the prime minister, the chief of army staff, and the chief justice of Pakistan. Shifting alignments and conflicts between these three officeholders shaped national politics during this decade. The superior judiciary, especially the Supreme Court, adopted the mission of improving governance and combating corruption by intervening in, and frequently overruling, bureaucratic transfers and postings in order to limit the interference of elected politicians in unelected bureaucracies. The courts also formulated policy on socioeconomic issues and went after the political leadership 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 expansive 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 dealt with, repeated judicial interventions in the domain of executive and legislative institutions undermined elected civilian supremacy. In contrast, there were relatively fewer confrontations between the military and judiciary after 2010. The Supreme Court not only enabled the military’s role in internal security as part of the war on terror, but it also gave itself a role in overseeing aspects of these operations. Courts attempted to establish certain redlines against political interference by the military, even charging the now-deposed Musharraf with treason for his past actions, but the courts did not push for the implementation of military-related judgments the way they did in civilian government–related judgments.
The judiciary’s stance against the military’s political interventions and its interference in the civilian executive and legislature were the essential pieces of its jurisprudential strategy to carve out a role as the country’s legitimate intervening authority. It adopted the military’s self-serving, anti-corruption rhetoric and used constitutional and popular support to legitimize itself in this role. The courts’ tactics, combined with their softer approach toward the military, left democracy unconsolidated and after 2017 weakened the system of elected government and facilitated the military’s return to political primacy—to the detriment of both democracy and judicial independence.
THE JUDICIARY AND THE SAME-PAGE REGIME
In 2017, the military leadership, several senior judges of the Supreme Court, and the political party Pakistan Tehreek-e-Insaf (PTI)—developed a consensus that different players in the political system needed to be brought onto the same page with institutional stakeholders 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 mainstream 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 PML-N, often hearing petitions brought against them by PTI members.
From 2017 to 2018, the Supreme Court’s anti-corruption jurisprudence focused on the PPP and PML-N, often hearing petitions brought against them by PTI members. This concentration led to the disqualification of these party’s leaders from political office, including Sharif. Led by Khan, the populist PTI benefited from these disqualifications. The party hitched its wagon to the court’s interventions, using the court’s 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 engineer the election in the PTI’s favor helped ensure the party’s victory in 2018. With the elected, military, and judicial leadership aligned around key political questions, the new political arrangement was popularly known as the same-page regime. Under the PTI, military authority and influence across state institutions grew substantially, and democratic backsliding took hold with increasing suppression of opposition and dissent. It seemed the new troika in Pakistani politics was the prime minister, the chief of army staff, and the director-general of the Inter-Services Intelligence.
The military was happy to allow the assertion of court powers as long as judges exercised those powers against the elected executive and legislature. While some judges willingly aligned with the military in regulating political branches, judges also came under the growing influence of an increasingly authoritarian executive and its surveillance apparatus. As the public profile of judges grew, they became more vulnerable to threats from executive agencies holding information that could tarnish their reputations and careers. Through a combination of an alignment of interests between judicial and executive elites and executive pressure on judges, a sizeable faction of judges became unwilling to confront military power.
Members of opposition parties, including the PPP and PML-N, spent time in and out of court hearings and prison cells on corruption charges. With many judges under executive influence, the likelihood that a high court would uphold a detention order or reject a bail petition for an opposition member could almost be predicted by the state of relations between the ruling leadership and that opposition party. While the Supreme Court remained relatively restrained toward federal executive institutions during the PTI’s rule, it routinely clashed with the PPP’s provincial government in Sindh Province. The Eighteenth Amendment to the Constitution enhanced provincial authority and autonomy, but federal political and bureaucratic elites that opposed the PPP found the superior judiciary a useful tool to constrain Sindh’s government. During the pandemic especially, the Supreme Court chastised the PPP’s government and made observations regarding the limits of provincial autonomy. Such communication from the court chipped away at provincial discretion in critical policy areas.
However, some judges were less willing to acquiesce to autocratization. The Islamabad and Peshawar High Courts, led by more independently minded chief justices, became important sites for opposition parties and dissenters to push back against the worst excesses of executive institutions. In the Supreme Court there was growing polarization between judges who were willing to align with the political and military leadership and those who were not. These fissures became most apparent in the case of Justice Qazi Faez Isa. Isa’s willingness to confront military interference in politics made him a target, and a reference was filed with the Supreme Court to have him removed for alleged financial misconduct. During the proceedings, some judges who sided with the executive called for judicial accountability, while others who sided with Isa called this reference an attack on judicial independence. Ultimately, Isa’s supporters on the bench quashed the case against him, but polarization within the judiciary was now evident, as were the judiciary’s and the bar’s growing fatigue with increasing autocratization and the court’s legitimacy crisis caused by its enabling this autocratization.
By 2021, the military leadership’s relationship with Khan frayed, providing an opportunity for opposition parties to push back against the PTI and leading to the parliament’s April 2022 vote of no confidence in Khan. When Khan attempted to block that vote, it was apparent that the military was not siding with the PTI, but there was concern that several judges on the bench who were involved in judgments that helped bring the PTI to power might still rule in the PTI’s favor. Khan’s defense for blocking Parliament’s vote rested on flimsy legal grounds, including foreign conspiracy allegations, restrictions on judicial power to intervene in parliamentary matters, and the necessity of allowing elections in the so-called national interest. But the tutelary court was disinclined to accept limitations on its prerogative to intervene in parliamentary matters. And given that the foreign conspiracy allegation remained unsubstantiated, and that there was a widespread legal consensus that Khan’s actions amounted to an attack on the constitutional order, ruling in Khan’s favor would have further damaged the court’s legitimacy with the legal community. Bar leaders and several judges pushed the chief justice to take notice of Khan’s actions. The court’s reopening at midnight on the night of the vote, on the Supreme Court Bar Association’s advice, was intended as a show of strength by the court to enforce compliance by a recalcitrant PTI. But it convinced PTI supporters of judicial bias.
The judiciary’s tutelary role and associated political interventions helped to both establish and dismantle the same-page hybrid—but they also exposed the judiciary to threats to its authority and legitimacy.
TOWARD ELECTIONS AND BEYOND
Moving forward, the courts may continue to play a critical role in shaping the rocky road to Pakistan’s next elections and beyond. When courts wade into the resolution of major political questions, some stakeholders are likely to be disappointed by their decisions; judges risk damaging their credibility and legitimacy with those constituencies. As Khan’s supporters mobilized around the country after his ouster, Khan questioned the court’s motives, leading PTI supporters to enact a smear campaign against judges. Large segments of the bar saw the court’s actions as an affirmation of constitutionalism in the face of a populist assault 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 core constituencies: their professional networks in the legal community and their social networks of urban, middle-class households.
Judicial reputations and legitimacy are being tested by a range of political litigation coming to the courts during this complicated and contested transition. Already, we have seen legal proceedings over the chief ministership and governorship in Punjab, the fate of elected representatives who turn on their party’s leadership, the delimitation process for electoral constituencies, and the treatment of PTI staff, to name a few. As the PTI amplifies its claims of a foreign-instigated conspiracy and demands immediate elections, the PTI is inviting courts to review the judgment on the no-confidence vote, proceed on corruption charges against PML-N leaders, challenge the electoral commission, facilitate prompt new elections, investigate Khan’s allegations of a foreign conspiracy, and ensure Khan can hold protests and sit-ins in the capital city unencumbered. Meanwhile, as the new PML-N-led government seeks to consolidate power, it is looking to pursue charges of corruption and treason against PTI leaders in the courts and wants courts to handle PTI petitions in ways that allow for stability in the political transition.
The PTI has honed a strategy of pressuring judges through social media. As the party files court petitions, its social media activists cast aspersions against judges for not taking up their petitions promptly or not giving them a fair hearing. Pakistan’s unelected judges and generals are less vulnerable to electoral pressures than they are to pressures from their social, professional, and institutional networks. Targeting judicial reputations within pro-PTI social networks has yielded dividends; many of the PTI’s recent petitions were heard promptly. This strategy is similar to one bar associations use: naming and shaming judges when they act against the interests of bar leaders. The current leadership of most high courts’ bar associations is opposed to the PTI (although, as time passes, more bar associations are willing to give Khan’s narrative a hearing). The growing public visibility of judges in electronic and social media has rendered them more vulnerable to reputational pressures from these constituencies.
The pressures from Khan’s effective mobilization since his removal combined with the judiciary’s continuing distrust of mainstream political parties, especially the PPP and PML-N, and an abiding judicial interest in constraining political discretion and holding politicians accountable mean that the new PML-N government cannot expect much relief from the courts. The Supreme Court, addressing Khan’s demands, ordered that there should be no withdrawal of, or government interference in, corruption proceedings against members of the new government. The Supreme Court also ruled that votes from members of a party that contradict their party leader—known as party defection—shall not be counted in a vote of no-confidence, effectively meaning that a prime minister with a party majority can never be voted out. The judges who made this ruling argued that it would deter elected politicians from supposedly trading votes for private benefits, illustrating judges’ continued distrust of politicians’ motives. Parliament has been weakened as the court has circumscribed parliamentary accountability of the political executive and weakened the model of constituency-based parliamentary representation. Military and judicial leadership appear keen on directing the state toward a political dispensation with a reformed institutional structure, perhaps with a new troika that better matches their preferences. Should the current government be replaced by a caretaker government before fresh elections, courts will likely receive petitions regarding the caretaker government’s actions from across the political spectrum, providing judges a further opportunity to maneuver political dynamics in their preferred direction—but at the risk of angering political elites aggrieved by their decisions.
Today, the government and opposition parties court the support of both the military and the superior judiciary.
The court may also hear important cases pertaining to the military, particularly regarding Musharraf’s treason conviction and the military’s internment centers and Real Estate Empire. The relationship and divisions between the civilian and military leadership will continue to inform the judiciary’s approach to these cases.
How the judiciary deals with these challenges will also depend upon judges themselves. It is apparent many judges disapprove of traditional political parties and sympathize with Khan’s anti-corruption rhetoric, even as they opposed Khan’s blatantly unconstitutional actions in April. But there are also judges who are focused on ensuring judicial independence rather than participating in further autocratization. To predict which direction courts will take, observers can look to which judges, and their associated normative positions, are elevated to positions of authority. With the current Supreme Court leadership, the trend of constraining PML-N and PPP-led political institutions is likely to continue. But the differently minded Justice Isa is designated to be the next chief justice of Pakistan in 2023. Whoever is chief justice during Pakistan’s next elections will play a critical role in defining the judiciary’s role during the elections. Beyond this transition, some judges are concerned about how enmeshed courts are in politics and policymaking, but for now, the judiciary is unlikely to walk back from this role.
Today, the government and opposition parties court the support of both the military and the superior judiciary. Political elites criticize these institutions for 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 tutelary institutions: the military and the superior judiciary. Even as the military remains the more powerful one, the interests of these two institutions, their disdain for political elites, and their relationship with each other will shape Pakistan’s political future.
Yasser Kureshi is a postdoctoral research fellow at Trinity College, University of Oxford. His book, Seeking Supremacy: The Pursuit of Judicial Power in Pakistan, is forthcoming with Cambridge University Press (2022).
Courtesy: Carnegie Endowment for International Peace (Published on June 23, 2022)