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

B. 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 point--ultimately leading to the court's ouster of the Prime Minister, which I discuss below in Part V.

The court's inclination to act as ultimate arbiter of political integrity and morality is manifest in a fourth case during this period, which involved the Musharraf-era requirement that legislators hold university degrees. As discussed above, this requirement--in addition to disqualifying the overwhelming majority of Pakistan's citizens from holding elective office--institutionalized the antidemocratic logic of the military's legitimating discourse and served as an instrument of political manipulation by Musharraf's regime. While the court had extraconstitutionally sustained that requirement soon after it was issued, the PCO Supreme Court under Dogar overruled that decision in 2008, invalidating the requirement as inconsistent with the constitution's fundamental rights to association and equality. (271)

It soon came to light, however, that many politicians, across a broad range of political parties, had falsely claimed to have earned the requisite degree in order to evade the requirement imposed by Musharraf's regime. Even though that requirement itself had now been invalidated, the court (now under Chaudhry), reviewing a challenge filed by a losing political candidate, took cognizance of these false degree claims as alleged "corrupt practices" and ordered the Election Commission to investigate all of Pakistan's sitting legislators and sanction any who had made false claims. (272) The decision triggered a massive spectacle, as media coverage flooded public discourse with allegations against politicians who may have claimed false academic credentials. (273) While the immediate controversy subsided, the court's actions--which, practically speaking, resurrected from the constitutional dead and gave effect to an extraconstitutional, deep state mechanism to subvert civilian politics--prompted suspicions of a concerted effort by deep state interests to undermine Pakistan's civilian government. (274) Regardless of whether the court's actions involved any actual conspiracy (and no documented evidence suggests one), the court nevertheless had, in effect, once again actively propagated and reinforced the deep state's legitimating discourse and arguably enhanced the military's power vis-a-vis Pakistan's representative institutions.

C. The Eighteenth Amendment

In the immediate aftermath of the NRO Case, the PPP-led government appeared to be in a state of chaos, amidst rumors of imminent military intervention. (275) However, beneath that volatile surface, Parliament was functioning as a more mature and effective constitutional actor than arguably ever before in Pakistan's history. (276) Resolution of the crisis between the PPP and PML-N in March 2009 had enabled an unprecedented, year-long parliamentary process that culminated in April 2010 with adoption of the Eighteenth Amendment, an unprecedented package of more than one hundred constitutional changes implementing much of the Charter of Democracy--reasserting civilian supremacy, strengthening Parliament over the presidency, devolving power to provincial governments, and reconfiguring the balance between judicial autonomy and constraint with respect to the judicial appointments process. (277)

The amendments were prepared by a twenty-six-member Parliamentary Committee on Constitutional Reforms (PCCR), which included representatives from all parties represented in Parliament and was expressly charged with recommending amendments to implement the Charter. (278) While the military placed informal constraints upon the PCCR's mandate, it largely left the committee to its own devices, apparently owing to skepticism that Pakistan's notoriously contentious politicians would reach agreement. (279) That expectation proved wholly mistaken, for in the Charter's spirit, the PCCR achieved a level of political consensus rarely seen in Pakistan's history. (280) When the PCCR presented the Eighteenth Amendment to Parliament, it did so with unanimous support of its members. (281) Ultimately, the Eighteenth Amendment sailed through Parliament without a single dissenting vote.

At its core, the amendment reasserted civilian supremacy, declaring that the extraconstitutional amendments imposed by Musharraf after his 1999 coup were "without lawful authority and [therefore have] no legal effect" and, on that basis, repealed them. (282) The amendment expanded the grounds for treason to include extraconstitutional attempts to suspend or hold the constitution in abeyance and attempts by courts to validate such actions. (283) Beyond their substantive effect, these provisions therefore functioned as an analogue to the Supreme Court's PCO Judges decision: getting Parliament's own constitutional house in order by disavowing its historical role of ratifying and completing the military's process of transformative preservation.

Substantively, the constitutional amendment package restored parliamentary supremacy, placing selection of the Prime Minister with Parliament and transferring most executive authority from the President to the Prime Minister. (284) Most notably, the amendment eliminated the President's discretionary authority under Article 58(2)(b) to dissolve the National Assembly. (285) The amendment also eliminated constraints on Parliament's lawmaking power, limiting the President's legislative role and eliminating two Zia-era schedules of semi-entrenched laws--one list of laws requiring presidential consent before they could be amended or repealed, and one list of laws that could only be amended or repealed using the procedures for constitutional amendments. (286) A handful of provisions recognized fundamental rights not previously guaranteed. (287)

The Eighteenth Amendment also enhanced the status and autonomy of provincial governments, addressing one of Pakistan's most longstanding and vexing sets of concerns. (288) The amendment eliminated the "Concurrent List," which had enumerated forty-seven subject areas in which both the federal and provincial governments could legislate but in which federal law prevailed in the event of any conflict. (289) With this transfer of lawmaking authority, seventeen of the federal government's forty-eight ministries were devolved to provincial governments, requiring an extensive implementation process to enhance provincial capacity to manage these responsibilities. The amendment also modified the formula for distributing national revenues to provincial governments and gave provincial governments greater control over their own natural resources. (290)

Finally, the amendment overhauled the process for judicial appointments. (291) As discussed above, the Supreme Court, following precedent from India, held in 1996 that recommendations for appointment by the chief justice in the constitutionally required process of "consultation" ordinarily would be binding upon the executive. As in India, this process had been criticized for concentrating excessive power in the executive and chief justice, without sufficient transparency, scrutiny, or meaningful engagement by Parliament, the legal profession, or the public at large. (292) With the Supreme Court asserting the chief justice's primacy in the consultation process, the judiciary effectively had seized total autonomy over its composition--indeed, even greater autonomy than in India, for while Indian judges may be removed by Parliament, in Pakistan removal is constitutionally assigned to a judicial body, the Supreme Judicial Council. (293)

Based on these and other criticisms, reformers had long proposed a more inclusive and transparent appointments process that would provide for greater judicial accountability, and the Eighteenth Amendment established a variant on the reforms proposed in the Charter of Democracy. (294) Relatively speaking, the overhauled process in the Eighteenth Amendment placed only modest constraints upon the judiciary's autonomy and power over its own composition. Initial nominations are made by a Judicial Commission, chaired by the chief justice of Pakistan and including representatives from the judiciary, the executive, and bar associations. (295) After reviewing all candidates, the Judicial Commission then nominates one individual for each vacancy to an eight-person Parliamentary Committee equally divided between government and opposition party members. The Parliamentary Committee's authority is limited: it may reject a nominee by a three-fourths vote but must do so within fourteen days, otherwise the nominee is automatically deemed confirmed with or without the Committee's action. (296) Unlike the previous process, with its broad executive discretion in consultation with the chief justice, the executive no longer has any direct formal role beyond effectuating the appointments upon confirmation.

Together with the PCO Judges Case, the Eighteenth Amendment--although not without significant flaws, as critics have noted (297)--resolved the impasse that had deadlocked Pakistan's post-Musharraf constitutional order. In the PCO Judges Case, the Supreme Court formally invalidated Musharraf's emergency and aggressively repudiated the jurisprudential basis used to validate military interventions for generations. With the Eighteenth Amendment, Parliament established that it was prepared to go further by rolling back much of the legal edifice arising from Musharraf's 1999 coup and presenting a strong first step in challenging entrenched military and deep state interests. Taken together, these developments have helped effect significant reconfigurations in Pakistan's political and institutional patterns. (298)

And yet, the very logic of transformative preservation means that reconfigured political and institutional patterns will not automatically lead to broader changes in the structure of underlying power relationships. (299) And despite these significant institutional changes, the basic disequilibrium among Pakistan's institutions, particularly between the Supreme Court and Parliament, and the dominance of Pakistan's military and deep state interests have largely endured. While the military has most certainly shifted the nature of its engagement with politics, it continues to wield considerable political, economic, and social influence and has not by any means sought to relinquish that underlying power. (300) As Parliament and the judiciary have sought to empower themselves--but in a context in which the state's dominant institution remains neither one of them, but rather the military--the structure of the disequilibrium between them has largely persisted.


With the Musharraf-era conflict over judicial autonomy from the military thus transformed into one over judicial autonomy from Parliament, the conflicts between Parliament and the Supreme Court have sharply escalated, amidst public suspicions that military and deep state interests have used this conflict, along with other mechanisms, to undermine Pakistan's fragile democratic transition. In this Part, I assess the perils of this continuing institutional disequilibrium and the prospect that the relationships between these institutions might evolve into an equilibrium more conducive to democratic consolidation. First, I examine the Supreme Court's decision to adjudicate the constitutional validity of the Eighteenth Amendment's judicial appointments provisions on the ground that it allegedly violated the constitution's "basic structure." While the substantive dispute over those provisions echoed and reprised conflicts over judicial appointments from the 1990s, the stakes and potential fallout from this iteration were higher, as the court seriously contemplated invalidating a constitutional amendment that had been unanimously adopted by Parliament. Second, I analyze the hazards involved in the court's adjudication of its abstract self-conception of judicial independence, risks that arise even if not framed in basic structure terms. Third, I discuss the controversies arising from the so-called "Memogate" case and the contempt proceedings that led to the court's disqualification of Prime Minister Yousaf Raza Gilani, both of which have involved even more aggressive incursions into parliamentary authority. Finally, I assess the judiciary's increasing self-understanding as an institution whose legitimacy derives directly from the people of Pakistan and the prospect that the relationships between Pakistan's institutions might evolve into an equilibrium more conducive to democratic consolidation.

A. Transplanting Basic Structure?

Among the many provisions in the Eighteenth Amendment, the judicial appointments provisions in Article 175A were not, by any means, the most consequential or far-reaching in their potential implications. (301) However, soon after the Eighteenth Amendment's adoption, Supreme Court petitions were filed challenging the new appointments process as inconsistent with a "salient feature" of the constitution--namely, "independence of the judiciary"--and, therefore, beyond Parliament's constitutional amendment power altogether. In advancing this claim, the petitioners, who included bar associations and individual lawyers, raised the stakes in the ongoing conflict between Parliament and the judiciary by urging the court to embrace a version of the "basic structure" doctrine, a principle of judicial review fashioned by the Supreme Court of India. (302) The doctrine places implied limits on Parliament's power to adopt constitutional amendments if they damage or alter the constitution's "basic structure," and on that basis claims judicial power to invalidate constitutional amendments that trench upon that basic structure. (303)

In India, the doctrine's application has provoked extensive controversy. (304) Critics argue that the doctrine is premised upon "distrust of the democratic process, which itself must surely be part of the basic structure," and has therefore resulted in judicial usurpation of parliamentary sovereignty. (305) Given the "haphazard" and "inconsistent" way in which the Supreme Court of India has defined the elements of the basic structure, critics argue, the doctrine appears to have been invoked "as much to expand the scope of judicial power as it has to delineate the core values of the constitution." (306) On the other hand, the doctrine's defenders argue that--particularly in a context where formal constitutional amendment by Parliament is not overly difficult--it preserves democratic constitutionalism and has contributed to the longevity of India's constitution by inhibiting radical constitutional change. (307) Observers also suggest that while the doctrine has contributed to the dramatic expansion of judicial power, in fact the Supreme Court of India has exercised considerable restraint in its exercise of that power. (308)

Despite its readiness to draw upon Indian jurisprudence in other contexts, (309) the Supreme Court of Pakistan has been more equivocal about the basic structure doctrine. On the one hand, although it has been presented with arguments expressly based on the doctrine on many occasions, the court has repeatedly--and expressly--declined to fully and openly embrace it, most recently doing so in 2005. (310) Pakistan's constitution expressly provides--in a provision added by General Zia's Eighth Amendment--that Parliament's power "to amend any of the provisions of the Constitution" is subject to "no limitation whatever," and that amendments "shall not be called in question in any court on any ground whatsoever." (311) While the court has described aspects of the constitution as "salient features" or "essential features"--including "independence of the judiciary"--it has never inferred a judicial power to remedy alleged infringements, stating instead that any remedy "lay in the political and not the judicial process." (312) On the other hand, on occasion the court has articulated a rule of constitutional interpretation, in the event of an irreconcilable conflict between two provisions, that contemplates the possibility of holding that the provision containing "lesser rights" must yield to the provision containing "higher rights." (313)

Nevertheless, Pakistani lawyers, scholars, and other observers have by and large expressed little enthusiasm for resolving this tension in the court's precedent in favor of openly recognizing the basic structure doctrine--particularly given the historical role of Pakistan's judiciary in facilitating military interventions that have undermined constitutionalism and representative institutions. (314) The inconsistencies found in the doctrine's application in India might well be compounded by Pakistan's shifting and interrupted constitutional development, which could present greater challenges in ascertaining which constitutional elements, over time, should be considered legitimate parts of the basic structure and which should not. (315) As the Eighteenth Amendment itself illustrates, with its sweeping changes, meaningful challenges to the accumulated entrenchment of deep state power and other important constitutional reforms might well, in some instances, require major changes to well-settled constitutional understandings and practices that might or might not be deemed to constitute part of some judicially fashioned "basic structure." Observers also have been wary of the possibility that induction of the basic structure doctrine into the Pakistani constitutional context might result in elevation of the Objectives Resolution, which is rooted in Islamic principles and which Zia incorporated into the text of the constitution as Article 2A to grundnorm status--a position with which the court flirted during the 1990s, but which it has not seriously pursued since then. (316)

B. Interpreting and Adjudicating "Judicial Independence"

Against this jurisprudential backdrop, the Supreme Court's decision to hear the petitions challenging the Eighteenth Amendment at all--much less to convene a seventeen-judge bench to hear months' worth of arguments--got people's attention. News reports soon described the court and Parliament as being on course for a "collision." (317) When arguments in the Eighteenth Amendment cases were held, members of the court appeared to respond enthusiastically to the notion of applying some version of the basic structure doctrine to scrutinize the amendment's consistency with independence of the judiciary. (318) Members of the court directly contested the notion that Parliament's power to amend the constitution was "unfettered," even though the constitution's text expressly states that it is. (319) By one observer's estimation, a majority of the court was prepared to embrace some version of the basic structure doctrine to strike down the judicial appointments provisions to some extent. (320)

Of course, even accepting independence of the judiciary as part of the constitution's basic structure offers little guidance by itself as to what that "independence" concretely requires--with respect to the appointments process or anything else. (321) Nevertheless, since Chaudhry's restoration in 2009, the Supreme Court has made increasingly loud noises about the importance of judicial independence, not just as an ideal, but as a justiciable constitutional requirement. As discussed above, in the PCO Judges Case, the court invalidated the coalition government's June 2008 law expanding the size of the Supreme Court in part for its inconsistency with "independence of the judiciary." (322) Several months later, the thirteen-judge bench that reinstated Chaudhry after his 2007 suspension by Musharraf finally issued detailed reasons for that judgment. In concluding that the President lacked authority to suspend judges, the court characterized judicial independence as a "basic and salient feature" of the constitution that required "security of office and of its tenure." (323) A month later, in the NRO Case, the court concluded that by conferring authority upon a nonjudicial entity to withdraw criminal cases without judicial consent, the NRO had infringed upon "independence of the judiciary"--which the court again termed, in abstract terms, as one of the constitution's "salient features." (324)

Strikingly, the justices' comments during arguments conveyed not only skepticism about the substance of the appointments provisions, but disdain for Parliament itself--a remarkable contrast from the favorable appraisals of Parliament's work, across a broad spectrum of opinion, in adopting the Eighteenth Amendment. (325) Chaudhry criticized Parliament for lack of debate over the amendment package. (326) Another justice criticized Parliament for not taking the petitioners "into confidence" when drafting the amendment, since bar associations and lawyers--as "common litigants" before the court--were "the main stakeholders." (327) Several justices criticized Parliament for not articulating reasons why the existing process required any changes. (328) Justices even directly questioned Parliament's legitimacy as a representative institution, asserting that the Eighteenth Amendment did not reflect the "will of the people," and that the Parliamentary Committee created under the new process lacked sufficient democratic credentials because its members--though all members of Parliament--"were not elected by the public but by the leader of the House and the opposition." (329)

When the court issued its decision, it exhibited more finesse than in these comments, but forcefully asserted its autonomy all the same. In a unanimous interim order, the court emphasized the centrality of judicial independence as a "core value" of the constitution. (330) Crediting Parliament's good faith in adopting the provisions, the court postponed any final decision on the merits, expressing a preference to defer to Parliament "in the first instance." However, while affording Parliament these courtesies, the court referred the provisions back to Parliament for "re-consideration" in light of its "concerns/reservations" and "observations/suggestions." (331) The court then made explicit what it hoped to see upon "reconsideration," intimating that Article 175A's "consonance" with judicial independence required increasing the number of Supreme Court judges on the Judicial Commission from two to four, thereby giving the judiciary primacy. The court also "suggested" that if the Parliamentary Committee disagreed with a recommendation by the Judicial Commission, it should be required to "give very sound reasons" and refer the nomination back to the Commission for reconsideration. If the Commission reiterated its recommendation, then its decision would be deemed binding and final. In the meantime, since Article 175A had already gone into effect, the court ordered its implementation with modifications along similar lines as its "suggestions," to ensure "consonance ... with judicial independence." (332)

Nominally, the court struck a cooperative tone, emphasizing that it did not regard "sovereignty of the Parliament and judicial independence as competing values." (333) Rather, the court stated, "[b]oth the institutions are vital and indispensable ... and they do not vie but rather complement each other so that the people could live in peace and prosper in a society which is just and wherein the rule of law reigns supreme." (334) Publicly, many acclaimed the court's decision for being rendered in this spirit, avoiding the clash of institutions that many had feared. (335) At least superficially, the decision could be understood as embodying restraint, avoiding direct resolution of the contentious question of whether to recognize the basic structure doctrine, (336) and appearing to contemplate "dialogue" with Parliament in some manner. (337)

However, given its longstanding jurisprudence largely rejecting the basic structure doctrine, the court's decision to hear the petitions in the first place could scarcely be termed an act of restraint. While framed as affording deference to Parliament, behind this facade the subtext of the court's order seemed clear, if implicit, that if Parliament did not revise the provisions to the court's liking, then it would likely invalidate the provisions as beyond Parliament's amendment power. Moreover, treating judicial independence as an abstract but justiciable constitutional guarantee, as the court has now edged toward doing in several cases, raises concerns whether or not understood as part of the constitution's basic structure. For one thing, placing responsibility for interpreting and specifying what "independence" requires with the judiciary itself leaves those determinations with an actor institutionally self-interested in the outcome. (338) More fundamentally, as discussed earlier, judicial independence is not an undifferentiated concept--as the court and others often assume--but rather comprises an evolving balance between judicial autonomy and constraint across a range of relationships and dimensions. (339) While courts obviously adjudicate and specify abstract principles all the time, whether this conception of judicial independence, given its nature, lends itself well to that kind of concrete specification, through a process of common law, case-by-case adjudication of discrete issues, remains far from clear.

The court's piecemeal discussions of judicial independence illustrate the difficulty. In each case, it assessed the particular issue being considered against a static, abstract, and decontextualized conception of judicial independence. Regardless of whether the specific outcomes in any of these cases might have been desirable, the court's methodology--perhaps unavoidably--neglects the larger, overall balance between judicial autonomy and judicial constraint, across the full range of relationships and dimensions from which judicial independence arises. Such an approach is therefore unlikely to pay sufficient heed to the dynamic, evolving, and context-sensitive manner in which that overall balance should be assessed. These concerns are significant enough when assessing the validity of subconstitutional laws or actions. Of course, the stakes are self-evidently higher when evaluating constitutional amendments, as the basic structure doctrine demands, since invalidation of an amendment forecloses any response from representative institutions and results in a permanent, entrenched change to the broader institutional balance. (340)

In any event, the "dialogue" between the court and Parliament on the appointments process has been fairly unidirectional. In response to the court's order, Parliament partially acquiesced by promptly--and again unanimously--adopting the Nineteenth Amendment, which increased the number of senior judges on the Judicial Commission from two to four. Parliament did not, however, follow the court's guidance regarding the ability of the Judicial Commission to overrule the Parliamentary Committee if it rejected the Commission's nominees. (341) The court soon ensured the Commission's supremacy over the Parliamentary Committee on its own--and in effect, the court's own continued supremacy in the appointments process. In early 2011, after the Committee rejected the Commission's recommendations to extend the terms of several High Court additional judges, a four-judge Supreme Court bench overruled the Committee and ordered the nominees' terms to be extended. (342) The court limited the Committee's authority, concluding that the Committee lacked institutional expertise to question the Commission's conclusions regarding the "professional caliber, legal acumen, judicial skill and quality and the antecedents" of judicial nominees. (343) A concurring opinion by Justice Khawaja went further, invoking "independence of the judiciary" as a constitutional touchstone and relying upon the two Judges' Cases from the 1990s as a means of preserving judicial supremacy over appointments. (344)

The result of the court's two appointments decisions, as Cyril Almeida observes, was essentially to "dictate" implementation of the reformed judicial appointments process in a manner that "will pretty much look like the [pre-Eighteenth Amendment] appointment process." (345) Even as it purported to act with restraint, the court had aggressively asserted its power and autonomy--swatting away even the modest constraints that Parliament had, unanimously, adopted as constitutional amendments.

C. The Judiciary and the Deep State

Since deciding the Eighteenth Amendment Case, the Supreme Court's assertions of judicial autonomy have cut ever more deeply into the core of parliamentary authority, most notably in two high profile, deeply politicized cases. First, the court waded into the heart of deep state politics by initiating a judicial investigation into the circumstances surrounding the shadowy "Memogate" affair. That controversy concerned an unsigned memo sent to U.S. military officials in May 2011, days after the U.S. raid on Osama bin Laden's compound, warning of a supposedly imminent military coup and asking U.S. officials to intercede to prevent it. (346) According to a Pakistani American named Manjoor Ijaz, who claimed to have delivered the memo to U.S. officials, the memo was written by then-Ambassador to the United States Husain Haqqani on behalf of Zardari, both of whom long had been at odds with military and security interests. A media firestorm immediately ensued over the mysterious origins of the memo and its possibly "treasonous" nature. Haqqani denied Ijaz's allegations, but was forced to resign as ambassador. The Prime Minister then announced that a parliamentary committee would investigate the matter. The military also launched its own formal investigation--amidst rumors that the entire affair had been engineered, somewhat clumsily, by deep state elements to undermine the PPP-led government and that a coup even might be imminent. (347)

Meanwhile, the PML-N's Sharif and other opposition figures filed petitions with the Supreme Court requesting a judicial investigation, and in the course of reviewing those petitions, the court ordered Haqqani not to leave Pakistan, despite concerns for his safety and amidst allegations that the court had denied him due process of law. (348) In response, the military--directly filing responses with the court at its direction, but apparently without the civilian government's consent--encouraged the court to investigate the matter, while both the government and Haqqani urged it not to do so, especially since Parliament was undertaking its own investigation. (349) However, the court admitted the petitions and established the commission, concluding that the matter implicated fundamental rights and was of sufficient public importance to warrant the court's review. (350) In an unusual manner, the court's fundamental rights reasoning was imbued with national security considerations. The court concluded that the existence and contents of the memo "have threatened the independence, sovereignty, and security of the country," and accordingly, that the circumstances surrounding the "origin, authenticity, and purpose" of the memo implicated the petitioners' fundamental rights to life, dignity, and information under the constitution. (351)

Second, the PPP-led government's prolonged unwillingness to implement the court's December 2009 judgment in the NRO Case prompted the court to convict Prime Minister Gilani of contempt of court and take the remarkable step of directly ordering his disqualification and removal from office. (352) Following the court's December 2009 judgment, the government had deployed an array of tactics to avoid its implementation--and in particular, to avoid writing Swiss authorities to request reinstatement of the charges against Zardari. (353) The delaying tactics were widely understood as calculated not only to protect Zardari from legal exposure, but also to at least try to protect the PPP-led government from the political fallout it would likely endure by placing itself on record as requesting criminal charges against its own head of state and party co-chair. (354)

After the government had stalled implementation for over two years, the Supreme Court's patience finally reached its limit. In a January 2012 order, the court enumerated six "unpleasant" options it might take to address the government's recalcitrance--ranging from direct, outright disqualification of the President and Prime Minister or the initiation of contempt proceedings against the Prime Minister, at the aggressive end of the spectrum, to leaving the matter in the hands of Parliament or the people of Pakistan, at its more restrained end. In between these two extremes, the court floated the idea of creating a commission to monitor the implementation of its judgment. (355) The less severe options might have exposed the court as incapable of fully enforcing its order. As a practical matter, however, the court faced that prospect anyway, since the likelihood of Swiss proceedings against Zardari ultimately being revived was exceedingly limited. (356)

The court opted to indict Gilani for contempt. In response, the Prime Minister argued, among other things, that he could not constitutionally write the letter because, as President, Zardari had absolute immunity from criminal prosecution during his term of office. A seven-judge bench rejected Gilani's arguments and convicted him in April 2012, but only imposed a symbolic sentence lasting approximately thirty seconds. (357) At the time, some observers interpreted this "token" sentence as an effort by the court to back down from the conflict and instead let Gilani's fate be determined by the political process. (358) However, in May 2012, the Speaker of the National Assembly ruled that the conviction did not require Gilani's referral to the Election Commission for disqualification from holding office under Article 63(1)(g). (359) Opposition politicians petitioned the Supreme Court to overrule the Speaker's decision. (360) In June 2012, a three-judge bench of the court, including Chaudhry, exercised jurisdiction to review the Speaker's decision, overruled that determination, and directly ordered Gilani's disqualification on its own--with retroactive effect from the date of his conviction in April 2012. (361) The court again invoked judicial independence as a basis for its decision, concluding that the Speaker's ruling had "defied the principles of independence of the judiciary" by disregarding and effectively trying to overrule the court's own conclusion, in convicting Gilani of contempt, that he had brought the Supreme Court and judiciary "into ridicule." (362)

With these assertions of autonomy since Chaudhry's restoration to office, the Supreme Court has veered remarkably close to reprising its traditional role of facilitating the subversion of representative institutions--relying in the process, once again, on an underlying discourse that coincides with the military's own legitimating discourse. In the Memogate Case, the court directly invoked the deep state's interests to privilege its own investigation over that of Parliament, and to privilege national security over fundamental rights. Haqqani's lawyer, Asma Jahangir, went so far as to suggest that the military, unable or unwilling to directly intervene to remove Zardari or the PPP-led government in Parliament, instead sought to use the judiciary and the government's political opponents to subvert the civilian government indirectly. (363) But even in the absence of any conspiracy, the episode illustrates Pakistan's institutional disequilibrium at work and the way in which the judiciary can weaken representative institutions to the benefit of military and deep state interests. In the case of Gilani's disqualification, the court set itself up as an "arbitrator[] of democratic righteousness," assuming for itself the role of not only determining whether democratically elected legislators are sufficiently honest to remain in office, but also whether Parliament's own internal processes are sufficient to police those qualifications. (364) Although the court recognized, as it had in previous cases, that the constitution confers the Speaker and Election Commission with discretionary and apparently exclusive authority over questions of disqualification from Parliament, the court's decision purported to eliminate the discretion of both the Speaker and the Election Commission altogether in cases involving "conviction of a member of Parliament by a court of competent jurisdiction." (365) Rather, the court essentially concluded, disqualification would flow automatically as a consequence of any such conviction, subject only to appellate judicial review of the conviction itself.

In both cases, the court functioned as an extraparliamentary broker, like the President and military during the 1990s, to whom opposition politicians turn when seeking short-term advantage against the party in government. In both cases, the court also cut closer to the core of Parliament's inner workings. In the Memogate Case, the court declined to defer its own investigation in favor of Parliament's own inquiry, while in the Gilani disqualification case, the court took the remarkable step of reviewing and overruling a ruling made by the Speaker of the National Assembly--characterizing it as falling outside the "internal proceedings" of Parliament precluded from review under the constitution. (366) The court also directly ordered the President of Pakistan, following Gilani's retroactive dismissal, "to take necessary steps ... to ensure continuation of the democratic process through parliamentary system of government." (367) The implication in both of these cases was a paternalistic one: in matters near the core of the democratic process, Parliament and the President could not be trusted to handle their own affairs without the judiciary's oversight. (368)

D. Judicial Populism and Judicial Accountability

In the United States, scholars have extensively studied the relationships between judicial decision making and public opinion. (369) Recent experiences in Pakistan offer an interesting context in which to examine those relationships, as the judges of Pakistan's higher judiciary rapidly have come to understand their roles and professional identities as being defined and legitimated directly by the Pakistani people. The seeds of this self-conception were sown before the lawyers' movement, when the Supreme Court began to expand its use of public interest litigation and suo motu powers. (370) As Upendra Baxi observed thirty years ago, as the Supreme Court of India was embarking on its own innovations with public interest litigation, these mechanisms of adjudication can open "new bases of legitimation of [judicial] power and authority, relatively autonomous from the executive and the legal profession," since they are not mediated by other state institutions or the legal community, but rather purport to engage ordinary litigants directly. (371)

In the wake of the anti-Musharraf movement's popular mobilizations in support of the judiciary, this self-conception has deepened further. As the lawyers' movement's leaders have emphasized, the movement's strategies were self-consciously designed to sensitize judges to issues of concern to the legal community and the public. (372) When the demonstrations against Musharraf and in support of the judiciary widened to include more ordinary citizens, particularly during the emergency, judges increasingly came to understand themselves as both accountable to and legitimated by the members of the public who rallied in their support. (373) For example, Chaudhry's own account of the judiciary's role, as articulated in a speech at Harvard Law School in 2008, self-consciously justifies the court's assertions of autonomy and power--against both "civilian as well as uniformed politicians and our intelligence agencies"--as being designed to benefit "the general population at large and the economy." (374)

Since Chaudhry's restoration to office in March 2009, this institutional self-understanding also has been increasingly manifest in the court's opinions. (375) In his concurring opinion in the Gilani contempt decision, for example, Justice Asif Saeed Khan Khosa traces a straight line from the will of the people not to Gilani's status as member of Parliament and Prime Minister, but to his contempt conviction--owing to the fact that "ultimate ownership of the Constitution" and its institutions "rests with the people of the country who have adopted the Constitution":

The power to punish a person for committing contempt of court is primarily a power of the people of this country to punish such person for contemptuous conduct or behavior displayed by him towards the courts created by the people.... It is, thus, obvious that a person defying a judicial verdict in fact defies the will of the people at large and the punishment meted out to him for such recalcitrant conduct or behavior is in fact inflicted upon him not by the courts but by the people of the country themselves acting through the courts created and established by them. (376)

Justice Khawaja made similar observations in his opinion concurring in the judgment disqualifying Gilani from office, claiming for the judiciary a coequal basis, with Parliament, for reflecting the popular will. (377) Justice Khawaja directly contested the notion that "Parliament alone represent[s] the will of the people," asserting instead that by exercising its contempt power and disqualifying Gilani, the court had "performed its democratic role stated in the Constitution to keep elected representatives in compliance with the will of the people manifested in the Constitution." (378)

At one level, this depiction of the judicial role might be understood as reflecting a popular sovereignty-based understanding of constitutionalism in which the judiciary--no less than other government institutions--is both legitimized and constrained by a constitution that embodies and reflects the popular will. (379) And to be sure, even as it has challenged civilian politicians, the court simultaneously has tried to continue asserting its autonomy and power vis-a-vis military and deep state interests as well. For example, in recent years the court has moved forward on two sensitive cases involving the intelligence agencies, one investigating the circumstances in which individuals have "disappeared" while in the custody of intelligence officials and one investigating allegations that the agencies had infiltrated and manipulated the political process during the 1990s. (380) However, the court's aggressiveness with cases involving civilian politicians goes well beyond an understanding of its role rooted in conventional popular sovereignty-based constitutional principles, carrying instead the more directly populist valence of the anti-Musharraf movement. (381) And whether the court will successfully manage to be genuinely evenhanded in its treatment of civilian versus military interests over the longer term, in the face of continued military and deep state dominance, remains highly uncertain. (382)

Fashioning a judicial role more conducive to reinforcing democratic consolidation will require directly confronting and moving beyond at least two ironies that may be seen in the higher judiciary's increasingly populist institutional self-identity, which Faisal Siddiqi characterizes as a self-conception of "judicial sovereignty." (383) The first irony involves a disconnect between the priorities of the higher judiciary and other pressing public needs in reform of the judicial system. After all, a judiciary animated by a sense of accountability to and legitimation by the Pakistani people might, in fact, prioritize its work somewhat differently. As Osama Siddique argues, the court's extensive investment of resources in major political cases--which it increasingly undertakes in the name of the "people"--might, from another perspective, be "tantamount to neglecting an uplift of what is essential from the standpoint of [ordinary citizens] who daily face a deeply eroded court system," over which the Supreme Court and High Courts have ultimate supervisory responsibility. (384) Notwithstanding tools like public interest litigation and suo moto powers, ordinary Pakistani citizens are still much more likely to interact with courts in the lower judiciary, which suffer from huge case backlogs, widespread corruption, uneven quality, and other problems interfering with access to justice. (385) Even within the higher judiciary itself, the intensive focus on these political cases necessarily means that other public interest cases get placed on the back burner. (386)

The second irony concerns the nature of the judiciary's perceived legitimation and accountability. While the judges increasingly understand themselves as directly legitimated by the people, in fact the judiciary has no direct lines of accountability to that source of legitimation. The people have no direct role in the appointment or removal of judges--and indeed, given the manner in which the appointment and removal processes have evolved, the people do not even have a meaningful indirect role through their elected representatives in Parliament. There is no way for public opinion to directly inform judicial decision making in any sort of unmediated way. While judges might hope to infer the will of the people from Pakistan's increasingly lively and open media, the often sensationalist and partisan nature of much media coverage and its susceptibility to deep state influence make the media an imperfect proxy for popular will. (387) Indeed, Pakistan's judiciary has increasingly sought to curtail even these limited lines of judicial accountability by attempting to restrict criticism of the judiciary in the media. (388)

In this context, a judiciary that sincerely desires its legitimation to rest with the Pakistani people has an interest in stronger representative institutions and stronger lines of accountability to those institutions, and a more robust public conversation on how to implement mechanisms of judicial accountability that could help to better legitimate the role that the Supreme Court has increasingly sought to perform. (389) So far, however, Parliament has not effectively asserted meaningful external constraints upon the judiciary. To be sure, the government has not, by any means, conceded that the Supreme Court has always been acting lawfully and constitutionally. But it also has not been in a position to act forcefully upon that position. For example, in what one might consider a rather feeble variant on departmentalism, (390) the PPP-led government questioned the court's disqualification and dismissal of Gilani and, even after designating a new Prime Minister, Raja Pervez Ashraf, to replace Gilani, continued to resist the court's orders to write the Swiss letter in the NRO Case. Given that resistance, the court initiated contempt proceedings against Ashraf, as it had against Gilani, and the cycle began anew. (391) At the same time-apparently owing in large measure to the risk of military intervention in the event of an escalating constitutional showdown--at no point did the government seriously contest the court's remarkable sanction, opting instead to acquiesce to Gilani's judicially ordered dismissal. (392) While senior PPP officials intimated that the government was prepared to continue playing this game of chicken indefinitely--permitting the court to continue ousting sacrificial prime ministers by using its contempt power until the government's full term of office was complete and elections were scheduled--ultimately, the government acquiesced and agreed to draft the letter to Swiss officials. (393)

Ultimately, this pattern of responses--standing, of course, in sharp contrast to the constraints to which the judiciary is vulnerable from military and deep state interests--is one of institutional weakness, not strength. Parliament has not been able to meaningfully constrain the judiciary or, indeed, even tried particularly hard to do so. (394) Most recently, while the government has attempted to shield the Office of the Prime Minister from the Supreme Court's assertions of power, by adopting a new Contempt of Court Act that limits the court's contempt power, a five-judge bench invalidated that law as unconstitutional. Notably, the court interpreted its constitutional power to punish contempt of court as effectively plenary, concluding that the constitution did not permit Parliament to "curtail[] the [contempt] powers of the Supreme Court" and that any such limitation would infringe upon the "dignity" and independence of the judiciary. (395) The court also has continued to cast more fundamental aspersions on Parliament's legitimacy as a democratic institution that echo the deep state's legitimating discourse. (396) Even as the court continues to assert its autonomy in the name of "judicial independence," a judiciary without an appropriate balance between autonomy and constraint, across the full range of its relationships with other actors, remains elusive.


Pakistan's current shift to civilian rule has involved remarkable institutional and political change, developments that stand in sharp contrast to the standard, longstanding narratives about Pakistan's perpetual crisis and imminent "failure." The current moment can genuinely be understood as one with potential to lay a solid, long-term foundation for democracy and constitutionalism. But the path ahead remains treacherous. As with other countries in the gray zone between authoritarianism and democracy, tackling the complexities of that challenge may not lend itself to prescriptions arising from conventional, evolutionary accounts of constitutional and political change. The ultimate success of this transition process will depend upon a sustained, effective challenge to entrenched military and deep state dominance that is supported by a range of actors, including the judiciary.

In this context, it is crucial to develop an understanding of the judiciary's role and institutional identity that goes beyond unqualified, decontextualized notions of "judicial independence" that uncritically assume that "maximal autonomy" is necessarily preferable. Writing about U.S. debates over judicial review, Barry Friedman has described how normative discussions of the judicial role tend to coalesce around two basic positions--one regarding the judiciary as a "threat" that "diminishes or interferes with democratic governance" and one offering a basis for "hope," in which the judiciary, if conferred with sufficient "independence," can help "ensur[e] that government adheres to constitutional command." (397) As Friedman elaborates, however, the '"hope' stories" often fail to sufficiently account for real world constraints upon the ability of courts to live up to the idealized role that normative theories often contemplate. (398) Insofar as courts are embedded within particular political, institutional, and social contexts--and are both constrained and empowered by those contexts--more complete understandings must account for those contextual realities. As Pakistan's historical experience demonstrates, gray zone countries present contextually distinct versions of this threat-hope dilemma, in which aggressive assertions of judicial autonomy against weak representative institutions can weaken those institutions even further--and, in the process, further reinforce the already well-entrenched power of status quo interests.

Pakistan's long-term trajectory out of the gray zone requires representative institutions with strengthened governance capacities and power to rein in entrenched military and deep state interests. (399) Given the existing weaknesses of Pakistan's representative institutions--and their enduring vulnerability to the deep state and its antidemocratic legitimating discourse--a judiciary without an appropriate balance between judicial autonomy and judicial constraint, across the full range of the judiciary's relationships with other actors, can pose "threats" that might not be present or as severe in other countries. These lessons have broader applicability, since other countries undergoing constitutional regime shifts similarly contend with status quo interests, such as the military, that wield considerable power. Pakistan's experiences are therefore instructive--or at least suggest notes of caution--about the relationship between military and other status quo interests and an "independent judiciary" for other countries that risk languishing in the gray zone, but seek a more complete shift to democracy and constitutionalism.

(1.) See Thomas Carothers, The End of the Transition Paradigm, 13 J. DEMOCRACY 5, 6-7 (2002) (discussing the conventional assumption that "democratization tends to unfold in a set sequence of stages"); Kristen A. Stilt, Constitutional Authority and Subversion: Egypt's New Presidential Election System, 16 IND. INT'L & COMP. L. REV. 335, 336 (2006) ("Most recent scholarship on constitutional change is grounded in an evolutionary model ... in which nations proceed from authoritarian forms of government to democracy.").

(2.) See Ash U. Bali, The Perils of Judicial Independence: Constitutional Transition and the Turkish Example, 52 VA. J. INT'L L. 235, 237 (2012) (discussing democratization literature's "standard recommendations regarding the prerequisites for transitions away from authoritarianism," including judicial independence); Robert W. Gordon, The Role of Lawyers in Producing the Rule of Law: Some Critical Reflections, 11 THEORETICAL INQUIRIES L. 441, 443 (2010) (discussing "converge[nce]" of different visions of promoting rule of law "on an institutional program" that includes "courts staffed with 'independent' judges"); Gretchen Helmke & Frances Rosenbluth, Regimes and the Rule of Law: Judicial Independence in Comparative Perspective, 12 ANN. REV. POL. SCI. 345, 361 (2009) ("If there is any concept of modern governance that enjoys more widespread admiration even than democracy, it is judicial independence.").

(3.) See Stilt, supra note 1, at 338 (noting "large category of unexamined constitutions that have undergone change and emendation but in less clear directions"); Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L.J. 2009, 2057 (1996) ("In transitional constitutional processes ... constitutions are not created all at once, but in fits and starts."); CHARLES TILLY, CONTENTION AND DEMOCRACY IN EUROPE, 1650-2000, at 13 (2004) (contesting "the existence of standard sequences of change from undemocratic to democratic regimes"); Noah Feldman, Review: Constitutions in a Non-Constitutional World: Arab Basic Laws and the Prospects for Accountable Government, 1 INT'L J. CONST. L. 390, 391 (2003) (urging scholars to "promote conceptual clarity by finding a way to talk about partial rule of law and partial constitutionalism").

(4.) See generally RULE BY LAW: THE POLITICS OF COURTS IN AUTHORITARIAN REGIMES (Tom Ginsburg & Tamir Moustafa eds., 2008).

(5.) Carothers, supra note 1, at 9-11 (noting that of the nearly one hundred countries considered "transitional," only a small number are close to becoming successful, well-functioning democracies"); see also AYESHA JALAL, DEMOCRACY AND AUTHORITARIANISM IN SOUTH ASIA: A COMPARATIVE AND HISTORICAL PERSPECTIVE 3 (1995) ("Far from representing a neat and sharp dichotomy, democracy and authoritarianism.... may frequently overlap irrespective of the formal designation of polities and states as democratic or authoritarian."); STEVEN LEVITSKY & LUCAN A. WAY, COMPETITIVE AUTHORITARIANISM: HYBRID REGIMES AFTER THE COLD WAR 5-13 (2010) (conceptualizing "competitive authoritarian" regimes in which "formal democratic institutions exist ... but in which incumbents' abuse of the state places them at a significant advantage"); Larry Diamond, Thinking About Hybrid Regimes, 13 J. DEMOCRACY 21, 23 (2002) (discussing the "astonishing frequency with which contemporary authoritarian regimes manifest, at least superficially, a number of democratic features").

(6.) See Michelle Pace & Francesco Cavatorta, The Arab Uprisings in Theoretical Perspective--An Introduction, 17 MEDITERRANEAN POL. 125, 135 (2012) ("[T]he Arab uprisings have shown that there is no linear transition from liberalizing authoritarian rule to a fully fledged democracy of the liberal kind."); NADIA MARZOUKI, FOUR KEYS TO UNDERSTAND TUNISIAN POLITICS AFTER THE ELECTIONS 1 (2011) ("[I]t is much too early to draw any conclusion or to speculate about the future of political debates in Tunisia."); TAMIR MOUSTAFA, DRAFTING EGYPT'S CONSTITUTION: CAN A NEW LEGAL FRAMEWORK REVIVE A FLAWED TRANSITION? 3-6 (2012) (discussing uncertainty arising from Egypt's post-Mubarak constitutional development); Anthony Billingsley, Writing Constitutions in the Wake of the Arab Spring: The Challenge of Consolidating Democracy, FOREIGN AFF. (Nov. 30, 2011), 136699/anthony-billingsley/writing-constitutions-in-the-wake-of-the-arab-spring (discussing the "dynamic and complicated battle[s]" over constitutional change in Tunisia, Egypt, and Libya).

(7.) See Michele Dunne & Shuja Nawaz, Can Egypt Avoid Pakistan's Fate?, N.Y. TIMES, Feb. 3, 2012, at A21 (discussing the parallels between recent developments in Egypt and Pakistan); Michael C. Dorf, How Rulings of the Supreme Constitutional Court of Egypt Hold Lessons for Emerging Democracies, and for Our Own, VERDICT (June 20, 2012), lessons-for-emerging-democracies-and-for-our-own (same); Myra MacDonald, Army, Allah and America: On Pakistani Pitfalls and the Future of Egypt, REUTERS (Jan. 30, 2011), 2011/01/30/army-allah-and-america-on-pakistani-pitfalls-and-the-future-of-egypt/(same).

(8.) See SAADIA TOOR, THE STATE OF ISLAM : CULTURE AND COLD WAR POLITICS IN PAKISTAN 1 (2011) ("Western media has no space for ... stories that contradict the dominant narrative of Pakistan as a fountainhead of extremism."); MANAN AHMED, WHERE THE WILD FRONTIERS ARE: PAKISTAN AND THE AMERICAN IMAGINATION 49 (2011) ("Pakistan--as an object of consumption--is marketable only via its violence or its failure."); Madiha R. Tahir, Chaos Theory: How Pakistan Was Cast as a Failed State, COLUM. JOURNALISM REV. (Apr. 24, 2009, 9:48 AM), the news/chaos_theory_l.php (arguing that U.S. public discourse discusses Pakistan "as though it were a psychiatric patient refusing its happy pills"); Rafia Zakaria, Hearts, Minds and Floods, DAWN, Aug. 18, 2010, "inability" in U.S. public discourse "to ever see Pakistan as something other than a militant haven").

(9.) See, e.g., Manan Ahmed, Legends of the Fail, NATIONAL (U.A.E.), May 7, 2009, at 3 (documenting "decades worth of books" positing Pakistan's "failure"); ANATOL LIEVEN, PAKISTAN: A HARD COUNTRY 3 (2011) ("Tariq All wrote Can Pakistan Survive? The Death of a State in 1983, a generation ago. That's quite a long deathbed scene by any standards."). For recent attempts to complicate these conventional narratives, see generally PAKISTAN: BEYOND THE "CRISIS STATE" (Maleeha Lodhi ed., 2011); Naveeda Khan, Introduction to BEYOND CRISIS: RE-EVALUATING PAKISTAN 1-26 (Naveeda Khan ed., 2010).

(10.) See, e.g., Anupam Chander, The Asian Century?, 44 U.C. DAVIS L. REV. 717 (2011); Teemu Ruskola, Where Is Asia? When Is Asia? Theorizing Comparative Law and International Law, 44 U.C. DAVIS L. REV. 879 (2011); Holning Lau, Grounding Conversations on Sexuality and Asian Law, 44 U.C. DAVIS L. REV. 773 (2011).

(11.) E.g., AHMED, supra note 8, at 28-29 (discussing "checkered past" of constitutionalism in Pakistan); FINAL REPORT OF THE PARLIAMENTARY COMMITTEE ON CONSTITUTIONAL REFORMS [parallel] 1 (2010) [hereinafter PCCR REPORT] ("Pakistan has a chequered constitutional history."); HAMID KHAN, CONSTITUTIONAL AND POLITICAL HISTORY OF PAKISTAN 732 (2d ed. 2009) (discussing lessons of Pakistan's "chequered constitutional and political history"); ZULFIKAR KHALID MALUKA, THE MYTH OF CONSTITUTIONALISM IN PAKISTAN 3 (1996) ("[T]he history of constitution-making in Pakistan has been long and chequered."); see also ZACHARY ELKINS, TOM GINSBURG & JAMES MELTON, THE ENDURANCE OF NATIONAL CONSTITUTIONS 150 (2009) ("Pakistan's constitutions seem to die with some frequency").

(12.) See Anil Kalhan, Constitution and "Extraconstitution" Colonial Emergency Regimes in Postcolonial India and Pakistan, in EMERGENCY POWERS IN ASIA: EXPLORING THE LIMITS OF LEGALITY 89, 93-96 (Victor V. Ramraj & Arun K. Thiruvengadam eds., 2010) (discussing Pakistan's "lawyers' movement" and its aftermath).

(13.) See, e.g., HAROLD BAER, JR., JUDGES UNDER FIRE: HUMAN RIGHTS, INDEPENDENT JUDGES, AND THE RULE OF LAW 69-78 (2011) (celebrating Pakistan's "courageous judges and lawyers" and finding cause for "hope for the rule of law" in judges' assertions of independence); see also Lucien Karpik & Terence C. Halliday, The Legal Complex, 7 ANN. REV. L. & SOC. SCI. 217, 226-27 (2011) (celebrating Pakistan's judiciary for "delegitimiz[ing Musharrafs] regime while simultaneously "legitimating themselves").

(14.) See, e.g., Iftikhar Muhammad Chaudhry, Chief Justice, Speech Given upon Acceptance of Harvard Law School Association's Medal of Freedom (Nov. 19, 2008), available at ("Pakistani lawyers are now struggling to keep their autocrats, military as well as democratic, from influencing judges." (emphasis added)); see also id. ("Our autocrats, whether uniformed or otherwise, while decreeing a democratic order are, at the same time, postponing the establishment of an independent judiciary to an ever more distant future." (emphasis added)).

(15.) See Declan Walsh, Pakistan Court Widens Role, Stirring Fears, N.Y. TIMES, Jan. 23, 2012, at A1 (discussing concerns that the court's "campaign of judicial activism" against the civilian government "could damage [Pakistan's] fragile democracy and open the door to a fresh military intervention"); Chris Allbritton & Serena Chaudhry, Pakistan Supreme Court Takes Centre Stage as Political Player, REUTERS (Feb. 13, 2012), (discussing concerns that the court's conflict with the civilian government may be "strengthening the hand of the military"); HARDtalk: Interview with Aitzaz Ahsan (BBC World News television broadcast Aug. 7, 2012) (asserting that the court has become "too powerful" and at times "overstepped its limits"); Paula Newberg, The Court Rules in Pakistan, YALEGLOBAL ONLINE (June 21, 2012), (arguing that court's decision to remove Prime Minister Yousaf Raza Gilani from office "amounts to a judicial coup d'etat" and jeopardizes Pakistan's domestic politics, foreign policy, and the fiscal stability). Scholars have raised similar concerns about courts in countries such as Egypt and Turkey. See MOUSTAFA, supra note 6, at 9, 13 n.29 (urging safeguards to preserve judicial independence in Egypt, but cautioning that "courts that operate completely independent of majoritarian institutions" can also pose risks to democracy and fundamental rights); Bali, supra note 2, at 243 (noting ways that mechanisms to preserve judicial independence in Turkey at times "have paradoxically served to sustain the power of old-regime decisionmakers and block pathways to future political liberalization"). But see Jill Goldenziel, Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts, 61 AM. J. COMP. L. 1, 5 (2013) (arguing that "courts may be better situated than legislatures to counter executive power in hybrid regimes").

(16.) See Stephen B. Burbank, The Architecture of Judicial Independence, 72 S. CAL. L. REV. 315, 340 (1998) (emphasizing importance of context in conceptualizing judicial independence); see also MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 10-15 (2009) (discussing importance of context when assessing specific constitutional doctrines and institutions); Bali, supra note 2, at 238-39 (arguing, based on Turkish experience, that conceptualizing judicial independence "under conditions of democratic transition demands greater attention to context than to process or to best practices in institutional design transplanted from elsewhere"); Peter H. Schuck, Courts in a Democracy, 1 JINDAL GLOBAL L. REV. 7, 8 (2009) ("[J]udicial independence is not a binary phenomenon; it is manifestly a matter of degree."); cf. Barry Friedman, The Politics of Judicial Review, 84 TEX. L. REV. 257, 331 (2005) (arguing that normative theories of judicial review should "build[] upon and incorporate[] positive understandings" of how judges actually behave in real world contexts).

(17.) Burbank, supra note 16, at 317; see also Stephen B. Burbank & Barry Friedman, Reconsidering Judicial Independence, in JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH 9, 10-14 (Stephen B. Burbank & Barry Friedman eds., 2002) (explaining that "judicial independence is a means to an end (or, more probably, to more than one end)"); John A. Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, 77 N.Y.U.L. REV. 962, 963-64 (2002) ("[Judicial] independence and accountability ... are means toward a more fundamental goal: the construction of a well-functioning judiciary.").

(18.) See Vicki C. Jackson, Packages of Judicial Independence: The Selection and Tenure of Article III Judges, 95 GEO. L.J. 965, 966-69 (2007) (conceptualizing judicial independence in terms of overall "packages" of rules governing selection, tenure, and removal, along with a range of other legal rules and institutional features); Dana Ann Remus, Just Conduct: Regulating Bench-Bar Relationships, 30 YALE L. & POL'Y REV. 123, 144-45 (2011) (discussing different axes and dimensions of judicial independence); see also Friedman, supra note 16, at 331 (noting that the spheres of judicial autonomy and constraint are defined in a contextual manner: "by case, by court, by judge").

(19.) See Teitel, supra note 3, at 2029-35 (suggesting that "in periods of political change," the rule of law "preserves some degree of continuity in legal forms, while it enables normative change," and assessing the role of the judiciary in these transitional moments); Owen M. Fiss, The Limits of Judicial Independence, 25 U. MIAMI INTER-AM. L. REV. 57, 68-76 (1993) (arguing that judicial independence in moments of regime shift or transition should be assessed in a "regime relative" manner); Tom Ginsburg, Constitutional Afterlife: The Continuing Impact of Thailand's Postpolitical Constitution, 7 INT'L J. CONST. L. 83, 83-86 (2009) (discussing the significant continuing influence of Thailand's 1997 constitution even after its formal abolition and the establishment of a new constitutional regime); see also Alison L. LaCroix, Temporal Imperialism, 158 U. PA. L. REV. 1329, 1334-38 (2010) (using the U.S. Supreme Court's treatment of time in the context of legal transitions as "a lens though which we can understand how the Court thinks about.., its own institutional role").

(20.) See PAULA R. NEWBERG, JUDGING THE STATE: COURTS AND CONSTITUTIONAL POLITICS IN PAKISTAN (1995); Tayyab Mahmud, Praetorianism and Common Law in Post-Colonial Settings: Judicial Responses to Constitutional Breakdowns in Pakistan, 1993 UTAH L. REV. 1225, 1244-45; ALLEN MCGRATH, THE DESTRUCTION OF PAKISTAN'S DEMOCRACY (1999); Zulfikar Khalid Maluka, Reconstructing the Constitution for a COAS President: Pakistan, 1999 to 2002, in PAKISTAN ON THE BRINK: POLITICS, ECONOMICS, AND SOCIETY 53, 58-60 (Craig Baxter ed., 2004); Kalhan, supra note 12; IMTIAZ OMAR, EMERGENCY POWERS AND THE COURTS IN INDIA AND PAKISTAN (2002); Upendra Baxi, Constitutional Interpretation and State Formative Practices in Pakistan: A Preliminary Exploration, in COMPARATIVE CONSTITUTIONAL LAW 132, 136-40 (Mahendra P. Singh ed., 1989); Aziz Z. Huq, Uncertain Law in Uncertain Times: Emergency Powers and Lessons from South Asia, 13 CONSTELLATIONS 89, 95-99 (2006); Leslie Wolf-Phillips, Constitutional Legitimacy: A Study of the Doctrine of Necessity, 1 THIRD WORLD Q. 97, 102-04 (1979); T.K.K. Iyer, Constitutional Law in Pakistan: Kelsen in the Courts, 21 AM. J. COMP. L. 759 (1973).

(21.) See KHAN, supra note 11, at 749-58; WERNER MENSKI ET AL., PUBLIC INTEREST LITIGATION IN PAKISTAN (2000); NEWBERG, supra note 20, at 200-06; Osama Siddique, The Jurisprudence of Dissolutions: Presidential Power To Dissolve Assemblies Under the Pakistani Constitution and Its Discontents, 23 ARIZ. J. INT'L & COMP. L. 615, 685 86 (2006); Maryam Khan & Osama Siddique, The 2005 South Asian Earthquake: Natural Calamity or Failure of State? State Liability and Remedies for Victims of Defective Construction in Pakistan, 9 ASIAN L. 187, 215-28 (2007); Mahmud, supra note 20, at 1282-94; MARTIN LAU, THE ROLE OF ISLAM IN THE LEGAL SYSTEM OF PAKISTAN 103 05 (2006); Philip Oldenburg, Will the Judiciary Save Pakistan?, in PAKISTAN: THE MOST DANGEROUS DECADE BEGINS (Christophe Jaffrelot & Alfred Stepan eds., forthcoming 2013).

(22.) Work on the anti-Musharraf movement, which has focused almost exclusively on the role of lawyers and judges, and on the Supreme Court under Chief Justice Iftikhar Muhammad Chaudhry, includes HUMAN RIGHTS WATCH, DESTROYING LEGALITY: PAKISTAN'S CRACKDOWN ON LAWYERS AND JUDGES (2007); Zahid Shabad Ahmed & Maria J. Stephan, Fighting for the Rule of Law: Civil Resistance and the Lawyers' Movement in Pakistan, 17 DEMOCRATIZATION 492 (2010); Sadaf Aziz, Liberal Protagonists? The Lawyers' Movement in Pakistan, in FATES OF POLITICAL LIBERALISM IN THE BRITISH POST-COLONY: THE POLITICS OF THE LEGAL COMPLEX 305 (Terence C. Halliday, Lucien Karpik, & Malcolm M. Feeley eds., 2012) [hereinafter FATES OF POLITICAL LIBERALISM]; Tasneem Kausar, Judicialization of Politics and Governance in Pakistan: Constitutional and Political Challenges and the Role of the Chaudhry Court, in PAKISTAN'S STABILITY PARADOX 28 (Ashutosh Misra & Michael E. Clarke eds., 2011); Charles H. Kennedy, The Judicialization of Politics in Pakistan, in THE JUDICIALIZATION OF POLITICS IN ASIA 139, 147-58 (Bjorn Dressel ed., 2012); Shoaib A. Ghias, Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan Under Musharraf, 35 LAW & SOC. INQUIRY 985 (2010); Daud Munir, From Judicial Autonomy to Regime Transformation: The Role of the Lawyers' Movement in Pakistan, in FATES OF POLITICAL LIBERALISM, supra, at 378; Taiyyaba Ahmed Qureshi, State of Emergency: General Pervez Musharraf's Executive Assault on Judicial Independence in Pakistan, 35 N.C.J. INT'L L. & COM. REG. 485 (2010); Note, The Pakistani Lawyers' Movement and the Popular Currency of Judicial Power, 123 HARV. L. REV. 1705 (2010) [hereinafter Pakistani Lawyers" Movement].

(23.) See Asma Jahangir, Another Aspect of the Judgment, DAWN, Dec. 19, 2009, (expressing concern that the Supreme Court has "disturbed the equilibrium" between Pakistan's state institutions "by creating an imbalance in favour of the judiciary"); AYESHA JALAL, THE STATE OF MARTIAL RULE: THE ORIGINS OF PAKISTAN'S POLITICAL ECONOMY OF DEFENCE 136-93 (1990) (arguing that Pakistan has been characterized by an enduring imbalance of power between weak elected and strong unelected state institutions, with emphasis on military and bureaucracy); cf. Ferejohn & Kramer, supra note 17, at 995 (positing a dynamic but stable equilibrium between federal judiciary and other branches of government in the United States).

(24.) I adapt the term from Anne Pitcher, who conceptualizes "transformative preservation" in the context of Mozambique as a process by which that nation's political and economic restructuring also "incorporate[d] institutional, political, and procedural continuities" that permitted "state institutions and party elites ... to maintain some of [their preexisting] political and economic control." M. ANNE PITCHER, TRANSFORMING MOZAMBIQUE: THE POLITICS OF PRIVATIZATION, 1975-2000, at 6, 237 (2002); cf. Reva B. Siegel, "The Rule of Love" Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2178-88 (1996) (conceptualizing "preservation-through-transformation" as a process by which hierarchical status regimes modernize and evolve, but continue to "enforce[] social stratification by means that change over time").


(26.) My account is broadly consistent with Mona El-Ghobashy's explanation that a country can periodically experience political contention that prompts significant institutional change, but "without any broader redistribution of power that may portend regime change." Mona El-Ghobashy, Constitutionalist Contention in Contemporary Egypt, 51 AM. BEHAV. SCIENTIST 1590, 1594-95 (2008); see also Pace & Cavatorta, supra note 6, at 126-35 (urging reconsideration, but not dismissal, of both "democratization/transition" and "authoritarian resilience" paradigms as means of explaining politics in the Arab world).

(27.) Asim Yasin & Muhammad Anis, PM Fears Ouster, Rejects "State Within State," NEWS INT'L, Dec. 23, 2011, ID=11193&Cat=13.

(28.) C. Christine Fair, Pakistan's Democracy: The Army's Quarry?, 5 ASIAN SECURITY 73, 75 (2009). Similar observations are often made about Turkey, Egypt, and other countries where military interests have remained powerful after formal transitions to civilian rule. See Bali, supra note 2, at 276-79 (discussing the role in Turkey of the military, bureaucracy, police, and judiciary in securing "core commitments of the state.., against democratic alteration"); Dunne & Nawaz, supra note 7 (discussing Pakistan's lessons for Egypt, given presence in both countries of "powerful intelligence and internal security agencies that have acquired extra-legal powers they will not relinquish easily").

(29.) Although my conceptualization is distinct, I adapt Kamran Shaft's similar usage, which in turn is borrowed from the Turkish context. See Kamran Shafi, The Deep State and Technocrats, DAWN, Sep. 28, 2010, http://dawn.comJ2010/09/28/thedeep-state-and-technocrats-by-kamran- shafi/; see also Merve Kavakci, Turkey's Test with Its Deep State, 20 MEDITERRANEAN Q. 83, 90 (2009) (discussing evolution of "deep state" in Turkey); Dexter Filkins, The Deep State, NEW YORKER, Mar. 12, 2012, at 38 (noting that the "deep state," or derin devlet, refers in Turkey to "a presumed clandestine network of military officers and their civilian allies" that at times "has functioned as a kind of shadow government").

(30.) On the structure of Pakistan's judiciary, see generally FAQIR HUSSAIN, THE JUDICIAL SYSTEM OF PAKISTAN (2011), available at web/page.asp?id=594; Mohammad Yasin & Sardar Shah, Administration of Justice in Pakistan, in THE DISPENSATION OF JUSTICE IN PAKISTAN 75, 79-84 (Mohammad Yasin & Tariq Banuri eds., 2004). My emphasis in this Article is principally on Pakistan's "higher" or "superior" judiciary, and in particular its Supreme Court.

(31.) See KHALID BIN SAYEED, PAKISTAN: THE FORMATIVE PHASE 1857-1948, at 233-78 (1968). At independence, this "viceregal system" consisted of "a powerful Viceroy, otherwise known as the Governor-General, an Executive Council chosen by the Governor-General, a Central Assembly with limited powers, subordinate Provincial Governments, and, above all, a powerful bureaucracy placed in strategic positions in the Centre, in the Provinces, and in the districts." Id. at 299.

(32.) See PHILIP E. JONES, THE PAKISTAN PEOPLE'S PARTY: RISE TO POWER 2-6 (2003); see also Mahmud, supra note 20, at 1231-33 (discussing early constitutional conflicts between "authoritarian centralism" and "representative federalism").

(33.) See JALAL, supra note 23, at 3 (discussing "domestic, regional, and international factors [that] weakened the position of parties and politicians" in Pakistan and "tipp[ed] the institutional balance in favour of the civil bureaucracy and the military"). A significant literature analyzes how Pakistan's army and bureaucracy became dominant during this period. See id.; MAZHAR AZIZ, MILITARY CONTROL IN PAKISTAN: THE PARALLEL STATE 55-68 (2008); AYESHA SIDDIQA, MILITARY INC.: INSIDE PAKISTAN'S MILITARY ECONOMY 62-72 (2007); IAN TALBOT, PAKISTAN: A MODERN HISTORY 126-34 (rev. ed. 2005); Hamza Alavi, The State in Post-Colonial Societies: Pakistan and Bangladesh, NEW LEFT REV. 59, 65 (1972); D.A. Low, Pakistan and India: Political Legacies from the Colonial Past, 25 J. S. ASIAN STUD. 257, 266 (2002). Some of this work addresses these questions by way of explaining a contrast with India's greater success in establishing parliamentary democracy. See PHILIP OLDENBURG, INDIA, PAKISTAN, AND DEMOCRACY: SOLVING THE PUZZLE OF DIVERGENT PATHS (2010); Christophe Jaffrelot, India and Pakistan: Interpreting the Divergence of Two Political Trajectories, 15 CAMBRIDGE REV. INT'L AFF. 251 (2002); MAYA CHADDA, BUILDING DEMOCRACY IN SOUTH ASIA: INDIA, NEPAL, PAKISTAN 23-65 (2000); MEGHNAD DESAI & AITZAZ AHSAN, DMDED BY DEMOCRACY 75-142 (David Page ed., 2005); see also JALAL, supra note 5 (discussing both contrasts and continuities in the experiences of India and Pakistan with democracy and authoritarianism).

(34.) LEVITSKY & WAY, supra note 5, at 56-61.

(35.) See C. Christine Fair, Why the Pakistan Army Is Here To Stay: Prospects for Civilian Governance, 87 INT'L AFF. 571, 572 (2011) (noting that because "authoritarianism has never garnered widespread legitimacy," Pakistan's military has relied upon the "connivance and acquiescence of [a] broad array of civilian institutions and personalities"); LIEVEN, supra note 9, at 23-24 (arguing that given the strength of Pakistan's "negotiated state," military regimes find themselves "ingested by the elites they had hoped to displace, and engaged in the same patronage politics as the regimes they had overthrown"); SIDDIQA, supra note 33, at 13 ("In military-dominated polities, other dominant groups often turn into cronies of the armed forces to establish a mutually beneficial relationship...."). In this respect, Pakistan's experience is consistent with the experiences of other countries with politically dominant militaries. See GUILLERMO A. O'DONNELL & PHILIPPE C. SCHMITTER, TRANSITIONS FROM AUTHORITARIAN RULE: TENTATIVE CONCLUSIONS ABOUT UNCERTAIN DEMOCRACIES 31 (1986) (concluding, based on a study of authoritarianism in southern Europe and Latin America, that "in no case has the military intervened without important and active civilian support").

(36.) See Charles H. Kennedy, Constitutional and Political Change in Pakistan: The Military-Governance Paradigm, in PROSPECTS FOR PEACE IN SOUTH ASIA 37, 47-71 (Rafiq Dossani & Henry S. Rowen eds., 2005); Kalhan, supra note 12.


(38.) See Fair, supra note 35, at 572 ("With each successive coup, Pakistan's civilian structures become ever more dysfunctional and the army, with its ever expanding network of corporate financial and political interests and beneficiaries, ever more entrenched.").

(39.) For discussion of factors contributing to the ineffectiveness of Pakistan's political parties, see [NT'L CRISIS GRP., AUTHORITARIANISM AND POLITICAL PARTY REFORM IN PAKISTAN 1, 5-6 (2005); YOGENDRA K. MALIK ET AL., GOVERNMENT AND POLITICS IN SOUTH ASIA 176-78 (6th ed. 2009); Hasan Askari Rizvi, Democracy in Pakistan, in A FUTURE FOR DEMOCRACY 117, 130-31 (Wilhelm Hofmeister ed., 2011).

(40.) See Aqil Shah, The Transition to "Guided" Democracy in Pakistan, in THE ASIA-PACIFIC: A REGION IN TRANSITION 207, 216-18 (Jim Rolfe ed., 2004) (discussing Musharrafs "legal measures to stack the [electoral] process against his political opposition" and other activities to "engineer[]" political processes); INT'L CRISIS GRP., PAKISTAN: TRANSITION TO DEMOCRACY? 7-10, 15 (2002) (describing the military's tactics to obtain support from civilian politicians and political parties and to manipulate the political process); S. AKBAR ZAIDI, MILITARY, CIVIL SOCIETY AND DEMOCRATIZATION IN PAKISTAN 27 (2011) ("When things go awry, [the military] blames the politicians it itself helped create."); Seyyed Vali Reza Nasr, Democracy and the Crisis of Governability in Pakistan, 32 ASIAN SURVEY 521, 523, 533 (1992) (discussing military's creation of an anti-PPP political coalition to maintain its influence).

(41.) See, e.g., INT'L CRISIS GRP., supra note 39, at 23, 25-27 (discussing creation of National Security Council and military's use of pre-election rigging to manipulate electoral results); S. Akbar Zaidi, Criticising Democracy or Criticising Governance?, ECON. & POL. WKLY., Feb. 28, 2009, at 8-9 (discussing "severe constraints" that elected civilian governments in Pakistan face, "such as having to clean up the huge mess created by each, military decade and with the secret arm of the military breathing down [their] neck[s]); Maleeha Lodhi & Zahid Hussain, The Invisible Government, NEWSLINE, Oct. 1992 (investigating and documenting role played by intelligence agencies in manipulating the political process).

(42.) See Fair, supra note 28, at 76 (noting that civilian elites and political parties often "aid and abet the erosion of democracy" by using the military to undermine their political opponents); SHEILA FRUMAN, WILL THE LONG MARCH TO DEMOCRACY IN PAKISTAN FINALLY SUCCEED? 8-9 (2011) (noting that party leaders "have not implemented basic democratic standards within their parties" and that "members of a small elite tend to dominate party leadership, using their positions to accrue personal wealth"); HASAN ASKARI RIZVI, THE MILITARY AND POLITICS IN PAKISTAN 1947-1997, at 236-39 (2000) (discussing Prime Minister Zulfikar Ali Bhutto's use of the military to maintain law and order and manage political crisis in 1977 in a manner that undermined civilian authority).

(43.) JALAL, supra note 23, at 323; see also AMINULLAH CHAUDRY, POLITICAL ADMINISTRATORS: THE STORY OF THE CIVIL SERVICE OF PAKISTAN 138-58 (2011) (discussing the "army ingress into civil bureaucracy" since the 1980s).



(46.) Id. at 10; see also CHAUDRY, supra note 43, at 154-57 (discussing Musharrafs aggressive efforts to deepen military control over civilian bureaucracy).

(47.) See Salman Masood, Pakistan Army Chief Ousts Military from Government, N.Y. TIMES, Feb. 13, 2008, at A8 (discussing order by Musharrafs successor as Army Chief to withdraw military officers appointed to civilian bureaucracy). But see Ayesha Siddiqa, Pakistan's Modernity: Between the Military and Militancy, ECON. & POL. WKLY., Dec. 17, 2011, at 66 ("Contrary to his commitment to the people, Kayani did not withdraw all military personnel from civilian departments."); CHAUDRY, supra note 43, at 156-57 (discussing constraints on ability of civilian governments to remove military officers appointed to civilian positions).

(48.) See STEPHEN P. COHEN, THE IDEA OF PAKISTAN 68-70, 269-73 (2004) (discussing the cultivation in 1960s by General Ayub Khan's regime of an oligarchic elite referred to as the "Establishment"); SIDDIQA, supra note 33, at 74-75, 87-88 (discussing policies by Zia regime in 1980s to cultivate support among business interests).

(49.) See SIDDIQA, supra note 33, at 18, 112-28 (discussing structure of welfare foundations and other military-affiliated economic enterprises).

(50.) See id. at 174-205 (detailing extent of land ownership and control by the military and affiliated interests); Haris Gazdar, The Fourth Round, and Why They Fight On: The History of Land Reform in Pakistan, in LEVELING THE PLAYING FIELD: A SURVEY OF PAKISTAN'S LAND REFORMS 8, 44-48 (Rakesh Kalshian ed., 2011) (noting "the privileged access to agricultural, commercial, and residential land enjoyed by military organizations and personnel").

(51.) See SIDDIQA, supra note 33, at 174-75.

(52.) See SIDDIQA, supra note 33, at 184 ("[T]he military became an instrument of feudalism and part of the feudal class."); Talat Anwar et al., Landlessness and Rural Poverty in Pakistan, 43 PAKISTAN DEV. REV. 855, 869 (2004) (identifying inadequate access to land as an "important contributor[] to rural poverty in Pakistan"); see also BINA AGARWAL, A FIELD OF ONE'S OWN: GENDER AND LAND RIGHTS IN SOUTH ASIA, at xv (1994) (discussing land ownership and control as "critical determinant[s] of economic well-being, social status, and political power" in rural South Asia); Elisabeth Wickeri & Anil Kalhan, Land Rights Issues in International Human Rights Law, 4 MALAYSIAN J. HUM. RTS. 16, 18-23 (2010) (discussing the constellation of rights implicated under international law by inadequate access to land).

(53.) SIDDIQA, supra note 33, at 185-99.

(54.) See HUMAN RIGHTS WATCH, SOILED HANDS: THE PAKISTAN ARMY'S REPRESSION OF THE PUNJAB FARMERS' MOVEMENT 6 (2004) ("For the Pakistani military establishment, control of land is essential for maintaining its position within the Pakistani political structure...."); SIDDIQA, supra note 33, at 174 ("Land is acquired not just for capital accumulation, but also to exhibit the military's authority and power....").

(55.) See INT'L FED'N OF JOURNALISTS, NEW FRONTIERS, NEW STRUGGLES: PRESS FREEDOM IN SOUTH ASIA 2011-12, at 34-39 (2012); INT'L FED'N OF JOURNALISTS & PAK. FED. UNION OF JOURNALISTS, A STATE OF DENIAL: THE CRISIS OF PRESS FREEDOM AND JOURNALIST SAFETY IN PAKISTAN (2007). One prominent television journalist asserts that "[t]hose who dare to criticize the military are living dangerously." Hasnain Kazim, Living in Fear of Intelligence Agents, DER SPIEGEL ONLINE (Dec. 23, 2011), 805639.html (quoting Hamid Mir); see also Elisabeth Bumiller, U.S. Admiral Ties Pakistan to Killing of Journalist, N.Y. TIMES, July 8, 2011, at A4; Huma Imtiaz, The Perils of Reporting in Pakistan, FOREIGN POL'Y (Sept. 24, 2010, 9:31 AM), of reporting_in_pakistan.

(56.) See SIDDIQA, supra note 33, at 98-99, 250 (discussing "tactful" and "subtle" mechanisms used by military to intimidate media "based on a system of rewards and selective punishment"); Lodhi & Hussain, supra note 41 (documenting tactics used by intelligence agencies to manipulate and intimidate journalists); Sonya Fatah, The Geography of GEO, HIMAL SOUTHASIAN, Sep. 2005, at 7 (stating that after airing sensitive or controversial material, television stations "anticipate[] a coded phone call or a veiled threat"); Kalsoom Lakhani, Ah, the Rumor Mill. It's a Churnin'!, CHUP!--CHANGING UP PAK. (Dec. 7, 2011), 12/07/ah-the-rumor-mill-its-a-churnin/ (discussing dissemination of rumors as means of manipulating public discourse); Declan Walsh, Pakistani Media Publish Fake WikiLeaks Cables Attacking India, GUARDIAN, Dec. 9, 2010, world/2010/dec/09/pakistani-newspaper-fake-leaks-india (noting the "strong influence of Pakistan's army over an otherwise vigorous free press").



(59.) SIDDIQA, supra note 33, at 15-16; see also Hasan-Askari Rizvi, The Military, in POWER AND CIVIL SOCIETY IN PAKISTAN 186, 210 (Anita M. Weiss & S. Zulfiqar Gilani eds., 2001) (asserting that military strength "no longer depends on controlling the levers of power" but derives from "its organizational strength and its significant presence in the economy and society").

(60.) See NAWAZ, supra note 37, at 92-118 (discussing the effects of U.S. aid to Pakistan); TOOR, supra note 8, at 153 54 (discussing role of U.S. financial assistance in "rehabilitat[ing]" Zia's military regime). Large-scale assistance from China and Saudi Arabia plays a similar role. See STEVE COLL, GHOST WARS: THE SECRET HISTORY OF THE CIA, AFGHANISTAN, AND BIN LADEN, FROM THE SOVIET INVASION TO SEPTEMBER 10, 2001, 71-74, 81-82, 180, 296 (2005) (Saudi Arabia); Julian Schofield, Pakistan China Strategic Relations, Energy Security and Pakistani Counter-Terror Operations, in PAKISTAN: THE US, GEOPOLITICS AND GRAND STRATEGIES 151, 161-62 (Usama Butt & Julian Schofield eds., 2012) [hereinafter GEOPOLITICS AND GRAND STRATEGIES] (China).

(61.) INT'L CRISIS GRP., AID AND CONFLICT IN PAKISTAN 2-3 (2012); see also Mariam Mufti, The Influence of Domestic Politics on the Making of US-Pakistan Foreign Policy, in GEOPOLITICS AND GRAND STRATEGIES, supra note 60, at 64, 72-75 (criticizing United States for neglecting "to take account of Pakistan's domestic politics" in its assistance programs). At times, U.S. officials have all but openly signaled their preference for the military to remain in power, or at minimum their equivocal interest in a transition to civilian democratic rule. See COLL, supra note 60, at 42-46, 50-52, 62-63, 66-67; INT'L CRISIS GRP., supra note 40, at 32; AHMED RASHID, DESCENT INTO CHAOS: THE V.S. AND THE DISASTER IN PAKISTAN, AFGHANISTAN, AND CENTRAL ASIA 148-49 (2d ed. 2009).

(62.) Enhanced Partnership with Pakistan Act of 2009, Pub. L. No. 111-73, 123 Stat. 2060 (2009); see also SCHAFFER & SCHAFFER, supra note 37, at 172 (discussing the ongoing "challenge" for U.S. officials of "develop[ing] rapport with the army leadership without inadvertently reinforcing the army's role in the country's politics and government at the expense of civilian leadership").

(63.) See PITCHER, supra note 24, at 239-43 (discussing the articulation by political elites, in the context of "transformative preservation" in Mozambique, of diffuse "legitimating discourse," which "legitimate[s] the transition that Mozambique has undergone, justif[ies] its own role in it, and gain[s] supporters for its project," and which is complemented and reinforced by messages disseminated by other elite actors).

(64.) Fair, supra note 35, at 573; see also A.H. NAYYAR & AHMED SALIM, THE SUBTLE SUBVERSION: THE STATE OF CURRICULA AND TEXTBOOKS IN PAKISTAN URDU, ENGLISH, SOCIAL STUDIES AND CIVICS, at i-vii (2005); PAK. ARMY GEN. HEADQUARTERS, PAKISTAN ARMY GREEN BOOK 2000: ROLE OF PAKISTAN ARMY IN NATION BUILDING 245-78 (2000); SIDDIQA, supra note 33, at 98; TOOR, supra note 8, at 86-89; supra notes 55-58 and accompanying text.

(65.) Fair, supra note 28, at 79 ("[T]he army sees itself, and is seen by many Pakistanis, as the guarantor of an inherently insecure state."). This sense of insecurity emerged soon after independence, and has been reinforced by several wars with India, a civil war leading to independence of Bangladesh, an ongoing border dispute with Afghanistan, and domestic unrest in which the army has been deployed to preserve order.

(66.) See SIDDIQA, supra note 33, at 62-64 (discussing centrality of security to military and policymaking elites); JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR 4-5 (2007) (conceptualizing "governing through crime" as set of practices in which "institutions ... us[e] crime to promote governance by legitimizing and/or providing content for the exercise of power").

(67.) See HAQQANI, supra note 25, at 2-3, 51-86 (discussing military's self-conception as "guardian of Pakistan's 'ideological frontier'"); FARZANA SHAIKH, MAKING SENSE OF PAKISTAN 147-79 (2009) (discussing role of the military "as a major force attempting not only to determine the national interest but to define the very meaning of Pakistan," including its religious identity).

(68.) JALAL, supra note 23, at 49-50; see also COHEN, supra note 48, at 124 (arguing that because the military "demands a united front at home on security issues," it has "supported restraints ... on the press, political parties, and even academia").

(69.) See LIEVEN, supra note 9, at 163 ("The Pakistani military, more even than most militaries, sees itself as a breed apart, and ... different from (and vastly superior to) Pakistani civilian society."); see also AZIZ, supra note 33, at 93-96 (analyzing the military's self-conception as playing an indispensable role in "nation-building"); Husain Haqqani, History Repeats Itself in Pakistan, 17 J. DEMOCRACY 110, 111 (2006) (noting military's "perception of itself as the country's only viable institution"); STEPHEN e. COHEN, THE PAKISTAN ARMY 37, 107-110, 120-21 (2d ed. 1998) (discussing military's rationales for its interventions in politics and governance). This understanding is evident, for example, in the essays published by the Pakistan Army in 2000 on the military's role in nation building. PAK. ARMY GEN. HEADQUARTERS, supra note 64.

(70.) COHEN, supra note 48, at 71.

(71.) SIDDIQA, supra note 33, at 61-65, 249. Musharraf, for example, refers to the period of civilian rule preceding his coup as the "dreadful decade of democracy," during which Pakistan endured "the worst kind of governance" and "corruption and the plunder of national wealth." PERVEZ MUSHARRAF, IN THE LINE OF FIRE 71, 78 (2006); see also SCHAFFER & SCHAFFER, supra note 37, at 61 ("Thinly veiled contempt for civilians, and in particular for Pakistan's politicians, is characteristic of Pakistan army officers."); Adam Gabbatt, Pervez Musharraf Vows Return to "Suffering" Pakistan During Visit to US, GUARDIAN, July 1, 2012, jul/01/pervez-musharraf-pakistan-return-aspen (quoting Musharraf's opinion that "the state is being run to the ground" by civilians "and people are again running to the military to save the country").

(72.) For example, in his autobiography, Pakistan's first military ruler, General Ayub Khan, questioned the ability of ordinary citizens to think "in terms of national policies." MOHAMMAD AYUB KHAN, FRIENDS NOT MASTERS: A POLITICAL AUTOBIOGRAPHY 207-15 (1967). Similarly, opposition political figure Imran Khan recounts more recent conversations with senior military officials who lamented to him, with an air of resignation, that unfortunately "the people of Pakistan voted for crooks." IMRAN KHAN, PAKISTAN: A PERSONAL HISTORY 222-23 (2011) [hereinafter KHAN, PAKISTAN: A PERSONAL HISTORY].

(73.) PAKISTAN CONST. art. 245, [section] 1; see also SIDDIQA, supra note 33, at 59 (noting similar provisions in the constitutions of 1956 and 1962).

(74.) See SIDDIQA, supra note 33, at 219-42 (analyzing financial data from military-affiliated foundations and enterprises). As Musharraf protested in 2004, "[W]hat is the problem if these organizations ... are doing a good job contributing to the economy...?" Id. at 15; see also LIEVEN, supra note 9, at 168-73 (defending role played by military-affiliated enterprises in Pakistan's economy).

(75.) See SIDDIQA, supra note 33, at 95 (describing military's anticorruption efforts "as a security valve to be turned on and off as a means to regulate the political system"); KHAN, supra note 11, at 671-72 (criticizing selective, arbitrary, and nontransparent nature of Musharraf's anticorruption campaign against civilian politicians and bureaucrats); RIZVI, supra note 42, at 98-102 (discussing anticorruption campaign under General Ayub Khan's military regime against civilian politicians and civil bureaucrats); Shah, supra note 40, at 215 (discussing Musharraf's "selective and arbitrary anti-corruption campaign" against civilian politicians, "which explicitly leaves out military officers and judges."); see also Akhil Gupta, Blurred Boundaries: The Discourse of Corruption, the Culture of Politics, and the Imagined State, 22 AM. ETHNOLOGIST 375, 388-89 (1995) (arguing, given how conceptions of "corruption" and "accountability" are socially produced, that "there are always divergent and conflicting assessments of whether a particular course of action is 'corrupt"').

(76.) Conduct of General Elections Order, 2002, [section] 8A, Chief Executive's Order No. 7 of 2002 (Pak.) (requiring federal and provincial legislators to possess at least a "bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission"). That requirement not only advanced and reinforced the regime's legitimating discourse, but also helped it manipulate politics, since it "accredited Musharraf's allies in the religious parties--many of whose madrasah experiences were somehow certified as being equivalent to a master's or even a Ph.D.--while disqualifying local politicians with years of experience earning the trust of their constituents." Omar Waraich, Pakistan's Fake-Degree Scandal, TIME, July 21, 2010,,8599,2005254,00.html.

(77.) See SIDDIQA, supra note 33, at 17 (noting that "[m]ilitaries that develop deep economic interests or have a pervasive presence in the economy shrink from giving up political control"); Aqil Shah, Security, Soldiers, and the State, in THE FUTURE OF PAKISTAN 199, 199 (Stephen P. Cohen ed., 2011) ("Over time, the military has developed both an institutional culture legitimizing its intervention in, influence on, and control of the state and a vested corporate interest in maintaining its dominance.").

(78.) See YEZID SAYIGH, ABOVE THE STATE: THE OFFICERS' REPUBLIC IN EGYPT (2012), available at (explaining the dominant political, economic, and social role played by the Egyptian military and its affiliated interests); Shana Marshall & Joshua Stacher, Egypt's Generals and Transnational Capital, 262 MIDDLE E, REP. (2012), available at (documenting the extensive reach of the economic enterprises controlled or influenced by the Egyptian military); Jeannie Sowers, Egypt in Transformation, in THE JOURNEY TO TAHRIR: REVOLUTION, PROTEST AND SOCIAL CHANGE IN EGYPT, 1999-2011, at 1, 16 (Jeannie Sowers & Chris Toensing eds., 2012) (discussing challenges faced by "newly elected civilian leaders to gain oversight over the military's opaque budget, extensive land ownership, economic activities, and other privileges").

(79.) See Bali, supra note 2, at 246-47 (noting that the "persistent legacy of ... repressive strategies" by the military and its affiliated interests is "embedded in Turkish constitutional culture"); Hootan Shambayati, Courts in SemiDemocratic/Authoritarian Regimes: The Judicialization of Turkish (and Iranian) Politics, in RULE BY LAW, supra note 4, at 283 (discussing continued strength of military interests during periods of civilian rule in Turkey).

(80.) Fair, supra note 28, at 79; SIDDIQA, supra note 33, at 24.

(81.) Ran Hirschl, The Judicialization of Mega-Politics and the Rise of Political Courts, 11 ANN. REV. POL. SCI. 93, 113 (2008); Ran Hirschl, The New Constitutionalism and the Judicialization of Pure Politics Worldwide, 75 FORDHAM L. REV. 721, 723 (2006); see also Maryam Khan, The Politics of Public Interest Litigation in Pakistan in the 1990s, 2 SOC. SCI. & POL'Y BULL. 2, 2 (2011) (discussing transformation of Supreme Court of Pakistan between 1988 and 1999 "from a device for regime legitimation into a self-preserving and autonomous (albeit highly politicized) power broker between a military-backed executive and a highly fragile and fragmented parliament.").

(82.) See Kalhan, supra note 12, at 100-05 (identifying and conceptualizing patterns of extraconstitutional change in Pakistan); Mohammad Waseem, Constitutionalism in Pakistan: The Changing Patterns of Dyarchy, 53 DIOGENES 102, 109 (2006) (arguing that military regimes in Pakistan understand themselves to act "in transitional terms," to facilitate "change[s] in the constitutional edifice according to [their] own preferences and priorities").

(83.) See Kalhan, supra note 12, at 101; Tamir Moustafa & Tom Ginsburg, The Functions of Courts in Authoritarian Politics, in RULE BY LAW, supra note 4, at 1, 5-7 (discussing authoritarian regimes' use of courts to "make up for their questionable legitimacy by ... giv[ing] the image, if not the full effect, of constraints on arbitrary rule").

(84.) See Kalhan, supra note 12, at 103.

(85.) Governor-General's Reference, (1955) 7 PLD (FC) 435, 435-36 (Pak.); see also MCGRATH, supra note 20, at 102-33 (discussing the constitutional conflict between the Governor-General and Constituent Assembly); Mahmud, supra note 20, at 1233-34 (same).

(86.) Tamizuddin Khan v. Fed'n of Pak., (1955) 7 PLD (FC) 240, 251 (Pak.) (quoting Proclamation of Emergency).

(87.) Id. (invalidating several dozen statutes adopted by the Constituent Assembly prior to its dissolution for lack of assent to those laws by the Governor-General); Usif Patel v. Crown, (1955) 7 PLD (FC) 387, 388 (Pak.) (rejecting the Governor-General's attempt to fill the legal vacuum using his executive power to issue an emergency ordinance).

(88.) Governor-General's Reference, (1995) PLD (FC) at 478 (upholding Governor-General's extraconstitutional order to validate and enforce previously invalidated laws "with a view toward preventing the State from dissolution" before a new Constituent Assembly has been convened); see also NEWBERG, supra note 20, at 54-60 (discussing constitutional crisis arising from Governor-General's dissolution of the Constituent Assembly).

(89.) See Tayyab Mahmud, Jurisprudence of Successful Treason: Coup d'Etat and Common Law, 27 CORNELL INT'L L.J. 49, 51-93 (1994) (discussing reliance on Pakistan's extraconstitutional jurisprudence in Uganda, Rhodesia, Seychelles, Grenada, and Lesotho).

(90.) For subsequent cases applying versions of the doctrine of state necessity, see Zafar Ali Shah v. Musharraf, (2000) 52 PLD (SC) 869, 881 (Pak.); Nusrat Bhutto v. Chief of Army Staff, (1977) 29 PLD (SC) 657, 733-763 (Pak.); see also State v. Dosso, (1958) 10 PLD (SC) 533, 538-39 (Pak.) (applying extraconstitutional doctrine of "revolutionary legality"). As one Supreme Court justice noted in 2007, "We keep on burying the ... doctrine of necessity but it keeps haunting us." Nasir Iqbal, SC Urged To Bury Doctrine of Necessity, DAWN, Oct. 23, 2007,; see also sources cited supra note 20.

(91.) David Dyzenhaus, Schmitt v. Dicey: Are States of Emergency Inside or Outside the Legal Order?, 27 CARDOZO L. REV. 2005, 2032 (2006); Johan Steyn, Guantanamo Bay: The Legal Black Hole, 53 INT'L & COMP. L.Q. 1, 1 (2004).

(92.) Nusrat Bhutto, (1977) PLD (SC) at 723.

(93.) Id. at 716; see also NEWBERG, supra note 20, at 163-64 (discussing the Supreme Court's "agreement with the military that election corruption and political disruptions ... had so compromised the PPP government that it could no longer represent the electorate").

(94.) See Zafar Ali Shah, (2000) PLD (SC) at 1129-52.

(95.) Id. at 1219.

(96.) Pak. Muslim League (Q) v. Chief Executive, (2002) 54 PLD (SC) 994, 1026-28 (Pak.), overruled by Muhammad Nasir Mahmood v. Fed'n of Pak., (2009) 61 PLD (SC) 109 (Pak.). While the court conceded that "[n]o doubt wisdom is not related with degrees," it nevertheless concluded that "this is an exception to the rule." Id. at 1028.

(97.) Zafar Ali Shah, (2000) PLD (SC) at 1220; Nusrat Bhutto, (1977) 29 PLD (SC) at 716.

(98.) See Zafar Ali Shah, (2000) PLD (SC) at 1219-23 (announcing the expectation that elections would be held within three years and announcing limits on powers justified by extraconstitutional necessity); Nusrat Bhutto, (1977) PLD (SC) at 723 (cautioning Zia to ensure that "the period of constitutional deviation shall be of as short a duration as possible"); see also KHAN, supra note 11, at 473-74, 495-97, 652-79 (discussing military's noncompliance with limits set forth by Supreme Court in these cases).

(99.) PAKISTAN CONST. art. 6, [section] 1 (proscribing extraconstitutional subversion of the constitution as treason).

(100.) See KHAN, supra note 11, at 509-17, 667-71 (discussing Parliament's adoption of Eighth Amendment and Seventeenth Amendment). These amendments also have indemnified extraconstitutional actions from being charged as treason. See PAKISTAN CONST. arts. 270A, 270AA (repealed 2010).

(101.) See Mahmud, supra note 20, at 1284-85 (discussing the extensive presidential powers conferred by the Eighth Amendment); Mohammad Waseem, Pakistan's Lingering Crisis of Dyarchy, 32 ASIAN SURV. 617, 620-22 (1992) (discussing Eighth Amendment); Haris Gazdar, Goodbye General Musharraf, Hello "Troika," ECON. & POL. WKLY., Dec. 15, 2007, at 8, 9 (noting that under the system established by the Eighth Amendment, the President's principal role was "to protect the corporate interests of the military" and to serve as "the constitutional lever through which the military acted").

(102.) NEWBERG, supra note 20, at 190-91; see also CHADDA, supra note 33, at 69 (discussing Eighth Amendment's "uneasy balance" between "the power of the military-bureaucratic oligarchy, on the one hand, and the demand for civilian rule on the other"). As I have explained elsewhere, the logic of this paradoxical approach to "democratic" transition--which seeks to "liberalize ... power while still retaining control"--has antecedents in the British colonial state's responses to the Indian independence movement. Kalhan, supra note 12, at 116-18; Anil Kalhan et al., Colonial Continuities: Human Rights, Terrorism, and Security Laws in India, 20 COLUM. J. ASIAN L. 93, 126-31 (2006) (discussing sweeping emergency powers available to central executive under colonial-era legal framework in India).

(103.) See Hasan-Askari Rizvi, The Civilianization of Military Rule in Pakistan, 26 ASIAN SURV. 1067, 1067 (1986) (quoting Zia).

(104.) PAKISTAN CONST. art. 58, [section] 2, cl. b. (repealed 2010). An analogous provision conferred discretion upon provincial governors, who are appointed by the President, to dissolve provincial assemblies. PAKISTAN CONST. art. 112, [section] 2, cl. b. (repealed 2010). Parliament repealed these provisions in 1997, but Musharraf reinstated them following his 1999 coup. They were again repealed when the post-Musharraf Parliament adopted the 18th Amendment in 2010. See infra Parts III, IV.

(105.) See Siddique, supra note 21, at 634.

(106.) Id. at 638-39, 712 (citing defenders); see also Kennedy, supra note 36, at 73-74 (arguing that Article 58(2)(b) succeeded at "keeping the military in the barracks" and "provided some degree of accountability to civilian governments").

(107.) See Zafar Ali Shah v. Musharraf, (2000) 52 PLD (SC) 869, 1218 (Pak.); see also Mahmood Khan Achakzai v. Fed'n of Pak., (1997) 49 PLD (SC) 426, 472-80 (Pak.) (asserting, prematurely, that Article 58(2)(b) had "shut the door on Martial Law forever").

(108.) See SIDDIQA, supra note 33, at 89 (explaining that because of Article 58(2)(b), the military "no longer [needed] to stage a coup" but could "simply prevail upon the president ... to remove the elected government"); Kalhan, supra note 12, at 110-15 (illustrating, using the example of emergency powers, how constitutional authority can functionally approximate extraconstitutionality). Revealingly, the actual dismissals were implemented in a "coup-like manner," with the military deployed to control government buildings, including the Prime Minister's residence. RIZVI, supra note 42, at 209, 215, 224-25; see also INT'L CRISIS GRP., supra note 71, at 9 (stating that the decision to dismiss Bhutto in 1990 was made at an Army Corps commanders' meeting); Lodhi & Hussain, supra note 41 (describing measures to implement Bhutto's dismissal as "tantamount to a coup in civilian disguise").

(109.) See Siddique, supra note 21, at 712 ("Direct martial laws are at least blatantly illegal and easy to identify and condemn."); see also Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional, 112 YALE L.J. 1011, 1092-94, 1099 (2002) (discussing risks of exceptional powers becoming normalized as "[g]overnment and its agents grow accustomed to the convenience of emergency powers," and urging the virtues of an "extra-legal measures" model of emergency powers that calls upon officials "to act outside the legal order while openly acknowledging their actions"); Mark Neocleous, From Martial Law to the War on Terror, 10 NEW CRIM. L. REV. 489, 506 (2007) (arguing that authoritarian regimes increasingly prefer the language of "emergency powers," which "better connotes neutrality and necessity," to that of "martial law").

(110.) See Siddique, supra note 21, at 633 (noting that Bhutto's use of a civilian militia to enforce his policies and keep the military out of politics had the effect of "institutionalizing the use of the state's coercive arm"); Waseem, supra note 101, at 630-31 (arguing that the imbalances of power under the Eighth Amendment effected an "enormous expansion of presidential power" and gave rise to "an ad hoc approach to official business").

(111.) Fair, supra note 35, at 576.

(112.) Id.; see also SIDDIQA, supra note 33, at 91-95 (discussing parties' attempts during 1990s to "lure the army" to support them in short-term political conflicts with their opponents "by offering the generals greater economic incentives and opportunities").

(113.) See Siddique, supra note 21, at 711.

(114.) One can think of this as akin to deciding a case with political implications similar to those of Bush v. Gore, 531 U.S. 98 (2000), every few years.

(115.) Dyzenhaus, supra note 91, at 2018.

(116.) A.I.R. 1994 S.C. 1918.

(117.) Pratap Bhanu Mehta, The Rise of Judicial Sovereignty, 18 J. DEMOCRACY 70, 77 (2007); see also S.P. SATHE, JUDICIAL ACTIVISM IN INDIA: TRANSGRESSING BORDERS AND ENFORCING LIMITS 150-59 (2003).

(118.) Fed'n of Pak. v. Muhammad Saifullah Khan, (1989) 41 PLD (SC) 166, 188 (Pak.) (requiring "the machinery of the Government [to have] broken down completely, its authority eroded and the Government cannot be carried on in accordance with the provisions of the Constitution"); see also Muhammad Nawaz Sharif v. President of Pak., (1993) 45 PLD (SC) 473, 579 (Pak.) (following Saifullah Khan, and describing dissolution as "an exceptional power provided for an exceptional situation" which "must receive ... the narrowest interpretation").

(119.) See Siddique, supra note 21, at 715 (arguing that "political and personality preferences of the judges ... come through strongly in" the court's Article 58(2)(b) opinions).

(120.) See Ahmad Tariq Rahim v. Fed'n of Pak., (1992) 44 PLD (SC) 646, 664 (Pak.) (permitting the dissolution power to be exercised if there is an "actual or imminent breakdown of the constitutional machinery" (emphasis added)); Benazir Bhutto v. President of Pak., (1998) 50 PLD (SC) 388, 430 (Pak.) (rejecting need for a "total breakdown of Constitutional machinery," and instead permitting dissolution "where there takes place extensive, continued and pervasive failure to observe not one but numerous provisions of the Constitution" (emphasis added)).

(121.) See TALBOT, supra note 33, at 261-63, 291-95 (discussing close relationships between the governments of Muhammad Khan Junejo and Nawaz Sharif and the military leadership); Nasr, supra note 40, at 523 ("It is an open secret in Pakistan that [the political party coalition led by Nawaz Sharif] was put together by the military's Inter-Services Intelligence ... to prevent a PPP sweep at the polls."); see also COLL, supra note 60, at 438 (characterizing PML-N's Nawaz Sharif as the "civilian face" of the military's "favored [political] alliance" during the 1990s).

(122.) See Saifullah Khan, (1989) PLD (SC) at 192-95 (declining to reinstate dissolved assemblies); HAMID KHAN, EIGHTH AMENDMENT: CONSTITUTIONAL AND POLITICAL CRISIS IN PAKISTAN 56 (1994) (discussing private communications by Army Chief Mirza Aslam Baig to the Supreme Court admonishing it not to reinstate the dissolved National Assembly).

(123.) See Nawaz Sharif, (1993) PLD (SC) at 570 (ordering Nawaz Sharifs dissolved government to be reinstated); see also NEWBERG, supra note 20, at 219-20 (discussing military's subsequent "orchestrat[ion]" of the removal of both the President and the Prime Minister, which rendered "[t]he force of the court's restoration order ... merely heuristic"); RIZVI, supra note 42, at 216-19.

(124.) See Shah, supra note 40, at 213 (arguing that each government was "ousted only after ... crossing lines drawn in their powersharing scripts written by the military").

(125.) See Ahmad Tariq Rahim, (1992) PLD (SC) at 653, 666-67 (crediting "corruption and nepotism" as legitimate and permissible grounds for dissolution, even if not "independently sufficient"); Benazir Bhutto, (1998) PLD (SC) at 434-38 (crediting corruption, favoritism, and nepotism as legitimate and permissible grounds for dissolution); KHAN, supra note 11, at 557-58, 613-16 (discussing the Ahmad Tariq Rahim and Benazir Bhutto cases).

(126.) MALIK ET AL., supra note 39, at 167.


(128.) Burbank, supra note 16, at 317; see also Friedman, supra note 16, at 330 ("The decisions of courts are influenced by the institutional structure in which they are embedded."); Goldenziel, supra note 15, at 13 (distinguishing between "full" and "constrained" judicial independence); Schuck, supra note 16, at 8 C[J]udicial independence is not a binary phenomenon; it is manifestly a matter of degree.").

(129.) See Burbank & Friedman, supra note 17, at 11-22 (emphasizing that judicial independence is a "means to an end," not an end in itself); Ferejohn and Kramer, supra note 17, at 994-95 ("[Judicial] independence and accountability ... are means toward a more fundamental goal: the construction of a well-functioning judiciary.").

(130.) See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 101-02 (1980); Michael C. Dorf, The Coherentism of Democracy and Distrust, 114 YALE L.J. 1237, 1237 (2005) (assessing and critiquing "representation-reinforcement" theories of constitutional interpretation); Bali, supra note 2, at 238-39 (arguing that democratic transitions "require a different definition of judicial independence, one that incorporates a measure of interdependence ... between the branches and introduces forms of judicial accountability that underpin the democratic legitimacy of the courts' powers of review").

(131.) See UPENDRA BAXI, COURAGE, CRAFT, AND CONTENTION: THE INDIAN SUPREME COURT IN THE EIGHTIES 27-36 (1985) (analyzing the relationships between the judiciary and a range of other entities and interests, including the executive, the legal profession, and the public at large, as determinants of "judicial independence"); Remus, supra note 18, at 144-45 (discussing relationships between judiciary and political branches of government, public at large, and private interest groups as determinants of "judicial independence").

(132.) See Peter H. Russell, Toward a General Theory of Judicial Independence, in JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY: CRITICAL PERSPECTIVES FROM AROUND 1, 13-22 (Peter H. Russell & David M. O'Brien eds., 2001) (identifying and discussing various categories of potential influence and control over the judiciary); Jackson, supra note 18, at 966-69 (identifying and discussing a range of legal rules and structural factors that affect individual judges' decisional independence and the judiciary's institutional independence); Jose J. Toharia, Judicial Independence in an Authoritarian Regime: The Case of Contemporary Spain, 9 LAW & SOC'Y REV. 475, 48695 (1974) (explaining paradox of the judiciary's relative independence in Spain under the authoritarian Franco regime in terms of the limited scope of its power); see also SHYLASHRI SHANKAR, SCALING JUSTICE: INDIA'S SUPREME COURT, ANTI-TERROR LAWS, AND SOCIAL RIGHTS 177 (2009) (arguing that in India, "fragmented political configurations [have] allow[ed] the Supreme Court to appropriate more autonomy"); Faisal Siddiqi, Legal Empire, DAWN, Jan. 13, 2012, ("[F]ragmentation among the power elites breeds greater judicial independence. Greater judicial independence breeds greater judico-political power.").

(133.) Cf. Bruce Peabody, Introduction to THE POLITICS OF JUDICIAL INDEPENDENCE: COURTS, POLITICS, AND THE PUBLIC 1, 17 (Bruce Peabody & Thomas H. Wells, Jr. eds., 2010) (urging analysis of judicial independence that "mov[es] beyond the presumptions that courts work best in political isolation, that they necessarily operate from a position of institutional weakness, and that their independence is primarily justified by strictly legal objectives").

(134.) Moreover, while legal scholars sometimes assert that courts are "less subject to cooptation" than legislatures in authoritarian or nondemocratic contexts, such claims not only underestimate the ways in which courts may be constrained or coopted by nondemocratic regimes, but also mask the enabling role that courts themselves can play in the process of coopting and undermining representative institutions. Compare, e.g., Goldenziel, supra note 15, at 45 (asserting that courts are "tougher nuts than legislatures for authoritarians to crack"), with Bali, supra note 2, at 243 (discussing ways in which "constitutions and courts both enable and undermine fundamental democratic reforms during periods of transition"), and Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, 8 WASH. U. GLOBAL STUD. L. REV. 1, 64-66 (2009) (arguing, in context of Iran and Thailand, that the "broad role judiciaries now play can be used by elites to maintain power, or at least to ensure that representative institutions do not run too far afoul of their interests").

(135.) Aziz Z. Huq, Mechanisms of Political Capture in Pakistan's Superior Courts, 10 Y.B. ISLAMIC & MIDDLE E. L. 21 (2003); see also Bali, supra note 2, at 313 (positing "elite capture" of the judiciary in Turkey).

(136.) See supra Part II.B.1. At other moments, the alignment of interests between the military and judiciary has occurred without any need for formal collaboration or coercion.

(137.) As a former Supreme Court justice once asked, "[H]ow do you expect five men alone, unsupported by anyone, to declare martial law illegal?" NEWBERG, supra note 20, at 7. But see Mahmud, supra note 20, at 1295-98 (criticizing Pakistan's judges for not utilizing prudential devices, such as the "political question" doctrine, to avoid extraconstitutional adjudication altogether).

(138.) See David Dyzenhaus, Judicial Independence, Transitional Justice and the Rule of Law, 10 OTAGO L. REV. 345, 347 (2001) (describing how in transitions, "judges who served the old regime" may be "thought to be deeply compromised from the start").

(139.) See INT'L CRISIS GRP., BUILDING JUDICIAL INDEPENDENCE IN PAKISTAN 14-17 (2004)); Khan, supra note 81, at 7.

(140.) Compare Zafar All Shah v. Musharraf, (2000) 52 PLD (SC) 869, 1219-23 (Pak.) (validating Musharraf's military takeover under the doctrine of state necessity, but purporting to limit the scope of the military regime's authority and to require elections within three years), with Nusrat Bhutto v. Chief of Army Staff, (1977) 29 PLD (SC) 657, 710 (Pak.) (validating Zia's military takeover under the doctrine of necessity, but purporting to require the military regime's measures to be "proportionate to the necessity" and "of a temporary character limited to the duration of the exceptional circumstances"), and State v. Dosso, (1958) 10 PLD (SC) 533, 539-41 (Pak.) (deeming a successful revolution or coup d'etat as a "basic law-creating fact," without any limitations on the scope of the new regime's lawmaking authority). See also NEWBERG, supra note 20, at 191-95 (discussing higher judiciary's willingness, during later years of Zia's military regime, to exercise jurisdiction to review petitions by regime opponents challenging their military court convictions); Mahmud, supra note 20, at 1280-81 (recognizing that "[e]ven in the posture of general retreat, [Pakistan's] superior courts occasionally asserted their right to determine the scope of the doctrine of necessity").

(141.) E.g., Asma Jilani v. Punjab, (1972) 24 PLD (SC) 139 (Pak.) (holding that military takeover of General Yahya Khan was invalid, but only after his military regime had fallen); Fed'n of Pak. v. Muhammad Saifullah Khan, (1989) 41 PLD (SC) 166 (Pak.) (holding that Zia's dissolution of Muhammad Khan Junejo's government was unlawful, but only after Zia's death); Benazir Bhutto v. Fed'n of Pak., (1988) 40 PLD (SC) 416 (Pak.) (invalidating provisions of the Political Parties Act imposed by Zia as unconstitutional while he was still in power, but in the later years of his regime as his power began to diminish); see also Faisal Siddiqi, Judicial Sovereigns, DAWN, June 26, 2012, that "there is always a rise in severe judicial dissent against the government in the last year of any government in a transitional democratic state").

(142.) See Haris Gazdar, Judicial Activism vs Democratic Consolidation in Pakistan, ECON. & POL. WKLY., Aug. 8, 2009, at 10 ("The judicial denunciation of General Yahya Khan in 1972 [in Asma Jilani v. Punjab] did not prevent General Ziaul-Haq from pouncing in 1977."); Yasser Latif Hamdani, Where Is Justice?, FRIDAY TIMES, Mar. 23, 2012 (suggesting that, even after restoration of civilian government in 2008, nominees for Pakistan's higher judiciary still must be "vetted by the intelligence agencies for their personal views" before they can be appointed).

(143.) See supra Part II.B.2.

(144.) See DESAI & AHSAN, supra note 33, at 120 (discussing "sparks of judicial activism" during the 1990s); MUNIR A. MALIK, THE PAKISTAN LAWYERS' MOVEMENT: AN UNFINISHED AGENDA 7 (2008) (discussing higher judiciary's "attempt to assert [its] position as an independent organ of the state" during 1990s). In addition, as Maryam Khan observes, the judiciary's empowerment during the 1990s was "edified by an enduring substratum" of jurisprudence arising from the emergence of "public interest litigation"--which intersected with the court's role in purely political questions but also independently enhanced judicial power vis-a-vis civilian institutions in the enforcement of fundamental rights. Khan, supra note 81, at 2; see also MENSKI ET AL., supra note 21, at 1-21 (discussing onset and development of public interest litigation in Pakistan during 1990s).

(145.) High Court judges were appointed by the President (on advice of the Prime Minister) after "consultation" with the chief justice of Pakistan, the chief justice of the High Court, and the governor of the province for that High Court. PAKISTAN CONST. arts. 177, 193 (amended 2010).

(146.) KHAN, supra note 11, at 594-96.

(147.) Id. at 622-29.

(148.) See Al-Jehad Trust v. Fed'n of Pak., (1996) 48 PLD (SC) 324, 363-67 (Pak.).

(149.) Al-Jehad Trust, (1996) PLD (SC) at 363-67; see also Supreme Court Advocates-on-Record Ass'n v. India, A.I.R. 1994 S.C. 268 (India) (holding that the judiciary itself has primacy vis-a-vis the executive in appointments to India's higher judiciary and transfer of judges between courts); M.P. Singh, Securing the Independence of the Judiciary--The Indian Experience, 10 IND. INT'L & COMP. L. REV. 245 (1999) (discussing controversies over the judicial appointments process in India).

(150.) Al-Jehad Trust, (1996) PLD (SC) at 363-67.

(151.) Asad Ali v. Fed'n of Pak., (1998) 50 PLD (SC) 161,354-55 (Pak.).

(152.) KHAN, supra note 11, at 623-25.

(153.) See Hirschl, Pure Politics, supra note 81, at 749 (arguing that the "crucial political significance of the judiciary" prompts politicians "to seek tighter control over appointments process").

(154.) KHAN, supra note 11, at 595.

(155.) Id. at 623.

(156.) Id. at 604; see also RIZVI, supra note 42, at 229. The presidential order dissolving Bhutto's first government also cited its "attempts ... to impair [judicial] independence." KHAN, supra note 11, at 553. Similarly, after Musharrafs 1999 coup overthrowing Sharifs second government, the reconstituted Supreme Court explicitly cited the conflicts between Sharifs government and the judiciary among its reasons for validating the coup on extraconstitutional grounds of necessity. See Zafar Ali Shah v. Musharraf, (2000) 52 PLD (SC) 869, 1218-19 (Pak.).

(157.) See Asad Ali v. Fed'n of Pak., (1998) 50 PLD (SC) 161, 354-55 (Pak.) (invalidating the elevation of Justice Sajjad Ali Shah to be chief justice as unconstitutional); see also KHAN, supra note 11, at 622-37 (discussing the conflict between Nawaz Sharif and the Supreme Court and its consequences).

(158.) See generally Kalhan, supra note 12.

(159.) See Zafar Ali Shah, (2000) PLD (SC) at 1218-19. While the court purported to limit the scope of authority justified by necessity--including, curiously, by admonishing Musharrafs regime to respect "independence of the judiciary"--the regime did not heed those limits. Id.

(160.) See KHAN, supra note 11, at 660-670 (discussing Musharrafs constitutional amendments).

(161.) See Shah, supra note 40, at 216-18 (discussing the regime's manipulation of elections following the Supreme Court's decision upholding Musharrafs coup).

(162.) See Pak. Lawyers Forum v. Fed'n of Pak., (2005) 57 PLD (SC) 719 (Pak.) (upholding Seventeenth Amendment); Watan Party v. Chief Executive of Pak., (2003) 55 PLD (SC) 74, 81-82 (Pak.) (dismissing challenges to extraconstitutional changes to the constitution imposed by Musharrafs Legal Framework Order, 2002); Hussain Ahmed v. Musharraf, (2002) 54 PLD (SC) 853, 867 (Pak.) (rejecting challenges to Musharrafs presidential referendum). The court also declined to extend the seniority principles from its 1990s Judges" Case to elevations of judges from the High Courts to serve on the Supreme Court--thereby facilitating the ability of the military and President to strengthen their constraints upon judicial composition and administration of justice. See Supreme Court Bar Ass'n v. Fed'n of Pak., (2002) 54 PLD (SC) 939 (Pak.); INT'L CRISIS GRP., supra note 139, at 14-17 (discussing mechanisms of executive influence over the higher judiciary).

(163.) See KIM BARKER, THE TALIBAN SHUFFLE: STRANGE DAYS IN AFGHANISTAN AND PAKISTAN 148-49 (2011) (discussing Musharrafs decline in support "because of his professed support for America, his refusal to step down as army chief, and his aggressive megalomania"); Fair, supra note 35, at 578 (discussing decline in Musharrafs public and political standing after 2004).

(164.) See MALIK, supra note 144, at 40.

(165.) See, e.g., Ghias, supra note 22, at 991-95.

(166.) See Khan & Siddique, supra note 21, at 216-22 (analyzing Supreme Court's use of public interest litigation and its expansive interpretation of the constitutional right to life during the 1990s); Khan, supra note 81 (discussing Supreme Court's expansion of public interest litigation in the 1990s); supra note 144.

(167.) By 2007, the stakes had become particularly high for Musharraf, whose opponents were challenging his eligibility under the constitution to be reelected President.

(168.) See Kalhan, supra note 12, at 93-96.

(169.) See Somini Sengupta, A Lawyer Who Turned a Judge into a National Cause, N.Y. TIMES, July 28, 2007, at A3 (discussing Chaudhry and his supporters); S. Akbar Zaidi, Is Pakistan Collapsing?, ECON. & POL. WKLY., June 18, 2011, at 16 (describing the movement as Pakistan's "first live television revolution"); see also HUMA YUSUF, OLD AND NEW MEDIA: CONVERGING DURING THE PAKISTAN EMERGENCY (2009) (discussing significance of television, radio, and new media platforms in enhancing the effectiveness of social and political movements in Pakistan, and the regime's crackdowns in response); Zafarullah Khan & Brian Joseph, The Media Take Center Stage, 19 J. DEMOCRACY 32, 33-34 (2008) (discussing importance of electronic media in amplifying the lawyers' movement's message).

(170.) Iftikhar Muhammad Chaudhry v. President of Pak., (2007) 59 PLD (SC) 578, 582 (Pak.) (short order).

(171.) See Faisal Siddiqi, The Lawyers Movement--Achievements and Challenges, TEETH MAESTRO (Sep. 14, 2008), challenges (identifying and describing five "phases" of the lawyers' movement).

(172.) See Pak. Muslim League (N) v. Fed'n of Pak., (2007) 59 PLD (SC) 642, 680 (Pak.) (affirming Nawaz Sharifs "inalienable right" as a Pakistani citizen to enter and remain in Pakistan); Ghias, supra note 22, at 1010-14; Nasir Iqbal, Destruction of Evidence Annoys Apex Court: Lal Masjid-Jamia Hafsa Case, DAWN, Aug. 18, 2007, (reporting Supreme Court's suo moto decision to order investigation into Lal Masjid raid). When the government blocked Sharifs return, by detaining him upon his arrival and summarily rendering him to Saudi Arabia, the court initiated contempt proceedings against the officials responsible.

(173.) See generally supra Part II.B.

(174.) See KHAN, supra note 11, at 700, 711 n.55 (quoting unpublished Supreme Court order that the presidential election process may proceed as scheduled, but that "final notification of the election [results] ... shall not be issued till the final decision of these petitions"); HUMAN RIGHTS WATCH, supra note 22, at 17--18.

(175.) See JONES, supra note 32, at 138-39 (discussing the social movement in 1968 and 1969 against Ayub Khan's regime); TOOR, supra note 8, at 4 (highlighting and foregrounding role of progressive social movements from Pakistan's "very inception ... in challenging both the establishment and the religious Right").

(176.) See El-Ghobashy, supra note 26, at 1594-95 (analyzing "institutional change"--paradoxically, during a prolonged period of deepening deliberalization by the Mubarak regime--prompted by new forms of political contention by Egypt's courts, human rights organizations, and professional associations).

(177.) See Ghias, supra note 22, at 997-99; cf. BAXI, supra note 131, at 33 (discussing role of public interest litigation in enhancing the popular legitimacy of India's higher judiciary by enabling "the Supreme Court of India [to] transform[] itself dramatically into a Supreme Court for Indians").

(178.) See Ghias, supra note 22, at 1003-10 (recounting the evolution of the relationship between the judiciary and the legal profession in Pakistan); MALIK, supra note 144 at 133-41 (explaining how the lawyers' movement helped mobilize public support for the judiciary); Siddiqi, supra note 171 (discussing role of lawyers' movement in 2007 in "enhanc[ing] and preserv[ing] ... the independence of the judiciary by keeping a vigilant watch on the performance of the superior judiciary as well as by testing the limits of judicial independence through public interest litigation").

(179.) See Pakistani Lawyers' Movement, supra note 22, at 1722-23 ("Protests on the streets inspired many deposed judges to continue resisting military rule...."); Faisal Siddiqi, Supreme Contempt, DAWN, February 27, 2012, (arguing that in the wake of the lawyers' movement, "judicial power has become dependent on public legitimacy and as a consequence, judicial power has become linked with media power").

(180.) See generally sources cited supra note 22.

(181.) See Ayaz Amir, Conscience of the Constitution, NEWS INT'L, Jan. 22, 2010 (emphasizing role played by civilian politicians and political parties in transition away from Musharrafs regime); Terence C. Halliday et al., The Legal Complex in Struggles for Political Liberalism, in FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM 1, 6-9 (Terence C. Halliday et al. eds., 2007) (conceptualizing "legal complex" as consisting of lawyers, judges, and all other "legally-trained personnel in a society who undertake legal work, including prosecutors and civil servants involved in the administration of justice").

(182.) See Ian Talbot, Pakistan in 2003: Political Deadlock and Continuing Uncertainties, 44 ASIAN SURV. 36, 37 (2004) (discussing weaknesses in the early stages of the anti-Musharraf movement). The leaders of Pakistan's two leading political parties, former Prime Ministers Benazir Bhutto and Nawaz Sharif, were both in exile outside of Pakistan throughout most of Musharrafs rule, including the period in 2007 during which the lawyers' movement initially gained momentum. Bhutto did not return to Pakistan until October 2007, and Sharif did not return until November 2007. Adeel Khan, Pakistan in 2007." More Violent, More Unstable, 48 ASIAN SURV. 144, 149-50 (2008).

(183.) See Kennedy, supra note 36, at 67 (discussing opposition parties' disruption of Parliament with "protests, walkouts, planned disturbances, and other unpleasantness" for thirteen months in 2002 and 2003); Gazdar, supra note 101, at 8 ("Opposition political parties, much battered and maligned, must be given credit for maintaining their constituencies and keeping their nerves, through eight-long years of suppression, vilification and exile."); Amir Zia, Pakistani Opposition Parties Form New Alliance for Democracy, ASSOCIATED PRESS, December 4, 2000 (discussing the formation of a broad coalition of Pakistan's opposition political parties to develop a unified strategy to fully restore civilian democratic rule).

(184.) Charter of Democracy, May 14, 2006, available at http:/ 2006/05/16/loca123.htm; see also Arif Azad, General in His Labyrinth, ECON. & POL. WKLY., Sep. 16, 2006, at 3941 (discussing Charter's substantive provisions and assessing its political significance).

(185.) Kirsten Matoy Carlson, Is Hindsight 20-20? Reconsidering the Importance of Pre-Constitutional Documents, 30 AM. INDIAN L. REV. 1, 7-13 (2005).

(186.) Anil Kalhan, Whither Pakistan's Charter of Democracy?, ASIAMEDIA, Sep. 8, 2007,; see also Ayaz Amir, Nervousness in High Places, DAWN, May 19, 2006, weekly/ayaz/20060519.htm ("[T]he Charter of Democracy ... is one of the most important and ... most stirring thing[s] to come out of Pakistan's confused political milieu in a long time.").

(187.) See Upendra Baxi, Constitutionalism as a Site of State Formative Practices, 21 CARDOZO L. REV. 1183, 1187-90 (1999) (discussing "forming practices" that "constitute the idea ... of a constitution"); Pratap Bhanu Mehta, What Is Constitutional Morality?, 615 SEMINAR 17, 20 (2010) (discussing B.R. Ambedkar's view that the "core of the constitutional revolution" in India was "a form of political organization sustained by certain ways of doing things"); Adam Tomkins, The Republican Monarchy Revisited, 19 CONST. COMMENT. 737, 742-47 (2002) (discussing complementary roles of law and convention in British constitutionalism).

(188.) Charter of Democracy, supra note 184, pmbl. [paragraph] 6, [section][section] 21-22.

(189.) See supra Part II.

(190.) Charter of Democracy, supra note 184, [section][section] 1-2, 12, 28.

(191.) Id. [section][section] 32, 34; see also id. [section] 35. The declaration also pledged to overhaul military land allotment policies and to review all land allocations to military officers under Musharraf.

(192.) Id. [section] 5.

(193.) Id. [section] 3. The commission also would oversee a newly overhauled administrative mechanism to regulate judicial conduct. Id.

(194.) Id.

(195.) Id.

(196.) Id.

(197.) ZAIDI, supra note 40, at 185-87 (discussing power sharing deal between Bhutto and Musharraf); see also BENAZIR BHUTTO, RECONCILIATION: ISLAM, DEMOCRACY, AND THE WEST 225-32 (2008) (recounting negotiations with Musharraf between August 2006 and November 2007); Former Premier Discusses Power-Sharing Plan (PBS television broadcast Aug. 21, 2007), available at newshour/bb/asia/july-dec07/pakistan_08-21.html (interviewing Benazir Bhutto).

(198.) National Reconciliation Ordinance, No. LX of 2007, Oct. 5, 2007.

(199.) See ZAIDI, supra note 40, at 186-87.

(200.) BHUTTO, supra note 197, at 230. Bhutto also sought repeal of Article 58(2)(b) and removal of the prohibition instituted by Musharraf against serving more than two terms as prime minister, both of which were also sought by the Charter and would have equally benefitted her rival Nawaz Sharif.

(201.) Christina Lamb, Threat To Strip Benazir Bhutto of Amnesty, SUNDAY TIMES (U.K.), Nov. 18, 2007 (quoting PML-Q leader Chaudhry Shujaat Hussain); see also RASHID, supra note 61, at 376-78 (noting that agreement between Musharraf and Bhutto was "immensely unpopular in the PPP and among the opposition leaders").

(202.) See Khan, supra note 182, at 149.

(203.) See Nasim Zehra, Charter of Democracy and the 2007 Elections, NEWS INT'L, May 22, 2006; Carlson, supra note 185, at 8 (discussing the role of preconstitutional documents in "[outlining] the more aspirational goals of the political community"). Sharif and others repeatedly invoked the Charter when criticizing Bhutto's negotiations with Musharraf and again in the aftermath of the February 2008 elections, when the PPP (now led by Zardari) stalled in its pledge to restore the judges ousted by Musharraf during his "emergency."

(204.) See Khan, supra note 182, at 150; Griff Witte, Bhutto, Sharif Joining Forces To Press Musharraf for Fair Elections, WASH. POST, Dec. 4, 2007, at A14.


(206.) See Pakistani Lawyers' Movement, supra note 22, at 1723-25 (crediting the lawyers' movement with causing the "emergence of a new issue-based democratic politics" in Pakistan); Babar Sattar, Transitionists Again, NEWS INT'L, Feb. 7, 2009 (contrasting Pakistan's "transitionist" mainstream politicians with its "transformationist" lawyers and judges in the lawyers' movement). This narrative arises from and is situated within a broader debate in Pakistan--which was particularly prominent and charged immediately following Chaudhry's reinstatement as chief justice in 2007--between so-called "transitionists" and "transformationists" over the appropriate means of effecting political and institutional change. See, e.g., Ejaz Haider, Playing Solitaire, DAILY TIMES, Nov. 6, 2007; Ejaz Haider, Transitionists vs Transformationists, DAILY TIMES, Aug. 31, 2007; Ayesha Siddiqa, No Transition Without Transformation, DAILY TIMES, Sep. 3, 2007; Afiya Shehrbano Zia, Civil-ising Democracy, DAILY TIMES, Sep. 11, 2007.

(207.) See LIEVEN, supra note 9, at 116 (arguing that "[t]he lawyers' only collective programme has been the independence, power and prestige of the judiciary"); Fair, supra note 28, at 74 (arguing that the mobilization triggered by the lawyers' movement was "effective," but "limited"); Munir, supra note 22, at 378 (arguing that the lawyers' movement primarily focused on the narrow goal of "advancing judicial autonomy through the restoration of deposed judges," not on the broader goal of effecting a transition to democracy); Ayesha Siddiqa, Looking Back at the Lawyers' Movement, FRIDAY TIMES, Mar. 23, 2012 (arguing that the "core purpose" of the lawyers' movement was not "strengthening the system of justice for the benefit of the common man," but rather "empowerment of the legal community"); Osama Siddique, The Lawyers' Movement and Its Fragments, NEWS ON SUNDAY, Feb. 19, 2012 (arguing that while the lawyers' movement was a "genuine movement" that was "commendable and inspiring," it ultimately failed to distinguish "between popularity sustained through meaningful performance and the pursuit of popularity beneath the veneer of populism"). See generally Siddiqi, supra note 171 (detailing the specific goals and objectives of the lawyers' movement at various stages of the movement).

(208.) See FRUMAN, supra note 42, at 13-14 (highlighting the "sustained unity of the main political parties over a lengthy period during the Musharraf era" as a significant change from earlier movements against military rule in Pakistan).

(209.) See Kalhan, supra note 12, at 96-99 (discussing Musharrafs "emergency" and opposition responses); S. Akbar Zaidi, Musharraf and His Collaborators, ECON. & POL. WKLY., Nov. 10, 2007, at 8 (same).

(210.) See, e.g., U.S. Embassy Cable, Musharraf Convokes Dip Corps (Nov. 5, 2007), available at (recounting Musharrafs comments to diplomatic corps rejecting the Supreme Court's authority to review his eligibility to be reelected as President).

(211.) Tika Iqbal Muhammad Khan v. Fed'n of Pak., (2008) 60 PLD (SC) 178 (Pak.) (validating Musharrai's Proclamation of Emergency), declared void ab initio, Sindh High Court Bar Ass'n v. Fed'n of Pak., (2009) 61 PLD (SC) 879 (Pak.); Wajihuddin Ahmed v. Chief Election Comm'r, Islamabad, (2007) 59 PLD (SC) 13, 22 (Pak.) (vacating pre-emergency stay of final certification of presidential election results), declared void ab initio, Sindh High Court Bar Ass'n, (2009) PLD (SC) 879.

(212.) Sindh High Court Bar Ass'n, (2009) PLD (SC) at 1055 (quoting full text of order).

(213.) See HUMAN RIGHTS WATCH, supra note 22, at 19.

(214.) See Siddiqi, supra note 171; Jane Perlez & David Rohde, Lawyers Resist Emergency Rule by Musharraf, N.Y. TIMES, Nov. 6, 2007, at A1. Retired judges also were outspoken in criticizing the emergency. See MALIK, supra note 144, at 252-53.

(215.) See Pakistani Lawyers' Movement, supra note 22, at 1713-15.

(216.) See Pamela Constable, Political Talk Defies Ban in Pakistan, WASH. POST, Nov. 25, 2007, at A14 (discussing protests and resistance to the emergency by journalists following the regime's censorship of television news networks); Marta Bolognani, Virtual Protest with Tangible Effects? Some Observations on the Media Strategies of the 2007 Pakistani Anti-Emergency Movement, 18 CONTEMP. S. ASIA 401, 405-08 (2010) (assessing the significance of blogs, online petitions, video clips, text messaging, and other forms of new media in the anti-emergency movement).

(217.) See Marta Bolognani, Rang de Basanti in Pakistan? Elite Student Activism, the Emergence of a Virtual Globalized Public Sphere, and the 2007 Emergency, in PAKISTAN AND ITS DIASPORA: MULTIDISCIPLINARY APPROACHES 19, 19 (Marta Bolognani & Stephen M. Lyon eds., 2011); Shahan Mufti, Student Protests Build in Pakistan, CHRISTIAN SCI. MONITOR, Nov. 15, 2007, at 1.

(218.) See MALIK, supra note 144, at 250-52 (discussing importance of protests and other expressions of solidarity with the lawyers' movement by lawyers and bar associations in the United States, Canada, and other countries); Bolognani, supra note 216, at 405-06 (highlighting efforts by anti-emergency activists to use new media in a manner that self-consciously targeted U.S. and other international audiences).

(219.) These lawyers argued that since the regime could not be trusted to hold fair elections, participation risked lending credence to a fraudulent victory by regime loyalists, who could then validate and indemnify the actions taken under the emergency--including subordination of the judiciary. Muneer A. Malik, First Things First, DAWN, Dec. 6, 2007,

(220.) Gazdar, supra note 101, at 9. Other lawyers opposed a boycott, since engaging the political process was inherently necessary to restore the ousted judges. See Siddiqi, supra note 171; see also James Traub, The Lawyers" Crusade, N.Y. TIMES, June 1, 2008, at MM46; KHAN, PAKISTAN: A PERSONAL HISTORY, supra note 72 (discussing his disagreement with the lawyers' movement on election boycott); Raza Rumi, The Flawed Boycott Mantra?, NEWS INT'L, Feb. 21, 2008 (noting risks in boycott of "de-legitimising the main political parties that have had the roughest time during the Musharraf years").

(221.) OLDENBURG, supra note 33, at 204.

(222.) See Sowers, supra note 78 (arguing that the process of rolling back the military's power in Egypt "will likely unfold over decades, punctuated by reversals and periods of conflict over the role of the security forces and the military in the political system").

(223.) See, e.g., Bali, supra note 2, at 276-79 (discussing the role of status quo forces in Turkey); Kenneth M. Pollack, Democratizers? The Pursuit of Pluralism, in THE ARAB AWAKENING: AMERICA AND THE TRANSFORMATION OF THE MIDDLE EAST 87, 87-88 (Kenneth M. Pollack ed., 2011) (discussing challenges for political transition presented by "contingent of powerful political and military actors who are either ambivalent or outright hostile to democracy" in Iraq, Palestine, Tunisia, Egypt, and Libya).

(224.) See Siddiqi, supra note 171.

(225.) See Fair, supra note 28, at 73-74; Cables Reveal How Musharraf Was Eased Out, DAWN, Dec. 8, 2010, musharraf-was-eased-out-2/.

(226.) As Chaudhry stated, "I was deposed by an Executive Order and I can be restored by an Executive Order." Anil Kalhan, The Math of Rollback, DORF ON LAW (Feb. 23, 2008),

(227.) See Kalhan, supra note 12, at 109-10, 114 (discussing "muddled" state of Pakistan's constitutional order after the 2008 elections); Faisal Siddiqi, Constitutionalism of a Political Problem, NEWS ON SUNDAY, Mar. 30, 2008 (discussing conflict over the legal and constitutional modalities by which the judges ousted by Musharraf could properly be restored to office); supra Part II.B. 1.

(228.) Amir Wasim & Abid Abbasi, Zardari, Sharif in Historic Accord: PML-N To Join Govt at Centre, Judges" Restoration in 30 Days, DAWN, Mar. 10, 2008, However, as Faisal Siddiqi observes, while pledging to restore the ousted judges, the coalition's platform was silent as to the judiciary as an institution and the status of incumbent PCO judges. Faisal Siddiqi, Politics of Constitutionalism, NEWS ON SUNDAY, June 29, 2008, thenews/jun2008-weekly/nos-29-06-2008/enc.htm#1.

(229.) U.S. Embassy Cable, Zardari's Views on Agreement with Nawaz (Mar. 10, 2008), available at! (reporting Zardari's comments that he and Sharif "had agreed (very privately)" not to restore Chaudhry); see also U.S. Embassy Cable, Immunity for Musharraf Likely After Zardari's Election as President (Aug. 23, 2008), available at [hereinafter U.S. Embassy Cable, Immunity for Musharraf] (reporting that "Zardari plans to continue to slow roll action on the judges' restoration but remains confident that Nawaz Sharif will not walk out of the coalition"); U.S. Embassy Cable, Zardari Examining a Coalition with Nawaz Sharif (Feb. 20, 2008), available at [hereinafter U.S. Embassy Cable, Examining a Coalition] (reporting that "Zardari planned to meet Nawaz's demands on the judiciary by burying them in committee, which he thought might satisfy Nawaz"); Anil Kalhan, Pakistan's "Oddfather"?, DORF ON LAW (Aug. 27, 2008), (noting that Zardari had openly acknowledged breaking "one promise after another about [restoring] the judges" during the months following the elections).

(230.) See U.S. Embassy Cable, Helping Resolve the Deadlock over the Judges (May 4, 2008), available at

(231.) Under Chaudhry, the court had ordered Musharraf to permit Sharif's return to Pakistan from exile. Pak. Muslim League (N) v. Fed'n of Pak., (2007) 59 PLD (SC) 642, 680 (Pak.). After the elections, both his and his brother Shahbaz Sharifs eligibility to hold office had been challenged in pending court cases, in which he was loath to trust the PCO judges. See U.S. Embassy Cable, Immunity for Musharraf, supra note 229 (inferring that Sharifs position "probably is based on Nawaz's expectation that Chaudhry would rule in both Nawaz's and Shahbaz's favor"). Despite the erstwhile cooperation between Sharif and Zardari, the prospect of a Chaudhry-led court striking down the NRO was likely also a factor in Sharif's support for Chaudhry's reinstatement. Fair, supra note 35, at 580-81.

(232.) U.S. Embassy Cable, supra note 230 (noting the embassy's view that "Nawaz has succeeded in changing the debate to how, not if, the former Chief Justice returns ... [and] is reaping the popular glory as principled protector of the judiciary").

(233.) See supra text accompanying notes 187-89, 200-201; cf. Siddiqi, supra note 228 (analyzing the issue of restoring ousted judges as a "political, and not a personal, problem").

(234.) See Amir, supra note 181 (crediting Bhutto's role in successfully negotiating with Musharraf to relinquish his position as Army Chief); Faisal Siddiqi, Op-Ed., The NRO Mystery, DAWN, Jan. 1, 2012, (discussing "competing visions of democratic constitutionalism" reflected in conflicts over NRO).

(235.) U.S. Embassy Cable, supra note 230 (noting that Zardari's "relations with Musharraf and ISI are fraying badly"); U.S. Embassy Cable, Examining a Coalition, supra note 229 (noting Zardari's concern that "his own reputation within the Army was not good"). These fears persisted even after Musharrafs resignation. See Declan Walsh, Pakistan's President Asif Ali Zardari "Prepared for Assassination," GUARDIAN, Dec. 1, 2010, at 8 (discussing Zardari's fear in 2009 that military might "take [him] out").

(236.) U.S. Embassy Cable, Examining a Coalition, supra note 229 ("Musharrafs advisors have tried to convince Zardari to exclude Nawaz Sharif in any PPP-led government.").

(237.) U.S. Embassy Cable, Scenesetter for PM Gilani's Visit to Washington (July 25, 2008), available at

(238.) Faisal Siddiqi, Politics of Legal Absurdities, NEWS ON SUNDAY (Sep. 28, 2008),; see also U.S. Embassy Cable, supra note 230 (noting Zardari's proposals to restore ousted judges, but for more limited terms or with more limited powers).

(239.) Raja Asghar, Assembly Passes First Budget, Expands SC, DAWN (June 23, 2008), l.htm.

(240.) Siddiqi, supra note 238; U.S. Embassy Cable, Insights on Zardari's Plans for the Party, Coalition, and Judges (Aug. 27, 2008), available at 2011/06/11/2008-political-scheming-to-get.zardari-elected/(discussing the PPP strategy of "gradual reinstatement" of judges).

(241.) KHAN, supra note 11, at 718-19; Siddiqi, supra note 238.

(242.) See Matthew J. Nelson, Pakistan in 2009: Tackling the Taliban?, 50 ASIAN SURV. 112, 115-16 (2010).

(243.) See Saeed Shah, Pakistan Increases Power of Army Strongman General Ashfaq Kayani, GUARDIAN, July 24, 2010, at 19 (noting Kayani's "secret interven[tion]" to restore Chaudhry); U.S. Embassy Cable, Implications of the Long March (Mar. 16, 2009), available at (discussing Kayani's "adroit behind-the-scenes maneuvering"); U.S. Embassy Cable, Little Movement on Reconciliation (Mar. 12, 2009), available at ("In four conversations with Ambassador this week ... Kayani hinted that ... he might have to urge Zardari to resign."); U.S. Embassy Cable, Long March Round Up as of 1500 Local Time, March 16 (Mar. 16, 2009), available at]2011/06/06/2009-armysrole-in-long-march-conclusion/ (noting Kayani's role as "primary interlocutor" responsible for convincing Zardari to restore ousted judges).

(244.) The resolution also restored the remaining ousted judges. See Nelson, supra note 242, at 116.

(245.) Ahmed, supra note 22, at 501-02; see also Kausar, supra note 22, at 32 (asserting that "the movement ended successfully" by achieving the judiciary's reinstatement in March 2009); Pakistani Lawyers' Movement, supra note 22, at 1726 (asserting that the movement "forced nearly every major political party in Pakistan to endorse the ideas of judicial independence and the restoration of the judiciary").

(246.) See Fair, supra note 35, at 580-85 (detailing the military's continuing centrality as "part of Pakistan's political machinery" and asserting that "it is far from clear that the army has departed from its historical [political] role").

(247.) Hirschl, Pure Politics, supra note 81.

(248.) See also Kennedy, supra note 22, at 151-58.

(249.) Fed'n of Pak. v. Muhammad Nawaz Sharif, (2009) 61 PLD (SC) 644 (Pak.).

(250.) Following Musharraf's 1999 coup, Sharif was convicted by an antiterrorism court of "hijacking" Musharraf's commercial flight, which Sharif--a day after he fired Musharraf as Army Chief, and while the coup was already underway-unsuccessfully ordered to be prevented from landing in Karachi upon Musharraf's return from an international trip. See RASHID, supra note 61, at 47.

(251.) Muhammad Nawaz Sharif v. State, (2009) 61 PLD (SC) 814, 847-48 (Pak.); see also U.S. Embassy Cable, Ice May Have Cracked, but Sharifs Still Distrust in Zardari (July 24, 2009), available at and-punjab-power-crisis/(noting Shahbaz Sharif's view that judgment was '"constitutionally significant' in discrediting rulings" justifying military intervention and "makes it more difficult for the Army to take over").

(252.) Sindh High Court Bar Ass'n v. Fed'n of Pak., (2009) 61 PLD (SC) 879 (Pak.).

(253.) Id. at 1200 (declaring Tika Iqbal Muhammad Khan v. Fed'n of Pak., (2008) PLD (SC) 178, void ab initio).

(254.) Id. at 956-57.

(255.) Indeed, the court voided all notifications by the Law Ministry reappointing those judges. Id. at 1057-58.

(256.) See generally id.

(257.) Id. at 1111-13, 1142-44.

(258.) Id. at 960. Most of these judges eventually resigned. The court also revised its code of judicial conduct to add a new misconduct ground prohibiting judges from "support[ing] in whatever manner ... any unconstitutional functionary who acquires power" via extraconstitutional means. Id. at 962.

(259.) See Dana A. Remus, The Institutional Politics of Federal Judicial Conduct Reform, 31 YALE L. & POL'Y REV. (forthcoming 2012) (manuscript at 2), available at (discussing the role of federal judicial conduct regulation in not only addressing misconduct of individual judges, but also "facilitat[ing] the centralization of judicial authority, the development of a cohesive judicial identity, and the emergency of the Judiciary's 'corporate persona").

(260.) Sindh High Court Bar Ass'n, (2009) PLD (SC) at 1200-06 (applying Asma Jilani v. Punjab, (1972) PLD (SC) 139); see also Mahmud, supra note 20, at 1255-60 (discussing similar dilemmas in Asma Jilani). The court also kept quiet about the fact that most of the "non-PCO" judges, including Chaudhry himself, had themselves taken extraconstitutional oaths under Musharraf's first PCO in 2000.

(261.) Sindh High Court Bar Ass'n, (2009) PLD (SC) at 1203-05.

(262.) Gazdar, supra note 142, at 10-11.

(263.) Mobashir Hassan v. Fed'n of Pak., (2010) 62 PLD (SC) 1 (Pak.) (short order); Mobashir Hassan v. Fed'n of Pak., (2010) 62 PLD (SC) 265 (Pak.) (detailed judgment); see also Jahangir, supra note 23 (criticizing the effect of the Supreme Court's decision on separation of powers); Asma Jahangir, Flaws in the Judgment, DAWN (Jan. 26, 2010), [hereinafter Jahangir, Flaws] (discussing various shortcomings of the decision).

(264.) I.A. Rehman, Pause, Sirs, and Ponder, DAWN (Dec. 24, 2009),; see also Amir, supra note 181. Moreover, by convening a seventeen-judge bench--the largest in the court's history for any case--Chaudhry signaled an intent for the case to carry a high profile. See Feisal H. Naqvi, The Lonely Death of the NRO, FRIDAY TIMES, Dec. 24, 2009 (suggesting that "the very size of the bench made it clear ... that a 'historic' judgment was in the offing").

(265.) Mobashir Hassan, (2010) PLD (SC) at 352-53; Naqvi, supra note 264; Amir, supra note 181.

(266.) Amir, supra note 181.

(267.) Mobashir Hassan, (2010) PLD (SC) at 400-06. On the military's selective use of anticorruption initiatives, see supra note 75 and accompanying text.

(268.) See supra text accompanying note 94.

(269.) Mobashir Hassan, (2010) PLD (SC) at 422-23, 437-40 (citing and discussing PAKISTAN CONST. arts. 62-63); see also Jahangir, Flaws, supra note 263 (arguing that the Supreme Court's invocation of Articles 62 and 63 amounted to "plead[ing] that that legacy of dictators that suits us will be accepted and the one that hurts us will not"); Rehman, supra note 264 (arguing that the Supreme Court's invocation of Zia's constitutional amendments, which "have never been debated by a representative assembly and have been consistently denounced by democratic opinion," was akin to "quoting a PCO judge").

(270.) See Walsh, supra note 15 (quoting Muneer Malik); cf. Shambayati, supra note 79, at 286 (advancing reasons why, in Turkey, "the military and the judiciary might share a number of common values and assumptions about politics and politicians").

(271.) Muhammad Nasir Mahmood v. Fed'n of Pak., (2009) 61 PLD (SC) 109, 177 (Pak.) (noting that only 1.6 percent of the population were qualified as graduates, and that the literacy rate in Pakistan is only 35 percent).

(272.) Muhammad Rizwan Gill v. Nadia Aziz, (2010) PLD (SC) 828; see also Kennedy, supra note 22, at 153-54.

(273.) See Waraich, supra note 76.

(274.) As Farahnaz Ispahani, a PPP legislator (and Wellesley graduate), intimated, "The unconstitutional degree requirement is being invoked by those who have constantly assaulted our fledgling democracy." Id.

(275.) Declan Walsh, Pakistan Denies Coup as Court Ruling Rocks Zardari Government, GUARDIAN, Dec. 17, 2009, at 26.


(277.) Constitution (18th Amend.) Act, No. 10 of 2010, THE GAZETTE OF PAKISTAN EXTRAORDINARY, Apr. 20, 2010; see also Colin Cookman, The 18th Amendment and Pakistan's Political Transitions, CENTER FOR AM. PROGRESS (Apr. 19, 2010), amendment-and-pakistans-political-transitions/; Raza Rumi, An Unlikely Catalyst for Change, TEHELKA (Apr. 17, 2010), filename=Ne 170410an_unlikely. asp.

(278.) PCCR REPORT, supra note 11, [paragraph] 8; Katharine Adeney, A Step Towards Inclusive Federalism in Pakistan? The Politics of the 18th Amendment, 42 PUBLIUS 539, 546-47 (2012).

(279.) Adeney, supra note 278, at 547. Other observers credit a conscious effort by the military to step back from active engagement in politics.

(280.) The committee held 77 meetings, involving 385 hours of deliberation and consideration of 982 amendment proposals from the public. PCCR REPORT, supra note 11, [paragraph][paragraph] 13, 22; see also Haris Gazdar, Democracy in Pakistan: The Chasm, ECON. & POL. WKLY., May 29, 2010, at 10 ("While Pakistani public spaces resounded throughout this period with the cacophony of civil strife, terrorism, scandal, institutional clashes, political anger and economic disaffection, the committee laboured quietly until consensus had been reached among representatives of virtually every significant shade of opinion.").

(281.) While some members included "notes of reiteration" recording opposing views in the Committee's Final Report, in the interest of consensus, all committee members signed and agreed to the final package. See PCCR REPORT, supra note 11, [paragraph] 17.

(282.) Constitution (18th Amend.) Act, No. 10 of 2010, pmbl. [section][section] 2, 96.

(283.) Id. [section] 4 (amending PAKISTAN CONST. art. 6).

(284.) Id. [section][section] 14, 15, 27, 28, 29, 31 (amending PAKISTAN CONST. arts. 46, 48, 89, 90, 91, 99). Similar changes modified the relationships between provincial governors and chief ministers. Id. [section][section] 42, 46 (amending PAKISTAN CONST. arts. 129, 139). Power over most appointments was transferred to the Prime Minister, although some appointment powers previously vested in the President, such as judicial appointments, were transferred to other entities. Id. [section][section] 33, 77, 89, 90 (amending PAKISTAN CONST. arts. 101, 213, 242, 243); id. [section] 67 (adding PAKISTAN CONST. art. 175A).

(285.) Id. [section] 17 (repealing PAKISTAN CONST. art. 58(2)(b)-(c)). The amendment also eliminated the analogous provision conferring discretion upon provincial governors to dismiss provincial assemblies. Id. [section] 37 (repealing PAKISTAN CONST. art. 112(2)(b)). The President now only may dissolve the National Assembly and order elections on advice of the Prime Minister, or if the Prime Minister loses a vote of confidence and no other member of Parliament can form a government. Id. [section] 17. The President may only dismiss the Prime Minister upon losing a vote of confidence. Id. [section] 29 (amending PAKISTAN CONST. art. 91).

(286.) Id. [section][section] 15(i), 26, 94, 101-02 (amending PAKISTAN CONST. arts. 48(1), 75(1), 268(2), 6th sched., 7th sched.). The amendment also limits the President's power to issue ordinances having the effect of ordinary laws when Parliament is not in session. Id. [section] 27 (amending PAKISTAN CONST. art. 89(1)).

(287.) Id. [section] 5 (adding PAKISTAN CONST. art. 10A) (right to fair trial); id. [section] 9 (adding PAKISTAN CONST. art. 25A) (right to education); id. [section] 7 (adding PAKISTAN CONST. art. 19A) (right to information). These provisions built upon other efforts by civilian government to improve Pakistan's international human rights compliance, including its ratification of the International Covenant on Economic, Social and Cultural Rights (which the Musharraf regime had signed but had not ratified), the International Covenant on Civil and Political Rights, and the Convention Against Torture.

(288.) See Adeney, supra note 278 (analyzing and assessing the significance of the amendment's provisions altering the distribution of powers between the central and provincial governments).

(289.) Constitution (18th Amend.) Act, No. 10 of 2010, [section] 49 (amending PAKISTAN CONST. art. 142). Residual powers continue to rest with provincial governments.

(290.) Id. [section][section] 58-59, 65 (amending PAKISTAN CONST. arts. 157, 160, 172); see also Adeney, supra note 278, at 546-50 (noting "[l]ong-standing demands" for abolition of the Concurrent List and "major tensions" over the distribution of resources between the provinces); Asma Jahangir, Strengths and Pitfalls, DAWN, Apr. 16, 2010, (characterizing the amendment's federalism provisions as its "most vital" reforms). The amendment also officially changed the colonial-era name of the North West Frontier Province to Khyber Pakhtunkhwa. Constitution (18th Amend.) Act, No. 10 of 2010, [section] 3 (amending PAKISTAN CONST. art. 1).

(291.) Constitution (18th Amend.) Act, No. 10 of 2010, [section] 66 (adding PAKISTAN CONST. art. 175A).

(292.) E.g., Osama Siddique, Judicial Apointments and Accountability: A Flawed Debate, FRIDAY TIMES, Mar. 12, 2010; see also Pratap Bhanu Mehta, India's Judiciary: The Promise of Uncertainty, in PUBLIC INSTITUTIONS IN INDIA: PERFORMANCE AND DESIGN 158, 174-80 (Devesh Kapur & Pratap Bhanu Mehta eds., 2007); Anil Divan, Judicial Appointments: Agenda for Reform, HINDU, Dec. 17, 2009.

(293.) Compare PAKISTAN CONST. art. 209, with INDIA CONST. arts. 124(4), 217(1). See also Osama Siddique, Across the Border, 615 SEMINAR 52, 53 (2010) (explaining and analyzing constitutional jurisprudence on judicial appointments in Pakistan and India); I.A. Rehman, Selection of Judges, DAWN, Jan. 21, 2010, (discussing concerns since the 1990s over the judicial appointments process). Of course, as discussed above, judicial composition in Pakistan has periodically been subject to significant extraconstitutional constraints by the military. See supra Part II.B.1.

(294.) See Charter of Democracy, [section] 3 (proposing the creation of a judicial appointments commission); see also, e.g., Hamid Khan, The Problem of Judicial Appointments in Pakistan's Historical Perspective, in HAMID KHAN, THE JUDICIAL ORGAN 155, 165 (1999) (advocating a "permanent Judicial Commission consisting of representatives from the Judiciary, Parliament and the Bar, which should be invested with the power to scrutinise each and every proposed nominee" to the higher judiciary); Rehman, supra note 293 (discussing and assessing proposals by political parties, civil society organizations, and government entities to reform the judicial appointments process).

(295.) See Constitution (18th Amend.) Act, No. 10 of 2010, [section] 66 (adding PAKISTAN CONST. art. 175A).

(296.) Id.; see also Siddique, supra note 293, at 55 (emphasizing the limited scope of the Parliamentary Committee's authority).

(297.) See Fair, supra note 35, at 583 (discussing concerns that various provisions in the amendment will weaken internal democracy within political parties and further strengthen the power within Parliament of party leaders over rank and file members); Jahangir, supra note 290 (praising the amendment on balance, but criticizing some of its provisions for discriminating against religious minorities, reinforcing the power of political party leaders, and failing to go far enough with some of its reforms); Amina Jilani, The Constitution, the Letter and the Memo, EXPRESS TRIB., Jan. 27, 2012 (criticizing the amendment for leaving the constitution "riddled with bits and pieces of Zia's Eighth Amendment").

(298.) See Cyril Almeida, A More Complicated Script, DAWN, Dec. 30, 2011, (discussing "subtle reasons" for the survival of civilian government since 2008 "which suggest, unbelievable as it may sound, that democracy may be structurally stronger than it ever has been"); Zaidi, supra note 169 (arguing that "[d]espite instability and rumours galore about the collapsing presidency or the fall of the government, a transition to a democratic order seems to have been made").

(299.) See supra note 24 and accompanying text.

(300.) E.g., SHUJA NAWAZ, WHO CONTROLS PAKISTAN'S SECURITY FORCES? 6 (2011) (predicting that "[i]n the next three to five years, the military's influence over Pakistan's polity will likely increase"); see also Siddiqa, supra note 33 (documenting and analyzing the dominant role played by the military and its affiliates in Pakistan's economy).

(301.) See Jahangir, supra note 290 (characterizing the amendment's other reforms as more significant). Some observers even speculated that controversies over these provisions had been "engineered by the army in a belated attempt to derail" the broader constitutional reform project. See Adeney, supra note 278, at 9, 22 n.14 (citing the author's conversations with Pakistani politicians and civil society activists).

(302.) On the basic structure doctrine in India, see generally SUDHIR KRISHNASWAMY, DEMOCRACY AND CONSTITUTIONALISM IN INDIA: A STUDY OF THE BASIC STRUCTURE DOCTRINE (2009); Pratap Bhanu Mehta, The Inner Conflict of Constitutionalism: Judicial Review and the "Basic Structure," in INDIA'S LIVING CONSTITUTION: IDEAS, PRACTICES, CONTROVERSIES 179 (Zoya Hasan et al. eds., 2002); Raju Ramachandran, The Supreme Court and the Basic Structure Doctrine, in SUPREME BUT NOT INFALLIBLE: ESSAYS IN HONOUR OF THE SUPREME COURT OF INDIA 107 (B.N. Kirpal et al. eds., 2000); Robinson, supra note 134, at 27-40.

(303.) See Kesavananda Bharati v. Kerala, A.I.R. 1973 S.C. 1461 (India) (applying the basic structure doctrine); Gandhi v. Narain, A.I.R. 1975 S.C. 2299 (India) (same); Minerva Mills Ltd. v. India, A.I.R. 1980 S.C. 1789 (India) (same).

(304.) See Ramachandran, supra note 302. In recent years, a similar controversy over the permissibility of constitutional amendment has arisen in Turkey. See Bali, supra note 2, at 250-55 (discussing the crisis in Turkey arising from the Turkish Constitutional Court's invalidation of amendments challenging the interests of the Kemalist secular establishment); see also Robinson, supra note 134, at 64-66 (discussing analogous constitutional dynamics in Pakistan, Iran, Thailand, and Bangladesh).

(305.) Ramachandran, supra note 302, at 130.

(306.) Mehta, supra note 302, at 200.

(307.) See Sudhir Krishnaswamy, Constitutional Durability, 615 SEMINAR 48, 51 (2010) (arguing that the basic structure doctrine has helped to "ensure[] [India's] constitutional survival"); Mehta, supra note 302, at 191-96 (articulating a defense of the basic structure doctrine as a means of "protect[ing] democratic sovereignty from usurpation by transient majorities"). Both the Indian Constitution and the Pakistan Constitution may be formally amended relatively easily. In India, while amendment of some constitutional provisions also requires ratification by legislatures in half of the states, amendments to most provisions simply requires approval by a majority of the total membership and two-thirds of those members present and voting in each house of Parliament. INDIA CONST. art. 368. In Pakistan, formal constitutional amendment is even easier, in virtually all instances simply requiring approval by a two-thirds majority vote in each house of Parliament. PAKISTAN CONST. art. 239.

(308.) See SHANKAR, supra note 132, at 177-78.

(309.) See Maryam Khan, Selective Borrowings, 615 SEMINAR 56, 57-58 (2010) (discussing the use of Indian constitutional jurisprudence by courts in Pakistan); Arun K. Thiruvengadam, In Pursuit of "The Common Illumination of Our House": Trans-Judicial Influence and the Origins of PIL Jurisprudence in South Asia, 2 INDIAN J. CONST. L. 67, 95-97 (2008) (discussing the influence of Indian case law on early public interest litigation cases in Pakistan).

(310.) Pak. Lawyers Forum v. Fed'n of Pak., (2005) 57 PLD (SC) 719 (Pak.); Khan, supra note 81, at 5 ("The Constitutional Courts of Pakistan ... have never quite found grounds for convergence with India on [the basic structure doctrine], thus insulating constitutional amendments from substantive judicial review."); Feisal H. Naqvi, Not a New Debate, DAWN, Apr. 23, 2010 (summarizing and analyzing "30 years of uninterrupted case law" in which the Pakistan Supreme Court has "expressly rejected" the basic structure doctrine).

(311.) PAKISTAN CONST. art. 239(5)-(6). But cf. Minerva Mills Ltd. v. India, A.I.R. 1980 S.C. 1789 (India) (invalidating, on basic structure grounds, similar provisions added to the Indian Constitution by Indira Gandhi's Forty-Second Amendment).

(312.) Pak. Lawyers Forum, (2005) PLD (SC) at 763.

(313.) KHAN, supra note 11, at 636-37 (discussing "higher rights" principle of constitutional interpretation); see also, e.g., Wukala Mahaz Barai Tahafaz Dastoor v. Fed'n of Pak., (1998) 50 PLD (SC) 1263 (Pak.); Mahmood Khan Achakzai v. Fed'n of Pak., (1997) 49 PLD (SC) 426 (Pak.); Al-Jehad Trust v. Fed'n of Pak., (1996) 48 PLD (SC) 324 (Pak.). But cf. LAU, supra note 21, at 82-83 (arguing that the Pakistan Supreme Court had "establish[ed]" existence of basic structure doctrine by late 1990s). As an interpretive principle ostensibly limited to conflicts between specific constitutional provisions, this principle is, at least conceptually, narrower than the basic structure doctrine, which not only tests constitutionality against "structural" principles that transcend any particular constitutional provision, but also, as Sudhir Krishnaswamy emphasizes, is not limited to review of constitutional amendments. KRISHNASWAMY, supra note 302.

(314.) See generally Khan, supra note 309; Babar Sattar, People's Court?, COUNSEL, Fall/Winter 2010; Siddique, supra note 293; Cyril Almeida, Judicial Appointment Process Under Fire, DAWN, Sep. 5, 2010, archives/38944 (quoting lawyer Salman Raja); Ejaz Haider, Judicial Dues Ex Machina?, FRIDAY TIMES, Sep. 19, 2010; Nasir Iqbal, Aitzaz, Akram Spar Over Parliament, DAWN, Apr. 21, 2010, (quoting lawyer Aitzaz Ahsan); Maryam Khan, Towards a New Hegemony?, FRIDAY TIMES, Sep. 19, 2010; Naqvi, supra note 310; Salman Akram Raja, Excluding the People?, DAWN, Oct. 15, 2010,; Hasan-Askari Rizvi, Amending the Constitution, DAILY TIMES, Apr. 11, 2010,; Osama Siddique, Wasteland of Discourse, FRIDAY TIMES, Sep. 19, 2010.

(315.) See Khan, supra note 309, at 60 ("[T]he constitutional history of Pakistan, with its many constitutional deviations, does not speak of a consistent adoption of any basic structure."); cf. Richard S. Kay, Changing the United Kingdom Constitution: The Blind Sovereign, in SOVEREIGNTY IN FOCUS: DOMESTIC, EUROPEAN AND GLOBAL PERSPECTIVES (Richard Rawlings, Peter Leyland & Alison Young eds., forthcoming 2013) (conceptualizing constitutional change, in both the United Kingdom and United States, as entailing an extended series of discrete, "uncoordinated events by different actors," rather than a single, "rule-making event"); LaCroix, supra note 19, at 1330-31 (questioning "central assumption[] in American constitutional law" that presumes unitariness and continuity between political, legal, and institutional regimes over time).

(316.) See Siddique, supra note 293, at 54-55 & n.13 (cautioning that recognition of the basic structure doctrine and grundnorm status for the Objectives Resolutions "both carry the risk of creating and entrenching an all-encompassing, over-powerful and unaccountable judiciary"); Ali Dayan Hasan, Objective Reality, DAWN, Aug. 6, 2010, (discussing the Objectives Resolution and its "misuse"). See generally Iyer, supra note 20 (discussing the much-criticized attempts by Pakistani courts to invoke Hans Kelsen's concept of grundnorm); Mahmud, supra note 20, at 1244-47, 1255-57 (same).

(317.) Mir Jamilur Rahman, Towards Collision, NEWS INT'L, Apr. 27, 2010; see also Shafqat Mahmood, Are the Institutions Ready To Clash?, NEWS INT'L, Apr. 23, 2010 (anticipating Eighteenth Amendment litigation to be "the mother of all legal and political battles").

(318.) See Nasir Iqbal, Parliament Not Under Trial, Says CJ, DAWN, July 28, 2010, (noting Justice Ramday's comments that "courts in Pakistan were going through an evolutionary process and starting to take note of the 'basic structure theory'").

(319.) See Court Never Summoned Senator Rabbani, Says CJ, DAWN, Sep. 28, 2010, (noting Chief Justice Chaudhry's questioning whether Article 239 should be given effect since it was adopted under Zia); Nasir Iqbal, Parliament Doesn't Have Unfettered Powers: CJ, DAWN, Aug. 17, 2010, (noting Chief Justice Chaudhry's comments that Parliament lacked "unfettered powers" of constitutional amendment).

(320.) See Almeida, supra note 314 (quoting an unnamed senior lawyer).

(321.) See Ferejohn & Kramer, supra note 17, at 962-63 (maintaining that abstract platitudes about judicial independence tend to be "as vapid as they are axiomatic, ... the sort of thing that men and women on both sides of a discussion will agree upon and serve up with perfect sincerity and conviction").

(322.) Sindh High Court Bar Ass'n v. Fed'n of Pak., (2009) 61 PLD (SC) 1111-13, 1142-44 (Pak.).

(323.) See Iftikhar Muhammad Chaudhry v. President of Pak., (2010) 62 PLD (SC) 61, 173 (Pak.) (detailed judgment). The court grounded "judicial independence" in the fundamental right to life, reasoning that the access to justice necessary to vindicate that fundamental right would be "a mere farce and a mirage in the absence of an independent judiciary ... free of executive influence and pressures." Id. at 121.

(324.) Mobashir Hassan v. Fed'n of Pak., (2010) 62 PLD (SC) 265, 359-71 (Pak.). Although the court had only recently repudiated its extraconstitutional jurisprudence of necessity in the PCO Judges Case, the court emphasized the discussion of judicial independence in Zafar Ali Shah v Musharraf. That discussion came in an extraconstitutional judgment in which the court--apparently "immune to irony," as Paula Newberg observes--validated, among other things, Musharraf's subordination of the judiciary following his 1999 coup. Paula R. Newberg, Balancing Act: Prudence, Impunity, and Pakistan's Jurisprudence, in ROUTLEDGE HANDBOOK OF SOUTH ASIAN POLITICS: INDIA, PAKISTAN, BANGLADESH, SRI LANKA, AND NEPAL 177, 186 (Paul R. Brass ed., 2010). Taking the logic of the PCO Judges Case to its conclusion would deem Zafar Ali Shah a nullity as well. See supra note 159.

(325.) See, e.g., FRUMAN, supra note 42, at 21-22; PAK. INST. OF LEGISLATIVE DEV. & TRANSPARENCY, supra note 276; see also Mosharraf Zaidi, The Silver Lining in "Memogate," FOREIGN POL'Y, Nov. 18, 2011 (praising Parliament's work in adopting the Anti-Women Practices Bill of 2011 as embodying "how politics is supposed to work, in a country where for decades it has not").

(326.) See Sohail Khan, Parliament Should Have Debated 18th Amendment: CJ, NEWS INT'L, June 11, 2010; see also SC Thinks Government Doesn't Have "Good" Advisers, DAWN, Sep. 2, 2010, (noting Justice Iqbal's concern that "no homework had been done" by PCCR when drafting the appointments provisions).

(327.) See Sohail Khan, 18th Amendment Destroyed CJs Institution: Ramday, NEWS INT'L, July 29, 2010 (quoting Justice Ramday). Ramday went on to say that the amendment constituted the very "destruction of the institution of the Chief Justice of Pakistan." Id.

(328.) Id.

(329.) See Sohail Khan, 18th Amendment Eliminates Role of PM, says CJ, NEWS INT'L, Sep. 1, 2010; Sohail Khan, Was the 18th Amendment Will of the People?, NEWS INT'L, July 6, 2010 (quoting Chief Justice Chaudhry); SC Thinks Government Doesn't Have "Good" Advisers, supra note 326.

(330.) Nadeem Ahmed v. Fed'n of Pak., (2010) 62 PLD (SC) 1165, 1180-81 (Pak.).

(331.) Id. at 1180, 1183.

(332.) Id. at 1182, 1184-85.

(333.) Id. at 1183-84.

(334.) Id.

(335.) Among some observers, however, such praise was more akin to a sigh of relief that the court had not openly embraced the basic structure doctrine. See Babar Sattar, Judges as Legislators (Part 2), NEWS INT'L, Apr. 2, 2011 (arguing that the court's interim order "was not a marvel of jurisprudential merit").

(336.) Cf. WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, LEGISLATION AND STATUTORY INTERPRETATION 360-67 (2d ed. 2006) (discussing the statutory interpretation canon of "constitutional avoidance" in the United States).

(337.) See, e.g., ROBERT A. KATZMANN, COURTS AND CONGRESS (1997) (discussing forms of "dialogue" between Congress and federal judiciary); Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing After All), 35 OSGOODE HALL L.J. 75 (1997) (analyzing ways that the Canadian Charter of Rights and Freedom structures a form of "dialogue" between judiciary and Parliament); Shylashri Shankar, The Judiciary, Policy, and Politics in India, in THE JUDICIALIZATION OF POLITICS IN ASIA 56, 63 (Bjorn Dressel ed., 2012) (arguing that the Supreme Court of India's accumulation of power has resulted "not [in] the rise of a 'juristocracy' but a continuous dialogue with other actors and organs of the state").

(338.) See Russell, supra note 132, at 23 (identifying and discussing concern that in adjudicating alleged violations of judicial independence, "judges, in a sense, are acting as judges in their own case").

(339.) See supra notes 128-133 and accompanying text.

(340.) See generally Khan, New Hegemony, supra note 314 (distinguishing between legitimacy of judicial review of constitutional amendments and other ordinary acts of Parliament).

(341.) Constitution (19th Amend.) Act, 2010, No. 1 of 2011 (Pak.).

(342.) Munir Hussain Bhatti v. Fed'n of Pak., (2011) 63 PLD (SC) 407; see also Feisal H. Naqvi, Protecting the Independence of the Judiciary-I, EXPRESS TRIB, Mar. 13, 2011 (discussing Supreme Court's decision to overrule the Parliamentary Committee); Supreme Court Decision Undermines Legislature, Says Asma Jahangir, EXPRESS TRIB., Mar. 5, 2011 (reporting Supreme Court Bar Association President Asma Jahangir's criticism of the Supreme Court's decision).

(343.) Munir Hussain Bhatti, (2011) PLD (SC) at 443-45.

(344.) Id. at 465-67 (Khawaja, J., concurring).

(345.) Cyril Almeida, Breathing Room, DAWN, Oct. 22, 2010, 2010/10/22/by-cyril-almeida-5/; see also Mohammad Waseem, Clash of Institutions in Pakistan, ECON. & POL. WKLY., July 14, 2012, at 16, 17 (arguing that the court "has made it clear, if not in letter but in spirit, that the interpreters of the Constitution are above the makers of the Constitution").

(346.) See Josh Rogin, Exclusive: Secret Pakistani-U.S. Memo Offering Overthrow of Military Leadership Revealed, FOREIGN POL'Y: CABLE, Nov. 17, 2011, us memo _revealed_ijaz_calls_amb_haqqani_architect_of_sche (discussing memo). The actual memo is available at %20memo%20Foreign%20Policy.PDF.

(347.) See generally Walsh, supra note 15 (discussing Ijaz's allegations); Simon Denyer, Pakistan's Memo Scandal Pits Military Against Zardari Government, WASH. POST, Dec. 16, 2011, zardari-government-memo-husain-haqqani (discussing the military's inquiry into Ijaz's allegations); Memogate Probe by Parliament Committee, DAWN, Nov. 29, 2011, (discussing Parliament's investigation into Ijaz's allegations).

(348.) See Salman Masood & Eric Schmitt, A Diplomat in a Gilded Cage, Feeling Trapped and Not Entirely Safe, N.Y. TIMES, January 9, 2012, at A7 (discussing restrictions imposed upon Haqqani's freedom of movement); see also PML-N Seeks Memogate Probe Commission, DAWN, Nov. 19, 2011, DetailImage.php?StoryImage=19 11 2011 001 003 (discussing PML-N's demand for a Supreme Court investigation). The court later eased those travel restrictions, enabling Haqqani to depart for Washington. Nasir Iqbal, Court Lifts Haqqani Travel Restrictions, DAWN, Jan. 31, 2012, haqqani-travel-restrictions/.

(349.) See Memogate Case: Kayani, Pasha Replies Were Illegal, Implies PM, EXPRESS TRIB., Jan. 10, 2012, replies.unconstitutional/ (discussing the Prime Minister's statements "that Kayani and Pasha's replies to the Supreme Court were illegal, given they did not have clearance" from the civilian government); Saeed Shah, Pakistan Army Steps Up Confrontation with Government, GUARDIAN, Jan. 11, 2012, (discussing the civilian government's position that the court should "drop the case" in deference to Parliament's own pending investigation); Faisal Shakeel, Rejoinders: Army, ISI Chiefs Stick to Their Guns on Memo, EXPRESS TRIB., Dec. 22, 2011,] (discussing the positions of various actors on whether the court should formally investigate the circumstances surrounding the memo).

(350.) Watan Party v. Fed'n of Pak., (2011) 63 PLD (SC) 997 (Pak.).

(351.) Id. at 1053, 1068-82. The commission established by the court later concluded that Haqqani was the author of the memo, but that Zardari had no involvement. See Azam Khan, "Boss' Zardari Had No Involvement in Memogate: Commission Report, EXPRESS TRIB., June 16, 2012, boss-zardari-had-no-involvement-in-memogate-commission-report/. Haqqani has denied any involvement, and at this writing his challenge to its report is pending before a nine-judge bench of the Supreme Court. Husain Haqqani, My Real 'Crime' Against Pakistan, WASH. POST, June 14, 2012, at A19; SC To Hear Memogate Case on Oct 22, NEWS INT'L, Oct. 12, 2012.

(352.) See Azam Khan, Gone: "The Office of the Prime Minister Stands Vacant,' EXPRESS TRIB., June 20, 2012,; Anil Kalhan, Love in the Time of Contempt, DORF ON LAW, Feb. 14, 2012, 2012/02/love-in-time-of-contempt.html.

(353.) See Khawar Ghumman, Government To Defend Executive's Authority, DAWN, July 20, 2011,

(354.) See Cyril Almeida, The Swiss Conundrum, DAWN, Feb. 5, 2012, (assessing political consequences if the letter to Swiss authorities were written).

(355.) Adnan Khawaja v. State, Crim. M.A. 486/2010 (Jan. 10, 2012) (Pak.), available at

(356.) See generally Kalhan, supra note 352 (discussing the low probability that any proceedings in Switzerland against Zardari would be revived).

(357.) See In re Yousaf Raza Gilani, Crim. O.P. 6/2012 (Apr. 26, 2012) (Pak.) (short order) (on file with author); In re Yousaf Raza Gilani (detailed judgment), available at (sentencing Gilani until the "rising of the court").

(358.) Jon Boone, Pakistani PM Serves Token Sentence of Less than a Minute for Contempt, GUARDIAN, Apr. 26, 2012; see also Declan Walsh, Pakistani Prime Minister Is Spared Jail but Faces More Battles, N.Y. TIMES, Apr. 27, 2012, at A8 (characterizing the court's decision as a "victory of sorts" for Gilani and the PPP). The court stated that the likelihood of "serious consequences in terms of Article 63(1)(g) of the Constitution," including the possibility of a five-year ban from serving in Parliament, constituted a "mitigating factor[]" when imposing Gilani's sentence, but did not treat those potential consequences as part of the sentence itself. In re Yousaf Raza Gilani, [paragraph] 2 (short order).

(359.) Article 63(1)(g) of the Pakistan Constitution provides for disqualification from Parliament for any individual that "has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to ... the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan." PAKISTAN CONST. art. 63(1)(g). Article 63(2) confers the Speaker of the National Assembly with authority to refer any question as to potential disqualification to the Election Commission "unless he decides that no such question has arisen." Id. art. 63(2). Under Article 63(3), if the Election Commission then "is of the opinion that the member has become disqualified," then the individual will cease to be a member of Parliament. Id. art. 63(3).

(360.) See Nasir Iqbal, Petitions Filed in SC: PML-N, PTI Want Gilani Disqualified, DAWN, May 29, 2012,

(361.) Muhammad Azhar Siddique v. Fed'n of Pak., (2012) 64 PLD (SC) 106 (Pak.).

(362.) Id. [paragraph][paragraph] 15, 22-23.

(363.) See Sidrah Moiz Khan, "Darkest Day" for Judiciary: National Security Has Trumped Fundamental Rights: Asma, EXPRESS TRIB., Dec. 30, 2011, jehangir/ (reporting Jahangir's criticisms); Syed Irfan Raza, Asma Criticises Memo Commission, Quits as Haqqani Lawyer, DAWN, Jan. 2, 2012, 01/02/asma-criticises-memo-commission-quits-as-haqqani-lawyer/(same).

(364.) Siddiqi, supra note 132.

(365.) Muhammad Azhar Siddique, (2012) PLD 106, [paragraph][paragraph] 28, 48 (distinguishing Articles 63(1)(a), (g), & (h) from other subsections of Article 63(1)).

(366.) See id. [paragraph][paragraph] 33-35 (characterizing the Speaker's determination as an "administrative task" subject to judicial review). While the court cited case law from the Supreme Court of India in support of this conclusion, at least one leading Indian constitutional lawyer has said that those cases have "nothing to do with the situation in Pakistan." Experts Divided on Pakistan Court Citing Indian Verdicts, HINDU, June 20, 2012, (quoting Rajeev Dhavan).

(367.) Muhammad Azhar Siddique, Const. P. No. 40/2012 & CMA No. 2494/12 (June 19, 2012) (short order).

(368.) See Saroop Ijaz, Don't Pity Us, My Lord, EXPRESS TRIB., May 12, 2012, (criticizing Justice Khosa's concurring opinion in the Gilani disqualification case as "purely political and polemical writing" and "paternalistic," and interpreting it as having "very strong whiffs of contempt for our weak nation").

(369.) See, e.g., BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009); Lee Epstein & Andrew D. Martin, Does Public Opinion Influence the Supreme Court--Possibly Yes (But We're Not Sure Why), 13 U. PA. J. CONST. L. 263 (2010).

(370.) See PAK. SUPREME COURT., ANNUAL REPORT, APRIL, 2010-DECEMBER, 2011, at 128, available at (discussing the court's Human Rights Cell); Kausar, supra note 22; Kennedy, supra note 22.

(371.) BAXI, supra note 131, at 33; see also Khan, supra note 81, at 3 (discussing ways in which public interest litigation can enable the judiciary to "act fairly autonomously in assuming judicial control over issues of public importance"). Until recently, however, as Maryam Khan observes, the jurisprudence of public interest litigation in Pakistan, to a somewhat greater extent than in India, has carried "a more conspicuous flavor of political elite struggle in the larger battle for democratization," emphasizing adjudication of the political claims of those elite interests more prominently than the fundamental rights claims of ordinary litigants. Khan, supra note 81, at 5.

(372.) See MALIK, supra note 144, at 76-77 (explaining that the movement sought "to change the mindset of the judges, especially those who manned the superior courts"); Ghias, supra note 22, at 1009 (noting comments by leaders of the lawyers' movement that "the responsibility of the bar is to sensitize the Court to political questions--and the Court was sensitized when public opinion was mobilized").

(373.) See Pakistani Lawyer's Movement, supra note 22, at 1722-23 (discussing effect of lawyers' movement and anti-emergency demonstrations on judges' professional identities); Walsh, supra note 15, at A1 ("Judges say their expanded mandate comes from the people, dating back to the struggle against the military rule of Gen. Pervez Musharraf.").

(374.) Chaudhry, supra note 14 (emphasis added); see also Cyril Almeida, A Transformative Court, DAWN, Jan. 22, 2012,"Having slain a military ruler, the Supreme Court under Chief Justice Chaudhry has embarked on a transformative agenda.").

(375.) See Raza Rumi, The Task Ahead, NEWS INT'L, Apr. 11, 2010 (discerning a "clear tilt towards the popular as opposed to the technically legal" in the court's decisions after Chaudhry's restoration, including the NRO Case); Siddiqi, supra note 132, (discussing Supreme Court's self-conception since 2007 that "real power lies in its ability to represent itself as a people's court or as the 'Supreme Court of the People of Pakistan"').

(376.) In re Yousaf Raza Gilani, Crim. O.P. 612012, [paragraph] 6 (Apr. 26, 2012) (Pak.) (detailed judgment) (Khosa, J., concurring), available at 92823324/Prime-Minister-Gilani-s-Case-Detailed-Verdict.

(377.) See Siddique v. Fed'n of Pak., (2012) PLD (SC) 106, [paragraph] 7 (Pak.) (Khawaja, J., concurring).

(378.) Id. [paragraph][paragraph] 2, 7.

(379.) See, e.g., Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453, 464-65 (1989) (describing how, under a "dualist" theory of constitutionalism, courts, "[r]ather than threatening democracy by frustrating the statutory demands of the political elite," instead "serve democracy by protecting the hard-won judgments of a mobilized citizenry against fundamental change by political elites who have failed to establish the requisite kind of mobilized support from the citizenry at large"); David S. Law, A Theory of Judicial Power and Judicial Review, 97 GEO. L.J. 723, 730 (2009) (arguing that judicial review "supports popular sovereignty by mitigating the principal-agent problem that lies at the heart of democratic government").

(380.) See Asghar Khan v. Beg, Hum. Rts. Case No. 19 of 1996 (Oct. 19, 2012) (Pak.) (short order), available at (ordering legal action to be taken against retired generals involved in manipulating the 1990 elections, and ordering military and intelligence agencies not to interfere with political process); Declan Walsh, Court Challenges Put Unusual Spotlight on Pakistani Spy Agency, N.Y. TIMES, Feb. 7, 2012, at A4 (discussing Supreme Court cases against Pakistan's intelligence agencies); 1990 Election Was Rigged, Rules SC, Dawn, Oct. 19, 2012, 2012/10/19/asghar-khan-case-sc-resumes-hearing-3/ (discussing Asghar Khan); Allbritton & Chaudhry, supra note 15 (discussing journalist Ahmed Rashid's view that the court "has also given at least the appearance of being willing to take on the military").

(381.) See Faisal Siddiqi, A Defining Judicial Moment, DAWN, May 21, 2012, (identifying and discussing Supreme Court's "new judicial philosophy of basing judicial legitimacy not only on the written words of constitutional legitimacy but also on public legitimacy and potential public mobilisation").

(382.) Saroop Ijaz, Setting the Record Straight, EXPRESS TRIB., Oct. 21, 2012, (contrasting the court's aggressive decisions against Parliament, such as the dismissal of Gilani from office outright in the NRO contempt case, with its more restrained decision to merely "ask[] the federal government to investigate" and prosecute military and intelligence agencies' unconstitutional interference with electoral process in Asghar Khan). In recent months, the military has begun to push back against these assertions of autonomy by the court. See Imdad Hussain, Don't Cross the Limits: Kayani, DAILY TIMES, Nov. 6, 2012, 5C06%5Cstory_6-11-2012_pg1_1 (discussing a speech by General Kayani defending the military against criticisms in Asghar Khan and warning the court and other institutions to act within limits).

(383.) Siddiqi, supra note 141 (arguing that the Supreme Court's removal of Gilani as Prime Minister was enabled by "the perceived unpopularity of his government and the lack of popular resistance to such judicial removal").

(384.) Siddique, supra note 314; see also MARC GALANTER, LAW AND SOCIETY IN MODERN INDIA 295 (1989) (drawing attention, in the context of India, to the distinction between "higher state" and "local state"); supra note 30.

(385.) See Walsh, supra note 15, at A1 (noting that "critics accuse Mr. Chaudhry of failing to reform the chaotic lower courts, which remain plagued by long backlogs"); Nick Jackson, The Last Word: "Not Judicial Diktat," NEWSWEEK PAK., July 6 & July 13, 2012, not-judicial-diktat (interviewing Human Rights Watch's Ali Dayan Hasan and discussing problems with access to justice in Pakistan).

(386.) See Judiciary Always Supports Army Rule, Rues Asma, EXPRESS TRIB., Jan. 12, 2012, takeovers/(recounting lawyer Asma Jahangir's view that instead of pursuing the NRO case, the Supreme Court should instead "take up thousands of other pending cases"); Shyema Sajjad, Justice, Samosas and the Ostrich, DAWN, July 27, 2012, ("One hopes that between the madness and monotony of the Swiss letter cases, our judiciary will eventually realize that there are families and institutions and individuals all waiting for justice.... [The Court] needs to think about what matters more and prioritise its time and rulings accordingly."); see also Khan, supra note 81, at 5 (discussing the emphasis in Pakistan's public interest litigation jurisprudence on contestation among political elites).

(387.) See Waseem, supra note 345, at 17 (discussing skewed nature of discourse in Pakistan's "media echo-chamber," especially in light of formal legal prohibitions against putting the military and judiciary "in disrepute" in media coverage); supra notes 55-58 and accompanying text.

(388.) See Pakistan: Judges Muzzling Critics in the Media HUM. RTS. WATCH (Nov. 27, 2012),

(389.) Cf. Faisal Siddiqi, Why Is the SC So Powerful?, DAWN, Oct. 15, 2012, that "the key challenge [in Pakistan] is not to fear a powerful Supreme Court but to develop mechanisms to ensure the public accountability of judicial power").

(390.) See Tabatha Abu El-Haj, Linking the Questions: Judicial Supremacy as a Matter of Constitutional Interpretation, 89 WASH. U. L. REV. 1309, 1318-25 (2012) (discussing departmentalism and similar theories of shared authority over constitutional interpretation between the judiciary and other state actors).

(391.) See Adnan Khawaja v. State, Crim. Misc. Application No. 486/2010 in Crim. Appeal No. 22/2002 (Aug. 8, 2012) (Pak.) (short order) (ordering Prime Minister Ashraf to show cause as to why he had not written the letter to Swiss authorities).

(392.) See Siddiqi, supra note 389 ("The reason why the PPP-led government is not willing to take on the [Supreme Court] is because of the permanent danger of military intervention in the face of a constitutional deadlock.").

(393.) See Declan Walsh & Salman Masood, Pakistani Government Relents in Judicial Standoff Over Corruption Case, N.Y. TIMES, September 18, 2012, at A14 (reporting Ashrafs agreement to write the "Swiss letter"); Salman Masood, Battle Eases Between Pakistani Government and High Court, N.Y. TIMES, Oct. 10, 2012, (reporting Supreme Court's approval of text of Ashraf's letter to Swiss authorities).

(394.) See Cyril Almeida, Judging the Court, DAWN, July 15, 2012, ("The chief justice has claimed parliament isn't supreme, but no one has stood up in parliament to shut down the chief justice."); cf. Abu El-Haj, supra note 390, at 1316-17 (discussing the tendency in the United States to confiate judicial review with judicial supremacy).

(395.) Baz Muhammad Kakar v. Fed'n of Pak., Const. P. No. 77/2012 & CMA No. 3057/2012, [paragraph] 14 (Aug. 3, 2012) (short order).

(396.) Saroop Ijaz, Ward of the Court, EXPRESS TRIB., Aug. 12, 2012, (criticizing the Supreme Court for "inquiring into the motivation or the good faith of Parliament" in enacting the Contempt of Court Act and "demean[ing] the manner in which parliamentarians debate or choose not to debate matters in Parliament"); cf. Pamela S. Karlan, The Supreme Court, 2011 Term--Foreword: Democracy and Disdain, 126 HARV. L. REV. 1, 13 (2012) (similarly criticizing the U.S. Supreme Court for "dismissing democratic politics and democratic engagement in the articulation of constitutional values" and expressing concern that "the Court's decisions convey a broad message about the democratic process itself that may undermine public confidence in the democratic process").

(397.) Friedman, supra note 16, at 309.

(398.) See id. at 317, 330-34.

(399.) See Rumi, supra note 220 ("In a country of 160 million people with strong traditions of democratic yearning, the process of change cannot be articulated outside the mainstream electoral politics, however faulty the political parties.").

Anil Kalhan, Associate Professor of Law, Drexel University. A.B., Brown University; M.P.P.M., Yale School of Management; J.D., Yale Law School. I am very thankful to Tabatha Abu El-Haj, Manan Ahmed, Ali Ahsan, Jasmeet Ahuja, Elizabeth Angell, Ash Bali, Elena Baylis, Shikha Bhatnagar, Nandini Chaturvedula, Chapin Cimino, Meg deGuzman, Mike Dorf, Martin Flaherty, Jean Galbraith, Alex Geisinger, Tom Ginsburg, Maryam Khan, Jay Krishnan, Kalsoom Lakhani, Holning Lau, Tayyab Mahmud, Milan Markovic, Mary Mitchell, Fernanda Nicola, Phil Oldenburg, Dana Remus, Pam Saunders, Payal Shah, Shylashri Shankar, Faisal Siddiqi, Osama Siddique, Arun Thiruvengadam, Anita Weiss, Akbar Zaidi, and David Zaring for valuable feedback on earlier drafts and insightful exchanges on the issues in this Article; to Nicole Alken, Sunita Balija, John Cannan, Raj Datta, and Faye Hellman for excellent research assistance; and to the staff of the Vanderbilt Journal of Transnational Law for their careful and thorough editorial work. I am also thankful to presentation attendees at symposiums held at the University of California at Davis School of Law, the University of North Carolina School of Law, and the National University of Singapore Faculty of Law; at faculty workshops at the Drexel University Earle Mack School of Law and the Rutgers School of Law-Camden; and at the University of Wisconsin Annual Conference on South Asia and the Association for Asian Studies Annual Meeting for their feedback at various stages of this project.
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Title Annotation:IV. Navigating Partial Regime Shift and Rolling Back Extraconstitutionalism B. The Judiciary's Great Leap Forward through VI. Conclusion, with footnotes, p. 33-61
Author:Kalhan, Anil
Publication:Vanderbilt Journal of Transnational Law
Date:Jan 1, 2013
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