Mon Feb 11, 2013 by Anil Kalhan
ARTICLE: “Gray Zone” Constitutionalism and the Dilemma of Judicial Independence in Pakistan, 46 Vanderbilt Journal of Transnational Law 1 (2013)
Many countries exist in a “gray zone” between authoritarianism and democracy. For countries in this conceptual space—which is particularly relevant today given the halting path of change in the Arab world—scholars, judges, and rule of law activists conventionally urge an abstract notion of “judicial independence” as a prerequisite for successful democratic transition. Only recently, for example, Pakistan’s judiciary was widely lauded for its “independence” in challenging the military regime. However, judicial independence is neither an all-or-nothing concept nor an end in itself. With the return of civilian rule in Pakistan, a series of clashes between Parliament and the Supreme Court has raised concern that the same judiciary celebrated for challenging the military regime—while invoking exactly the same abstract notion of judicial independence—might now be asserting autonomy from weak civilian institutions in a manner that undermines Pakistan’s fragile efforts to consolidate democracy and constitutionalism.
In this Article, I challenge the conventional view by examining these recent developments in Pakistan, which are instructive for other countries in this gray zone. Over many decades, as Pakistan has cycled between military and weak civilian rule, the military and its affiliated interests have entrenched their power, and the judiciary has played a central role in facilitating that process. The result has been an enduring institutional imbalance that has undermined Pakistan’s weak representative institutions. This process of entrenchment has never gone entirely unchallenged, and Pakistan’s current shift to civilian rule offers genuine potential for the long-term consolidation of democracy and constitutionalism. But this persistent institutional imbalance and continued military dominance remains a significant obstacle to fully realizing that potential. Accordingly, I urge an understanding of judicial independence that goes beyond abstract, unqualified notions of judicial autonomy and instead contemplates an appropriate balance between autonomy and constraint—one that not only enables representative institutions to strengthen their governance capacities and power to rein in the military, but also enhances mechanisms of judicial accountability to reinforce the democratic legitimacy of the judiciary’s role. Pakistan’s experience also has broader significance, suggesting lessons—or at least notes of caution—about the relationship between entrenched status quo interests and an “independent judiciary” in other countries, such as Egypt, that risk languishing in the gray zone between authoritarianism and democracy but seek a more complete shift to democracy.