"Gray Zone" Constitutionalism and the Dilemma of Judicial Independence in Pakistan

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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. …