Under what conditions do courts muster the willingness to challenge powerful militaries? This is the important question that Yasser Kureshi sets out to answer in his book Seeking Supremacy. The Pursuit of Judicial Power in Pakistan. As reflected in the title, it is the example of Pakistan that takes centre stage in Kureshi’s attempt to formulate a generalisable framework that could explain variation and change in judicial-military relations around the world. It is at the book’s very end that Kureshi applies this generalised explanatory framework to the variations in military-judicial relations in Egypt, Turkey and India.
The sudden collapse of military-judicial relations that occurred in 2007 forms the book’s dramatic core. Until then, accounts of Pakistan’s political and constitutional history had to concede that rather than being beacons for human rights and democracy, the judiciary had played a more decisive role in enabling the military to maintain its position as the country’s dominant power centre. If this was true, then how to explain why the same judiciary that had validated General Musharraf’s coup d’état in 2000 would rather accept dismissal and unemployment than to take a fresh oath under the Provisional Constitutional Order that had been issued following on from General Musharraf’s proclamation of a state of emergency on 3 November 2007?
In attempting to solve this puzzle, Kureshi develops an audience-based framework. In this framework it is argued that judges form their respective legal and policy preferences in response to the audiences that have the power to determine their career trajectories and reputation. As Pakistan’s dominant centre of power, it was the military that had traditionally formed the external audience that those judges addressed and courted for career advancement and reputation building. Viewed within an audience-based framework, the unprecedented confrontation between the judiciary and the military in 2007 could be explained as a shift in the external audiences of the judiciary. According to Kureshi’s research, bar associations and the media gradually displaced the military as the judiciary’s most important external audience for career advancement and reputation building. Viewed from this perspective, the confrontation between General Musharraf and the quixotic Chief Justice Iftikhar Chaudhury was not a sudden collapse of relations but the culmination of a process that had been in the making since the early 1990s.
In analysing the interlinkages between the military and the judiciary in the context of an audience-based framework, the book divides Pakistan’s history into three phases. The first phase is called “The Loyal Court” and stretches from 1947 to 1977, the second is called “The Controlled Court” and extends from 1977 to 1999, and the final phase is labelled “The Confrontational Court” and covers the period from 1999 to 2017.
“The Loyal Court” describes and analyses the relations between the military and the judiciary in the period from Pakistan’s independence in 1947 until General Zia ul Haq’s coup d’état in 1977. In analysing the leading judgments and constitutional developments that prepare the ground for General Ayub Khan’s abrogation of Pakistan’s first constitution in 1958, the promulgation of Pakistan’s second constitution in 1962, and Ayub Khan’s replacement by General Yahya Khan in 1968, Kureshi convincingly demonstrates that throughout this period, the judiciary displayed a pro-military inclination. According to Kureshi, this pro-military inclination is best explained by the military’s utilitarian interlinkage with the institutional hierarchy of the judiciary. Put simply, it was Ayub Khan and his Law Ministry that controlled the appointment and promotion of judges to the high courts and the Supreme Court. With the military being the judiciary’s most important audience, judges were incentivised to “granting discretion to the executive branch, limiting relief to oppositional political parties, and upholding the prerogatives of the military regime.” (p. 65) In addition, Kureshi demonstrates that because judges were recruited mainly from a civil service whose members hailed from elite families, had been educated abroad and had been trained within the values of British colonial rule, the judiciary favoured executive discretion to the same extent as it disliked populism and partisan politics. (p. 66)
Kureshi identifies the period after 1965, when an opposition movement against Ayub Khan’s regime developed, as the first crack in the strategic alliance between the military and the judiciary. Whilst retired judges condemned the protests as hooliganism, young lawyers actively participated in the pro-democracy movement. The secession of East Pakistan and the electoral success of Zulfikar Bhutto’s Pakistan People’s Party in the early 1970s provided the first opportunity to establish civilian control over the military. This control was, however, short lived, with Bhutto’s dependency on the military to suppress an insurgency in Baluchistan allowing the army to recover both its autonomy and its political clout. It was this short period of civilian rule that enabled the Supreme Court to distance itself from its customary support of the military, deciding in the landmark case of Asma Jilani v. The Government of the Punjab et al (PLD 1972 SC 139) that Yahya Khan’s usurpation of power in 1968 had been unconstitutional and therefore invalid. However, as Kureshi’s exhaustive analysis of reported judgements demonstrates, whilst the period between 1973 and 1977 witnessed some attempts to break free from the military, on the whole superior courts were more willing to use their newly found autonomy to challenge the civilian executive than the military.
Described as “The Controlled Court”, the decade of military rule from 1977 to 1988 was marked by the army’s infiltration of both state institutions and the economy, with military welfare foundations such as the Fauji Foundation morphing into powerful industrial conglomerates that subsist to this day. As Kureshi convincingly argues, in the first two years of military rule, rather than controlling it outright, Zia ul Haq’s regime collaborated with the judiciary, removing some of the restrictions on its autonomy that had been imposed by Zulfikar Bhutto and promoting judges whose advancement he had denied. In return, in the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657), the Supreme Court validated Zia’s coup d’état, and, in the case of Zulfiqar Ali Bhutto and 3 others v. The State (PLD 1979 SC 38), assisted the regime in removing the threat from Zulfikar Bhutto. However, there were exceptions to the judiciary’s collaboration with the Zia regime. As Kureshi’s careful analysis of reported judgments demonstrates, whilst the Supreme Court remained a loyal collaborator with the military, the four high courts were willing to challenge the prerogatives of the military: between July 1977 and March 1981, high courts admitted 122 petitions concerned with actions against the military and ruled in favour of the military only 59 times. In the same period, the Supreme Court admitted 22 petitions challenging military actions and decided against the military in just one case. It is the composition of the judiciaries of the Supreme Court and the high courts, which, as Kureshi argues, explains this divergence. Whilst the judges of the Supreme Court had been appointed mostly in the 1950s and early 1960s, at high court level judges were not any longer appointed from the civil service but from the bar. Between 1981 and 1985, any pretence of collaboration came to an end. Described as the era of the controlled court in Pakistan, Kureshi describes the devasting impact of the Provisional Constitutional Order 1981 on judicial independence. Any judge who refused to take a new oath the PCO was simply removed from office.
The formal end of martial law in 1985, and Zia’s death in a plane crash in 1988, allowed the judiciary to distance itself from its complicity with the military regime. Nevertheless, even during the period from 1988 to 1999, described by Kureshi as “Unstable Multi-Party Democracy”, the military managed to maintain its supremacy and to remain the most powerful institution of the state, helped by the perpetual confrontation between the two main political parties – both the Pakistan People’s Party and the Pakistan Muslim League-N had asked for the support of the military and the judiciary in seeking to undermine each other – the growing problem of political and administrative corruption, the military’s ability to expand its economic activities with the support of civilian governments, and, finally, a steadily deteriorating law and order situation. During this period, the judiciary upheld the special exemptions and privileges granted to the military, for instance by siding with the army in its refusal to allow sanitation workers to set up a trade union in Wah Cantonment, a largely civilian residential area owned and administered by the army (Aman v. Federation of Pakistan 1993 SCMR 1837). In parallel, Kureshi identifies a number of cases that demonstrate the judiciary’s growing assertiveness and autonomy from the military.
Having charted the changing relationship between the military and the judiciary between 1977 and 1999 in Chapter 3, the next chapter sets out to explain these changes. Using a combination of sociological data on judges and archival information on judicial appointments and bar association politics, as well as interviews with judges and lawyers, Kureshi identifies the gradual shift of judicial audiences from the military to bar associations as the main reason for the judiciaries’ growing independence from the military. Kureshi explains that by the 1990s, the majority of high court and Supreme Court judges were drawn from the middle class and, as a result, did not have the same elite ties with the military as the previous generation of judges. Being middle class also meant that these judges had obtained their law degrees in Pakistani law schools that suffered from underfunding, lack of research active staff and weak examination systems. Such judges, according to one of Kureshi’s interviewees, were prone to play to the audience inside the courtroom, i.e. lawyers, in order to build up reputation because they could not impress with their knowledge of formal law and legal procedures. In turn, the bar associations themselves became increasingly politically active. By the mid-1990s, bar associations not only regulated the legal profession but also spoke out on matters of state, such as foreign relations, economic policy, welfare and, above all, corruption. In parallel, the judiciary was able to increase its independence from the executive through a number of judgements that increased its control over judicial appointments. According to Kureshi, by 1996 the normative interlinkages between the military and the judiciary had been broken and replaced by bar associations, which now formed the critical audience for judges.
“The Confrontational Court” is the chapter that brings the reader to the very recent past, namely the period from 1999 to 2017. According to Kureshi, this period is marked by the judiciary’s increasing assertiveness towards both the military and the civilian governments. As Kureshi points out, even in the validation of the Musharraf coup d’état in 1999, the Supreme Court insisted that it would continue to safeguard fundamental rights, economic development and social welfare. Importantly, the judiciary was able to maintain its institutional independence from the Musharraf regime. The elevation of Chief Justice Iftikhar Chaudhry to the position of Chief Justice of Pakistan in June 2005 triggered an explosive growth in public interest cases, with the Supreme Court intervening on a wide range of social and economic policy issues, such as the privatisation of state-owned enterprises, price control of basic commodities and controversial land acquisitions. Most problematically for the military, Chief Justice Chaudhry also addressed the issue of enforced disappearances, thereby interfering with the security prerogatives of the military. On 8 March 2007, after the Supreme Court had issued a notice to the government regarding the recovery of missing persons, Musharraf summoned Chaudhry to a meeting, presented him with a number of complaints against him and asked for his resignation. Chief Justice Chaudhry’s refusal to do so, and pictures of him being manhandled into a police car, galvanised bar associations across the country and led to the birth of the Lawyers Movement. In July 2007, the Supreme Court reinstated Chaudhry and continued to issue rulings against the military. On 3 November 2007, Musharraf declared an emergency, suspended the Constitution, and asked judges to take a new oath under another Provisional Constitution Order. In an unprecedent show of defiance, the vast majority of sitting judges refused to take the oath. The success of Musharraf’s drastic action was short-lived. Faced with street protests and countrywide agitation, about six weeks later the regime was forced to lift the emergency and to allow Benazir Bhutto and Nawaz Sharif to return from exile. As Kureshi rightly states, Musharraf’s downfall was not triggered by his political rivals but by an activist judiciary that “had established its independence and relevance, encouraged and supported by an independent bar.” (p. 175).
The period of democratic dispensation from 2009 to 2017 was marked by multiple crises that enabled the military to protect its core interests and to maintain its autonomy and its ability to involve itself in politics. With the Supreme Court continuing to use its suo moto powers to intervene in policy matters even after the return to democracy, it was now civilian governments rather than the military that faced judicial scrutiny. As Kureshi summarises, between 1999 and 2017 the “judiciary pursued an independent agenda of judicial supremacy backed by a populist rationale, confronting both military dominance under Musharraf and the political authority of elected governments after Musharraf’s downfall.” (p. 193) A fragmented political system, the rise of electronic media and an ever-closer relationship with the bar associations enabled the judiciary to maintain its activist stance.
In Chapter 6, Kureshi focuses on the most recent episode of unrestrained judicial activism, namely the year 2017, when the Supreme Court, then headed by Chief Justice Saqib Nisar, unleashed a flood of suo moto cases that targeted many of the branches of the PML-N led government. In the build-up to the elections in 2018, the Supreme Court dismissed Prime Minister Nawaz Sharif after finding him guilty of mis-declaring his assets and, in a second judgement, also disqualified him from heading the Pakistan Muslim League-Nawaz. Kureshi argues that the military, Supreme Court judges and the PTI played different roles in a campaign of selective accountability that ultimately derailed the PML-N’s electoral prospects.
Kureshi’s book finishes with an account of the cases surrounding Supreme Court Judge Qazi Faez Isa’s alleged misconduct. In a split decision handed down in 2022, the Supreme Court quashed the reference against Justice Isa. Seemingly a victory against the “establishment”, the case also exposed deep divisions with the judiciary. According to Kureshi, this division is also a product of shifts in judicial audiences. For judges to build and maintain reputations has become more complex a challenge. Surveillance of judges, for instance, could uncover skeletons in the closet which in turn could be used to pressurise and control individual judges. In turn, as narrated by one of Kureshi’s interviewees, the military remains a critically important audience for career advancement and reputation building.
The concluding chapter applies the lessons learnt from Pakistan, namely that a change of judicial audiences can explain judicial shifts from collaborating with to confronting military domination, to Egypt, Turkey and India.
Kureshi’s work makes an important contribution to the study of Pakistani constitutional and political history. In particular, the painstaking analysis of over a thousand Supreme Court and High Court judgements in order to assess judicial attitudes towards the military breaks new ground, offering fascinating and valuable insights into the shifts in judicial-military relations in the course of the country’s history. A table of cases would have made Kureshi’s insights even more compelling. Reviewed from the perspective of Pakistani constitutional law, perhaps the most significant gap is the book’s light-touch treatment of the role of the Federal Shariat Court in evaluating military-judicial relations. The book’s one paragraph on the “Shariat (Islamic) courts” (p. 96) states that the judges of the Federal Shariat Court did not take up petitions that would challenge the military regime but does not explain why these judges did not do so. Was this reluctance to challenge the military a product of judicial considerations of career advancement and reputation-building, or was it the result of constitutional provisions expressly introduced to limit the Federal Shariat Court’s jurisdiction? Not a gap but a misreading is Kureshi’s observation that the Federal Shariat Court’s exercise of suo moto jurisdiction without waiting for a formal petition to be presented “highlighted the nascent willingness of judges to uphold principles and interests over a commitment to formal procedures.” (p. 96) At least with respect to its suo moto exercise of its powers of judicial review, the Federal Shariat Court very much followed formal procedure. Article 203D(1) of the Constitution of Pakistan 1973, as amended by the Constitution (Second Amendment) Order, 1982, provides that the Federal Shariat Court may examine the question of whether or not any law is repugnant to the injunctions of Islam “either of its own motion [i.e. suo moto] or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government.”
Finally, the book’s conclusion that failures in Pakistan’s system of legal education can explain a shift in judicial reasoning from formal procedure to outcome-oriented jurisprudence might require more research. In support of this argument, Kureshi argues that the newer generation of judges had to study law at local, Pakistani universities. Unlike law schools abroad, these law schools did not offer good legal education and therefore did not train students adequately in formal law. As a result, he argues, these locally educated and trained judges did not have the same procedural focus as the judges of the previous era. And without being adequately trained in legal formalism, so Kureshi argues, this new generation of judges had to compensate for their lack of formal legal knowledge and procedure by focusing on the outcome of their cases, with such outcomes being what judges thought was most appealing to the lawyers in the courtroom, the judges’ most important audience. In making these links, Kureshi relies on several interviews with retired judges, all kept anonymous for reasons of confidentiality. Several observations can be made. First, it is by no means clear that Pakistani case-law is marked by a shift from formal law and procedure to outcome-oriented decisions. The opinions of several interviewees in themselves cannot substitute for an analysis of the case-law. Even if public interest litigation cases – which represent only a very small portion of the decisions handed down by superior courts – are taken as evidence for a shift from formal law and procedure to a focus on outcome, it is not clear that it is the type of legal education that is responsible for the emergence of these public interest litigation cases. Whilst it is correct that both Chief Justice Iftikhar Chaudhry and Chief Justice Saqib Nisar studied law in Pakistan, it is equally correct that many of the judges associated with public interest litigation obtained either their whole or at least parts of their legal education outside Pakistan, such as the late Chief Justice Naseem Hassan Shah or the current Supreme Court Judge Justice Mansoor Ali Shah. Finally, suggesting that it is a lack of legal knowledge that propels judges to engage in judicial activism seems to ignore other possible factors, such as a commitment to the protection of human rights, an alignment of Pakistani case-law with international legal trends and values or the success of NGOs and civil society organisations in filing human rights’ petitions.
These observations do not detract from the importance of Kureshi’s work. Seeking Supremacy: The Pursuit of Judicial Power in Pakistan opens up new and thought-provoking perspectives on the study of Pakistani constitutional and political history. There is no doubt that Kureshi’s audience-based approach makes an enormous contribution to our understanding of how legal and policy preferences are formed and for that reason alone this book will become an essential resource for researchers, students and scholars. Yasser Kureshi deserves our congratulations for having produced this excellent contribution to Pakistan studies and beyond.
© Bloomsbury Pakistan 2023