In this chapter, I seek to explain the trajectory outlined in Chapter 3. I first show that regime-related factors, namely the prevailing political configuration and the authority and influence of the military, did play a role in shaping the judiciary’s military-related jurisprudence, but they cannot alone explain the incremental shift in the approach of the judiciary over the course of this period, and the transformation of the role the judiciary sought to play in the political system. I then argue that the incremental shift in the judiciary towards increased independence from the military and expansion and promotion of its own jurisdiction was linked to a change in the audiences that shaped legal and policy preferences within the judiciary during this period. The military’s institutional interlinkages with the judiciary diminished, and the judiciary’s interlinkages with the politically active bar of professional lawyers grew, which reshaped the norms and preferences of the judiciary. It is important to point out that this shift took place gradually, and thus there was an institutional lag before the effects of this shift were fully realized, which will become apparent in Chapter 5. However, without understanding these shifts it would be difficult to explain the changing approach of the judiciary towards the military over the course of this twenty-year period. I use a combination of sociological data on judges, archival information on judicial appointments and bar association politics, and interviews with judges and lawyers to trace this gradual but impactful shift.

Pakistan’s military has been the country’s dominant power centre for most of its post-colonial history, shaping the politics and policies of the state. But the military’s dominance is neither unconstrained nor uncontested. The military is unable to maintain its authority and influence without relying on a coalition of allied bureaucrats, judges, political parties, urban and rural capitalists and civil society organizations. In Pakistan, many use the shorthand term ‘the establishment’ to describe this coalition of formal institutions, associations and interest groups, aligned around a mutual interest in supporting the military’s political agenda. On the other hand, other political parties and segments of civil society have long worked to limit the military’s authority and counter its political agenda. The struggle over maintaining or displacing the military as the primary power centre within the political system has been the axis around which Pakistan’s politics has revolved for decades.

In this chapter I describe and explain the judiciary’s increasing assertiveness towards military and civilian branches of government between 1999 and 2017. The chapter is divided into two sections. The first section discusses the trajectory of judicial–military relations during this period. It is divided into three phases: (1) 1999 to 2005, the early years of Musharraf’s rule when the judiciary remained cautious; (2) 2005 to 2008, when the judiciary and military clashed, leading to the fall of the military regime; and (3) 2008 to 2017, the period of constitutional democratic rule. In each period, I discuss the prevailing political situation, and the judiciary’s relationship with the military as demonstrated through its jurisprudence. Through this period, I show that the judiciary adopted a more assertive approach towards the military, beginning with contesting the military’s economic prerogatives, and gradually shifting to challenging the military’s political agenda and undermining the foundations of the regime, before seeking to take its place alongside the military as the overseer of Pakistan’s democratic political order.

In this chapter I describe changes in the Pakistani judiciary’s behaviour towards the military between 1977 and 1999. The chapter is divided into two phases: (1) 1977 to 1988, Pakistan’s longest uninterrupted period of direct military rule; and (2) 1988–1999, a decade of constitutional democratic rule. In each period, I discuss the prevailing political situation, the position and interests of the military and the judiciary’s relationship with the military as demonstrated through its jurisprudence. Through this period, I show that the judiciary gradually shifted towards staking out a more independent position from the military, preserving and cautiously expanding its own role and jurisdiction.

The Pakistani judiciary, in its institutional structure, developed during the British colonial era. After Pakistan gained its independence in 1947, the judiciary became an important pillar of the military-bureaucratic nexus that consolidated its control over the political order of the state. Between 1958 and 1971, the state was directly ruled by a military regime. Why did the judiciary support the military’s rise to power and pre-eminence?

Ten years after the high point of judicial assertiveness in 2007, 2017 was another critical juncture in the evolution of Pakistan’s judiciary. In this chapter, I briefly discuss the messy politics of the judiciary since 2017, as it has both contributed to, and been compromised by, autocratization processes in the country. First, I will briefly discuss the trajectory of relations between the judiciary, military and political leadership during this period, as a new, more authoritarian political structure emerged. The military is once more in a position of political dominance, but the de jure leadership of the state lies with an elected political party, the Constitution remains unsuspended and unamended, and the superior judiciary retains its authority and broad jurisdiction. The judiciary itself appears polarized: divided over its role and relationship with other state institutions.

Since the third wave of democracy there is a growing recognition of the critical role the judiciary plays in the establishment and consolidation of democracy (Huntington 1991; Schepelle 2003; Gloppen 2004; Hirschl 2008). Today independent courts are seen as a critical component of liberal democracy and a necessary antidote to the rise of illiberal populism and authoritarianism (Bogg and Freedland 2018; Gardbaum 2015; Lacey 2019). But this commitment to judicial independence from external interventions, as a necessary check on the authoritarian instincts of political and military leaders, must be informed by a deeper understanding of the forms that external interventions into the judiciary can take, and the meanings judges ascribe to institutional independence. When will formally independent judges uphold liberal and democratic norms or challenge powerful authoritarian militaries? Similarly, when will independent judges wield their authority to undermine and displace democratically elected authorities? To answer these questions, we must pay attention to the processes that lead to the formation of hegemonic discourses and preferences within judicial institutions (Ocantos 2016).

It started with November 3rd 2007. Police broke into the High Court premises. They took us to the Anti-Terrorist court the next morning. All of us lawyers were sent to Kot Lakpat jail. After the arrests, there was no moving back even an inch, even a millimetre … Restoration (of the Chief Justice) was the first agenda. Independence (of the judiciary) after that. We all wanted rule of law … This Chief Justice (Iftikhar Chaudhry), he was a symbol of justice because he stood up to everyone … even the military. By now lawyers had started thinking of themselves as a political party. From Communist lawyers to Islamist lawyers they were all united as one.1