Selective assertiveness and strategic deference: explaining judicial contestation of military prerogatives in Pakistan

ABSTRACT

How do we explain variation in judicial assertiveness towards politically powerful militaries? This article argues that the judiciary’s willingness to assert itself against the military is contingent upon the type of military prerogative being challenged. Focusing on Pakistan, I find that courts are more willing to contest military prerogatives connected to the military’s political authority, than prerogatives connected to its institutional autonomy. This selective assertiveness is strategic, as concerns about military retaliation against the judiciary are more likely to outweigh judicial preferences, on questions of the military’s institutional autonomy than on questions of the military’s political authority. I test this hypothesis using an original dataset of 720 high court and supreme court judgments pertaining to military prerogatives from Pakistan. I then discuss a sample of judgments selected from the dataset to demonstrate how variation in judicial assertiveness is guided primarily by strategic concerns about the likelihood of military retaliation against the judiciary. In studying the interactions between the judiciary and the military in Pakistan, the article provides a new perspective on the sources of judicial assertiveness and restraint, and the role the judiciary can play in bringing militaries under civilian control in authoritarian and post-authoritarian states.

KEYWORDS:

• Civil-military relations
• democracy
• judicial politics
• law and courts
• South Asia
• Pakistan
• post-authoritarian states
• rule of law

Acknowledgments

The author would like to thank Eva Bellin, Lisa Hilbink, Jeffrey Lenowitz, Zoha Waseem, Nilofer Siddiqui, audiences at Midwest Political Science Association and Brandeis University, editor Aurel Croissant and two anonymous reviewers for their helpful guidance, useful comments and generous feedback.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Feaver, “Civil-Military Relations”; Brooks, “Civil-Military Relations Subfield.”

2 Stepan, Rethinking Military Politics: Brazil; Hunter, Military Influence in Brazil; Fitch, “Military Attitudes Towards Democracy,” 59–85; Jaskoski, “Control of Armed Forces,” 70–91; Eldem, Guardians Entrapped and Croissant and Kuehn, “Patterns of Civilian Control,” 187–217.

3 Military prerogatives do not simply refer to military involvement in these activities, on the orders of the civilian government, but to the military’s prerogative to determine its own participation in state activities. See Stepan, Rethinking Military Politics and Trinkunas, “Crafting Civilian Control,” 161–93.

4 Croissant et al., “Beyond Fallacy of Coupism,” 950–75.

5 I use the term “formal democracy”, because even during periods of elected civilian rule, the military continued to wield political influence and authority, See Adeney, “Understanding Pakistan’s Hybrid Regime,” 119–37.

6 Other states in this group include Turkey, Colombia, Egypt and Indonesia, to name a few. See Rios-Figueroa, Constitutional Courts as Mediators and Newberg, Judging the State.

7 To protect anonymity, interviews with judges and lawyers are assigned the letters J and L, respectively, and a random number between 1 and 100 generated and assigned to each interview. All interviews are referenced by that code and the interview date.

8 Rios-Figueroa, Constitutional Courts as Mediators.

9 On authoritarian states, see Pereira, Political (In)Justice; Helmke, Courts under Constraints and Moustafa and Ginsburg, “Courts in Authoritarian Politics,” 1–22. On democratic states, see Pion-Berlin, “To Prosecute or Pardon?” 105–30; Pion-Berlin and Arceneaux, “Tipping the Civil-Military Balance,” 633–61; Pereira, “Virtual Legality,” 555–74; Rios-Figueroa, Constitutional Courts as Mediators and Rios-Figueroa and Aguilar, “Justice Institutions in Autocracies,” 1–18.

10 Epstein and Knight, The Choices Justices Make; Helmke, Courts under Constraints; Vanberg, “Courts in Comparative Perspective,” 167–85 and Epstein and Jacobi, “Strategic Analysis of Decisions,” 341–58.

11 Kapiszewski, “Tactical Balancing,” 471–506.

12 Vanberg, “Constitutional Courts in Perspective,” 341–58.

13 Moustafa and Ginsburg, “Courts in Authoritarian Politics,” 1–22; Croissant et al., “Beyond Fallacy of Coupism,” 950–75; Brooks, “Civil-Military Relations Subfield,” 379–98.

14 Moustafa and Ginsburg, “Courts in Authoritarian Politics,” 1–22.

15 Masood, “Pakistani Generals and Judges.”

16 Fitch, “Military Attitudes towards Democracy.”

17 Pion-Berlin, “Military Autonomy and Emerging Democracies,” 83–102; and Croissant et al., “Beyond Fallacy of Coupism,” 950–75.

18 Military organization could include force size and structure, education and training, procurement and production of equipment and technological resources. See ibid.

19 Pion-Berlin, “Military Autonomy and Emerging Democracies,” 83–102.

20 See Stepan, Rethinking Military Politics: Brazil and Croissant et al., “Beyond Fallacy of Coupism.”

21 Shah, “Constraining Consolidation,” 1007–33.

22 Siddiqa, Military Inc.; and Mani, “Military Empresarios,” 183–97.

23 Newberg, Judging the State.

24 During periods when dictators suspended the Constitution, courts were still expected to decide cases as nearly as possible in accordance with the constitution.

25 This criterion excludes judgments that may be based on military law, but in no way challenge interests or actions of the military.

26 Kapiszewski, Challenging Decisions.

27 Only two of the 10 decisions pertaining to external security prerogatives went against the military. The limited number of accepted petitions and even more limited number of assertive judgments on external security prerogatives suggests courts are even more deferential on questions of external security.

28 Trinkunas, Crafting Civilian Control.

29 Tsebelis, How Political Institutions Work; Ferejohn et al., “Comparative Judicial Politics”; and Rios-Figueroa, “Fragmentation of Power in Mexico,” 31–57.

30 This is distinct from periods of constitutional rule during military regimes, where, even with limited democratic rule, military rulers remained unelected heads of state.

31 Schedler et al., The Self-Restraining State; Widner, “Judicial Independence in Semi-Democracies,” 124–43; and Randazzo et al., “Development of Judicial Independence,” 583–93.

32 Kevin McGuire, “Repeat Players in Supreme Court,” 187–96; and Jeffrey Staton, Judicial Power and Strategic Communication.

33 Parties include civil society organizations, private corporations, major political leaders, local government institutions, provincial government institutions and federal government institutions. Where the Supreme Court itself moves the petition (suo motu), I code that as a federal government institution, since the Court is a federal institution.

34 Ghias, “Miscarriage of Chief Justice,” 985–1022 and Siddique, “Judicialization of Politics,” 159–91.

35 Themner and Wallensteen, “Armed Conflict: 1946–2012.”

36 The only significant external conflict during this period is the brief Kargil conflict between India and Pakistan (May-June 1999). Given this conflict lasted only a couple of months, unlike the protracted internal conflicts during this period, it is hard to assess its effect on military-related jurisprudence. However, in the Appendix, I add the Kargil conflict to the coding for “conflict” and rerun the regression. The findings remain the same.

37 This is not to say selective assertiveness does not characterize other periods of Pakistan’s history, even when the judiciary was less known for activism. During Zulfiqar Bhutto’s democratic regime (1974–77), we see a similar pattern, with the military only asserting itself in 22% of judgments pertaining to institutional autonomy, while asserting itself in 39% of judgments pertaining to political authority. Comparing three judgments from the same year highlights this point. In Nishat Talkies v Director/Collector Karachi (PLD 1976 Karachi 712), the High Court held military cantonments had to share administrative jurisdiction with provincial governments over cinemas built in cantonment areas, and in Iqbal Ahmed Khan v State (PLD 1977 1337), the High Court disallowed transfer of civilian cases to special military tribunals, disallowing military interventions in judicial functions. But in Alla Ditta v State (PLD 1976 Lahore 823), the High Court held civilian courts did not have any jurisdiction over military personnel for crimes committed against civilians.

38 Cheema, “Two Steps Forward,” 503–26. During this period the Supreme Court took an increasing number of cases of its own volition (suo moto), which underscored the judiciary’s increased willingness to intervene in affairs of other state institutions. Only three of these cases dealt with military prerogatives, but in all three the judiciary expanded its involvement in the military’s security and commercial operations.

39 Interview No. L-53, December 8, 2016.

40 Human Rights Case No. 29388-K of 2013, in the Matter of, PLD 505 SC 2014.

41 Ibid.

42 This was especially evident during General Musharraf’s regime, which took overt action against judges who intervened on “enforced disappearances”. In March 2007, the day after Chief Justice Chaudhry issued notice to the government regarding the recovery of “missing persons”, the regime forced his suspension (News, March 9, 2007).

43 Shah, “Constraining Consolidation,” 1007–33.

44 Interview No. J-33, March 21, 2016.

45 Ibid.

46 Khan, “Jawwad Khawaja: Poetic Justice.”

47 Interview No. J-50, November 16, 2016.

48 Similarly, in President Balochistan High Court Bar Association v Federation of Pakistan (2012 SCMR 1958) regarding the forcible disappearance of several lawyers in the province of Balochistan, the Court sided with the petitioners against the military-run Frontier Corps, and ordered an investigation into “missing persons”. However, the Frontier Corps did not comply and the Court was unwilling to hold it accountable for non-compliance.

49 Rab Nawaz v Federation of Pakistan, 2014 SCMR 101.

50 Awais Younas v Federation of Pakistan, Case no. W.P. 8222/2015.

51 Interview No. J-19, April 232017.

52 Ibid.

53 Kureshi, “Judicial Politics in a Hybrid Democracy,” 235–52.

54 Interview No. L-46, March 20, 2017.

55 Syed Pervez Musharraf v Appellate Tribunal for General Election, PLD 2013 SC 105; General Pervez Musharraf v the State, PLD 2013 SC 66.

56 Zahra-Malik, “Musharraf Flees.”

57 “Musharraf’s Arrest.”

58 This pressure led to the civilian government relenting and permitting Musharraf to leave Pakistan for Dubai. Warraich, “Pervez Musharraf.”

59 “Court’s Verdict.”

60 Interview, No. L-46.

61 Shahzad, “Pakistan Sentences Former Dictator.” Interestingly, the Lahore High Court issued a verdict countering the Special Court verdict in 2020, raising concerns about increasing influence of the military over the judiciary, but so far, the Supreme Court has not upheld the LHC verdict, meaning the Special Court verdict still remains the authoritative ruling on Musharraf’s fate.

62 El-Ghobashy, “Dissidence and Deference.”

63 Rutherford, Egypt after Mubarak.

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Yasser Kureshi

Yasser Kureshi is a postdoctoral research fellow with Trinity College and the Programme for the Foundations of Law and Constitutional Government at the University of Oxford. His research focuses on judicial and constitutional politics in authoritarian and post-authoritarian states. His work has also been published in Journal of Conflict Resolution and Comparative Politics.