Changing course: understanding judicial independence in Pakistan

Pakistan has experienced an unprecedented wave of judicial activism since 2005. The judiciary in Pakistan has, for most of its existence, been subservient to the executive and has a history of validating unconstitutional acts by powerful players, including a number of coups d’état by the military. Since mid-2000s, however, it has evolved a doctrine of judicial activism and challenged the military regime and successive governments with unprecedented rulings in a number of politically important cases. Standard models in literature claim that political competition and fragmentation lead to judicial independence by creating a vacuum within which the judiciary can assert itself; such models suggest that democratisation must precede judicial independence. Others emphasise the role of the ideological orientations and attitudes of judges, or constitutional principles and precedents, to explain judicial behaviour. None of these models adequately explain the Pakistani case. The judicial resistance to executive power started at a time when the ruling junta faced few political challenges. Indeed, it was judicial activism, and the ensuing conflict, that spurred widespread resistance against the regime and led to democratisation.
This thesis seeks to explain the change in judicial independence in Pakistan since 2005. Using a sociological lens, this study locates the change in judicial behavior within the broader social contestation and emphasises the link between institutional change and social structural transformation. It argues that the surge in judicial activism since 2005 is primarily explained by the emergence of a sizable, aspirational, urban middle class—a social structural change that is reflected strikingly in the changing class composition of the judiciary, among other institutions. This change coincided with the rapid spread of information and communication technologies (ICTs), particularly the liberalization of electronic media and proliferation of mobile internet devices. These developments, in turn, facilitated greater dissemination of information and convergence of views and values between the judiciary and the expanding middle class that it identified with and viewed as a support base. The result was the development of a shared class consciousness between the judges and the middle class. This shared class consciousness combined with the global rise in judicial activism explains the degree and nature of the change in judicial behavior in Pakistan since 2005. So, while the judiciary may have used a range of legal precedents or doctrinal tools including those that originated elsewhere, its interpretation and application of these tools, however, depended on the shared class interests and worldview of the judges and their support base. This shared worldview also explains why the middle class came out so strongly in support of the judiciary when it challenged the ruling regime and defied its court-packing plans, culminating in the historic Lawyers’ Movement (2007-09) that eventually led to the fall of military regime and return of democracy.

Keywords: Judicial Independence
Pakistan Politics
Judicial Decision Making
Pakistan
Judiciary
Judicial Politics
Judicial behaviour
Advisor: Tudor, M