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ARTICLE
The People’s Court: Dissonant
Institutionalization and Judicial Populism
in Pakistan
Yasser Kureshi
Departmental Lecturer in South Asian Studies, University of Oxford, United Kingdom
Email: yasser.kureshi@area.ox.ac.uk
(Received 24 April 2023; revised 29 March 2024; accepted 09 August 2024)
Abstract
What is a populist judge, and when do judges embrace populism? Populist judges bypass legal
and procedural constraints, seek an unmediated relationship with the public, and claim to
represent the public better than political elites. Judicial populism can emerge in response to
institutionalized dissonance in the political system. Dissonant institutionalization facilitates
contestation between state institutions and can undermine the legitimacy of political
institutions. This legitimacy crisis can imbue judges with a belief in their role as
representatives of the public interest. In Pakistan, the dissonance caused by unresolved
differences between the civil-military bureaucracy and the elected political leadership—
differences that were embedded into the constitutional framework, facilitated the rise of
judicial populism. I outline the key features of judicial populism and study the dynamics
surrounding the rapid expansion of populist jurisprudence between 2005 and 2019 in
Pakistan, with a focus on public interest litigation that became the cornerstone of the
judiciary’s populist turn. Through case analysis, archival research, and semi-structured
interviews, I discuss features of the populist approach to jurisprudence and trace how
dissonance within Pakistan’s political system created new opportunities for the judiciary and
changed judicial role conceptions within the legal and judicial community.
Keywords: populism; judiciary; judges; South Asia; Pakistan; corruption.
Introduction
In the last twenty years, Pakistan’s Supreme Court has brushed aside a history of
judicial caution, overruling and undermining elected and unelected regimes and
claiming a central role in the policy-making processes of the state. This
transformation of the court’s role within Pakistan’s political order is, at least
© The Author(s), 2024. Published by Cambridge University Press on behalf of American Bar Foundation. This is an Open
Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.
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properly cited.
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partially, a product of the judges’espousal of a populist mission as judges claimed to
represent the interests of the people against civilian and military political elites and
adapted the language and procedures of the court to the demands of this mission.
Populist leaders are conventionally popular outsiders to the state elite, challenging
and disrupting the political status quo. How can unelected judges, who are lifetime
appointees of a state institution, become populists? In this article, I study the
transformation of the Pakistani Supreme Court to address this puzzle. As I show in
this article, populist judges bypass legal and procedural rules and constraints, seek a
more direct, unmediated relationship with the public both on and off the bench, and
claim to represent the public better than political elites. The adoption of this populist
repertoire is a product of a shift in role conception as judges assume the role of being
representatives of the people and hold other branches of government accountable to
their interpretation of the public interest.
I argue that judges may be motivated to adopt this new role conception in political
systems characterized by dissonant institutionalization. By dissonant institutionali-
zation, I mean the legal and political entrenchment of conflicting visions of authority
across state institutions. In these political systems, contestation occurs between elites
embedded within state institutions, competing over the organization and ideology of
the state. In a dissonantly institutionalized system, contestation between competing
institutions undermines the legitimacy of representative state institutions and draws
the judiciary into a prominent political role as an arbiter of institutional disputes. The
legitimacy crisis and judicialization of politics that emerge in a dissonantly
institutionalized political system can lead to an ideational shift regarding the
judiciary’s role within the political system. Judges may come to see themselves as
better representatives of the public interest than other state institutions and state
elites, and this will motivate them to challenge the authority and agenda of political
branches. These populist judges then adapt the procedures and priorities of the
judiciary to fit this new role.
In Pakistan, competing visions of the political order emerged early on, as elected
civilian governments and the civil-military bureaucracy both developed different
visions of authority. Contestation between parties elected to executive and legislative
office and the civil-military bureaucracy led to military coups and disruptions in the
development of the political branches of government. These competing visions were
entrenched in Pakistan’s constitutional framework, particularly after 1985, leading to
years of repeated legal and political struggles over the authority and discretion of the
elected and unelected branches of government.
I trace the impact of this dissonant institutionalization, particularly after 1985, on
the development of the role conception within the modern judiciary. In this system,
civilian and military leaders suffered from limited legitimacy, and the judiciary
arbitrated disputes between state institutions. Using archival research of newspaper
articles and bar association resolutions, secondary historical sources, interviews with
lawyers and judges, and even my own participant observations of bar association
activity, I show how this institutionalized dissonance shaped the ideas, preferences,
and discourses of the legal elites, from among which high court and Supreme Court
judges emerged and with which they worked, trained, and socialized. Lawyers and
judges sought to expand the political and policy-making authority of the judiciary,
and reform the procedures of the judiciary, in service of this new role, which brought
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judges into conflict with primarily electoral, as well as military, centers of power. The
judges’ambitions were realized through the expansion of public interest litigation, a
body of jurisprudence in which the Supreme Court bypassed procedural restrictions
to deal with questions of significant “public importance.”
Through a study of 160 reported public interest litigation judgments of the
Supreme Court, archival research of newspapers and bar association resolutions, and
interviews with lawyers and retired judges and my own observations of judicial
proceedings, this article examines the judicial behavior of Supreme Court judges both
on and off the bench between 2005 and 2019.1It closely scrutinizes judicial decisions
on questions of political corruption, bureaucratic appointments, and the substance of
security and socioeconomic policies and describes the populist role that the court has
progressively adopted within the political system, which has manifested itself in
changes in the content of judicial decisions, the observance of judicial procedures, and
the relationship between judges and the general public. Thus, the article sheds light
on both the content of judicial populism as a novel judicial approach and role
conception as well as the factors that can facilitate the rise of this distinct and highly
consequential form of populism.
Can a judge be a populist?
An emerging political science literature engages with the global wave of populism
seeking to explain its origins and its implications for democracy (Urbinati 2015;
Müller 2016; Brubaker 2017; Levitsky and Ziblatt 2018; Mudde and Kaltwasser 2018).
There is broad agreement on the main conceptual components of populism as a form
of political discourse. Rogers Brubaker (2017) argues that we should conceive of
populism as a repertoire with the key defining element being the claim to speak and
act in the name of “the people”in opposition to “the elite.”The “people”in this case
are defined in opposition to economic, political, and cultural elites who are rich,
powerful, well connected, institutionally empowered, and playing by different rules.2
Brubaker expands on this conceptualization of populism by arguing that different
manifestations of populism will include some or all of the following elements: (1) a
claim to reassert democratic control over domains of life that are seen as having been
de-democratized; (2) an assertion of the interests, rights, and will of the majority; (3) a
distrust of the mediating functions of institutions, including political parties and
courts; and (4) an emphasis on plain speaking over polite and inaccessible technical
language. So how can judges—office holders in an unelected mediating institution
who work in the language of law and legal precedent—present themselves as credible
populists?
Judges are actually well positioned to claim that they speak and act in the name of
the general “public”in opposition to perhaps an out-of-touch or authoritarian elite.
Daniele Caramani (2017) describes the similarities in the political alternatives to
1To protect anonymity, interviews with judges and lawyers are assigned the letters J and L,
respectively, and a random number between one and one hundred generated and assigned to each
interview. All interviews are referenced by that code and the interview date.
2Similarly, Pippa Norris (2020) also argues that the key aspects of populist discourse are the claims
that (1) the only legitimate authority flows directly from “the will of the people,”and (2) the enemy of
the people are the elite “establishment.”
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party-based political systems presented by populists and technocrats, including (1) a
unitary, general interest of a given society, which factional partisan politicians are
unable to find; (2) a leader that can be entrusted with the responsibility of realizing
this common interest; and (3) the absence of institutions and procedures that
constrain the leadership’s ability to realize this common interest. The judge can be
the kind of leader that populists and technocrats both propose as an alternative to the
party leader. The judge is a legal expert who does not belong to any political party or
faction and thus does not represent any factional interest. The judge possesses a
specialized body of knowledge that can be suited to the task of realizing the common
interest. The Constitution, after all, is the state’s unifying charter, and the judge is the
guardian and interpreter of this charter. Thus, when we consider the similarities in
populist and technocratic critiques of party-based systems, and the alternatives they
propose, we see how judges can actually exemplify that alternative leadership.
But the judge is still a technical expert in an unelected mediating state institution.
Populist judges must therefore diverge from their traditional institutional role by
altering procedures and discourses that mediate and limit the access of the public to
the court. The term “judicial populism”came into popular use in India when it was
used to refer to the rise of public interest litigation, where judges increasingly
dispensed with procedural restrictions on public access to the high courts and
Supreme Court by relaxing the rules of standing. Upendra Baxi (1985, 111) describes
this “judicial populism”as an “assertion of judicial power in the aid of the deprived
and dispossessed”and focuses on the relaxation of procedural restrictions and an
increasingly people-oriented rhetoric infused in this jurisprudence as the features of
judicial populism. Anuj Bhuwania’s(2017) less laudatory account of the expansion of
public interest litigation highlights how judicial populism has operated as a counter
to, and constraint on, political society and its institutions, including political parties
and elected governments, and has shifted courts away from playing a counter-
majoritarian role as they seek legitimation from the “people”as a whole.
Scholars of judicial populism in Pakistan similarly have labelled the more recent
explosion of public interest litigation in Pakistan, particularly under Chief Justice
Iftikhar Chaudhry, as judicial populism. Anil Kalhan (2013) highlights how the
judiciary has assumed the role of upholding a “popular sovereignty”-based
understanding of constitutionalism, in which the judiciary sees itself as directly
legitimated by the people. Osama Siddique (2013) explains that the “populist”
attributes of the Pakistani Supreme Court under Chief Justice Chaudhry includes a
rhetorical positioning of judges as superior representatives of the people compared to
elected officials and an active courting of public visibility and the curation of public
image both through on-bench and off-bench behavior, attributes that have been
identified by Diego Arguelhes (2017) in populist judges in Brazil as well.
Thus, what we see in this literature on public interest litigation in South Asia is an
identification of features of judicial procedure and rhetoric that help us recognize a
particular judge or judicial action as “populist.”Building on, and synthesizing, this
rich literature, I seek to develop a general framework for understanding the
phenomenon of judicial populism. Traditionally, the judge interprets, elaborates, and
enforces public laws and applies those laws to facts filtered through formal
adjudicative process (Scott and Sturm 2007). The judge reacts to factual evidence and
legal argument presented through formal proof in court and defines and redresses a
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problem through articulation and application of an appropriate legal rule. Courts
apply statutory and constitutional principles and law to disputed laws, and the actions
of private and public parties, all filtered through formal processes.
The populist judge assumes a different role from the traditional role of judges, not
only seeking to apply the law or to work through formal adjudicative processes but
also seeking to champion the public interest and bypass formal legal language and
procedures (Baxi 1985; Kalhan 2013; M. Khan 2014). If judicial review is traditionally
understood as a tool for horizontal accountability—that is, holding the executive and
legislative branches of government accountable to the law and constitution—populist
courts seek to reconceptualize the role of judicial review as a tool for carrying out
vertical accountability—that is, holding the executive and legislative branches of
government accountable to the people. Thus, while other judges challenge or
overturn actions of other branches of government on the basis of legal norms,
whether they are established through constitutional articles and principles, statutory
laws, procedural rules, or judicial precedent, the populist judge also overturns the
actions of other branches of government on the basis of a more nebulous notion of the
“public interest”as processed through the mechanics of constitutional interpretation.
In this role, the Constitution is understood as representing the “will of the people.”In
holding the government accountable to the Constitution, the judiciary is holding the
government accountable to the people, and where the laws and procedures restrain
the courts from holding the government’s conduct, law, and policies accountable to
the people, the courts may amend, reinterpret, or bypass these legal constraints to
realize this role. The populist judge does not only hold other institutions of
government accountable to the law but also to the interest of the general public. And
they adapt the institutional role and procedures of their office to accommodate their
role as representatives of the public interest.
The repertoire of the populist judge includes (1) the relaxation of restrictions on
the public’s ability to access their courts; (2) the restructuring of court proceedings to
enable public petitioners to approach judges more directly rather than through their
lawyers; (3) the invitation of media coverage of their speeches and judgments so as to
speak more directly to the public; (4) the interpretation of the Constitution as the
manifestation of the will of the people rather than a document organizing and
distributing authority between institutions; and (5) the usage of simplified language
invoking the interests of the general public rather than the esoteric vocabulary of
constitutional interpretation and legal precedent. However, two questions that
remain unanswered are: why would judges do this, and when would they do this?
Why judges become populists?
There is a growing literature that examines the reasons for judges to shift out of
traditional roles and into new roles more directly pertaining to questions of politics
and policy making. Judges around the world now routinely make important policy
decisions that, only a few years ago, would have been seen as properly the purview of
bureaucrats, politicians, and private actors, a phenomenon described as the
judicialization of politics (Hirschl 2008). Scholars studying judicial institutions have
explained the judicialization of politics as a product of changing political contexts,
long-term shifts in state-society relations, the institutional leadership of powerful
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judges, and even changes in the institutional norms of the judiciary. Scholars of the
political context have focused on growing political fragmentation (including in states
like India and Pakistan in the 1990s) as a driver of the judicialization of politics
(M. Khan 2014; Mate 2014). Scholars focused on state-society relations argue that the
liberalization of economies shifted the role of the state in the economy from driving
and guiding the economy to regulating it, which provided motivation for courts to
play an increasingly prominent role in enforcing the rules and regulations of an
increasingly privatized economy (Ginsburg 2009). Osama Siddique (2015) points out
the role of Chief Justice Chaudhry in driving the judicialization of politics in Pakistan
after 2007.
But the judicialization of politics does not look identical across states. Courts in
some jurisdictions may pursue the championing of socioeconomic rights, while courts
in other jurisdictions may focus more on issues of pure politics. In some judicialized
political systems, courts may seek a more dialogic relationship with the other
branches, while courts in other judicialized systems may seek to displace the other
branches of government. The choices that judges make in terms of the issues upon
which they assert and expand their authority, the justifications they provide for their
actions, the legal principles they prioritize in their jurisprudence, the precedents they
seek to overturn and entrench, and the repertoire they hone for conflict with other
state institutions can all vary from state to state and even judge to judge. Therefore,
understanding the trajectory of the judicialization of politics in each state requires
understanding the different roles that judicial institutions adopt in either pursuing or
adapting to the judicialization of politics.
The expanded roles that judges play in different jurisdictions in response to the
political and socioeconomic conditions facilitating a more expanded and politically
engaged role for the courts, often depends on the institutional design, norms, and
internal culture of the judiciary. (Clayton and Gillman 1999; Hilbink 2007; Kapiszewski
2010). The professional institutions, communities, and networks within which judges
train, socialize, and work act as a site for preference formation, and the norms and
discourses within these institutions and communities shape judges’conception of
their role within the state structure (Clayton and Gillman 1999; Hilbink 2007; Ginsburg
2009; Mate 2015). Javier Couso and Lisa Hilbink (2011) argue that the shift in the role
conception of the Chilean judiciary was a result of institutional reforms that
transformed the training, socialization, and incentives of Chilean judges. Chilean
judges learned to embrace a rights-protecting role, motivating them to embrace a
strong form of judicial review.
In his account of the judicialization of politics in Latin America, Ezequiel Gonzales-
Ocantos (2016) argues that the increased willingness of Latin American judiciaries to
prosecute government officers for human rights violations was a product of
interactions with courtroom litigants who pushed for a shift away from a positivist
judicial ideology and toward a rights-protecting responsibility. Thus, understanding
variation in the role conceptions of judges requires paying attention to the prevalent
ideologies, norms, values, and discourses about the nature of law and the demands
and expectations within the institutional networks and communities within which
the judicial elite is embedded. Manoj Mate’s(2014) study of the rise of selective
judicial activism in India emphasizes how the surrounding political and social
environment and discourses of the 1990s shaped the ideational consensus regarding
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values and goals amongst the networks within which the judicial elite were
embedded, thus shaping the values and discourses that were prevalent within the
judiciary itself.
If we understand the judges’adoption of a populist repertoire as one particular
trajectory that the judicialization of politics can take, and this trajectory is a product
of a shift in role conception, where judges now see themselves as representing the
“public interest”and holding government accountable to this public interest rather
than purely to the law and legal process, then we must pay attention to the ideational
consensus within the professional networks and communities within which the
judiciary is embedded to understand the emergence of norms, ideas, and discourses
that would inspire such a populist judicial role conception within the judiciary and
consider the reasons underlying the emergence of such norms, ideas, and discourses.
When do judges become populists?
In the broader literature on populism, populism is seen to emerge in response to
crises in the legitimacy of the present political system, whether as a result of long-
standing political corruption (Betz 1994), deep inequality (de la Torre 2010), uncertain
democratization and democratic disenchantment (Panizza and Miorelli 2009),
electoral volatility, or political polarization (Hawkins, Read, and Pauwels 2017).
What this literature indicates is that populists emerge when the prevalent
institutional order suffers from a lack of legitimacy, creating space and motivation
for a populist outsider to disrupt the political order. However, if a lack of legitimacy in
the political system provides the facilitating conditions for a populist political
outsider to challenge the established order, what type of legitimacy crisis can
motivate a judge—an appointed official in one of the key branches of government—
to adopt a populist role repertoire—that is, to claim the mantle of the public interest
and challenge politicians for not doing so themselves?
In line with Mate (2014), I argue that we need to consider how the broader social
and political conditions and discourses of a particular period impact the norms,
values, and discourses within legal and judicial networks and communities. We need
to consider what kind of legitimacy challenges within the broader governing order
may facilitate a populist discourse regarding the role of the judge emerging within
judicial networks. Scholars have identified how the judicialization of politics can
occur in response to an increasingly fragmented polity (M. Khan 2014), but I argue
that a populist approach to the judicialization of politics is not only a product of
political fragmentation but also a product of an emerging aspirational norm and
discourse within the elite networks within which the judiciary is embedded regarding
the illegitimacy of other state institutions and the comparative representativeness of
the judiciary itself.
The reasons for this systemic legitimacy deficit within these elite judicial networks
may vary from system to system. In India, Mate (2014) considers how the broader elite
agenda for economic reform and liberalization from corrupt and inefficient
government and bureaucratic control led to the changing role of the judiciary in
India, facilitating the rise of public interest litigation. Alternatively, the condition that
I believe facilitated a similar legitimacy deficit in Pakistan was the condition of
dissonant institutionalization. Dissonant institutionalization, as conceptualized by
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Daniel Brumberg (2001), describes the entrenchment of contradictory and competing
ideologies within the state’s political and legal structure. Autonomous institutions
within the political system develop contradictory visions of the polity and clash with
each other in seeking to realize these visions (Shambayati 2008). This dissonant
institutionalization leads to heightened tensions and raises the stakes of political
conflict.
In Iran, dueling ideological legacies of Iran’s 1979 revolution were institutionalized
in the constitutional system, with the post-revolution institutional structure
integrating both theological and representative institutions, generating competition
between post-revolutionary elites representing both the theocratic and democratic
ideals of the revolution (Brumberg 2001). In Turkey, Hootan Shambayati (2008)
identifies similar dueling frameworks institutionalized within the political and
constitutional system prior to the rise of President Recep Erdogan in 2010, with power
shared between elected civilian institutions representing popular interests and a
powerful military protecting the state’s Kemalist ideology. In these systems, members
of each set of institutions will seek alliances with like-minded groups in civil society
as well as public support as they attempt to weaken, delegitimize, and/or capture
institutions beholden to an opposing vision of authority (Shambayati 2008). Thus,
political contestation does not only occur between political parties competing for
electoral control of the state’s institutions but also between coalitions of aligned state
institutions, politicians, and civil society members competing over the organization
and ideology of the state.
Brumberg (2001) argues that dissonant institutionalization is not necessarily
destabilizing but that achieving equilibrium in such a system is difficult and that
competing elites will frequently try to alter the political system toward their
advantage and entrench their ideas and authority across state institutions. In the
competition to resolve the dissonance in their favor, competing state elites will seek
to delegitimize each other. Thus, where dissonant institutionalization is formalized in
the constitutional framework and embedded into mass politics, competing state elites
will frequently clash over roles and authority and undermine each other. Shambayati
(2008) points out that controversies between competing state elites tend to be taken
to the courts, placing the courts in a more actively political role, resolving disputes
that inevitably emerge regarding the distribution of authority and power within a
dissonant system.
Intra-institutional competition and the judicialization of politics may provide
judges with an opportunity to challenge the established authority of the other
branches of government. But, more importantly, this intra-institutional competition
means that competing state institutions undermine each other’s legitimacy, leading
to a legitimacy deficit for either or both sets of competing institutions. Further, as
judges arbitrate the disputes between competing state institutions, they operate as
outsiders to these delegitimized institutions. Thus, a sustained legitimacy crisis
within the political branches produced by prolonged institutionalized dissonance, and
the judicialized contestation that comes with it, may shape the ideas and discourses
that develop within legal and judicial networks regarding the appropriate role for the
judiciary. Lawyers and judges may see the political leadership of government as
increasingly illegitimate and unrepresentative of the interests of the public and see
judges who have been arbitrating political contestation as better equipped to
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represent and protect the public interest than the dueling state elites running the
other branches of government. Hence, in this legally institutionalized dissonance, a
growing normative consensus may emerge among lawyers and judges regarding the
need for judges to represent the public interest and hold the other branches of
government accountable to the people.
Hence, the ideas and norms underlying judicial populism can emerge over time in
the context of institutionalized dissonance, and when these ideas take hold within the
intellectual and professional communities within which judges work, train, and
socialize, they percolate into the courts and impact judicial behavior. Judges are then
motivated to disrupt the formal distribution of power and expand their jurisdiction
and authority on the basis of this representative conception of their role. Thus, where
there is dissonant institutionalization, judges may see themselves as outsiders to the
sections of the political system suffering from a legitimacy deficit and challenge the
other branches of government on this basis. This is not the same as a judiciary taking
advantage of an unpopular political leader or fragmented political authority to assert
its authority. The populist court is not merely expanding its authority over other
branches but is seeking to compete with, and, on some issues, even supplant, the
political branches as the more representative branch of government.
Therefore, I argue that, in political orders characterized by dissonant
institutionalization, the contestation across political institutions, the increased
judicialization of politics, and the limited legitimacy of the representative branches of
government may drive a shift in the normative and ideational discourse in legal and
judicial networks regarding the role of the judiciary and thus push a judge to adopt a
populist role and associated repertoire. Judges who take on this role will then adjust
the legal language and procedures that mediate their access to the public and limit
their populist appeal and prioritize public interest over questions of jurisdiction and
precedent. Dissonant institutionalization is not a necessary condition for the
emergence of populist judges, nor is it inevitable in systems that are characterized by
dissonant institutionalization. Dissonant institutionalization can reshape the
normative and ideational discourses present within legal and judicial networks,
providing the grounds for adopting a populist role conception within the judiciary,
but its impact depends on how it impacts the professional networks in which the
judiciary is embedded and that shape the dominant norms and values held by the
judicial elite. This is the process in Pakistan that I will now discuss.
The emergence of judicial populism in Pakistan
Pakistan’s dissonant political order
In Pakistan, after independence, a powerful set of paternalistic executive institutions
were established by the British Empire, while political institutions were weakly
developed (Talbot 1998). Military officers and civil servants imbibed the colonial
officials’view that nationalist politicians and political parties were untrustworthy
agitators and that politics were divisive and parochial; together, these necessitated
the oversight and guidance of organized professional institutions (Shah 2014). They
sought to establish a political structure that ensured their role overseeing and guiding
Pakistan’s political system. Kalhan (2013) called this the “viceregal”model as it was
modeled on the colonial state and privileged centralized authority and presidential
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power. On the other end, several of Pakistan’s political parties sought to mobilize
popular national and subnational identities and patronage networks in order to win
parliamentary elections and gain control over the distribution of political resources
(Talbot 1998). These parties favored elected parliamentary supremacy and a more
decentralized and “representative”system that empowered Pakistan’s ethnically
defined provinces. The result was an antagonistic relationship between Pakistan’s
civil-military bureaucracy and the popular political parties. However, the relationship
was rarely symmetrical as, from the start, there was a clear imbalance of power in
favor of the civil-military bureaucracy, which ensured that the “viceregal”model
retained primacy through most of Pakistan’s early years (Jalal 1990).
The differences between the political parties and the civil-military bureaucracy
resulted in a series of military coups. At the end of each period of military rule,
elected governments would seek to establish a democratic political order. However,
even during periods of civilian rule, the military indirectly intervened in the political
process on multiple occasions to ensure that civilian governments did not threaten
their autonomy and interests (Shah 2014). The military would adapt its tactics and
political approach in order to entrench and extend its authority, autonomy, and
influence under civilian rule, which was an iterative process that Kalhan (2013, 10)
termed “transformative preservation.”Thus, Pakistan’s political history was marked
by repeated disruptions in the development of its elected institutions juxtaposed
against the comparative continuity in its unelected institutions, a juxtaposition that
affected the strength and legitimacy of the elected governments and the perceptions
within the unelected branches about their relationship with the elected branches.
Dissonance in Pakistan’s constitutional framework
In 1973, Pakistan’s first elected civilian government established the constitutional
framework that has remained in place to date, albeit with periods of suspension and
significant amendments along the way. The key features of the new Constitution
included a democratic system of government with parliamentary supremacy, control
over the unelected military, and bureaucracy placed, at least formally, firmly under
elected leadership. In 1977, General Zia-ul-Haq seized power in a military coup and
suspended the Constitution, only restoring it in 1985, after pushing through several
constitutional amendments that decisively shifted executive power from the elected
parliament to the presidency, which was Zia’s office at the time. The amendments
gave the president a range of discretionary powers with respect to the federal and
provincial governments, including the power to dissolve elected assemblies under
Article 58(2)(b). Articles 62 and 63 gave the judiciary the power to disqualify elected
representatives and electoral candidates from political office for not meeting a vague
moral standard of morality and sagacity. Thus, after Zia’s amendments, Pakistan’s
Constitution formalized and institutionalized, rather than resolving, the dissonance
in Pakistan’s political system, not only placing executive and legislative power in the
hands of an elected representative government but also giving the unelected
branches significant autonomy and a role in overseeing and undermining the elected
branches and protecting the unity, ideology, and security of the state.
The best term to describe the political and constitutional order that emerged in
the aftermath of Zia’s regime and constitutional amendments is institutionalized
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dissonance. A constitutional system of divided sovereignty was established that
institutionalized the dissonance between the viceregal and representative models in
Pakistan’s political system. The elected parliament represented the different peoples
of the country, spread across its provinces, and the unelected president, supported by
the federal civil-military bureaucracy that represented the unity and ideology of the
country. In this position, the president was authorized to prevent the factionalism of
Pakistan’s political parties from dividing and destabilizing national unity or
undermining the national ideology. This institutionalized dissonance shaped
Pakistan’s constitutional and judicial politics in the coming years.
Institutionalized dissonance and political legitimacy
Political systems characterized by dissonant institutionalization embody a high level
of tension within them, as they highlight a division in the ruling elites concerning the
nature of the state itself. In this context of competing hegemonic elites seeking to
displace each other, both sets of elites can see their legitimacy diminished with
different groups in society, and the courts take on an actively political role. When
General Zia was assassinated in 1988, the elected civilian government returned to
Pakistan, and the Pakistan People’s Party (PPP) won the election and took office.
Pakistan’s political parties had been decimated by Zia’s regime and its brutal
repression of political activity. After years spent in the wilderness, when democratic
rule resumed, these political parties were weak and had few direct connections to the
voters and were dependent upon autonomous local actors, ranging from landlords
and tribal leaders to clientelist exchanges amongst brokers, kin groups, and local
party leaders (Mohmand 2014). In this system, therefore, elite corruption, in-fighting,
and governance failures plagued the political governments during the 1990s.
Zia’s constitutional arrangement was also maintained, ensuring that the unelected
branches, particularly the presidency, continued to clash with the elected branches.
When Benazir Bhutto’s PPP took power in 1988, it was faced with a strong military, a
president who was a former bureaucrat and closely allied to the military, a federal
bureaucracy that had mostly been staffed during the era of military rule, a judiciary
that had mostly been appointed during military rule, and a strong parliamentary
opposition comprised of mostly pro-military parties. The new elected government
had few allies in the unelected sections of the political system and little space to
operate. Efforts made by the government to expand civilian control over other
executive institutions faced strong opposition. The presidential dissolution of elected
governments became a recurring occurrence during the 1990s. Once elected,
governments sought to exercise power independently and bring the unelected
institutions under greater electoral control; they fell out of favor with the military
and the presidency and, thanks to the president’s powers under Article 58(2)(b) of the
Constitution, faced presidential dissolution.
The civilian governments tried to take more control of unelected institutions by
staffing them with officers who were more partial to the civilian governments. This
created considerable friction with the entrenched interests already present in the
institutions, and disputes frequently arose over the appointment powers of the
elected executive. Between 1991 and 1994, Prime Minister Nawaz Sharif and President
Ishaq Khan clashed repeatedly over questions of authority, including who had the
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power to appoint the new chief of army staff and who had the power to remove
provincial governments. Bhutto, in her second term in 1994, tried to appoint pro-PPP
lawyers as judges (H. Khan 2016). The attempts by the elected executive to build
inroads into unelected institutions was a critical political flashpoint in this era. Thus,
in the 1990s, the dissonance within Pakistan’s political system was mostly
institutionalized, as the “viceregal”model and the “representative”models both
sat uneasily within the constitutional structure, and the proponents of these
competing models continued to clash over the architecture of the political system,
seeking to establish and entrench the primacy of their preferred model of
government.
During this era of divided sovereignty, contentious disputes regarding the
dispensation of authority within the political system were repeatedly referred to
the courts, which came to play a more active political role. Between 1988 and 1999,
the Supreme Court had to rule four times on the constitutionality of the president’s
dissolution of the elected parliament (Siddique 2006).3Similarly, appointments made
by the elected government were repeatedly challenged before the courts. Thus, the
fragmentation of authority across the elected and unelected branches created an
outsized role for the judiciary as the venue for resolving major political disputes. The
fragmentation of authority between the unelected branches and the elected branches
(Newberg 1995), within this dissonant system, explains the judicialization of politics
during this era.
This judicialization of politics, combined with the legitimacy crisis generated by
this dissonance, impacted discourses and values held within judicial and legal
communities regarding the role of the judiciary. The military and affiliated elites in
the bureaucracy and presidency developed an “antidemocratic legitimating
discourse”to justify their continued authority (Kalhan 2013). The military presented
itself as the guardian of the state’s unity, identity, and ideology and self-consciously
presented its conception of professionalism in contrast to elected civilian politicians
who they characterized as incompetent, corrupt, and beholden to factional
subnational interests. Thus, the military justified the need for its continual authority
and the sustained supervisory role of the unelected branches over the elected
branches as necessary to prevent “corrupt self-serving”politicians from undermining
the unity and Islamic ideology of the state (Rizvi 2000).
The military narrative of political corruption and factionalism was seemingly
corroborated by the actions of leading political parties as they adopted an approach of
perpetual confrontation, always seeking to undermine and delegitimize each other
based on allegations of corruption, incompetence, and anti-nationalism. Corruption
became a common accusation during this era as ruling and opposition parties would
routinely accuse each other of corruption, and both would face similar accusations
from the military, the presidency, and the judiciary (Rizvi 2000). In Transparency
International’s survey of perceptions of corruption, Pakistan had the second highest
perception of corruption among fifty-four countries surveyed around the world in
3The Supreme Court ruled against the restoration of assemblies after dissolution by the military-led
president three out of four times, which reflected the judiciary’s greater deference to the military’s
interests, particularly given the lengthy history of military influence in judicial appointments and
promotions through much of Pakistan’s history (Kureshi 2022).
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1996 (Talbot 1998). In a Gallup survey taken in 2000, 59 percent of people said that
politicians were responsible for the problems faced by Pakistan (Gallup Pakistan 2011).
Thus, presidential dissolutions, harsh adversarial competition between political
parties, and growing concerns about political corruption helped entrench negative
impressions of the political class. Thus, this era of institutionalized dissonance left the
elected branches facing a significant legitimacy deficit.
At the same time, the dysfunction and illegitimacy of the elected executive did not
mean that military rule had uncritical support. During Zia’s regime, his suspension of
all fundamental rights, and his actions to control and weaken the judiciary, generated
considerable opposition and resistance within Pakistan’s bar associations. Indeed, a
generation of young lawyers became actively engaged in politics and mobilization
against Zia’s military dictatorship (Dawn 1985). And when the military seized power in
a military coup again in 1999, there was little appetite for extended and unfettered
military rule. In 1999, in a Gallup survey conducted after Musharraf took power, a
majority of respondents expressed a preference for a civilian government, and only
one-third supported sustained military rule (Gallup Pakistan 1999). Within the urban
centers, one of the most vocally critical segments of the regime was the legal
community, to which I now turn.
Institutionalized dissonance, the legal community, and the courts
The 1973 Constitution also endowed both the Supreme Court and the provincial high
courts with original jurisdiction with jurisdictional, procedural, and remedial powers
devoted to the enforcement of fundamental rights and strengthened the judiciary’s
power to enforce these rights by providing that laws that were inconsistent with, or
made in derogation of, these fundamental rights were void (M. Khan 2014). Article
184(3) of the Constitution also gave the Supreme Court the power to make orders on
questions that the court deemed of public importance with reference to the
enforcement of fundamental rights. Article 184(3) became the constitutional basis for
public interest litigation in Pakistan.
In 1988, the Supreme Court made a landmark judgment that commenced the
development of public interest litigation in Pakistan. In Benazir Bhutto v Federation of
Pakistan, the court asserted its fundamental rights jurisdiction in order to overrule
government legislation and held that access to justice is pivotal in “advancing the
national hopes and aspirations of the people.”4Therefore, the court held that it had to
show flexibility in its procedures by relaxing the requirement that the court’s original
jurisdiction could only be asserted in cases brought forward by an aggrieved party.
Initially, the exercise of this public interest litigation was limited (M. Khan 2014).5In
Pakistan, most high court judges were lawyers appointed laterally from the bar of
professional lawyers, usually after fifteen to twenty years of professional practice.
The high court bar was the professional network within which lawyers trained and
socialized, including those who go on to become high court judges, and it is the
4Benazir Bhutto v. Federation of Pakistan, PLD 1988 SC 416.
5The development of public interest litigation was also inspired by similar developments in India, and
landmark judgments in Indian public interest litigation were often cited by Pakistani judges as they
developed public interest jurisprudence in Pakistan.
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community with which judges seek to build their reputations as judges (Kureshi 2022).
The values and discourse of the legal elites in these networks shape the dominant
values and discourses held within the judiciary. As one former judge from this period
explained, “[w]ho is the judge’s audience? It is basically first the bar.”6
Therefore, in this section, I turn to examining the prevalent ideas, values, and
discourses within the elites of these professional networks since 1985, examining how
these dominant ideas and discourses have been shaped by the dissonant
institutionalization of the period. In order to understand the development of the
role conception of high court and Supreme Court judges, I examine the language and
discourse regarding the state of national political institutions and the role of the
judiciary amongst the legal elites of the bar and the institutional practices that gained
greatest support in these networks (Chanock 2001; Mate 2014). This is not an
exhaustive study of legal culture in Pakistan’s bar of professional lawyers but only
focused on the dominant ideas and discourses regarding the political system, the role
of the judiciary, and the popular judicial practices among key elites within these
networks.
For this study, I relied on the following sources of information: (1) high court bar
resolutions regarding national politics and the role of the judiciary within the system;
(2) public statements made by senior lawyers and leaders from Pakistan’s high court
bar associations on the same subjects during these periods; (3) interviews with judges
and lawyers; and (4) my own more contemporary observations over a year of
fieldwork that included spending time in the courtrooms of high court judges and on
the campaign trail of bar association election candidates between 2016 and 2018. The
interviews that I conducted were semi-structured interviews with lawyers and retired
judges conducted in both English and Urdu. I used a method of snowball sampling to
recruit and interview retired judges and lawyers who had either served on, or
participated in, public interest litigation cases over the past three decades or played
important roles in the politics of bar-bench relations during the same period. The
interviews and fieldwork observations enriched the narrative constructed through
case law and archival data by providing insights into the politics, norms, and
preferences informing bar-bench relations and public interest litigation that are not
available within the public record. These sources of information helped me to identify
the key ideas and discourses regarding the place of the judge within the political
system of the time from the sources that would be most directly relevant to shaping
the preferences held by present and future high court judges.
Judicial role conceptions in the bar and bench
The dissonant institutionalization embedded in the constitutional order since 1985,
the experience with unfettered military rule in the 1980s, the weakness and limited
legitimacy of the political class in the 1990s, and the attempts by both unelected and
elected governments to capture and control state institutions significantly shaped the
ideas that developed within the legal community regarding the role of the judge in
the 1990s and 2000s. Opposition to Zia’s military rule did not mean that there was
support for the rule of civilian political parties in the 1990s. During this period of
6Interview J-15, April 1, 2017.
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institutionalized dissonance and the efforts to weaken and delegitimize the parties
staffing the political branches of government, much of the legal community also
internalized the narrative of corruption and incompetence of the political parties. The
urban middle-class lawyers of the bar associations were disdainful of what they saw as
the corruption and factionalism of elite-driven political parties during the 1990s.
Sadaf Aziz (2015) explains that for the sections of the urban middle class represented
in the bar, there was an ascendant aspiration to assert “control over the political
process through an anti-corruption movement.”
In the late 1980s and 1990s, with the resumption of democracy, the high court bar
associations expanded their political priorities beyond democratic rights to speak out
and mobilize on all matters of state, including foreign policy, economic policy, and
welfare, and they distrusted the intent and capability of the elected state institutions.
In 1992, the Lahore High Court Bar Association sent notice to the United Nations (UN)
Security Council to revisit its sanctions against the Iraqi populations.7In 1994, the
same bar association condemned the situation of law and order in the province of
Sindh and the city of Karachi and demanded the installation of a new government to
deal with the situation.8Bar leaders regularly spoke out against the perceived
corruption of the political parties and specifically criticized the arbitrariness and
nepotism in the elected executive’s appointments to state institutions. In 1992, Hamid
Khan, the president of the Lahore High Court Bar Association said in a speech:
Corruption in the ranks of the government has exceeded all imaginable
proportions. The country has been rendered into a cauldron of hate and
prejudice. The stories about bribery, graft, commissions and other methods of
corruption can put to shame the worst during the Byzantine Empire. The main
concern of legislative members is the transfers and postings of their favourites
with the evident motive of making money and to use such favourites for
oppressing and tyrannizing their opponents. (News 1992)
For leading members of the bar, only the institution with which they had the
strongest linkages—the judiciary—could rescue the state from its decline. As courts
resolved major disputes arising from the dissonant politics of the 1990s, including
disputes over the distribution of political authority, the legality of electoral
procedures and practices, the criteria for executive and judicial appointments, and
the oversight of security operations, lawyers and judges grew increasingly ambitious
about the role that the courts could play in shaping national politics. Given the
historic separation between the unelected and elected branches, the elected
executive’s claim to discretion over the unelected institutions, including state
bureaucratic and judicial institutions, was also challenged by leaders of the bar
associations, who feared the political capture of state institutions by the political
parties. When the Supreme Court overruled executive discretion in judicial
appointments, the bar celebrated this decision.
After General Pervez Musharraf took power in 1999, large segments of the leading
bar associations around the country opposed his attempts to subordinate the
7Lahore High Court Bar Association Meeting Resolution, 1992.
8Lahore High Court Bar Association Meeting Resolution, 1994.
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judiciary and challenged his legislative and electoral actions in the courts and out in
the streets. Judges who cooperated with the regime were not spared. These bar
associations mobilized against Musharraf’s efforts to manipulate judicial appoint-
ments, condemned judges who upheld Musharraf’s early changes to the state’s
constitutional structure and interference in the political system, and lauded judges
who were more willing to confront the regime (Kureshi 2022).9Thus, the community
of high court lawyers in Pakistan was deeply affected by the dissonant
institutionalization that characterized this period, the consequent legitimacy crisis
facing elected and unelected rulers and institutions, and the increasingly visible role
of the courts. The legal community had become more politically engaged, and the
elites within the bar coalesced around distrust of both unfettered military rule and
the corruption and factionalism of elected political parties. The dissonance meant
that neither the elected branches’claims to authority based on representing the
public interest, nor the unelected branches’claims to authority based on protecting
the country’s unity and ideology, went unchallenged within the legal community.
Instead, for leading members of the bar, only the institution with which they had
the strongest linkages—the judiciary—could rescue the state from its decline. As the
judiciary’s role as an arbiter of political disputes grew increasingly significant, leaders
of the politically active bar associations wished to see the judiciary intervene in the
affairs and actions of other state institutions and rule on a broad range of political and
socioeconomic issues in order to remove corruption and cronyism and ensure that
the state acted in the public interest. Legal elites championed the utility of
institutional practices that liberated the courts from procedural restrictions so that
judges could play a more prominent political role, upholding the interests of the
public. For instance, the National Lawyers’Conference of 1993 resolved that “the
judiciary, particularly, the superior courts ::: should serve as a symbol of liberty,
equality and social justice”(Lodhi 1993).
Similarly, Khalid Ranjha, a bar leader during this period stated that the judiciary
had to “go for public interest litigation. ::: And take suo moto action (cases initiated
by the courts without any petitioners) in the affairs pertaining to political corruption
to save the system. ::: Courts should take suo moto of all the corruption of the
political culture and take those to task who conduct themselves in breach of political
ethics”(Nation 1995). Among serving judges as well, Chief Justice Sajjad Ali Shah
initiated suo moto proceedings to address policy issues such as the increasing violence
and criminality in the city of Karachi in the mid-1990s and the growth of corruption in
the state. He directly courted media newsmen and issued populist statements to the
public such as: “[T]here was a need (for the judiciary) to end the source of corruption
afflicting the country”(Haider 1997). Justice Wajihuddin Ahmed also stated that that
“suo moto is the hallmark of our judicial activism”(Frontier Post 1997). Thus, the
discourse of leading figures within the bar and bench was increasingly supportive of
9This is not to say that opposition to Musharraf was universal across the bar as the regime used
professional opportunities and patronage to co-opt sections of the bar and promote pro-regime lawyers
in bar association elections (Ghias 2010; M. Khan 2023). But barring the period between 2004 and 2006,
elections in the leading high court and Supreme Court bar associations were largely won by candidates
from the faction of lawyers that challenged judicial collusion with the regime, indicating a wider
disenchantment with the regime within the lawyer’s community.
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the judiciary playing a more prominent and public-facing role in the state, and the
relaxation of procedural and jurisdictional restrictions on judicial action in the public
interest became an increasingly popular practice within these legal elites.
Most Supreme Court judges emerged from, and were embedded in, this community
and enjoyed long-standing ties with the legal elites of the high court bars. Thus, the
prevalent values and ideas within these networks during this period shaped their
worldview and their conception of what role they needed to play as judges.10 Justice
Asif Saeed Khosa, a lawyer in the 1990s who became chief justice of Pakistan in 2019,
wrote during the 1990s that “legislators passed their time passing motions about
breaches of privileges, and the judiciary had to arrest this repugnancy”(Azeem 2017,
224). Lawyers in the bar associations celebrated judges who assertively challenged
civilian and military governments and chastised those who were deemed to be too
close to the political and military elites.
In interviews, senior lawyers and former judges also highlighted both the
importance of the bar as the core network shaping the ideas and preferences held by
high court judges and the increasingly populist role conception of Pakistan’s judges
that emerged among legal elites in the bar. One senior lawyer explained that “[t]he
relationship between lawyer and judges has become far too cozy. As a judge you carry
over your prejudices from the bar. Judges come to the bench as fully formed lawyers.
You become a judge after having ::: ideological preferences developed in the bar.”11
A former judge explained that “judges ::: attempted to be ‘effective and bold,’
reaching decisions that would be popular among the lawyers populating their
courtrooms. He ::: did not consider himself bound by procedure, and promises to do
substantive justice.”12 Another former judge explained that during his tenure he
observed that “[j]udges ::: play to the gallery of the bar, and project populism with
the bar.”13 Hence, the effect of this era of dissonant institutionalization was that the
norms of opposition to military rule, distrust of political parties and representative
institutions, and concerns over political corruption and nepotism in bureaucratic
appointment processes shaped the legal culture within the high court bar, impacting
the discourses and institutional practices that percolated from the lawyer’s
community into the superior judiciary.
The populist Supreme Court under military rule, 2005–7
In this section, I lay out how the dissonant institutionalization described above
explains the emergence of a populist role conception evident in the Supreme Court of
Pakistan’s judiciary between 2005 and 2007. In 2005, Justice Chaudhry was appointed
10 Other external factors may have also influenced the judicial worldview and role conception that
emerged during this period. For example, the Asian Development Bank’s judicial reform program in
Pakistan allocated funding toward enhancing access to, and capacity and independence of, judicial
institutions. The ideological rationale for the reform project was that “jurisprudence”was key to “good
governance,”and the program endorsed and reinforced perspectives of Pakistan’s interventionist judges
in the reform policy that was designed. This would have also likely influenced the role conception of
judges who were impacted by the program (Armytage 2012; Siddique 2013).
11 Interview L-70, June 18, 2017.
12 Interview J-33, March 21, 2017.
13 Interview J-19, April 23, 2017.
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chief justice. Under him, public interest litigation witnessed explosive growth. One of
the first steps that he took up was to reactivate the Human Rights Cell of the court
(M. Khan 2014). The Human Rights Cell received numerous complaints about human
rights violations and converted these into formal human rights petitions. The court
also took up an increasing number of cases suo moto. The court started taking suo moto
notice of issues based on newspaper articles. If a news item struck a chord with an
individual judge, the chief justice could directly convert it into a petition. Maryam
Khan (2014) explains that this created a feedback loop between the Supreme Court
and the media; as the newspapers and electronic media reported on an important
policy failure or human rights issue, the court took notice of it, and the media outlets
publicized the court’s actions. As the number of suo moto cases increased rapidly, the
judges became media favorites, picking up issues that had been the focus of media
coverage. The court developed an unprecedented level of visibility. The suo moto
power was a potent tool in the hands of the chief justice as there were no prescribed
standards or criteria for determining if an issue was worthy of suo moto action, and it
was entirely at the discretion of the chief justice if he wanted to intervene, making it
easy for him to respond to popular sentiments and issues that would maximize the
visibility, popularity, and impact of the court. Bar associations lauded and celebrated
the judiciary’s increased interventions in a wide range of governance issues.
The initial focus of public interest litigation under Justice Chaudhry involved
regulating the process of economic liberalization by intervening in issues such as
unsafe high-rise construction, questionable land acquisitions, and the zoning of prime
real estate (Ghias 2010). But this began to change as the judiciary grew more
ambitious in challenging the regime’s core policy decisions. The turning point came
when the court stalled the privatization of Pakistan’s largest state-owned steel mill in
Watan Party v. Chief Executive, President of Pakistan in 2006.14 This judgment highlighted
key features of the populist jurisprudence of the Chaudhry court. The court accepted a
public interest petition challenging the privatization of Pakistan’s main steel mill. The
petition claimed that the steel mill’s assets were sold for a price lower than their
value and asked the court to review the privatization process. The court asserted that
it had jurisdiction to intervene in the privatization process, claiming: “Normally, this
Court will not scrutinize the policy decisions or substitute its own opinion in such
matters :::. However, in this case, we are seized not with a policy centric issue as such
but with the legality, reasonableness and transparency of the process of privatization
of the project.”15
This became the method through which the court turned policy issues into
justiciable questions—namely, by framing an issue with a policy outcome as a
problem created by unreasonable or non-transparent processes. The court
determined that the procedure through which the government had determined
the sale value of the steel mill’s assets was “unreasonable”and “betrayed disregard of
relevant material”for arriving at a fair price. Therefore, the court overruled the sale
of the steel mill, holding that the government had “violated its fiduciary
responsibility to its citizens”and that the court had to “rectify the wrong when
assets of the nation were at stake.”The court’s decision was a significant assertion of
14 Watan Party v. Chief Executive, President of Pakistan, PLD 2006 SC 697.
15 Watan Party, PLD 2006 SC 697.
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the court’s jurisdiction over the substance of a policy decision—the pricing of steel
mill’s assets. It justified intervention on the basis of its role as a protector of the
“nation’s assets.”This judgment became the touchstone for much of the populist
decision making in the coming years.
The Watan Party judgment had significant repercussions on the relationship
between the judiciary and the regime. The military regime was not willing to tolerate
a potentially unreliable judiciary that could threaten the regime’s political stability
(News 2007). In March 2007, Musharraf forced the suspension of Justice Chaudhry from
his post as chief justice, levelling a series of allegations against him. The military
regime’s treatment of Justice Chaudhry and his refusal to resign brought the entire
lawyer’s community of the country out on the streets in a movement that came to be
known as the Lawyers’Movement. The government responded to the lawyers’
protests with heavy-handed tactics, attacking and injuring protesting lawyers. Images
of the black-coated lawyers protesting and braving bleeding wounds captured the
headlines (M. Khan 2014; Shafqat 2017) The Lawyers’Movement turned the dismissal
of the chief justice into a massive public controversy. Ousted from public office,
Justice Chaudhry became a folk hero, attending well-attended rallies around the
country. In these rallies, he emphasized his role as a champion for the people against
authoritarianism (Dawn 2007). Through his public interest litigation and actions on
and off the bench, Justice Chaudhry was fulfilling the role that many in the legal
community had come to favor for judges over the previous two decades, making him a
hero to many in the bar.
In June 2007, the court dismissed the presidential reference against Justice Chaudhry
and ruled in favor of reinstating him as chief justice. The judgment restoring him
clearly articulated the court’s new role conception. The court held that, “[i]n a system
where the people had opted to be governed by a written and federal constitution :::
the judiciary was obliged to act as the administrator of the public will.”16 He defended
the interventionist approach that the court adopted under Justice Chaudhry, saying
that the court had to defend the rights of the people “against any violations and
encroachments,”which included the duty of “guarding public property and the public
exchequer.”He explained that the judiciary overruled actions and policies of the
government because “it stood commanded by the people through the Constitution
framed by them to preserve it.”In short, the constitution was the manifestation of the
will of the people, and the Court was upholding the “people’s will.”17
After Justice Chaudhry’s restoration, the Supreme Court dominated the headlines
daily as judges dealt with multiple petitions that challenged Musharraf’s political
agenda and destabilized the regime. On November 3, 2007, Musharraf retaliated, and a
state of emergency was declared, with the Constitution being suspended once more.
Many judges were purged from the judiciary, lawyers and activists around the
country were arrested and detained, and curbs were placed on the media. However,
the regime did not last long. Agitation on the streets grew as lawyers, civil society
activists, and political parties resisted curfews and arrests and continued to pour out
on the streets calling for a return to democratic rule (Shafqat 2017). Musharraf
rapidly lost support, and his political party was wiped out in the elections. The PPP
16 Mr. Justice Iftikhar Muhammad Chaudhry v. President of Pakistan, PLD 2007 SC 578,
17 Justice Iftikhar Muhammad Chaudhry, PLD 2007 SC 578.
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and the Pakistan Muslim League (PML), which were the parties he ousted from power,
were victorious. He resigned from his office soon after, bringing an end to his regime.
Bar associations continued their agitation, demanding Justice Chaudhry be reinstated.
Under pressure, the new PPP government conceded and reinstated Chief Justice
Chaudhry in March 2009. Thus, Justice Chaudhry became the central figure in
Pakistan’s politics after 2007 as a mass movement that built up around him helped
bring down a military regime and return democracy to Pakistan.
The populist court and the democratic transition, 2009–18
The end of Musharraf’s military regime did not bring an end to the institutionalized
dissonance in Pakistan’s politics. The leading political parties—the PPP and PML—
which won the largest number of votes and seats in the 2008 election, were still weak
and rebuilding, hobbled by the years of military rule. People still remembered the
bruising years of the 1990s, and segments of the elite and urban middle classes who
had benefited from Musharraf’s liberalization policies were skeptical of the return of
these patronage-based political parties. Musharraf’s constitutional amendments
initially remained in place, the military retained significant autonomy and influence
in the political system, and elected governments faced stiff resistance as they made
efforts to expand their authority over the civil-military bureaucracies (Shah 2014).
Once Chief Justice Chaudhry was restored, the Supreme Court did not retreat in
favor of elected civilian supremacy. Over the next ten years, the court challenged the
actions and decisions of Pakistan’s other power centers, particularly the elected
executive and legislature, justified by an apparent interest in ensuring the welfare of
the people, often with the tacit backing of the military. Dissonant institutionalization
had shaped perceptions among lawyers and judges regarding the need for them to
play a role in upholding the public interest, and the Lawyer’s Movement’s success and
Justice Chaudhry’s widespread support confirmed for judges and lawyers that the bar
and the bench had a legitimate claim as representatives of the public interest.18 The
vindication and triumphalism in the judiciary, and in the legal community more
broadly, and its implications for the role that the judiciary intended to play in the
coming years, was evident from a speech that Justice Chaudhry gave at the retirement
of a fellow Supreme Court judge, where he stated:
[T]he resistance of the Honourable Judges, the historic movement of learned
lawyers’community ::: marked a watershed in the political annals of
Pakistan. ::: The superior judiciary has emerged as ::: the guarantor of the
constitutional dispensation in the country :::. It is the singular duty of the
apex Court not only to enforce the freedom of life of people but also to ensure
that complete quality of life is provided to the citizens. ::: This is what
empowers the superior Courts to exercise the power of judicial review in
legislative and administrative enactments and actions.”19
18 The Lawyer’s Movement’s leadership even considered fielding one of their members for the
presidential election in 2007 (Dawn 2007).
19 Speech by Chief Justice Iftikhar Chaudhry at the Full Court Reference on the eve of Retirement of
Justice Muhammad Sair Ali, December 9, 2011, https://www.pljlawsite.com/2012art19.htm.
20 Yasser Kureshi
https://doi.org/10.1017/lsi.2024.49 Published online by Cambridge University Press
These judges, who had mostly been part of the bar during the 1990s, retained their
skepticism and disdain for the elected political leaders, and the superior judiciary
vigorously intervened in the actions of all branches of government, overturning
bureaucratic appointments, challenging fiscal and economic policy decisions, and
pursuing corruption cases against the political leadership. Even after Justice
Chaudhry’s retirement in 2013, the court did not significantly retreat from its
assertive new role. Similarly, even as discontent grew within segments of the bar
regarding the nature and targets of Justice Chaudhry’s populist jurisprudence, the
appetite for judicial populism persisted, even if the preferred targets of populist
interventions varied across groups within the bar. As a senior lawyer explained,
“[p]opulism is a way to prove yourself to the bar. This is their audience, they are
playing to the bar.”20 Under Chief Justice Saqib Nisar, the chief justice who served the
longest tenure after Justice Chaudhry (2016–19), the court increased the number of
cases it took up suo moto, issued policy directives directly from the court, and, with the
tacit support of the military, spared no aspect of governance from judicial
intervention (Mir 2019; Kureshi 2022).
I had the opportunity to observe the campaign for the elections of the Supreme
Court Bar Association in 2016, where the two leading factions within the high court
bars across the country—the Professionals Group and the Independents Group—
competed against each other for the bar association presidency. In attending
campaign events for the two candidates, I observed that the primary accusation
hurled against the Independent’s Group’s candidate—Farooq Naek—was his
proximity to the politicians from the PPP, which tainted his credibility in the bar.
Speech after speech at the Professionals Group’s campaign event in Karachi focused
on the corrupt politicians of the PPP and criticized Naek for his affiliation with
them.21 Soon after winning the elections, the Professionals Group-led Supreme Court
Bar Association organized a national lawyer’s convention in the Lahore High Court,
which I attended. Leaders from the Supreme Court Bar Association openly chanted
“Go, Nawaz, Go,”imploring the Supreme Court to act on corruption allegations
against the then elected Prime Minister Nawaz Sharif and disqualify him from
political office.22 These populist sentiments were not specific to the Professionals
Group. When Justice Nisar commenced his spree of populist jurisprudence in 2018, it
was leading lawyers from the Independents Group who were regularly invited by
Justice Nisar to join, and become party to, the suo moto legal proceedings on all
manner of governance and policy issues, to which they willingly agreed.23 Thus, even
as criticism of Justice Chaudhry’s own approach to judicial populism grew by 2013, the
appetite for a populist judicial role, and a more direct relationship between the courts
and the people, persisted across large swathes of the legal elites within judicial
networks, shaping judicial behavior throughout this period.
20 Interview L-29, May 25, 2017.
21 Supreme Court Bar Association Election Event, October 25, 2016.
22 National Lawyer’s Convention, May 20, 2017.
23 Interview L-51, January 22, 2021.
Law & Social Inquiry 21
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The repertoire of the populist court, 2009–18
The judges of the Supreme Court sought to remake the politics and governance of the
state by holding the federal and provincial governments accountable to the court’s
conception of the interest and will of the people. And the judges justified this expanded
role in populist terms, articulated in their judgments, oral proceedings, and off-bench
activities, as highlighted in this quote from one such judgment: “Whenever the Court
will notice that there is corruption or corrupt practices, it would be very difficult to
digest it because the public money of the country cannot be allowed to be looted by
anyone whatsoever status he may have.”24 One lawyer, explaining the approach of
populist Chief Justice Nisar, said: “Populist judges spent a long time sermonizing in the
court, and were keen on having their words reported (in the press). ::: In selecting
issues for the court to take up, judges belonged to the urban middle-class, and took up
issues which were popular with people from this background ::: for these judges
procedure took a backseat.”25
Between 2009 and 2018, the Supreme Court reported 160 judgments in which the
court asserted its public interest jurisdiction under Article 184(3). In Figure 1, I divide
these judgments into three categories based on their functional distance from the
court’s core functions. The core functions of the court include managing the judicial
hierarchy and protecting and enforcing the fundamental rights of members of
society. Judgments that deal with questions that fall within the scope of these core
functions fall into the first category. Judgments that deal with questions pertaining to
the internal procedures of the executive and legislature, including procedures of
appointments and promotions, fall into the second category. Judgments where the
court intervened in policy making on key questions of socioeconomic policy fall into
the third category.26 What is observable is that, in a majority of the reported cases, the
court used its original jurisdiction to deal with questions that fell into the second and
third category as it sought to supplant the representative branches.
I will discuss six populist Court judgments in three areas of judicial intervention
from 2009 to 2018—(1) political corruption; (2) bureaucratic appointments; and (3)
security and socioeconomic policy—to shed light on the court’s populist repertoire
and establish how it closely reflected the role conception that developed within the
legal community during the 1990s and was cemented by the events of 2007.
24 Watan Party v. Federation of Pakistan, 2012 SCMR 584.
25 Interview L-41, March 25, 2019.
26 In order to justify its interventions in executive and legislative procedures and policies under
Article 184(3) of the Constitution, the court had to frame these issues as questions of “fundamental
rights.”Thus, ultimately, all the questions in this area of jurisprudence were framed to be fundamental
rights questions. However, I distinguish between the three categories of judgments based on the nature
of the complaint motivating the judicial intervention, whether it was a formal legal petition, an informal
plea, or an article in a newspaper. In the first category of judgments, the complaint would typically be a
petition, plea, or published news item regarding government violations of fundamental rights of private
citizens. In the second category, the complaint would typically be a petition, plea, or published news item
regarding appointments, elections, or award decisions made by the executive and legislative branches. In
the third category, the complaint would typically be a plea or published news item regarding poor policy
choices or governance outcomes (such as high crime, high prices, water scarcity, and so on). Maryam
Khan (2014) provides a similar categorization of public interest litigation cases between 2008 and 2013.
The focus of her categorization is the types of issues in which the Supreme Court is intervening, and my
categorization is based on the distance of these issues from the core functions of the judiciary.
22 Yasser Kureshi
https://doi.org/10.1017/lsi.2024.49 Published online by Cambridge University Press
Political corruption
As part of its drive against political corruption between 2009 and 2018, the court
ousted two elected prime ministers along with scores of elected members of
parliament. The Supreme Court retained its power to oust parliamentarians for not
fulfilling vague standards of morality and sagacity, as stated under Articles 62 and 63
of the Constitution. The adversarial dynamics of Pakistan’s political system provided
the court with an opportunity to act against the political leadership as both political
leaders had fallen out with the military leadership and the political opposition
courted the judiciary’s intervention. In both cases, the court justified this
intervention, claiming to be holding the corrupt political class accountable to the
people.
In 2012, the Supreme Court ousted Prime Minister Yousaf Gilani (of the PPP) after
convicting him of contempt of court because he refused to write a letter to Swiss
authorities to reopen closed corruption cases against his party leader. Justice
Chaudhry had ordered Gilani to write this letter because the court wanted to pursue
corruption cases against the PPP’s leadership. The Supreme Court bench, chaired by
Justice Chaudhry, determined that the actions that the prime minister had taken in
defiance of the court amounted to contempt and merited disqualification. The court’s
judgment highlighted the consensus view of the judiciary that closely reflected
widespread views within the bar: political parties were corrupt and did not act in the
public interest, and the judiciary was best suited to tackle this corruption (Aziz 2015).
Justice Khosa stated that the Constitution represented the will of “we the people,”and
the executive, in defying the judicial verdict, was defying the will of the people. He
famously adapted the poem of the poet Khalil Gibran “Pity the Nation”in order to list
rhetorical charges against the government, stating: “Pity the nation that elected a
leader as redeemer but expects him to bend every law to favour his benefactors :::
that launches a movement for rule of law but cries foul when the law is applied
Public Interest Litigation (2009-2018)
Protection of Fundamental Rights and Oversight of Judiciary
Oversight of Executive and Legislative Procedures
Oversight of Security and Socio-economic Policy
Figure 1. Public interest litigation, 2009–18
(n =160).
Law & Social Inquiry 23
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against its bigwigs ::: that punishes its weak and poor but is shy of bringing its high
and mighty to book.”27
In 2017, the court once again ousted the elected Prime Minister Nawaz Sharif (of
the PML) from power, under Article 62, based on a misdeclaration of assets and
allegations of corruption. The judiciary’s actions in this case were even more
assertive: Gilani’s removal was based on an actual conviction, but Sharif had not yet
been convicted of a crime. A misdeclaration of assets was considered enough to have
him removed from power without the possibility of appeal. Justice Khosa, once again
a leading member of the bench, opined that Article 62 “provides a recipe for cleansing
the fountainhead of authority of the State so that the trickled down authority may
also become unpolluted. If this is achieved then the legislative and executive limbs of
the State are purified at the top.”28 Justice Khosa’s opinions closely matched his own
rhetoric when he was a lawyer in the 1990s, as discussed earlier. In defending the
court’s power to disqualify a prime minister without a criminal conviction and
without the chance for appeal, Justice Gulzar Ahmed stated: “The Court cannot be
expected to sit as a toothless body ::: but it has to rise above the screen of
technicalities to give positive verdicts for meeting the ends of justice.”Similarly,
Justice Efzal Afzal stated: “[E]xtreme measures have to be taken. The culture of
passing candidates by granting grace marks has not delivered the goods. It has
corrupted the people and corrupted the system.”The court’s mission to hold the
political elite accountable to the people and purify the political system of corruption,
and its willingness to bypass procedural limitations to do so, was apparent.
Bureaucratic appointments
While the Supreme Court’s dismissals of prime ministers from political office were
perhaps the most spectacular assertion of its power during this period, it was the
management of the state’s bureaucracies that invited the court’smostfrequent
interventions (Cheema 2021). Between 2009 and 2018, about a quarter of public interest
litigation pertained to scrutinizing executive appointments and promotions. The
dissonant institutionalization in Pakistan’s legal and political system meant that the civil-
military bureaucracy developed autonomously from the political branches and that
electoral control over the administrative structures was neither successfully asserted nor
accepted. Efforts by elected governments to build authority over bureaucracies through
promoting and rewarding bureaucrats who were more favorably inclined to the
government met stiff resistance, particularly from the judiciary. The judiciary’s success in
reducing executive discretion in the judicial appointment process in 1996 was seen by
many lawyers as a critical juncture in its own development and made the court’sshowof
strength in 2007 possible, and judges wanted to replicate this success in other branches of
government.29 The court stated that “civil servants are not obliged to be submissive to
the political executive”and that “both politicians and civil servants must understand
their own spheres of duty and responsibility.30 Thus, in the context of Pakistan’s
27 Suo Moto Case no. 4 of 2010, PLD 2012 SC 553.
28 Imran Khan Niazi v. Nawaz Sharif, PLD 2017 SC 265.
29 Interview L-22, June 17, 2020.
30 Syed Mahmood Akhtar Naqvi v. Federation of Pakistan, PLD 2013 SC 195.
24 Yasser Kureshi
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institutionalized dissonance, judges saw the elected executive and the unelected
executive as two separate sets of institutions and wished to “clamp down on executive
discretion”in bureaucracies to combat political corruption and “cronyism.”31
Justice Ijaz Ahmed, in a landmark decision on civil service postings, limited the
discretion of the government in deciding which officers of the civil service deserved
promotions. Several civil servants petitioned the court, claiming that they were
overlooked for promotion to a higher grade, even though they were entitled to
promotion based on their seniority. The government challenged the court’s
jurisdiction stating that the “Court does not act as a court of appeal over the
exercise of power by a lawful authority as it only has to satisfy itself as to whether
minimum requirements of good governance have been complied with.”32 But the
court disagreed, stating: “[W]herever wide-worded powers conferring discretion
exist, their remains always a need to structure the discretion”in order to ensure
action based on discretion “is fair and transparent.”33 The government claimed that it
had the discretion to prioritize merit over seniority in selecting which officers to
promote, but the court disagreed, determining that this process would give the
government discretion to act in an “arbitrary and capricious manner.”34 The court
stated that unfettered executive discretion in appointments would “affect good
governance as well as framing of policies in the welfare of the public. Therefore, to
assure the public at large ::: that their fundamental rights will be protected ::: this
Court is constrained to exercise jurisdiction.”35 The court then laid out its own rules
for civil service promotions, limiting government discretion in promotions and
asserting judicial jurisdiction to ensure that these rules and procedures were fulfilled
in subsequent promotions. As a result of this decision, over the next few years,
“government servants would appeal to the Court every time they were unhappy with
their postings, and their cases would be taken up, and in doing so, the Court took up
more and more turf from the government.”36
The Supreme Court justified its interventions in appointments based on its critique
of the competence and intent of the elected governments and the need to make sure
the government acted in the interest of the people. In 2018, under Chief Justice Nisar,
the court took notice of the mismanagement of Pakistan’s national carrier, Pakistan
International Airlines (PIA), which faced serious capacity issues and monetary
losses.37 The court intervened on the basis of allegations that the top officials at the
airline were “holding office without lawful authority, and were bent upon selling
national assets at throwaway prices.”38 The court determined that PIA’s appointed
chief executive did not have the right qualifications as he did not adequately match
the requirements of the job advertisement for the position. The court therefore
31 Interview L-22, June 17, 2020.
32 Tariq Aziz-ud-din and Others, in: re., PLC 2011 CS 1130.
33 Tariq Aziz-ud-din, PLC 2011 CS 1130.
34 Tariq Aziz-ud-din, PLC 2011 CS 1130.
35 Tariq Aziz-ud-din, PLC 2011 CS 1130.
36 Interview L-22, June 17, 2020.
37 Human Rights Case no. 11827-S of 2018, 2019 CLD 1319.
38 Human Rights Case no. 11827-S, 2019 CLD 1319. This was a clear reference to the actions the court
took in Watan Party, PLD 2006 SC 697, in 2006, when it overturned the privatization of the steel mill’s
assets because the sale price was deemed too low.
Law & Social Inquiry 25
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determined that his appointment violated the rules of appointment and was
politically motivated. The judges blamed the company’s losses on his appointment
and said that the court was intervening to put a stop to “the worst form of cronyism
at public expense ::: without any regard to the interest of the people of Pakistan who
have the largest stake in the national airline.”39 Thus, the judges blocked these
bureaucratic appointments based on a deep mistrust of the intent of the political
leaders in making appointments and a need to constrain their discretion in this
regard for the sake of the people.
Security and socioeconomic policy
The Supreme Court’s interventions into open-ended policy questions stretched its
public interest jurisdiction to its furthest limits. In these cases, the court often did not
respond to any apparent legal dispute but intervened to determine what policy would
be in the best interest of the public. These interventions could often not be justified by
any legal precedent or rules of civil procedure and thus were guided largely by the
court’s interpretation of the public interest. The court converted questions about the
substance of government policy into questions that could be resolved through legal
means. Just like in the case of the Watan Party, discussed earlier, this meant focusing
on the procedures and institutions through which the government made policy
decisions. The court blamed problems in governance on poor policy choices that had
the consequence of undermining people’s fundamental rights, explained these poor
policy choices as products of flawed policy-making procedures used by the other
branches, and then sought to direct changes in the policy-making procedure. Given
that there were rarely legal questions to resolve in these cases, the court’s judgments
were usually a statement of the preferred policy outcomes that the court wished to
see, principles that were to guide policy making in the public interest, concerns that
merited the court’s intervention, and directives for state authorities to formulate the
right policy. However, the real action usually took place in courtroom hearings both
before and after the court issued its judgments.40 In these open-ended hearings, the
court would justify its interventions and scrutinize officials to ensure its directives
were implemented.
In 2011, Justice Chaudhry took suo moto notice of the high level of violence and
crime in Karachi, the country’s biggest city. A five-member bench of the Supreme
Court started hearings to determine what needed to be done to improve the situation
of law and order (Zulfiqar 2011). The court invited reports from legal officers, state
agencies, and institutions and then issued a judgment after several months.41 In its
judgment, the court defended its decision to assert jurisdiction over the formulation
of security policy in Karachi by citing newspaper articles regarding crime, violence,
and corruption in the city. It determined that this violence was undermining the
ability of people to exercise their fundamental rights, chastised the government for
its failure to address the problem, and thus claimed that the court was compelled to
intervene. Justice Chaudhry stated:
39 Human Rights Case no. 11827-S, 2019 CLD 1319.
40 Interview L-22, June 17, 2020.
41 Watan Party v. Chief Executive, President of Pakistan, PLD 2011 SC 997.
26 Yasser Kureshi
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The whole nation is crying hoarse, media highlighting the tragic incidents day
and night ::: such a state also cannot be considered to have not come to the
knowledge of provincial and federal functionaries. ::: The provincial
government has failed to perform its constitutional obligations and therefore
for the purpose of enforcement of fundamental rights denied to the people, the
court exercises its jurisdiction.42
In defending itself against claims that the Supreme Court was overstepping
procedural and jurisdictional limitations, and increasing its caseload through such
expanded public interest litigation beyond what it could, the court cited the Indian
Supreme Court, stating: “There is a misconception in the minds of some men in public
life that public interest litigation is unnecessarily cluttering up the files of the court.
::: This is to our mind a totally perverse view smacking of elitist and status-quoist
approach.”43 Further, it stated: “This court is neither bound by the procedural
trappings, nor by limitations. ::: The interpretive approach should not be
ceremonious observance of the rules, but regard should be made to the object and
purpose of the article.”44 Thus, the court blamed the dire security situation in the city
on the political leadership and its negligence, which justified the court’s intervention
and supervision, and then provided directives for the federal government, provincial
government, police, and paramilitary forces. In subsequent hearings, the Supreme
Court aggressively scrutinized the implementation of its directives by the executive
branches. In implementation hearings, judges criticized the appointment and conduct
of police and prosecutorial officers, reprimanding them and threatening to hold them
in contempt for not adequately answering the judges’questions or implementing
court orders, until the government was compelled to withdraw or change these
appointments.45 These hearings were widely covered in the media and provided the
judges with an opportunity to sway public opinion against the government’s choices
and force the government to implement their directives, especially on appointments.
Thus, a populist court launched and monitored an urban security operation on the
basis of its claim to be the protector of the public interest.
In 2018, Chief Justice Nisar determined that the court had to address the crisis of
water shortages in the country. The court’s thirty-page judgment was largely devoted
to a broad exposition on the importance of water to the world, the source of
Pakistan’s water shortages, and recommendations regarding what needed to be done.
Justice Nisar blamed Pakistan’s water shortage on the lack of necessary dams, which
he said was a product of “executive lethargy.”46 The court therefore had to act to
remedy this executive lethargy by ordering the construction of two dams “for the
collective benefit of the nation.”47 Further, the court even launched a fundraising
scheme for donations from the public toward paying for the multi-billion-dollar dam-
building project. There was no legal precedent for the court’s order or fundraising
42 Watan Party, PLD 2011 SC 997.
43 Watan Party, PLD 2011 SC 997.
44 Watan Party, PLD 2011 SC 997.
45 Suo Moto Case no. 16 of 2011, 2013 PLD 443.
46 Barrister Zafarullah Khan v. Federation of Pakistan, Constitutional Petition no. 57 of 2016, 2018 SCMR
1621.
47 Barrister Zafarullah Khan, 2018 SCMR 1621.
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scheme. So, instead, Justice Nisar justified this action on the basis of the “huge public
response ::: for this national cause, and the nation’s confidence reposed in ::: the
Supreme Court.”48 In oral arguments, Justice Nisar also pledged that he would force
politicians who had “looted the nation”to contribute their wealth to the dam fund
(Business Recorder 2018). These judgments showed how far the court was willing to
deviate from its traditional role and expand into questions of pure policy. The court
justified doing so on the basis of its claim that it represented the public interest better
than the political authorities.
Across the content of these judgments, we see evidence of the role conception that
had evolved in the legal community in response to institutionalized dissonance: a
distrust of political parties; a clear separation between the political executive and the
bureaucratic executive; opposition to political control over the bureaucratic
executive; and, finally, a belief that legal experts were better equipped to represent
the public interest than factional party politicians and hold the government
accountable to the people. And we also see evidence of the court’s populist repertoire
in the content of these judgments: a diminished fidelity to precedent and procedure,
an interpretation of the Constitution as the manifestation of the will of the people,
and an increase in usage of simplified rhetorical language invoking the interests of
the general public and castigating political elites.
Populism beyond the judgments and the bench
Studying these judgments does not fully capture the populist repertoire of these
judges. Populism requires bypassing the mediating procedures of the Supreme Court.
Chief Justices Chaudhry and Nisar both sought a more direct, unmediated relationship
between the judge and “the people.”Throughout his tenure, Justice Chaudhry invited
people to write letters to the chief justice personally asking for judicial intervention
and stating that he would convert these letters into court petitions. His office would
be flooded with letters written by citizens asking judges to act on their grievances.49
Justice Chaudhry also courted media coverage to build a more direct relationship with
the public (Geo 2013). His courtroom proceedings were famous for his attacks on
government officials and tirades against the state’s political leadership. These
sensational hearings would then dominate the news cycle, allowing the chief justice
to further enhance his visibility and relevance and his relative influence. Thus, by
altering petitioning requirements and courting media coverage, Justice Chaudhry
built a more direct relationship with the public.
Justice Nisar went even further. He routinely gave speeches and interviews to the
media. He also took it upon himself to carry out judicial inspections, showing up at
hospitals, schools, and water plants to assess their conditions (Mir 2019). On
weekends, when he was in his home city of Lahore, he would conduct special hearings
where he would invite people to bring personal disputes directly to him (Yasif 2018).
Anyone could directly approach him, and often there were no lawyers involved as the
chief justice would hear these people’s issues and offer his directives.50 Throngs of
48 Barrister Zafarullah Khan, 2018 SCMR 1621.
49 Interview J-44, December 18, 2016.
50 Interview L-22, June 17, 2020.
28 Yasser Kureshi
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people would wait outside the court to meet him in hopes that he would take up their
issues directly. Protests even broke out when they were not able to meet him (Hussain
2018). Thus, Justice Nisar upended the norms of the constitutional court and actively
tried to build an image of himself as “a man of the people.”
I had the opportunity to observe Supreme Court proceedings presided over by
Justice Nisar that primarily focused on the issue of the PIA’s management.51 The
proceedings were indicative of the dynamics of Justice Nisar’s populist repertoire. He
commenced the day’s session by reading out excerpts from the day’s newspaper
reports regarding controversies pertaining to the judiciary, and, then when he began
proceedings pertaining to PIA, he was quick to push the lawyers aside so that he could
then directly question the managing director of corporation. In front of the lawyers
and journalists gathered in the courtroom for different cases, he then spent the better
part of the next hour berating the chief executive of PIA, grilling him for not
complying with his earlier orders regarding the logo of the airline, accusing him of
mismanagement and serving political interests, and alternating between threatening
to hold him in contempt of court and threatening to have him removed from his post,
using embellished rhetoric and affording the chief executive few opportunities to
respond. The dynamics of the court proceedings were indicative of Justice Nisar’s
populist repertoire: responding to media discourse regarding the court, bypassing
traditional court proceedings, and directly addressing the government official using
confrontational and critical language with little discussion of the actual relevant laws
and precedents, and asserting the authority of the court over this issue.
In a televised speech, Justice Nisar contrasted himself as a judge and “self-
interested”politicians, stating that, as a judge, “we make a promise, we will deliver
justice, we do not want money, this is not relevant. We do not care about Prados (a large
vehicle commonly associated with politicians).”52 Thus, these populist judges altered
courtroom procedures and increased off-bench activity to contrast themselves with
politicians, build a more direct relationship with the public, and legitimize the new and
unprecedented roles that they were playing in the political system.
Conclusion
This article has discussed the key characteristics of judicial populism and has shown
how, in Pakistan’s political order, which is characterized by dissonant institutionali-
zation, judges may be motivated to expand their authority and assume new roles and
relevance as champions of the public interest. I argue that judges embrace populism
as the political order’s legitimacy crisis imbues judges with a belief in their role as
superior representatives of the public interest. In Pakistan, the dissonance caused by
the unresolved differences between the civil-military bureaucracy and the elected
political leadership—differences that are embedded in the state’s constitutional
framework—has facilitated the rise of judicial populism. I have traced how the
institutionalized dissonance that was constitutionally entrenched in the 1980s and
1990s has impacted discourses and values held by the elites in legal and judicial
networks and changed judicial role conceptions within this community, thus shaping
51 Supreme Court of Pakistan Proceedings, July 22, 2018.
52 Speech by Justice Saqib Nisar, October 2018.
Law & Social Inquiry 29
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the Supreme Court’s increasingly populist public interest litigation, particularly
between 2005 and 2019.
In describing the features of judicial populism and discussing the factors that could
lead to its emergence, this article contributes to an understanding of this important
and distinct form of populism and reveals the impact of dissonant institutionalization
on judicial behavior. The article raises important questions about the impact of judges
acting as agents of vertical accountability on democracy and the rule of law. Finally, it
sheds light on how Pakistan’s Supreme Court has become one of the most powerful
courts in the world. Between 2006 and 2007, the court, under a populist leadership,
challenged the interests, and undermined the foundations of, the military regime of
General Musharraf, and, between 2009 and 2018, the court’s populist role placed it at
odds with Pakistan’s elected political institutions, which it overruled, undermined,
and delegitimized, often to the benefit of Pakistan’s military. While the role of
Pakistan’s populist judiciary in collaborating with the military, undermining
democracy, and contributing to democratic backsliding and the resurgence of
military power, particularly since 2017 (Bajpai and Kureshi 2022), is beyond the scope
of this article, it is important to highlight the challenge that a populist judiciary may
pose to the stability and legitimacy of elected institutions when it seeks to confront
and supplant the elites of these other institutions based on the claim of better
representing the people.
Acknowledgments. The author would like to thank Lisa Hilbink, Rohit De, Ezequiel Gonzales Ocantos,
Fabio Costa Morais de Sa E Silva, Lucia Manzi, Anuj Bhuwania, Rafael Mafei Rabelo Queiroz, Zoha Waseem,
audiences at the Law and Society Association Conference in 2022, and four anonymous reviewers for
their generous guidance and feedback on this article.
References
Arguelhes, Diego Werneck. 2017. “Judges Speaking for the People: Judicial Populism Beyond Judicial
Decisions.”International Journal of Constitutional Law Blog, May 4, 2017. http://www.iconnectblog.com/
2017/05/judges-speaking-for-the-people-judicial-populism-beyond-judicial-decisions/.
Armytage, Livingston. 2012. Reforming Justice: Journey to Fairness in Asia. Cambridge, UK: Cambridge
University Press.
Azeem, Muhammad. 2017. Law, State and Inequality in Pakistan: Explaining the Rise of the Judiciary. Singapore:
Springer International.
Aziz, Sadaf. 2015. “The Politics of Anti-Corruption.”In The Politics and Jurisprudence of the Chaudhry Court,
edited by Moeen Cheema and Ijaz Shafi Gilani, 253–80. Karachi: Oxford University Press.
Bajpai, Rochana, and Yasser Kureshi. 2022. “Mechanisms of Democratic Authoritarianism: De-Centring
the Executive in South Asia and Beyond.”Democratization 29, no. 8: 1375–96.
Baxi, Upendra. 1985. “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India.”
Third World Legal Studies 4, no. 6: 107–32.
Betz, Hanz-Georg. 1994. Radical Right-Wing Populism in Western Europe. New York: St. Martin’s Press.
Bhuwania, Anuj. 2017. Courting the People: Public Interest Litigation in Post-Emergency India. New York:
Cambridge University Press.
Brubaker, Rogers. 2017. “Why Populism?”Theory and Society 46: 357–85.
Brumberg, Daniel. 2001. Reinventing Khomeini: The Struggle for Reform in Iran. Chicago: University of Chicago
Press.
Business Recorder. 2018. “CJP Vows to Recover Looted Wealth for Dam Fund.”November 25.
Caramani, Daniele. 2017. “Will vs Reason: The Populist and Technocratic Forms of Political
Representation and Their Critique to Party Government.”American Political Science Review 111,
no. 1: 54–67.
30 Yasser Kureshi
https://doi.org/10.1017/lsi.2024.49 Published online by Cambridge University Press
Chanock, Martin. 2001. The Making of South African Legal Culture 1902–1936: Fear, Favour and Prejudice.
New York: Cambridge University Press.
Cheema, Moeen. 2021. Courting Constitutionalism: Politics of Public Law and Judicial Review in Pakistan.
Cambridge, UK: Cambridge University Press.
Clayton, Cornell, and Howard Gillman, eds. 1999. Supreme Court Decision-Making: New Institutionalist
Approaches. Chicago: University of Chicago Press.
Couso, Javier, and Lisa Hilbink. 2011. “From Quietism to Incipient Activism: The Institutional and
Ideological Roots of Rights Adjudication in Chile.”In Courts in Latin America, edited by Gretchen Helmke
and Julio Rios-Figueroa, 99–127. New York: Cambridge University Press.
Dawn. 1985. “Lawyers Convention on November 28.”November 18.
——. 2007. “Even Detractors Beginning to Admire Iftikhar Chaudhry.”July 21.
De la Torre, Carlos. 2010. Populist Seduction in Latin America. 2nd ed. Athens: Ohio University Press.
Frontier Post. 1997. “Suo Moto, Public Interest Litigation Hallmark of Judiciary’s Activism.”September 2.
Gallup Pakistan. 1999. “Gallup Pakistan Poll Findings on Military Rule.”https://gallup.com.pk/wp/wp-co
ntent/uploads/2016/06/14-10-19991.pdf.
——. 2011.“Public Opinion in Pakistan in the Year 2011.”http://gallup.com.pk/wp-content/uploads/
2018/10/30.10.18-History-Poll-1.pdf.
Geo. 2013. “Exclusive Video, Stories Right of Every Channel: Senior Journalists,”December 11. https://
www.geo.tv/latest/67237-exclusive-video-stories-right-of-every-channel-senior-journalists.
Ghias, Shoaib. 2010. “Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan Under
Musharraf.”Law & Social Inquiry 25, no. 4: 985–1022.
Ginsburg, Tom. 2009. “The Judicialization of Administrative Governance.”In Administrative Law and
Governance in Asia: Comparative Perspectives, edited by Tom Ginsburg and I. Chen, 1–20. New York:
Routledge.
Gonzales-Ocantos, Ezequiel. 2016. Shifting Legal Visions: Judicial Change and Human Rights Trials in Latin
America. New York: Cambridge University Press.
Haider, Masood. 1997. “Sajjad Ali Shah Talks to Newsmen: SC to Take Suo Motu Action on Karachi.”Dawn,
July 6.
Hawkins, Kirk, Madeleine Read, and Teun Pauwels. 2017. “Populism and Its Causes.”In Oxford Handbook of
Populism, edited by Cristobal Kaltwasser, Paul Taggart, Paulina Espejo, and Pierre Ostiguy, 267–86.
Oxford: Oxford University Press.
Hilbink, Lisa. 2007. Judges beyond Politics in Democracy and Dictatorship. New York: Cambridge University
Press.
Hirschl, Ran. 2008. “The Judicialization of Megapolitics and the Rise of Political Courts.”Annual Review of
Political Science 11: 93–118.
Hussain, Shahid. 2018. “Protests Break Out outside SC Lahore Registry as People Try to Meet the Chief
Justice.”Samaa, December 2. https://www.samaa.tv/news/2018/12/protests-break-out-outside-sc-la
hore-registry-as-people-try-to-meet-the-chief-justice/.
Jalal, Ayesha. 1990. The State of Martial Rule: The Origins of Pakistan’s Political Economy of Defence. Cambridge,
UK: Cambridge University Press.
Kalhan, Anil. 2013. “‘Gray Zone’Constitutionalism and the Dilemma of Judicial Independence in
Pakistan.”Vanderbilt Journal of Transnational Law 46, no. 1: 1–95
Kapiszewski, Diana. 2010. “How Courts Work: Institutions, Culture and the Brazilian Supremo Tribunal
Federal.”In Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Javier
Couso, Alexander Huneeus, and Rachel Sieder, 51–77. New York: Cambridge University Press.
Khan, Hamid. 2016. The History of the Judiciary in Pakistan. Karachi: Oxford University Press.
Khan, Maryam. 2014. “Genesis and Evolution of Public Interest Litigation in the Supreme Court of
Pakistan: Toward a Dynamic Theory of Judicialization.”Temple Journal of International and Comparative
Law 28, no. 2: 285–359.
——. 2023. “The Lawyer’s Movement in Pakistan: How Legal Actors Mobilize in a Hybrid Regime.”
International Journal of Law in Context 19, no. 3: 315–33.
Kureshi, Yasser. 2022. Seeking Supremacy: The Pursuit of Judicial Power in Pakistan. Cambridge, UK:
Cambridge University Press.
Levitsky, Steve, and Daniel Ziblatt. 2018. How Democracies Die: What History Reveals About Our Future.
London: Penguin.
Law & Social Inquiry 31
https://doi.org/10.1017/lsi.2024.49 Published online by Cambridge University Press
Lodhi, Farooq. 1993. “Independent Judiciary Is an Integral Part of Democracy.”Daily News, March 21.
Mate, Manoj. 2014. “Elite Institutionalism and Judicial Assertiveness in the Supreme Court of India.”
Temple Journal of International and Comparative Law 28, no. 2: 361–428.
——. 2015. “The Rise of Judicial Governance in the Supreme Court of India.”Boston University International
Law Journal 33, no. 1: 170–223.
Mir, Waqqas. 2019. “Judicial Restraint Was Saqib Nisar’s Hallmark—and Then the Dam Broke.”Prism,
December 21.
Mohmand, Shandana. 2014. “Losing the Connection: Party-Voter Linkages in Pakistan.”Commonwealth and
Comparative Politics 52, no. 1: 7–31.
Mudde, Cas, and Cristobal Kaltwasser. 2018. “Studying Populism in Comparative Perspective: Reflections
on the Contemporary and Future Research Agenda.”Comparative Political Studies 51: 1667–93.
Müller, Jan-Werner. Philadelphia. 2016. What Is Populism? Philadelphia: University of Pennsylvania Press.
Nation. 1995. “Suo Moto Action Is a Must.”September 15.
Newberg, Paula. 1995. Judging the State: Courts and Constitutional Politics in Pakistan. Cambridge, UK:
Cambridge University Press.
News. 1992. “The President Speaks.”March 25.
——. 2007. “Iftikhar Known for Taking Suo Moto Notice.”March 10.
Norris, Pippa. 2020. “Measuring Populism Worldwide.”Party Politics 26, no. 6: 697–717.
Panizza, Francisco, and Romina Miorelli. 2009. “Populism and Democracy in Latin America.”Ethic and
International Affairs 23, no. 1: 39–46.
Rizvi, Hasan Askari. 2000. Military, State and Society in Pakistan. London: Macmillan Press.
Scott, Joanne, and Susan Sturm. 2007. “Courts as Catalysts: Rethinking the Judicial Role in New
Governance.”Columbia Journal of European Law 13, no. 3: 565–94.
Shafqat, Sahar. 2017. “Civil Society and the Lawyers’Movement of Pakistan.”Law & Social Inquiry 43, no. 3:
889–914.
Shah, Aqil. 2014. “Constraining Consolidation: Military, Politics and Democracy in Pakistan (2007–2013).”
Democratization 21, no. 6: 1007–33.
Shambayati, Hootan. 2008. “Courts in Semi-Democratic/Authoritarian Regimes: The Judicialization of
Turkish (and Iranian) Politics.”In Rule by Law: The Politics of Courts in Authoritarian Regimes, edited by
Tom Ginsburg and Tamir Moustafa, 283–303. Cambridge, UK: Cambridge University Press.
Siddique, Osama. 2006. “The Jurisprudence of Dissolutions: Presidential Power to Dissolve Assemblies
under the Pakistani Constitution and Its Discontents.”Arizona Journal of International and Comparative
Law 23, no. 3: 622–715.
——. 2013. Pakistan’s Experience with Formal Law: An Alien Justice. Cambridge, UK: Cambridge University
Press.
——. 2015. “Judicialization of Politics: Pakistan Supreme Court’s Jurisprudence after the Lawyer’s
Movement.”In Unstable Constitutionalism: Law and Politics in South Asia, edited by Mark Tushnet and
Madhav Khosla, 159–91. New York: Cambridge University Press.
Talbot, Ian. 1998. Pakistan: A Modern History. London: Hurst and Company.
Urbinati, Nadia. 2015. “A Revolt against Intermediary Bodies.”Constellations 22, no. 4: 477–86.
Yasif, Rana. 2018. “CJP Wraps up Cases at Lahore Registry.”Express Tribune, October 29.
Zulfiqar, Qaiser. 2011. “Karachi Suo Motu: Verdict Out.”Express Tribune, October 6.
Cite this article: Kureshi, Y. (2024). ‘The People’s Court: Dissonant Institutionalization and Judicial
Populism in Pakistan’.Law & Social Inquiry.https://doi.org/10.1017/lsi.2024.49
32 Yasser Kureshi
https://doi.org/10.1017/lsi.2024.49 Published online by Cambridge University Press
