C. The Effect on Judicial Independence and Constitutionalism

Transformative preservation has shaped the judiciary's role, institutional identity, and independence in important ways, contributing to a disequilibrium that has hindered consolidation of democracy, civilian rule, and constitutionalism. While observers frequently state that Pakistan's judiciary has traditionally lacked "independence," (127) that characterization, though not altogether inaccurate, paints an incomplete picture. Although often discussed as an abstract, unitary ideal, judicial independence is not a static, all-or-nothing concept, or even a concept that exists along a one-dimensional continuum, akin to the commonplace depiction in Figure 1. Rather, as Stephen Burbank has explained, it arises from the evolving aggregation of "relationships and interdependencies" within which the judiciary is embedded, more akin to the depiction in Figure 2.12s Judicial independence is also not an absolute end in itself, but exists to serve other normative goals--democracy, constitutionalism, fundamental rights, the rule of law, and others. (129) Those ends may vary in importance from one context to another. For gray zone countries such as Pakistan or Egypt, for example, strengthening civilian representative institutions and enhancing mechanisms of judicial accountability may be more important than in other settings--suggesting a conception of judicial independence and the judicial role more oriented toward "representation reinforc[ement]" than may appear necessary in other contexts. (130)

Both descriptively and normatively, therefore, a more complete understanding of judicial independence demands attention to the evolving balance between judicial autonomy and judicial constraint across an array of dimensions, and the extent to which that balance advances the particular ends it exists to serve in any given context. The relationships from which the judiciary's independence or lack of independence arises are manifold: for example, between the judiciary and other government actors, private interest groups, lawyers and bar associations, the media, the people at-large, and, for many gray zone countries, the military. (131) Within each of these relationships, the balance between autonomy and constraint may be shaped at many points of potential influence--including the judiciary's institutional structure, the processes of appointing and removing judges, the regulation of judicial conduct, the administration of judicial business, and the means of responding to substantive judicial decisions. The overall balance also may be affected by other laws, institutions, and norms, including the scope of judicial power, and even (as depicted in Figure 2) by the relationships among nonjudicial actors themselves. (132)

This multidimensional conception of judicial independence complicates some conventional assumptions underlying discussions of the judiciary and is particularly useful in understanding the role of the judiciary for countries within the gray zone. (133) Given the role that status quo interests can play in undermining constitutionalism and representative institutions, the overall balance between judicial autonomy and constraint for gray zone countries must contemplate and serve the long-term objective of reining in and ultimately rolling back the power of those entrenched interests. (134) For Pakistan, understanding judicial independence within this disaggregated conceptual context shows that the process of transformative preservation, along with the resulting power of the military and deep state interests, has been crucial...