We make more history every two weeks than a normal country makes in years. And yes, the catch lies in the word 'Normal'. Our history is filled with self-proclaimed saviours championing constitutional digressions and politicians lauding the 'rule of law' until they are the law. This sounds quite unlike the normal we are used to, doesn't it? And when one hears nothing but muddy squabbles between opportunists and masquerades jostling for power throughout Pakistan's history, it leaves behind a fractured body politic vis-a-vis the state.
Though the impact of such history is undoubtedly widespread, one constant affectee in our case has been the judicial branch of the state. It is reflected through fluctuating interpretations of the constitutional law with changes elsewhere, laying down an arguably uncertain and, at times, ambiguous legal jurisprudence.
To resolve such uncertainty, the Supreme Court of Pakistan has been actively engaged in interpreting newer laws and reinterpreting older laws. All of this is happening at such breakneck speed that legal commentators are left gasping while catching up with the developments at the apex court.
Proceedings of the Supreme Court Practice and Procedure Bill and its subsequent judgment may serve as an appropriate example here. It was settled in front of a full court, convening after many years. Judges of the top court deliberated upon the immense powers vested in the office of the chief justice, which were not expressly provided in the Constitution but were considered too sacrosanct to amend. The Supreme Court not only amended these powers but also added the ability to file an appeal in the exercise of Suo Moto powers under Article 184(3) of the Constitution.
Thanks to the televised proceedings of the practice and procedure bill, which have considerably contributed towards judicial transparency, one could not ignore the apparent uneasiness among judges in the full bench. A brief background may serve as an explanation for the apprehension among the seniors. A few months prior to this decision, an eight-member bench headed by the former chief justice Umar Ata Bandial had declared the Practice and Procedure bill as a 'direct interference' on the independence of the judiciary. However, this order was quickly reversed after the incumbent, Chief Justice Qazi Faez Isa, took office and green-lighted the bill. He authored a detailed verdict, stating that the bill would strengthen judicial independence on both the internal and external fronts.
Two conflicting interpretations of the same law from the highest court in the land have left a few in awe and many in disbelief. A debate on whether the interpretation was right or wrong interpretation (if there is such a thing) comes later. The cardinal question becomes of consistency in the legal jurisprudence- a painfully recurring question in the annals of our history.
The interpretation of law should not be reduced to a 'game of numbers' only, and only a grave anomaly should force a newer interpretation after a 'second sober thought'
Similarly, a recent interpretation of Article 62(1)(f) - which outlines the precondition for a parliamentarian to be 'honest and righteous' - was declared non-executory in the disqualification of a parliamentarian from holding the membership of Parliament and restricted it to serve merely as a guideline for voters. This interpretation marks a departure from the Supreme Court's previous interpretation in the Samiullah Baloch case (2018), which declared Article 62(1)(f) as perfectly executable in lifetime disqualification, especially after the 18th Amendment to the Constitution.
Amidst all this, the dissenting note from Justice Yahya Afridi in the interpretation of Article 62(1)(f) case provides some healing by pointing to the obvious: the lack of consistency in interpreting the law. He rightfully states that the interpretation of law should not be reduced to a 'game of numbers' only, and only a grave anomaly should force a newer interpretation after a 'second sober thought'.
Regrettably, in our history, there are only a few examples where reinterpretation has been used to fix grave anomalies; more often than not, it serves as a tool to distinguish from the lurking shadows of a disputed judicial history. The owl of Minerva flies at dusk. That's right, but here it attempts to fly ever so often only to meander back to where it began.
While US Jurisprudence appears discoloured in its current political shockwaves, its legal edifice remains anchored and intact against unconstitutional threats. For years, the members of the Supreme Court have prioritised the institution over their own fantasies and desires.
To cite one such instance, the US Supreme Court under Chief Justice Warren Burger exercised unprecedented judicial activism and reached decisions that were not well-received by a considerable number of judges in the court. However, the succeeding Chief Justice William Rehnquist (who identified himself as a conservative judge) did not consider it was in the interest of stable jurisprudence to overrule previous decisions only on "disagreements with their reasoning". Instead, the power to overrule was kept strictly limited to cases where it was felt that a significant error had occurred previously. Thus, steadying the jurisprudential ship altogether.
It is time our courts follow suit. It must be stressed that their power lies in their pen, not in another's sword nor in someone else's purse. And they can only draw power from it if they stop crossing out previous curvatures. Pakistan's judiciary ought to maintain symmetry and continuity of logic and thought in its verdicts to foster greater credibility and reverence among citizens.