Introduction:

Late Justice Antonin Scalia of the United States Supreme Court was a curmudgeonly textualist. So hardwired was he to his philosophy of textualism that any disagreement with the bench would lead him to write fiery and flowery dissents. And yet, even he could not underrecognize the importance of stare decisis. Calling it a ‘pragmatic exception’ to his philosophy[1], he wittingly observed: ‘even a bad rule of law is better than no rule at all.’[2] By way of contrast, note that the past three years of the Pakistani Supreme Court (‘SC’) have been all about reversals. It seems as if a judgment comes, and before it has rested, is thrown out either in review or in appeal. Because these overturning judgments have either marked the onset of, or have come after, the 26th amendment to the Constitution of Pakistan[3], it is well arguable that they are purely political judgments and so are an example of ‘lawfare’, i.e., the usage of legal mechanisms to achieve political objectives.[4] Other writers have argued so.[5] This paper is being written with a different purpose. My attempt here is to zoom in on three challenges that the SC faced and minutely examine the various resulting judgments to show that at their core the overturning judgements reveal a fear of purposivism or pragmatist reading of the Constitution.

While I use purposive and pragmatic reading alternatively, I recognize that a pragmatic decision is one that takes stock of how it will ‘…affect a host of related legal rules, practices, habits, institutions, as well as certain moral principles and practices, including the practical consequences of the decision, such as how those affected by the decision will react’ and in that sense purpose becomes one of the factors in consideration of the pragmatic decision.[6] But the way in which the judgments that I shall consider have been framed, purpose of the Constitution and its articles does tend to gain the higher share of importance than other factors; in that sense, therefore, the two terms are being used interchangeably.

So, while the results that newer, overturning judgments arrive at are arguably, and very weakly, closer to the Constitution’s text than the judgments they have overturned, they have moved away from its spirit. The academic term for this being that they have committed ‘constitutional hardball’.[7] The three challenges are the challenge to Article 63A of the Constitution concerning the reading of defectors’ votes, court-martial of civilians, and allocation of reserved seats. Again, I leave open the question of whether this hardball is a tool or a strategy subsumable under lawfare. If so, then this paper serves as an exposé of this strategy. My larger goal through this paper is different. It is to expose the fear of purposivism that has underpinned these reversals and expose its irrationality by contrasting it with the position in the United States, which is more accepting of purposivism in the hopes that perhaps my attempt can spark a conversation in academic and judicial circles that creates, if not today, then tomorrow, a readier acceptance of purposivism and pragmatism.

63A and the question of the defector’s vote:

I believe the locus classicus in the line of purposive and pragmatic judgments under review is the decision of the SC in Supreme Court Bar Association[8], for it starts with and very triumphantly admits its purposivism. Bouncing off judgments like Marbury v. Madison[9], Roe v. Wade[10], and Dobbs v. Jackson[11], the judgment in its very prologue poses the same rhetorical question every time it makes mention of these judgments. It questions whether the Court’s exercise in those judgments was ‘interpreting? reading in? or, rewriting.’[12] It expresses a dissatisfaction with this classificatory scheme principally on the ground that this scheme tries to draw lines in the sand and completely misunderstands the job of the superior courts expounding the constitution— it equates the job of constitutional construction with statutory interpretation, which must not be done.[13] The judgment then presents its alternative: the idea of constitutional understandings. This is done in the following words.

‘What the Court does in interpreting the Constitution at any given time, i.e., in giving binding and authoritative meaning and content to a provision, is to reach and present an understanding of the constitutional text. In the constitutional sense, to interpret is to understand the Constitution, and that means not just the constitutional text in its express form but also the underlying principles, rules, and bases that together constitute constitutional law. It is to discover and give authoritative and binding voice and force to (i.e., be an understanding of) its spirit and intent intermingled with the text. But that understanding is not static. Over the sweep of time, the understanding itself develops, deepens, evolves, and alters, sometimes expanding, sometimes contracting. Hence the use of the plural.’[14]

With this ground setting, the SC approaches the proposition: the text of Article 63-A of the Constitution provides one mechanism when it comes to a defecting politician casting a vote contrary to his party line; this is de-seating. Does a contemporary constitutional understanding treat this mechanism as sufficient, or does it do something about the defector’s vote, notwithstanding the first mechanism?

The judgement analyses that the question before it does not only concern Article 63-A; it notes and explains its contiguity with Article 17(2) of the Constitution. Regarding the latter, the judgment first cites Benazir Bhutto[15], where the said article was read to mean that the formation of political parties also includes their continued operation. Then it cites Nawaz Sharif[16] to the effect that this operation has a healthy and an unhealthy aspect; while the latter (even explicitly mentioned in the text of Article 17) has to be curbed, the former is equally important and has to be bolstered. The judgment notes that these two earlier precedents had clearly established that Article 17 can not be confined to its text; it has to be read expansively, with the political party seen as the right holder of the various rights that this article accords.[17] With this understanding of Article 17(2), it approaches Article 63A and considers its text, treating defections as only dealing with the internal aspect of the healthy operation of political parties, i.e., cleansing the defector from party ranks. The text of the article does not guard against the external aspect of the healthy operation, whereby if the defector’s vote is allowed to persist even if their seat may go, the rationale for which they became a sacrificial lamb would be accomplished. To guard against this, as is the mandate of Article 17, a second pathway also opens (and must open) within the folds of Article 63A on a true and proper understanding of it, and this entails that the defector’s vote is not counted.[18]

Having explained its reasoning, the judgment notes and tackles some obvious objections. To the point that this would render a vote of no confidence governed by Articles 95 and 136 of the Constitution impossible, the judgment notes that the decision of the party that binds its members is the decision of a simple majority.[19] If this majority decides to go against its prime minister or chief minister, then its decision governs.[20]

The dissent to the judgment, released before the majority’s detailed reasoning, starts by trying to ground its reasoning basis elsewhere. It says that ‘[a]n argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view.’[21] But then the challenge it presents to the majority does not appear decisive. Part of the reason for this can be that the dissent was released before the majority’s detailed reasons, and the majority had the opportunity to address it in its reasoning; even when the majority poses the rhetorical classification (interpretation, reading in, or rewriting), the same is borrowed from the minority’s treatment of the majority’s short order.[22] The dissent’s main challenge is again on the ground that the reading as done by the majority would render the text of the constitution dealing with votes of no-confidence as redundant.[23] This is not so, as the majority aptly addresses.

Interestingly, the dissent makes a grave admission towards its closing paragraphs. In para 25, it considers that the ‘…argument [is] that the defection/house trading is a cancer and we have to eradicate the same by curbing it with an iron hand. I may agree to certain extent with this proposition but this menace could not be curbed by the stroke of my pen. Again, it is for the Constitution makers to remove this cancerous tumor through a surgical operation.’ Earlier it had even embraced that the legislature even in its sub-constitutional and ordinary capacity can make such a provision.[24] It had even accepted without specifying when such circumstances are, that reading into a provision is possible in ‘very exceptional and challenging circumstances’.[25]

Without probing further how the circumstances presented in the case were not such exceptional circumstances, we can easily embrace the point that the majority and dissent were presenting two alternative readings/ conceptions/ opinions regarding the Constitution. One, a purposive and pragmatist reading where........

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