Very clearly, historical absence serves as a style of assertion centered on the lack of historical evidence.[1] Ironically, this style of assertion has its place in the toolbox of an originalist; it fails to back the justifications originalists so outrightly make. Whether on the grounds of reliability or on the terrain of predictability, this style of assertion remains absent. But this essay does not concern itself strictly with what originalism intends; it sees how historical absence was viewed by Pakistani courts. Now, an argument that resorts to historical absence may be used both offensively (using historical absence to challenge a practice) and defensively (using historical absence to support a practice).[2] An example would be Jawwad S. Khawaja’s note in the District Bar Association, “In view of the total absence of any debate on the foregoing issue, it may not be unreasonable to accept the contents of Constitution Petition…..It would be equally tragic if the minorities (inspite of the historic promises of the Quaid-e-Azam and every other leader) come to regard themselves, on account of the new Article 51, as second-class citizens or the „children of a lesser god.”[3] J. Khawaja uses historical absence (no debate) to lower the threshold for accepting the petition, then uses historical presence (founding promises) to heighten the moral stakes.
Another way of interpreting the historical silence would be J. Saqib Nisar’s part, in which he notes the absence of entrenchment clauses and states, “If the people of Pakistan wished to place similar restrictions on the power of Parliament to amend the Constitution, they could easily have done so.”[4] Rather than using absence offensively to attack implied limitations, this interpretation uses historical absence defensively to protect and validate Parliament’s existing unlimited power to amend against judicial challenge. Or, another example could be the Al-Jehad Case, in which the court interpreted “the word ‘consultation’ to widen and enlarge its normal scope for the reasons … the Constitution‑makers have not debated this word ‘consultation’ and fixed its parameters.”[5] These examples illustrate that historical silence is not inherently probative of a single constitutional meaning. Rather, its significance depends on the interpretive purpose for which it is invoked, whether to preserve an existing constitutional position or to justify a departure from ordinary textual meaning. The identical absence may thus be used both defensively and offensively, revealing the inherent indeterminacy of historical absence as a tool of legal interpretation.
Early Pakistani courts, presented with a history of absence of democratic and constitutional stability, read that absence not as a gap to be filled but rather as an epistemological opportunity to adopt entire foreign doctrines en bloc. In Dosso, the Supreme Court reached for Kelsen’s theory of revolutionary legality precisely because no functioning domestic constitutional tradition existed to supply an answer; the void left by military seizure of power was filled not by local materials but by a deliberately value-neutral positivist framework that required only effectiveness, not legitimacy.
Chief Justice Munir bypassed the work of constitutional interpretation entirely to save the Frontier Crimes Regulation (FCR). Rather than asking what the 1956 Constitution’s framers intended or whether history supported the FCR’s compatibility with fundamental rights, Munir relied on a deliberately ahistorical, positivist framework: he ruled that the successful military coup was a law-creating fact that rendered the 1956 Constitution legally extinct. Because Article 5, the equality guarantee, had disappeared along with the rest of that constitutional order, there were no longer any constitutional restrictions against which to test the FCR. Munir accordingly validated the jirga convictions. But this was not an argument from historical absence in the originalist sense, J. Munir did not claim the historical record was silent and draw meaning from that silence. Rather than taking history into account, however, Munir dismissed it as irrelevant to legal validity and established an effective test of political success based on whether or not the regime was obeyed. In counterfactual if the revolutionary legality was not to be adopted, a stroll across the history lane could have been taken to see if FCR needs to be upheld.
Considering the opinion of J. Cornelius in light of historical absence demonstrates the process of originalist legal interpretation. Rather than seeing the absence of historical traditions of uniform democratic and judicial governance as an opportunity to adopt foreign positivist theories (as did J. Munir), J. Cornelius relied on the absence of historical record of procedural uniformity in frontier regions to prove that the Constitutional provision on equality of rights is sufficiently flexible to accommodate the local tradition of jirga procedure.
The tendency grew in Dewan Textile Mills when the High Court repeated this maneuver by looking outward again and invoking the absence of direct citizenry in European history to render Pakistani popular sovereignty a fiction.
In each case, historical absence was not a part of the arsenal of arguments available to the courts but rather a trigger, which, having failed to yield any positive results, invited the adoption of foreign philosophy in order to give the appearance of consistency. The difference between such uses of historical absence in early constitutional jurisprudence and the use made of it in the later cases where the absence of discussion in constitutional debate was invoked by J. Khawaja and J. Saqib Nisar to protect the rights of minorities and parliamentary supremacy is quite obvious, the former used historical absence not as a part of their constitutional discourse but as the discourse itself, whereas in the latter cases absence was a rhetorical move performed within a stable constitutional system. While in the former cases, having run out of historical material, the courts had no choice but to import foreign material, in the latter cases absence provided a reason to assert that such imports were inappropriate for the indigenous constitutional system.
This act of borrowing alien theories to address the historical absence has been addressed at length in DBA. J. Khawaja penned that, “it would in my humble opinion, constitute extreme folly to rely on the significantly different language and on the alien “historical facts” which came about in the USA and France in the late eighteenth and mid twentieth Centuries or in Germany and the former Soviet Union in the first half of the twentieth Century, for the purpose of interpreting the provisions of our own Constitution.” In addition, “any grafting of an alien concept onto our body politic otherwise, is as likely to be rejected as an alien organ transplanted in a human body.” J. Azmat Saeed, echoing, said “we must primarily draw from our own Constitutional history and Jurisprudence to answer the questions that we are currently confronted with.”
In this piece, we have discussed the way in which historical absence operates in the discourse of Pakistani constitutional law not as a fixed interpretive principle but as a flexible rhetorical device whose meaning is constructed in its invocation by the judges. The distinction between early jurisprudence of Dosso and Dewan Textile Mills and later interventions of J. Khawaja and J. Azmat Saeed is not in the availability or lack of historical material but in the attitude of the court to such material. While the lack of history in the former instances was an invitation to introduce elements from other countries, in the latter instances, it was a demand for the indigenous constitutional discourse. In District Bar Association, which deliberately shun all outside influences as improper, constitutional consciousness must have matured sufficiently to realize that the lack of history was indeed a problem to be addressed. This is not by any means an exhaustive discussion of the judgment, but it is certainly relevant to the present analysis. Thus, historical absence, then, is less a void than a mirror, reflecting back the interpretive commitments a court already holds.
[1] Note, Historical Absence and Constitutional Interpretation, 139 Harv. L. Rev. 1918 (2026)
[2] Ibid
[3] PLD 2015 SC 401 (opinion of Jawwad S. Khawaja, J.), 118.
[4] PLD 2015 SC 401 (opinion of Mian Saqib Nisar, J.), 175.
[5] PLD 1996 SC 324 (opinion of Sajjad Ali Shah, C.J.), para. 82.
