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 that 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 the majority, to borrow from itself, had neither wrung its hands, nor shed its tears, but presented an actionable solution to a real-life problem by focusing on the circumstances and not careening its head like an ostrich to not see what was happening on ground.[26] (This line may perhaps become more reflective when we approach our third challenge concerning reserved seats.)
Crucial to note here is that this judgment was reviewed. It is a trite law that a judgment can not be reviewed on ‘mere incorrectness of a conclusion’, ‘difference of opinion’[27], the suggested view being more ‘reasonable’[28] in the absence of a ‘self-evident [error] floating on the surface and not requiring elaborate discussion or process of ratiocination.’[29] Importantly, ‘if the grounds taken in support of the petition were considered in the judgment and decided on merits’ then a review is not to be declared maintainable.[30]
It is surprising and questionable, therefore, that the majority judgment was reviewed and overturned, with the dissenting opinion upheld. With respect, the review’s reasoning is threadbare.[31] Almost half of the it goes on in the following manner: the president, in sending the reference for opinion, had asked suggestive questions which were moral questions rather than questions of law[32], that the judge writing the earlier majority did not sit on this bench in grumpiness[33], and that earlier judges were in on a conspiracy while the present bench was not.[34] When it comes to substantive reasoning, the judgment posits that the earlier majority had arrogated to itself the jurisdiction of various bodies outlined in the text of Article 63A that controlled its operation vis-à-vis de-seating the defector.[35] This is a wrong observation; the earlier majority had not done so. It had opened a new pathway/ mechanism within 63A without altering its existing pathway/ mechanism. Then, echoing the dissent on a textualist note, the review argues that Article 63A was a complete code and a self-executory provision.[36] Also, a point already addressed is regurgitated, that the majority had negated the constitutional provisions pertaining to elections.[37] In this sense, while upholding the dissent and overturning the majority, the review makes insufficient effort in explaining how it ends up reversing a well-reasoned opinion of an earlier judgment, and that too in a thinly carved jurisdiction.
Court-martial of civilians:
The next challenge is regarding the court martial of civilians allegedly involved in arson and violence on military installations on the 9th and 10th of May 2023, upon the arrest of former Prime Minister Imran Khan. The pragmatist turn of the SC, dealing with the challenge for the first time in Jawwad Khawaja[38], is immediately observable. It frames the challenge before it to be thus ‘in respect of fundamental rights, in relation to the trial of civilians by courts martial whatever the circumstances may be, what is the language of the Constitution? What language should—nay, must—the Constitution speak?’[39] The SC denounces civilian court martials by relying on Article 8(5) introduced for the first time in the present Constitution. It states that while the exclusionary provision, Article 8(3)(a), would have otherwise excluded the application of fundamental rights to court martials, even of civilians, it is unable to do so in the presence of Article 8(5) which wards against the suspension of fundamental rights for civilians in the absence of an express provision allowing the same.[40] As the result of civilian court martial is equivalent to suspension, it cannot be sanctioned in the absence of an express provision. This judgment was appealed, and upon overturning it, the constitutional bench in Shuhada Forum calls this reasoning an ‘internal incoherence’.[41] With respect, it is not so. The approach of reading two constitutional provisions together where their interaction defines the scope for each, without obviously eliminating one or the other, is a permitted, in fact preferred method of interpretation.[42] But notwithstanding this, we leave Jawwad Khawaja’s majority’s rationale as even the respondents to the appeal did not push it as much.[43]
The mainstay of the Shuhada Forum ended up becoming the earlier concurrence’s reliance on Articles 10A and 175(3) of the Constitution as the evident change in the legal landscape that no longer permitted the court-martial of civilians. While the dissent by Mandokhail J in Shuhada Forum agreed to this logic[44], the majority dealt with it in an overly technical and thereby inconsistent fashion. Upon a subjection to article 175(3), civilian court martials are called a ‘specialised judicial regime’ whereas upon a challenge on grounds of Article 10A, it is admitted that they lack structural guarantees of fair trial equivalent to civilian courts, but this incompleteness is deemed curable by the provision of a final appeal to a civilian forum.[45] It can not be gainsaid enough that in the presence of an active mandate of judicial independence, operationalised by the effectiveness of Article 10A and 175(3), no constitutional exceptions could be created. Even otherwise thinking, as the majority in Shuhada Forum does, that a final civilian appeal can cure the structural unconstitutionality of court martials is wrong. It is missing the entire gist of the challenge. The Attorney General had presented the option of a final appeal before a civilian forum, even in Jawwad Khawaja, but Munib J had recognised the inadequacy of this offer. He had noted that a final right of civilian appeal or anything conferred for that matter would not change the nature of an Article 8(3)(a) exclusion when applied to civilian court martials whereby ‘…denial of and derogation from fundamental rights, in their totality, is immediate and absolute [and even] if Parliament were to “dial up” the position (as it were), so that the rights available even in relation to a law within the scope of Article 8(3)(a) were to be no different from those available under Chapter I of Part II, in principle there would always be a denial of fundamental rights. The rights would, no matter how indistinguishable they may appear to be from fundamental rights, be no more than those conferred by statute, granted or taken away as the legislature wills.’ This it concluded could not be done in the presence of Article 8(5).[46] Alternatively put, the people of Pakistan, in lieu of their most fundamental freedoms, could not be ‘…required to go (as it were) cap in hand to the State, pleading plaintively: “Please Sir, can we have some more?’.[47] Like the earlier challenge, this new judgment also falls short before the rationale of the earlier majority and concurrence.
Reserved Seats:
The final challenge for the purposes of our discussion emanates post the conduct of general elections in Pakistan in 2024 and concerns the allocation of reserved seats for women and minorities to the returned political parties. As the facts and circumstances surrounding this controversy become critical, it is important to consider them in detail and the majority in Sunni Ittehad Council[48] facing the challenge for the first time does so in detail. However, first it begins by prefacing its interpretational lens much like the SC in Supreme Court Bar Association. It starts by recognising it as a task of the SC to do complete justice to preserve electoral integrity.[49] It calls the interpretive approach required in the circumstances ‘constitutional fidelity’ which requires the judges to be ‘faithful to the Constitution [and] to interpret its words and to apply its principles in ways that preserve the Constitution’s meaning and democratic legitimacy over time.’[50] Then it identifies a crucial premise that election disputes are not merely civil disputes rather they are disputes where the electorate is the principally interested party; this assertion based on case law allows the court to approach the matter inquisitorially.[51] As a final point, the preface recognises that the challenge before it, much like the court in the Supreme Court Bar Association, pertains to constitutional Article 17(2), which requires that political parties be allowed to continue operating, and Article 19, which requires that voters’ expression be respected.[52] In this sense, the challenge requires a progressive, liberal, and dynamic interpretation.
With this preface, the judgment turns to facts and circumstances, which are the mainstay of this and successive opinions. The controversy starts when two days before the final date of filing nomination papers with the returning officers (ROs), the Election Commission of Pakistan (ECP) declares that Pakistan Tehreek-e-Insaf (‘PTI’) had not conducted proper intra-party elections and so, under the election laws, it was ineligible for an election symbol. PTI challenged this decision before the SC awaiting verdict on the 13 January 2024. The Commission had also pronounced PTI candidates as independent candidates in the list of contesting candidates (Form 33) which challenge was pressed before Commission and by Mr Salman Akram Raja at the level of high court but failed. This date of 13 January was also the date for submission of party tickets. On the said day, awaiting the SC verdict, PTI tried to reach an understanding with PTI-Nazriati, and its candidates availed its tickets and were in the bids to place them with the ROs when PTI-Nazriati backed away, and most of the candidates withdrew those tickets, trying to place PTI tickets instead with the ROs. Some of these were accepted; some were not. Then, upon the SC decision holding that PTI was ineligible for the election symbol, the ROs returned most of its tickets and, by treating them as independent candidates, allotted them different election symbols. Now, PTI was confronted with the explanation to Rule 94 of the Election Rules[53] (‘Rule 94’), which provided that a party with no election symbol would be ineligible for reserved seats. Alternatively, there was a precedent of the Balochistan Awami Party (‘BAP’) where the Commission had given reserved seats to a political party that did not contest elections. In this dilemma the PTI contested the election with its candidates as independents; they were pronounced as independently returned in notification under section 98 of Elections[54] and upon returning, they en-masse joined the Sunni Ittehad Council (‘SIC’) claiming reserved seats through the latter’s platform. This was refused by the Commission.
These were the peculiar circumstances that the Court was required to adjudicate upon. Its reasoning became two-pronged. One prong was realizing that the treatment of PTI candidates as independent by the Commission was wrong. The Court considered that section 215(5) of the Election Act, which penalises failure to conduct intra-party elections, being a penal provision that curtails Article 17(2), has to be interpreted strictly.[55] On the side, some readers may present this as an argument for reading Article 63A in a similarly restrained fashion. They should note that reading 63A the way Munib J does actually furthers Article 17(2) rather than curtailing it. Turning back, because of this narrow reading, the consequence of withholding the election symbol is the only penal consequence that flows from non-conduct of intra-party elections. Neither could Rule 94 prevent such a party from receiving reserved seats, nor could it hamper a political party’s functioning under Article 17(2) by restricting it from nominating its candidates.[56] In this sense, the judgment holds that the Commission’s conduct of treating PTI candidates as independent candidates at all levels was wrong.
The second premise of the judgment holds that joining of SIC would not make the candidates eligible for reserved seats. This is because the Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution do not make it possible for a political party that has not contested and won any general seats directly through its nominated candidates to ‘secure’ or ‘win’ some general seats from the province concerned through the joining of independent returned candidates.[57]
The two prongs of the argument bring the Court at the critical juncture where it has to give relief. The judgment asks and poses apparently simple questions that cut to the nub of the matter. It questions, ‘we tried hard to understand how, in a parliamentary democracy based on a political parties system…such a large number of candidates to the seats in the National Assembly and the Provincial Assemblies could inspire and win the confidence of the electorate as independents. No satisfactory answer to this query was presented before us on behalf of the Commission and other respondents. The assertion of SIC and PTI that they were also PTI candidates and the electorate voted for them for their being PTI candidates, though, appears satisfactory but is not supported by the record presently before us.’[58] Confronted with these circumstances, the judgment emphasised the fact that PTI had been wronged by the Commission and its ultimate decision of joining a political party can not logically be presumed to one of free will, rather it was bound in the circumstances to do what it had done and join a political party that it thought, per the unconstitutional explanation to the rule and the BAP precedent would beget it reserved seats.[59]
The court in para 95 summarizes the reasons for its eventual relief in the manner that ‘If any person suffers the loss of any right or benefit because of an unlawful act or omission of a public functionary, he is entitled, by reason of an obligation of justice, to be restored to that right or benefit and put in the same position, insofar as is possible, as he would have been if such unlawful act or omission had not been made by the public functionary.’ However, this obligation of justice, the Court rules, should be in line with the spirit of constitutional and statutory provisions.[60] Taking guidance then from section 66 of the Election Act where the nomination of a candidate is confirmed by their own declaration and its confirmation by political party in the form of party ticket, the judgment rules that out of the total 80 candidates, 39 candidates who had either filed party tickets of PTI or declared their affiliation with PTI in their nomination forms or statutory declarations/affidavits, are the returned candidates of PTI and to the 41 candidates who had not done so (by withdrawing tickets) they were given fifteen days to file a declaration and then upon its attestation by the PTI, Commission was to deem them as returned candidates of PTI.[61]
The dissent, released again before the majority’s detailed reasoning, spends almost 1/3rd of its space in rehashing facts.[62] The attack that it presents is again textualist.[63] Para 12 of the opinion encapsulates the gist. It says ‘For creating and carving out relief in these proceedings for PTI, we would have to travel beyond the jurisdiction conferred by Articles 175 and 185 of the Constitution and would also have to suspend Articles 51, 106, and 63 of the Constitution and section 104 of the Elections Act, 2017, along with the relevant rules. We would also have to insert instead of Articles 51, 106, and section 104 (mentioned supra). Such articles and sections therein in substitution and in consonance with the relief granted through the majority judgment. Previously there was a term used which was “reading in to the Constitution” or “reading down the Constitution” but now a new phrase has been introduced that of “inserting new articles in consonance with the relief to be granted in the peculiar circumstances of the case” in the Constitution.’ As hardly worded as the language is, the dissent does not pick and substantiate the arguments in detail. More importantly, it misses the facts. It considers the joining of SIC by the returned candidates of PTI as a free-willed decision and adopts a so-be-it attitude to the problem at hand.[64]
Even more stringent is the review authored by the same judge who wrote the dissent. Echoing the dissent on the point that the joining of SIC was conscious, the judgment places the blame on PTI that their challenge to them wrongly being declared independent was not enough. The review opines that ‘It cannot be disputed, however, that in several cases the Returning Officers appointed by the ECP did not allow PTI candidates to contest the elections as such. In the course of the election programme, when the Returning Officers published the lists of contesting candidates (Form-33), they mentioned PTI candidates as independent candidates. There is nothing on the record to show that either PTI or these independent candidates challenged these orders of the Returning Officers before any of the High Courts or this Court. One of the PTI candidates, Mr. Salman Akram Raja ASC, challenged this action by the Returning Officer of his constituency before the Commission. By its order dated 2.2.2024, the Commission rejected his challenge and declared him an independent candidate. He alleged that he challenged this decision before the Lahore High Court, and when he did not get any relief, he filed a Civil Petition for Leave to Appeal in this Court. The office of this Court raised several objections to this petition. Mr. Raja could have either rectified the petition by meeting the objections or filed an appeal, as provided by law, before a Judge in Chambers of this Court. He did neither and, thus, abandoned his challenge.’[65] All of this would have been well, had the judgment also noted that the elections were going to happen in the next few days, the PTI candidates were fighting other battles (including court battles), and above all, it was the Commission that had wronged them. To say that the judgment places an undue burden on the assailed, in the name of textuality, would be a fair assessment.
In closing, the review calls constitutional fidelity an ‘academic doctrine’.[66] The judgment objects to the setting of timelines by the earlier majority, which in fact is not setting of timelines, rather giving time to show cause, ‘deeming’, i.e., giving enough proof so that these candidates are deemed as PTI candidates from the get-go. But much like its 63A review counterpart, the review has no problem in admitting that if the legislature had done the same in its authority to amend the statute or constitution, it would have no problem with it.[67] This again is the review’s opinion, and as asserted above and affirmed by the two members dismissing the review petitions, opinions are not cause enough for acceptance of review.[68]
I finally confront the review with the dissent written by the same author where he had agreed that progressive interpretation can be employed when there is constitutional absence or silence about the situation or with regard to disentitlement or disproportionately.[69] While the dissent, like the review, had gone on to treat that these justifications were not met strictly because there was textualist law and legal timelines that governed the procedure, I ask: was the specific factual situation with its anomalies covered by the Constitution or was there an absence in it? Was there no disentitlement or disproportionality observable if one, to adopt Munib J from Supreme Court Bar Association, does not take an ostrich like approach to reality and looks at the facts as they are. Is then one to wring their hands and cry tears or solve the problem?
By way of contrast and conclusion, The position in the United States
It is clear then that in all three challenges identified above, the overturning judgments have been written in a fear, disregard, and contempt for purposivism. This contempt often drives the judgments to disregard the earlier judgments in consideration outright, without a strict examination of their merits or necessity, and their reasoning is often insufficient. This is not the position in the United States where purposivism and textualism are recognised as two competing, but two very viable interpretive approaches, and judges, while challenged, are not castigated on their adherence to one or the other. Most importantly, this does not have an impact on stare decisis and the upholding of precedent, as Justice Scalia’s example shows us.
The appeal to consequences that all of the original judgments are making are recognised as viable constitutional modalities and authors recognise that no one particular modality represents the only legitimate means of interpreting the constitution.[70] Even if one is to pick and choose between modalities, the modality that supports democratic legitimacy is to be preferred.[71] Viewed in this light, all three of the original judgments were written with democratic legitimacy and democratic freedoms in mind.
It is equally important to underscore that these judgments would be defended by the camp of living constitutionalists, but also by those who adhere to framework or living originalism who recognise that the Constitution is meant to give a framework often through its principles, which principles are immutable, but they are not static; they are supposed to be filled over time and given meaning and specific application by later courts and politics.[72] In this vein each of the original judgments was preserving and applying a principle: for Supreme Court Bar Association, it was the sub-principle of curbing defection embedded within the broader framework of political party operation. For Jawwad Khawaja, it was judicial independence derivable from the text of Articles 10A and 175 (3), and for the Sunni Ittehad Council, the principle was representation for the chosen representatives of the people and not the unjustly enriched. All of these were democratic judgments that were expressive of particular opinions. They should not have been reversed, and especially the two of them not in review.
It is important that space be created for this diversity of opinions and interpretive approaches if we are to be recognised as a healthy, constitutional nation that is respecting of judicial freedom and independence of thought. I will close by adopting the words of Shah J in Sunni Ittehad Council when he was addressing the unpleasant remarks of dissenting judges for the majority judgment that even went to the extent of warning the Commission or members of Parliament to not follow it:
‘[Judges] may strongly express divergent opinions and make comments on each other’s views, highlighting reasons why they believe other Members have erred [however their] observations [should not] undermine the integrity of the highest institution of justice in the country and seem to constitute an attempt to obstruct the process of the Court and the administration of justice.’[73]
[1] Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton University Press 1997).
[2] Antonin Scalia, ‘The Rule of Law as a Law of Rules’ (1989) 56 University of Chicago Law Review 1175.
[3] The Constitution of Islamic Republic of Pakistan 1973. (‘Constitution’)
[4] Juame Castan Pinos and Mark Friis Hau, Lawfare: New Trajectories in Law (Routledge 2022).
[5] Asad Rahim Khan, ‘(Un)constitutional amendments: why the 27th could mean the death of justice’ PrismDawn (Islamabad, 6 November 2025) < https://www.dawn.com/news/1953108> accessed 7 November 2025.
[6] Stephen Breyer, Reading the Constitution, Why I Chose Pragmatism, Not Textualism (E-book, Simon & Shuster)35, 257–258.
[7] Mark Tushnet, Constitutional Hardball, 37 John Marshall Law Review 523, 523-553 (2004).
[8] Supreme Court Bar Association of Pakistan v. Federation of Pakistan PLD 2023 SC 42. (‘Supreme Court Bar Association’)
[9] 5 US (1 Cranch) 137 (1803).
[10] 410 US 113 (1973).
[11] 597 US ___ (2022).
[12] Supreme Court Bar Association (n 8) [1].
[13] Zeeshaan Zafar Hashmi, ‘Interpretation, Reading in, Rewriting, or Understandings? A Comment on the Prologue to Supreme Court Bar Association v. Federation of Pakistan “the 63A Case”‘ (2022) 13 PLR 243, 259–261. (‘Zeeshan Hashmi’).
[14] Supreme Court Bar Association (n 8) [13].
[15] Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416.
[16] Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473.
[17] Supreme Court Bar Association (n 8) [68].
[18] ibid [92].
[19] ibid [98].
[20] ibid [113].
[21] Reference by the President of Pakistan under Article 186 of the Constitution of the Islamic Republic of Pakistan 2022 SCP 214 [16] (‘Reference’).
[22] Zeeshan Hashmi (n 13) 256–257.
[23] Reference (n 21) [20].
[24] ibid [21].
[25] ibid [22].
[26] Supreme Court Bar Association (n 8) [109].
[27] Mohammad Amir Khan v. Controller of Estate Duty PLD 1962 SC 335.
[28] Syed Wajihul Hassan Zaidi v. Government of the Punjab PLD 2004 Supreme Court 801.
[29] Ghulam Murtaza v. Abdul Salam Shah 2010 SCMR 1883.
[30] Pakistan International Airlines Karachi v. Inayat Rasool 2004 SCMR 1737.
[31] Supreme Court Bar Association v. Federation of Pakistan 2024 SCP 355.
[32] ibid [7],[8].
[33] ibid [15].
[34] ibid [16],[17],[18].
[35] ibid [23],[25],[29].
[36] ibid [27],[28],[30].
[37] ibid [39].
[38] Jawwad Khawaja v. Federation of Pakistan PLD 2024 SC 337. (‘Jawwad Khawaja’)
[39] ibid [1].
[40] ibid [43]–[53].
[41] Shuhada Forum Balochistan v. Justice (R) Jawwad S. Khawaja 2025 SCP 338 [23].
[42] Lawarence H. Tribe and Michael C. Dorf, On Reading the Constitution (1st edn, HUP 1991) 21–23.
[43] Shuhada Forum (n 41) respondent’s argument E at [36].
[44] Madokhail J in Shuhada Forum ibid 2025 SCP 205 [23].
[45] Shuhada Forum (n 41) [46]–[52],[61],[66].
[46] Jawwad Khawaja (n 38) [47].
[47] ibid [60].
[48] Sunni Ittehad Council v. Election Comission of Pakistan 2024 SCP 319: for the facts see specifically [14]–[20] and the judgment generally. (‘Sunni Ittehad Council’)
[49] ibid [5].
[50] ibid [6].
[51] ibid [10],[11].
[52] ibid [22]–[28].
[53] The Election Rules 2017, rule 94. (‘Election Rules’)
[54] The Elections Act 2017, section 98. (‘Election Act’)
[55] Sunni Ittehad Council (n 48) [33]–[35].
[56] ibid [40]–[50].
[57] ibid [80],[81].
[58] ibid [108].
[59] ibid [97],[106].
[60] ibid [99].
[61] ibid [110],[111].
[62] Sunni Ittehad Council (n 48) PLD 2025 SC 67. (‘SIC Dissent’)
[63] ibid [9].
[64] ibid [7].
[65] Pakistan Muslim League (N) v. Sunni Ittehad Council 2025 SCP 356 [16]. (‘Pakistan Muslim League (N)’)
[66] ibid [68].
[67] ibid [55].
[68] Pakistan Muslim League (N) (n 65) 2025 SCP 360 [4].
[69] SIC Dissent (n 62) [17].
[70] Philip Bobbitt, Constitutional Interpretation (Blackwell 1991) 22.
[71] Jack M Balkin, ‘Arguing About the Constitution: The Topics in Constitutional Interpretation’ (2018) 33 Constitutional Commentary 145, 153.
[72] Jack M Balkin, ‘Framework Originalism and the Living Constitution’ (2009) 103 Northwestern University Law Review 549, 550; see also Jack M Balkin, Living Originalism (HUP 2011).
[73] Sunni Ittehad Council (n 48) [121].
