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, filled with self-proclaimed saviors championing constitutional digressions and politicians lauding the ‘rule of law’ until they become the law, sounds quite unlike normal, doesn’t it? When one hears nothing but muddy squabbles between opportunists and masqueraders jostling for power throughout history, it leaves behind few things other than a fractured body politic vis-a-vis state. Though the impact of such history is undoubtedly widespread, one constant affectee in our case has been the judicial branch of the state.

This is reflected through fluctuating interpretations 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 newly interpreting older laws. All this is happening at such a neck-breaking speed that legal commentators are left gasping while catching up with the developments at the apex court. The Supreme Court Practice and Procedure Bill proceedings and subsequent judgment may serve as an appropriate example. It was settled in front of a full court, successfully convening after many years. In a proceeding of its kind, the top court’s judges 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 an appeal in exercise of Suo-moto powers under Article 184(3) of the constitution.

Thanks to televised proceedings, which nonetheless added to judicial transparency, one could not ignore the apparent uneasiness among judges in the full bench. A brief background may serve as an explanation. A few months prior to this decision, an eightmember bench headed by the previous Chief Justice had declared the practice and procedure bill as ‘direct interference’ in the independence of the judiciary. However, the said order was reversed quickly after the incumbent Chief took office, and the same bill was hailed as strengthening judicial independence on both external and internal fronts. Two conflicting interpretations of the law from the highest court in the country left a few in awe and many in disbelief. The debate of right and wrong interpretation (if there is such a thing) comes in later. The cardinal question becomes one of consistency in the legal jurisprudence, a painfully recurring question in the annals of our history.

Similarly, a recent interpretation of Article 62(1)(f) declared it nonexecutory in disqualification from membership of parliament and restricted it to serve as a mere guideline to voters. This interpretation follows an older interpretation from the opposite side of the spectrum, which had declared Article 62(1)(f) perfectly executable in disqualification, especially after the 18th Amendment to the constitution. Amidst all this, the dissenting note from Justice Yahya Afridi in the interpretation of the Article 62(1)(f) case provides some healing by pointing out the obvious: the lack of consistency in interpretation. His lordship rightfully highlights 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.’ In our history, unfortunately, there are few examples where reinterpretation has been used to fix grave anomalies; more often, it appears as a tool to distinguish from the lurking shadows of a disputed judicial history. The owl of Minerva flies at dusk. However, in our case, it attempts to fly ever so often but meanders back to where it began.

While U.S. jurisprudence appears discolored in its current political shockwaves, its legal edifice remains anchored and intact against unconstitutional threats. The reason is years of preferring the Supreme Court by its occupants over their own fantasies and desires. To cite one such instance, the Supreme Court under Chief Justice Warren Burger exercised unprecedented judicial activism and reached decisions that were not looked at favorably by a considerable number of judges in the court. However, afterward, Rehnquist’s court (himself a conservative judge) did not consider it 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 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, neither in another’s sword nor in anyone else’s purse. And it can only garner power from it if it stops crossing out its previous curvatures and draws its attention towards maintaining a symmetry in the future to foster greater credibility and reverence among its people.

Malik Ahmed Hasan

The writer is a student of law at the Lahore University for Management Sciences (LUMS).