The Chief Justice of Pakistan (CJP), Justice Qazi Faez Isa, often goes out of his way to not provide interpretations of constitutional texts. Interpretation can sometimes distort the intended meaning of the text. In May 2022, former CJP Umar Atta Bandial interpreted Article 63-A of the constitution to mean that the votes of the members of the parliament/assemblies cannot be counted if they did not vote along party lines. At the time of Bandial’s ‘interpretation’ in 2022, the article prescribed that defecting members could be de-seated post-facto, but their votes were to be counted.
Judicial Activism and the Struggle for Constitutional Supremacy in Pakistan
But Justice Bandial, in his verdict, went beyond interpreting an article — he changed its function. This is akin to rewriting the Constitution. According to professor of law Randal N M Graham, “A judge’s only goal in the interpretation of statutes is to apply the will of the legislative author. When carrying out their interpretive task, judges must set aside their political preferences and disregard their ideologies. Judicial interpreters should be governed by the author of the legislative text, carrying out the will of parliament.” So, Bandial’s verdict was not about what the legislative authors of 63-A had meant. The verdict was about what 63-A ought to mean.
Only elected assemblies having legislative authority can change the meaning of a statute. According to the legal scholar Peter Hogg, “A judge has a great deal of discretion in interpreting the law in the constitution, and the process of interpretation can inevitably remake the constitution in the likeness of the judge.” Recent judicial activism maintains the precedents set by now-retired populist judges, whose various verdicts badly disturbed the country’s politics, economics and judicial system Although Graham believes this is too bleak a view, he agrees that there is ample empirical evidence to substantiate it. In Pakistan, this was visible during the long era of ‘populist’ CJPs. These included Iftikhar Chaudhry (2009-13), Saqib Nasir (2016-19), Gulzar Ahmad (2019-22) and Bandial (2022-23).
In his 1996 book Overcoming Law, the American legal expert Richard A Posner wrote that a judge’s decisions are sometimes influenced by a desire to become popular. This was particularly prominent in the conduct of Iftikhar Chaudhry and Saqib Nisar. The four mentioned judges were also often alleged to have become part of a ‘popular project’ by the military establishment (ME) to undermine elected governments headed by the Pakistan Peoples Party (PPP) and the Pakistan Muslim League-Nawaz (PML-N). The project aimed to facilitate the rise of Imran Khan’s Pakistan Tehreek-i-Insaf (PTI). These judges took ‘populist’ stands that included suo moto actions to regulate prices of onions and mangoes and to stop certain privatisation programmes that eventually cost the state billions of rupees.
And they readily heard petitions filed against the PPP and PML-N regimes, even those based on feeble conspiracy theories. But it was during Nisar’s tenure that the judiciary began being perceived by anti-PTI parties as becoming fully embedded in the ME’s ‘Imran Khan project.’ This perception was also visible during the Bandial tenure even though, by then, the ME had begun to distance itself from the project due to certain disastrous economic and foreign policy blunders made by the Khan regime. The era of populist CJPs in Pakistan reflects observations made by Posner regarding factors that can influence the verdicts of a judge.
These include gratitude to the appointing authorities, irritation with or even a desire to undermine a judicial colleague, not wanting to disagree with people one likes, reluctance to offend one’s spouse or close friends, and racial or class solidarity. All the mentioned CJPs were influenced by some or all of these factors, but let’s focus on Bandial, who was perhaps the last of the judges of the populist era in Pakistan’s judiciary. He was clearly ‘irritated’ by Justice Isa and continued to undermine him. In this, Bandial was toeing the line drawn by the previous ME, which wanted Isa out because he had begun to be seen as a threat to the Khan government and was ‘too idealistic.’
The subtext of the latter mainly meant he was too rigidly tied to the Constitution. Bandial was heavily dependent on ‘likeminded’ judges to ward off the threat posed by Isa. Bandial went out of his way to appease colleagues who supported him. He packed the benches with these judges. One of Posner’s factors of influence, “reluctance to offend one’s spouse or close friends”, is most interesting, suggesting that this is a universal trait in some ‘biased’ judges. There is now enough evidence to claim that the families of populist judges had played an emotional role in influencing the judges to tilt their verdicts in favour of Khan and his party. More interesting, though, seems to be the fact that, even after the Khan project collapsed in April 2022, and after Bandial’s retirement, the larger judiciary has continued to lean towards Khan and his party. The influence of families could still be a factor.
But what about the judges who weren’t overtly pro-Khan? Many of them have now decided to favour him. Khan’s core constituency is made up of the social classes that the judges come from. Perhaps class sympathy, too, can be a reason for this turn. The current batch seems to have begun to use cases against Khan and his party members as a way to demonstrate the ‘independence of the judiciary.’ This has excited quite a few court journalists and activist lawyers because they perceive this as being the ‘judiciary’s pushback against the meddlesome ME’ — an ME that now wants to penalise Khan for various violations and is allegedly trying to influence the judges. Recently, when six high court judges publicly complained about the ME’s meddling, and some Supreme Court justices began to deliver ‘pro-people’ lectures in the court, it became clear that the non-populist batch has also begun to play in the sphere of judicial populism. Verdicts authored by them have smacked of judicial activism.
These verdicts have maintained the precedents set by the now-retired populist judges, whose various verdicts badly disturbed the country’s politics, economics and the judiciary itself. The recent emergence in this respect is being driven by an ideology that is positing itself as a fight for democracy and judicial independence — but not necessarily for the supremacy of the Constitution. The emergence, perhaps purposely, is lurching forward to undermine CJP Isa’s insistence on sticking to a faithful reading of the Constitution, rather than interpreting it based on a particular ideology. He now finds himself between a rock (ME) and a hard place (a new batch of activist judges).