The sentence “Constitution is an organic document that is to be interpreted with a mind to the future generations to come” is one of the cannon in the judicial arsenal that is more often than is necessary applied in interpreting the Constitution by the Supreme Court. The organic assessment of the Constitution has become a euphemism for validating a judicially active interpretation of the Constitution, justifying a form of construction concerned with the result founded on individual judges’ subjective moralities, as opposed to the means employed for reaching that conclusion. The development of Constitutional jurisprudence predicated on ensuring reaching ends and forsaking critical assessment of the means employed to reach those ends have consequently served to abridge and encumber the right of political representation in Pakistan.
No part of the Constitution has experienced a more morally zealous interpretation than Article 62(1-f). Take, for example, the case of Samiullah Baloch v Abdul Karim Nousherwani PLD 2018 SC 405, colloquially referred to as the ‘lifetime disqualification case’, in which the Supreme Court declared that any member of Parliament caught by the mischief of Article 62 would be disqualified for life. The Supreme Court while coming to this conclusion drew upon the principle that the Constitution was an organic document to be interpreted for times to come. The court’s view admitted that the virtues of moral sagaciousness, righteousness, honesty, and trustworthiness contained in Article 62(1-f) are subjective moralities and can hardly be objectively assessed.
Despite the difficulty in objectively assessing a list of open-ended virtues required of a parliamentarian, the court proceeded to impose a perpetual ban on parliamentarians from participating in elections thereby, invented and reading into Article 62(1-f) an onerous punishment by judicial interpretation. The inducement of shunning non-virtuous behaviour, couched in the organic interpretation of the Constitution had presented the Honourable court a doctrinal leeway to import its subjective morality denouncing what it considered to be non-virtuous behaviour and consequently stipulating a punishment unfound in the Constitution, either textually or structurally. The consequence of such moral reasoning would inescapably bind future courts to treat even cases involving inadvertent omission in the declaration of assets at par with intentional and fraudulent misdeclaration of assets.
Yet, even proponents of this doctrine have had to struggle with the predicament of the judiciary acting as an ecclesial body in acting under the pretext of making an enduring Constitution. It may appear, that the incessant need to attend to the unforeseen peculiarities of future generations have led to an abandonment of the text and the structure of the Constitution for the present generation.
An alternate result could have been achieved with a structural interpretation of the Constitution. This could have been done by reading Article 62(1-f) contiguously with Article 63(1)(h) as the latter provision espouses the same values enunciated in Article 62(1-f). Article 63(1)(h) imposes a disqualification penalty for five years following an imprisonment of not less than two years for being convicted of committing moral turpitude. The court in Samiullah Baloch could have read Article 62(1-f) to stipulate a disqualification for not more than five years. Logic also dictates that a finding of guilt, by a court of law, for committing moral turpitude according to Article 63(1-h) would carry a greater blot on a person’s character and moral righteousness, than an individual who has not been found guilty by a court of law. Penalty for moral turpitude coupled with a subsequent disqualification from contesting elections are two independent penalties conceived by Article 63(1-h). Whereas, Article 62(1-f) envisages only one penalty, i.e. disqualification, for virtually the same moral void in a Parliamentarian as one contained in Article 63(1-h) thereby, indicating that Article 63(1-h) was intended to be harsher punishment for committing non-virtuous behaviour than the one contained in Article 62(1-f). Such a structural reading of the Constitution, guided by an overarching fundamental right of individuals to contest elections may have guided the court to find a proportionate punishment for a violation of Article 62(1-f).
More recently, Article 63A Constitution has emerged as a victim of the ends and not means interpretation. A constant theme in the short order in Supreme Court Bar Association of Pakistan v Pakistan Tahreek-e-Insaf involved lambasting the vice of floor-crossing and defection. The court’s employment of choice of sentences such as ‘cancer afflicting the body politic’, coupled with an assertive direction to the Parliament to legislate against defection inseparably reflects its emotive stake in the issue. Instead of intricately engaging with past precedents to interpret Article 63A, the court relentlessly imported a subjective disdain for defection and floor-crossing that led to an interpretation inconsistent with a past judicial precedent of Wukala Mahaz Barai Tahafaz Dastoor PLD 1998 SC 1263, in which the Supreme Court held that Article 63A is a penalty provision in our Constitution which ought to be applied restrictively.
Contrastingly, the majority in deciding the presidential reference invented another penalty of not counting the votes of the defected members. Reacting to this judicial invention, the dissenting judges aptly described it to be a ‘re-writing and reading into the Constitution’. Constitutional dilemmas emanating from Article 63A have stoked political strife in Pakistan consequently, tarnishing the sanctity of Parliament as a hallowed institution. It may have been avoided, or at least added certainty for the future had the Honourable Court addressed the unanswered critical issues about the enigmatic relation vis-à-vis the “Parliamentary Party”, “Party Head” and a “Political Party”, as well as the mode and manner which a Parliamentary Party must adopt before issuing a direction to vote a certain way.
The use of the Constitution as an organic document emanates from a concept known as the “Living Tree Doctrine”, as advocated by Professor David Strauss. This style of reading the Constitution posits that a Constitution is a document that has to be given a wide meaning, ensuring the document’s longevity in the face of constant socio-economic evolution.
Yet, even proponents of this doctrine have had to struggle with the predicament of the judiciary acting as an ecclesial body in acting under the pretext of making an enduring Constitution. It may appear, that the incessant need to attend to the unforeseen peculiarities of future generations have led to an abandonment of the text and the structure of the Constitution for the present generation.
