Interpretation of the constitution as a living document has attained a position of such pervasiveness across Pakistan’s constitutional jurisprudence that it has practically left limited space for shifting towards a different paradigm of constitutional interpretation. Doctrinally, the “living document” interpretation seeks to synchronize the Constitution with trends and attitudes of the society as it stands today.
On the one hand, such an interpretation may act as a constitutional bulwark against attributing meanings to its text that render it archaic and obsolete thereby preventing it from cascading into irrelevance for the society. On the other hand, an incessant reliance on it comes at the cost of losing track of the structure of the constitution envisaged by its framers as it allows courts to achieve a preconceived notion about socio-political issues through an ever expansive reading.
When a constitution is exclusively seen from a vantage point of a living document, it inevitably invites the courts to become moral and ethical readers of the text, risking additions into the Constitution which are alien to the vision of its framers. Presidential Reference 1/2022, is a recent and by far the most zealous example of moral reading in which the Honorable Supreme Court interpreted Article 63A of the Constitution. The Supreme Court held that Article 63A was inserted in the Constitution to counter defections of members in Parliament from their political parties and floor-crossing which vitiated the spirit of the democracy and eroded the primacy of the political parties. Yet the Honorable Court found Article 63A of the Constitution as it stood inscribed in the Constitution alone was not an effective panacea to ward off the vice of defections and found that something more and substantial had to be done and it did so by drawing on the concept of an expansive living Constitution which is to be read for times to come and thereby read into the Constitution that even votes cast by members of the parliamentary party ought not to be counted.
Article 63A of the Constitution contains both procedural and substantive provisions which were inserted in 1997 and then amended by the Eighteenth Amendment. Even subsequent to the Eighteenth Amendment, the only penalty envisaged for voting contrary to the directions of the parliamentary party was a declaration of defection by the party head which would consequently result in the defected member being de-seated.
Furthermore, prior to the decision of the Court, the only function of the Speaker was to transmit the declaration of defection passed by the Party Head against a defected member to the Chief Election Commissioner; his constitutional role under Article 63A was merely of a post office and nothing more. However, the decision of Supreme Court has significantly widened the power of the Speaker by permitting him to impose a penalty of cancellation of votes cast before any occasion for a declaration of declaration arises. Such a power is not supported by the text of the Article 63A.
The idea of finding the true spirit or ethos of the Constitution which necessitated judicial amendment to the Constitution, begs a critical question for a country, such as Pakistan with a weak constitutionalism, of the limit to which the Supreme Court will venture out in finding the ethos of our Constitution. Would this new judicial innovation be ever used to dilute the devolution project intended by the Eighteenth Amendment which already stands diluted by the case of Dr Nadeem Rizvi v Federation of Pakistan.? Could the next step from imputing a broadest interpretation to the Federal legislative list, further propel the judiciary to read into the Constitution a concurrent legislative list (which stood deleted by the Eighteenth Amendment) in certain situations?
Many provisions of Pakistan’s Constitution, such as Article 63A, are self-sufficient codes of operation and must not be employed to produce results that satisfy anyone’s moral and ethical orientations. An originalist would ask that if the courts being guided by the spirit and ethos of the Constitution can judicially amend the Constitution as it did in the Article 63A case by reading into what is not present in its text, then what remains of the exclusivity of the Parliament to the amend the Constitution under Articles 238 and 239?
A carte blache ethical exposition of every constitutional provision threatens to undermine the neatly arranged structure of the Constitution. The Constitution of Pakistan is divided into a series of parts, such as, fundamental rights, relations between federation and provinces, judicature etc. While the fundamental rights section is deliberately broadly framed, so as to impose widest obligations on the State to guarantee certain enumerated rights, it invariably allows the courts to make value judgements in interpreting the broadly framed fundamental rights.
A court faced with interpretation of freedom of speech will have to ascertain whether restrictions imposed on free speech and press are reasonable and therefore justified on the given facts of the case. What is the scope of security or defense of Pakistan, decency or public morality could invariably have several meanings approved by different courts. Friendly relations with another country is an additional permissible field of restriction on the fundamental right to speech; how are friendly relations determined? What is the nature and extent of speech that could jeopardize friendly foreign relations?
The Constitution is purposely silent about these questions to avoid providing a straitjacket formula therefore, answers to these would largely depend on the particular facts of the case. In this penumbra of uncertainty, an interpretation premised on the living tree doctrine might be inescapable, yet still regularized under the weight of judicial precedents.
However, the defection clause under Article 63A of the Constitution provides an unequivocal penalty for the transgressor therefore, it allows no room for imputing moral values into the text of the provision; doing so undermines the intent of the Constitutional framers of not invalidating the votes cast by members when it amended Article 63A through Legal Framework Order, 2002, and more recently through the Eighteenth Amendment in 2010. It is in this context that a carte blanche application of a ‘Living Constitution’ fails.
Many provisions of Pakistan’s Constitution, such as Article 63A, are self-sufficient codes of operation and must not be employed to produce results that satisfy anyone’s moral and ethical orientations. An originalist would ask that if the courts being guided by the spirit and ethos of the Constitution can judicially amend the Constitution as it did in the Article 63A case by reading into what is not present in its text, then what remains of the exclusivity of the Parliament to the amend the Constitution under Articles 238 and 239?
