JUDGES in Pakistan’s constitutional courts are not referred to as ‘textualists’ or ‘purposivists’ or ‘living constitutionalists’ or even ‘common-good constitutionalists’. These characterisations are immaterial. The judges, in our context, are primarily either ‘relief-giving’ or not; they either grant ‘stays’ or don’t. In our legal circles, as a result, we have not even developed a vocabulary around the jurisprudential bent of judges, since that is not a metric we employ to gauge a judge.
In this, there are similarities in how narratives remain stagnant in the context of politics. The conversations, for the most part, circle around whether a particular politician is corrupt, or less corrupt or marginally corrupt. We have yet to evolve to a stage where the conversation moves beyond the personal integrity of the electoral candidate to the policy framework or approaches to governance that the candidate proposes.
Not that the question of personal integrity is insignificant, but it seems to be a luxury, not yet afforded to us, to be able to meaningfully have a discussion with respect to the overarching vision of conducting a government that the prospective elected officials ought to be required to present.
So too for the judges. The evaluation of a judge, at the time of elevation or otherwise, is primarily on the basis of whether the judge has a decent disposal rate of cases, does not completely misread the law, is reasonably honest, and likeable enough, with enduring relations with both bench and bar. What remains missing in this discourse is the approach the judge adopts towards the law, the jurisprudential philosophy to which the judge is committed, and whether that judge remains largely faithful to that commitment.
What approach does a judge adopt towards the law?
Commitment to a particularised jurisprudential philosophy is, foremost, a potential safeguard against ad hocism: it accords some semblance of predictability. After all, a jurisprudential commitment to, say, textualism is there for all to see. At least with respect to a particular judge, then, a litigant and their lawyer can reasonably assess the likelihood of success of certain arguments as opposed to others. In other words, the range of possible outcomes is narrowed down.
Second, it provides for a benchmark against which the judgements of a judge can reliably be assessed. For instance, if a self-proclaimed textualist strays from textualism, for reasons not easily discernible, then that judge exposes himself/herself to criticism for not abiding by his/her own commitment. The tendency, if there’s any, to reach particular results in particular cases, for reasons unknown, remains in check. Similarly, advertent and inadvertent preferences that the judges sometimes have towards particular lawyers or litigants, are also amenable to exposure.
Third, and importantly, there can be additional enriching conversations around which framework should be adopted and is most favourable in our legal context. For instance, US supreme court justice Scalia rigorously mounted an intellectual challenge to living constitutionalism and the idea of balancing tests, for the sole reason that they allowed too much discretion to a judge. His proselytizing commitment to textualism was justified on the basis that it acted as a restraint for judges to sneak in their worldviews and policy preferences in deciding disputes, displacing the will of the people enacted in the text with their own will, thus undermining the principles of democracy.
The embodied text presumably reflects the will of the people; a judge’s personal preferences do not. Purposivism, therefore, where the justices look for means to advance the purpose of the enacted text, going beyond the text, borrowing from the legislative history or speeches made by the legislators, at times, manufacturing a purpose, is something the Scalia brand of jurists frown upon.
In our context, where the superior judiciary’s involvement is repeatedly sought in all sorts of matters, a free-standing jurisdiction is sometimes exercised where there is often no text as a guide to begin with, let alone any invocation of principles of how to interpret it. Further, if most of the lawmaking is to happen through ordinances, then again, the entire rationale of paying heightened deference to the enacted text is done away with.
But this is not to say that a judge cannot change their positions over the course of their career as more opportunities become available to evaluate and assess the practical ramifications of one’s jurisprudential priors. At the same time, however, there has to be an identifiable coherence in how a judge approaches a particular set of legal issues. And this legal coherence — or intellectual integrity, if you will — in turn, allows lawyers and litigants to have at hand some predictability of what the outcome will be if a particular set of facts and law are put into what is currently a judicial black box.
The writer is a lawyer based in Islamabad.
Published in Dawn, December 25th, 2022