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.

But Justice Bandial, in his verdict, went beyond interpreting an article — he actually 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 own political preferences and disregard their personal 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........

© Dawn (Magazines)