A showdown ends, democracy loses

Published in The News International on July 11, 2025

“We must never forget that it is a constitution we are expounding”. One of the most famous lines in constitutional law, penned by John Marshall in 1819, echoes in my mind whenever people ask what the ‘right’ decision in the reserved seats case would be.

In cases like this, where the people’s will collides with legal technicalities, we must return to the fundamentals of constitutional interpretation.

Constitutions aren’t procedural codes. They have a higher purpose. What Marshall was alluding to was that when we interpret such a document, we must have regard to its broader purpose. One of those is to reinforce and reflect the will of the people.

The constitutional bench appears to have collectively forgotten these basic principles, both in its handling of the reserved seats case and in approving military trials of civilians.

Justice Mansoor Ali Shah, writing for the majority in the original 2024 reserved seats verdict, understood these concepts well, and they drove him towards what I believe is the correct decision in this case.

His first insight was recognising the logical fallacy in the ECP’s original decision: reserved seats are to be divided in proportion to a party’s strength in Parliament. How then can parties lacking this strength be given seats that were never theirs? To do so would be a fraud on the constitutional scheme of reserved seats.

The bench also rightly rejected the ECP’s interpretation of the infamous ‘bat symbol’ judgment, which had forced PTI candidates to contest the election independently without a unified symbol and therefore run afoul of Rule 94 of the Election Rules which states that reserved seats can only be allotted to a party that had contested the election. Hence, the PTI independents were forced to join the Sunni Ittehad Council (SIC).

However, the bench ruled that the PTI was, and continued to be, a political party – a view that even the author of the ‘bat symbol’ judgment, Qazi Faez Isa, agreed with. Hence, there had been a cascading chain of errors by the ECP that had marred the election and ultimately disenfranchised a political party.

Faced with this, the bench turned to the constitution, not as a procedural checklist, but as an instrument demanding the protection of democracy. They were supported by its text: Article 187 authorises the Supreme Court to do ‘complete justice’. This required that the PTI be restored to the same position it would have been in had the ECP’s unlawful acts not occurred. Notably, the court also hinted that it could not be blind to the authoritarian machinations that had occurred in the election.

In my view, the original bench was correct. My reasoning flows again from an examination of the fundamental reasons behind the existence of judicial review in a constitutional scheme.

In United States v Carolene Products (1938), a groundbreaking footnote elaborated on the justifications for judicial review, articulating that it was necessary to prevent certain political groups from entrenching themselves in power. The scholar John Hart Ely would build on this theory and argue that democratic malfunction occurs when those already in power choke off the channels of political change to ensure that they will stay in. For such cases, a stricter standard of review by courts was necessary.

More recently, academic Stephen Gardbaum has also elaborated on the role that courts must play in exercising judicial review. For him, the key role of the courts is to support and protect democratic procedure where a law or other government act has the effect of undermining the institutional structure or a key process of democracy.

All of this helps sustain the reasoning of the original judgment.

When it comes to the constitutional bench’s review, these basic facts were discarded. The constitution became a routine procedural manual, and theories of judges pushing back against authoritarian consolidation were ignored. The fact that we knew what the result would be far before it came is perhaps the constitutional bench’s biggest failure. The PML-N, with its loud objections of ‘bench-fixing’ in the past, has created its own version of the demon it wished to exorcise.

The constitutional bench’s proceedings were baffling. First, a review bench usually includes the same judges that were in the original bench, but five of the original judges, including the original judgment’s author, were excluded. Second, it appears 12 (or 10, depending on who you ask) overruled a decision of 13 judges. Third, the review appeared to function as a complete rehearing, even though reviews are constitutionally limited and must meet a high threshold. At times, it was painfully clear that some judges had not even read the original judgment.

Finally, the bench has impliedly set a precedent that a judgment of the Supreme Court can be ignored until its review is heard.

As a result, a constitutional bench, itself under challenge, has reworked the entire legal and political order. If they believe they are acting in service of the constitution, that belief is misplaced. They have handed a two-thirds majority to the ruling alliance, with some migraine-inducing results, particularly in the allocation of seats in Khyber Pakhtunkhwa.

No longer will there be a need for coercion and intimidation to procure constitutional amendments (of which the wish list appears long and full of terrors). The showdown that began between the court, the ECP and the legislature comes to an end. The cogs turned as expected – and the wheel of authoritarian consolidation continues to turn smoothly and without resistance.