The constitutional jurisprudence of Pakistan’s Supreme Court is nothing less than an enigma. Historically, this jurisprudence has taken the path of least resistance, being repeatedly buffeted by conflicting political influences in appallingly short periods of time. For instance, in just over two decades, the apex judiciary’s stance on regime change oscillated from a virtual carte blanche to dictatorial political interventions (Dosso, 1958), to emphatic curtailment of "would-be adventurers" (Asma Jillani, 1970), and then to a conditional acceptance of "extra-constitutional takeovers" (Begum Nusrat Bhutto, 1979).

Unsurprisingly, the jurisprudence is an amalgamation of disparate, even antithetical, parts that oftentimes coexist uneasily or rise and fall alternately, depending on the wider socio-political circumstances. But despite the inherent tensions and contradictions, or perhaps because of them, the apex court has actively sought to create a semblance of continuity and coherence by strategically reinterpreting, recontextualising and synthesising its internally divergent jurisprudence.

The Supreme Court under Chief Justice Iftikhar Chaudhry has been at the forefront of this process of "jurisprudential reinvention." This process is not merely an expedient for achieving doctrinal consistency in the Kelsenian sense of legal science. Its importance lies, instead, in the Supreme Court’s need for institutional self-preservation as well as self-legitimation as a custodian of democracy. A façade of continuity and consistency is thus a key element in the Court’s rhetoric of rule of law, and serves to mask the underlying conflicting constitutional norms.

A prime example of jurisprudential reinvention during CJ Chaudhry’s tenure is the Court’s attempt at resuscitating the past and closed jurisprudence by connecting it to some contemporary constitutional or political issue.

In a case under the Supreme Court’s original jurisdiction (Article 184(3)), the Court took suo motu notice of ethno-politically motivated "killing sprees" in Karachi (Watan Party, Re: Law and Order Situation in Karachi, 2011). While commenting on the government’s failure to maintain law and order, the Court nostalgically harked back to Article 58(2)(b) of the Constitution that everyone else thought had been effectively laid to rest. Article 58(2)(b) -- a provision first inserted into the Constitution by General Zia in the 1980s, and reinserted by General Musharraf after its first repeal under Nawaz Sharif’s government in the late 1990s -- armed the president with discretionary powers to unilaterally dissolve the National Assembly.

Though the provision was not expressly judicially reviewable, the constitutional courts intervened through their original jurisdiction to review the constitutionality of presidential dissolutions throughout the 1990s, leading to deep politicisation of the judiciary.

As if the irony of the ignominious origins and history of Article 58(2)(b) was completely lost on the Chaudhry-led Supreme Court, the latter indicated that it could revive its jurisprudence of dissolutions, notwithstanding the repeal of the provision from which it originated. It alluded in specific detail to a previous judgment of the Court that upheld the dissolution of Benazir Bhutto’s government in 1996 under Article 58(2)(b) (Benazir Bhutto, 1998), arguing that if similar circumstances of breakdown in the law and order situation prevailed in Karachi, the Court would be "bound" by that ruling.

Presumably, this meant that the Court would arrogate to itself the discretionary powers of dissolving the National Assembly, thus effectively taking on a dual judicial-executive role that was not even envisaged under the original Article 58(2)(b). The Court, however, saw no apparent contradiction in either granting primacy to a defunct body of jurisprudence over a clear parliamentary consensus against Article 58(2)(b) or sitting in judgment over the performance of the government in the absence of an express constitutional mandate.

In another case under Article 184(3) that arose as a challenge to the decision of the parliamentary committee to reject candidates recommended by the Judicial Commission pursuant to the recently amended process for judicial appointments under Article 175-A, the Supreme Court proceeded to define the role of the parliamentary committee (Munir Hussain Bhatti, 2011).

The purpose of the amendment was, evidently, to create a more streamlined and transparent consultative process for judicial appointments that would engage both judicial and political representatives. At the same time, the new process aimed at minimising the possibility of a political impasse between the judiciary and the executive on the question of appointments.

Institutional conflict (including intra-judicial conflict) leading to deadlock over judicial appointments was not just a hypothetical concern underpinning the logic of Article 175-A. As the Supreme Court is all too aware, it has proved to be an intractable issue at least since the mid-1990s when the Court held that the Chief Justice’s opinion had primacy over that of the executive in judicial appointments (Al-Jehad Trust, 1996).

Situations of deadlock have been grievous and recurrent, leading to such extremes as the dissolution of Benazir Bhutto’s government in 1996 (see above) and the forced expulsion of Chief Justice Sajjad Ali Shah in 1997 by the Court itself (Malik Asad Ali, 1998). Nevertheless, the Chaudhry-led Supreme Court severely circumscribed the discretion of the parliamentary committee and held that its decisions would be open to judicial review by the Court.

Amongst other things, the Court asserted that "the principles of law enunciated in earlier judgments, such as Al-Jehad Trust case, Malik Asad Ali, and several others would continue to apply to the new mechanism with full force. In fact, these principles can be said to be applicable even more strongly after the introduction of the newly constituted bodies under Article 175 A" (as per J. Mahmood Akhtar Shahid Siddiqui).

In coming to this conclusion, the Court conveniently overlooked the purposive logic of Article 175-A to create a consensus around judicial appointments and, in point of fact, reaffirmed the jurisprudential position that the amended provision sought to bury.

These examples show that the Court-led process of jurisprudential reinvention is highly strategic and selective. But quite apart from enabling the Supreme Court to force continuities and linkages upon an otherwise highly contradictory constitutional jurisprudence to buttress its rhetoric of judicial independence and rule of law as a promoter of democracy in the post-Musharraf era, it has grave implications for democratisation.

A Supreme Court that relies on the ghosts of a discredited jurisprudence of regime legitimation and tyranny to reinforce the importance of the principle of independence of the judiciary (such as the Court’s reference with approval to Zafar Ali Shah (2000) as a precedent for judicial independence in Munir Hussain Bhatti (see above); or on a discarded jurisprudence of dissolutions to pontificate to the government over its unsatisfactory performance; or on a deeply divisive jurisprudence of judicial appointments to preserve judicial hegemony over the process; cannot be a harbinger of sound constitutional and democratic norms.