The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Mian Nazir Akhtar, J.

(a) Constitution of Pakistan, 1973 Article 2A

To begin with, it must be remembered that the Constitution of a State is not a book of prayers to be read only for “Baraka:. It contains fundamental principles and the law governing it and provides the criteria for the construction, interpretation and validity of legal enactments on the consideration of their conformity to the fundamental principles and the law. The Constitution contains provisions relating to the concept, character and objectives of the State, the nature and framework of the Government as well as provision to regulate, distribute and limit the functions of its different departments, the extent and manner of exercise of its sorveign powers for achieving the aspirations and ideals of its people. [p. 371]Z

(b) Constitution of Pakistan, 1973 Article 2

According to Article 2 of the Constitution, the State religion of Pakistan is Islam. This Article being a substantive part of the Constitution, certainly has a meaning, purpose and practical utility. It is singularly different from an empty slogan. The purpose is to declare unequivocally that in the State of Pakistan, the Islamic way of life shall be followed and that it shall be governed in accordance with the Islamic Sharia. [p. 372]AA

(c) Constitution of Pakistan, 1973 Articles 2A & 8

The ideals of establishing a truly Islamic State and society were embodied in the historic Objectives Resolution adopted by the constituted Assembly of Pakistan on 12-3-1949. At one time, it was only a part of the preamble of the Constitution and as held in the case of “Zia-ur-Rehman v. The State PLD 1986 SC 428, was not enforceable. [p. 372]BB

(d) Constitution of Pakistan, 1973 Articles 2A & 8

Although, the heading of the Article says that “Objectives Resolution is to form part of substantive provisions”, in the operative part, the principles and provisions set out therein were really made substantive part of the Constitution. It was added that the said principles and provisions “shall have effect accordingly”. The principles and provisions set out in the Objectives Resolution are hat sovereignty over the entire universe belongs to Allah alone; that the sovereign State of Pakistan shall exercise the authority delegated by Allah within the limits prescribed by him, that the said authority is a sacred trust; that the sovereign State of Pakistan shall be governed by a Constitution; that the State power and authority shall be exercised through the chosen representatives of the people; that the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be observed; that Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and Sunnah. [p. 372]CC

(e) Constitution of Pakistan, 1973 Articles 2A & 8

Obviously, the intention behind Article 2A was to elevate the Objectives Resolution from the position of mere “pious wish” to the higher pedestal of substantive Constitutional law, thereby making the Injunctions of Islam as the Supreme law of the land. Hence, the change was real and purposeful. Therefore, instead of finding fault with the language employed in the Objectives Resolution, Court should adopt “purposeful approach” to give effect to the legislative intent. In this context, Lord Denning further says, :It is no longer necessary for Judges to wring their hands and say “there is nothing we can do about it”.[p. 373]DD

(f) Constitution of Pakistan, 1973 Articles 2A & 8

That the citizens of Pakistan shall have fundamental rights qua equality of status, equality of opportunity, equality before the law, social, economic and political justice, freedom of thought and expression, belief, faith, worship and association (subject to law and public morality), the minorities shall have adequate freedom to profess and practice their religion and develop their cultures, the legitimate rights of the minorities shall be safeguarded, the independence of judiciary will be fully secured; the integrity of the territories of the Federation of Pakistan, its independence and all its sovereign rights, over sea and air shall be safeguarded. By adding Article 2A, the Constitution maker clearly intended that the above referred principles and provisions be given effect to by the three organs of the State, i.e. the Executive, the Legislature and the Judiciary. We need not confine ourself to the precise language employed in the Resolution but must ascertain the true intent of the law maker and give effect to the same.

Notwithstanding the fact that in the changed circumstances a few word and expression used in the Objectives Resolution appear to be inapt, on reading it as a whole, its real intention can be gathered and given effect to. If an object contemplated therein had been achieved before insertion of Article 2A, a for example, the Constitution had been framed or a democratic political set-up established, fundamental rights secured in the Constitution, then a fresh exercise to frame another Constitution or establish a new political order or provide fundamental rights was not required. However, the principles deducible from the Objectives Resolution have always to be adhered to by the citizens and the State functionaries. One of the important principles embodied in the Resolution is that the sovereignty over the entire universe belongs to Allah alone and that the State of Pakistan shall exercise its power and delegated authority through the chosen representatives of the people within the limits prescribed by Almighty Allah. It is important to distinguish between the Constitution and the principles which under line it. The principles are in one sense more important than the Constitution itself. The form of the Constitution changes but the principles remain. Therefore, the principle of sovereignty of Allah and obligation of the Legislature to act within the limits of Allah ha always to followed. [p. 373]EE

(g) Constitution of Pakistan, 1973 Articles 2A & 8

In Pakistan, the members of the Parliament are not the monarch of all that they survey. They can frame laws while remaining within the four corners of the Islamic Shariah to enable Muslims individually and collectively to order their lives in accordance with the teachings of Islam as set out in the Holy Qur’an and Sunnah of the Holy Prophet (s.a.w.s.). [p. 375]FF

(h) Constitution of Pakistan, 1973 Articles 2A & 8

When we say that after insertion of Article 2A in the Constitution the principles and provisions of the Objectives Resolution including Injunctions of Islam, have become substantive part of the Constitution, the status or authority of Injunctions of Islam is not relegated to that of manmade laws. The Injunctions of Islam as set out in the Holy Qur’an and Sunnah of the Holy Prophet (s.a.w.s.) are the supreme law of the land and all manmade laws have to conform to the same. It is significant to mention that laws inconsistent with fundamental rights guaranteed under the Constitution are void by birtue of the provisions of Article 8 of the Constitution. Therefore, it can be ruled without any hesitation that laws inconsistent with supreme law of the land, i.e. Injunctions of Islam, are also void. The supremacy of the Divine Law was emphasized by Sir Eilliam Blackstone in his book, “Commentary on the Laws of England”. [p. 375]GG

(i) Constitution of Pakistan, 1973 Articles 2A & 8

The trend of most of the above precedents shows that a real change has been made after insertion of Article 2A in the Constitution and that now the Injunctions of Islam as set out in the Holy Qur’an and Sunnah of the Holy Prophet (s.a.w.s.) are the real, effective and positive law of the country; that the superior Courts can competently examine the validity of manmade laws or orders, acts and actions of State functionaries on the basis of Injunctions of Islam, the supreme law of the country. [p. 379]HH

(j) Constitution of Pakistan, 1973 Article 20

Under Article 20 of the Constitution, every citizen has the right to profess, practice and propagate his religion and to establish, maintain and manage his religious institutions (subject to law, public order and morality).

The use of the words “religious denomination” and “sect” does not mean that the right conferred under sub-Article (b) of Article 20 can be exercised only by a religious denomination or sect collectively. A religious denomination or a sect thereof is composed of persons who may establish, maintain and mange their religious institutions individually or collectively. The Article has to be interpreted in the light of well-recognized principles and rules of the Islamic Law, as held in the case of Mst. Kaneez Fatima, quoted above. [p. 379]II, JJ

(k) Constitution of Pakistan, 1973 Articles 20 & 199

A mosque is a vitally important religious institution of a Muslim society which is essential for practicing Islam. Any act done by any person or a State functionary which obstructs the establishment, maintenance or management of a mosque really deprives the Muslims using the said mosque to practice their religion. Such an act is also violative of the Injunctions of the Holy Qur’an and Sunnah of the Holy Prophet (s.a.w.s.). It is well-recognised principle of the Islamic law and jurisprudence that once a mosque is always a mosque and that its site cannot be abandoned, changed, alienated or re-located at another place. Therefore, the actions of the authorities in demolishing the mosque, stopping the Muslims from using the original site of the mosque for offering prayers and relocating it at a nearly site, amounted to stopping them from establishing, maintaining and managing their religious institutions. Their action being violative of fundamental rights secured under Article 20 of the Constitution, are without lawful authority and of no legal effect. [p. 379]KK

(l) Constitution of Pakistan, 1973 Articles 20 & 199

For the foregoing discussion the writ petition is accepted and the respondents acts of demolition of the mosque, its re-location at another place, conversion of the original site of the mosque into a grassy plot or stopping the muslims from using the said site for offering prayers were declared to be repugnant to the Injunctions of Islam, violative of the fundamental right and once without lawful authority and of no legal effect. The authorities were enacted to reconstruct the building of the mosque at the old site within a period by six months. Till the building of the new mosque was reconstructed, the Muslims and the residents of the nearby localities, shall be at liberty to use the — for offering 5 times daily prayers as well a Juma and Eid prayers and may, if necessary, raise temporary construction thereon or make any other suitable arrangement for the said purpose. They shall, however, take care that the construction work was not hindered. [p. 382]NN