The Constitution of Pakistan, 1973 Developed by Zain Sheikh

A writ petition was filed under Article 98 of the Constitution of Pakistan (1962), and therein provisions of a number of Central and Provisional Laws e.g. Industrial Disputes Ordinance, 1959; Maintenance of Public Order Ordinance, 1960, West Pakistan Criminal Law (Amendment) Act, 1963, etc. were challenged as “inconsistent with the supreme permanent law of the sovereign as laid down in the Quran and Sunnah and the Constitution of the Republic of Pakistan” and it was prayed that they be declared as void and to have been enacted without lawful authority and as such of no legal effect. It was contended that the preamble of the Constitution is the will of the people and was enacted by the first Constituent Assembly and now annexed in the present Constitution. According to the preamble, it was urged, the State could not make any law which takes away or abridges the rights conferred by the permanent law of the Sovereign as laid down in the Quran and Sunnah :

Held, the duty to pronounce upon the constitutionality of actions taken by the Executive branch and the Legislative branch in the State no doubt devolves upon superior Courts. But this function is to be performed in accordance with the provisions of the Constitution. Under the Constitution the Ventral Legislature has exclusive power to make laws for the whole or any part of Pakistan with respect to the matters enumerated in the Third Schedule (vide Article 131 thereof) while the Provincial Legislature is empowered to make laws for the Province or any part thereof with respect to any matter other than the matters enumerated in the Third Schedule (vide Article 131there of) while the Provincial Legislature is empowered to make laws for the Province or ay part thereof with respect to any matter other than the matters enumerated in the Third Schedule (vide Article 132). Under paragraph (c) of clause (2) of Article 98 the High Court can make appropriate orders for the enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution. It is thus manifest that under the provisions of this Article the High Court has been given the power to make appropriate orders only in respect of the enforcement of any of the fundamental rights conferred by Chapter I of Par II of this Constitution and Article 6, which figures in that Chapter lays down that any law in so far as it is inconsistent with the rights conferred therein, shall to the extent of inconsistency by void. It follows, therefore, that by virtue of the provisions of Article 133 it is the validity only of those laws which was inconsistent with the fundamental rights that can be challenged. In this petition the petitioners are not basing their case merely on the ground that the laws impugned by them are inconsistent with any of the fundamental rights enshrined in the Constitution but the main point urged is that laws under challenge whether passed by the Central or Provincial Legislature or which continue to exist, as such, should be declared as void on the ground that they are “inconsistent with the supreme permanent law of the Sovereign as laid down in Quran and Sunnah.” No provision of the Constitution is cited in support of this contention but support is derived only from the words of the preamble. It is to be noted that the preamble of a Constitution only sets out the general purposes of the Constitution, the objects and policies of the State and the basic rights of the citizens. In order to succeed the petitioners must thus show that the laws impugned by them are inconsistent with some specific Article of the Constitution. No such inconsistency has been pointed out. The Principles of Policy as laid down in Chapter II of the Constitution of Pakistan (1962), however, are not enforceable by Courts of law. This is evident from the profusions of Article 8, of the Constitution. Consequently, in the face of this express provision no High Court can question the validity of a law on the ground that it is repugnant to the provisions of “the fundamental permanent law of the Sovereign as laid down in Quran and Sunnah.” Under our constitution if any such question arises it will be for the national Assembly or the President or the Governor to refer it to the Advisory Council of Islamic Ideology for its advice whether the proposed law is or is not repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah. [pp. 192, 193, 194] A, B, C, D, E & F

(b) Preamble

Place of preamble in Constitution. [p. 193] C et seq

In this petition the petitioners are not basing their case merely on the ground that the laws impugned by them are in consistent with any of the fundamental rights enshrined in the Constitution but the main point urged is that laws under challenge whether passed by the Central or Provincial Legislature or which continue to exist, as such, should be declared as void on the ground that they are “inconsistent with the Supreme permanent law of the Sovereign as laid down in Quran and Sunnah.” No provision of the Constitution is cited in support and Sunnah.: No provision of the Constitution is cited in support of this contention but support is derived only from the words of the preamble. It is to be noted that the preamble of a Constitution only sets out the general purposes of the Constitution, the objects and policies of the State and the basic rights of the citizens.

(c) Constitution of Pakistan (1962), Ch. II, Art. 8
Constitution of Pakistan (1973) Art. 30

“Principles of Policy”—Not enforceable by Court of law. [p.193] E

These principles, however, are not enforceable by Courts of Law. This is evident from the provisions of Article 8. [p. 193] E