The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Muhammad Afzal Zullah, J.

(a) Constitution of Pakistan (1973) Art. 31

Read with Arts. 34, 29(1) & 7—Duty of judiciary in Pakistan re: fundamental principles and basic concepts of Islam—Mandate contained in cl. (1) of Art. 31—To be carried out by State as defined in Art. 7 as also by other organs, authorities and institutions—Other organs, authorities and institutions—Necessarily include judiciary, particularly, superior judiciary.

Wherever the expression “the State” occurs in Chapter 2 of the Constitution of 1973 it ordinarily would carry the articular definition contained in Article 7 with it. Conversely, the avoidance of use of “the State” in Chapter 2 at places would mean exclusion of the said definition. In other words, the mandates contained in clause (1) of Article 31 and Article 34 have been made the responsibility of all the organs and authorities of the State and, may be, of citizens and institutions as well and not only those organs and authorities and persons of the State as are mentioned in the restricted definition in Article 7. Thus looked at, the mandate contained in clause (1) of Article 31 has to be carried out by the State as defined in Article 7, as also by other organs, authorities and institutions in Pakistan, which would necessarily include the judiciary—with greater emphasis and responsibility on the superior judiciary; which, under the Constitution, declares law through interpretation to be followed by all subordinate Courts. It is thus clear that the definition in Article 7 and the provisions of Article 29(1) do not, in any away, restrict the duty and the responsibility of the judiciary of Pakistan to carry out the mandate contained in clause (1) of Article 31. If it is assumed that this has been enjoined by Article 29(1) read with Article 7 upon “the State”, as defined, it would mean that all the organs and authorities of the Federal Government, Parliament, a Provincial Government, a Provincial Assembly and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess, are duty bound to carry it out. This does not mean that other authorities, etc., though not bound, are prohibited from carrying it out. To impute such intention to the Constitution-makers would be without justification. Thus other authorities, etc., are at liberty (though not bound) to follow and carry it out. To put it in a different form, while the organs and authorities of the State mentioned in Article 7 have no choice not to follow the directive principles of policy, the other organs and authorities of the State including the judiciary would have discretion either to follow or not to follow the same, of course, depending upon the circumstances. [p.978] M & N

(b) Constitution of Pakistan (1973) Arts. 30, 31(1) & 34

Read with Art. 7,—Principles of Policy—Bars contained in Arts. 30 & 7—Judiciary though cannot direct organs, authorities and person include in definition of State under Art. 7 to act according to Principles of Policy yet Superior judiciary not barred either to set down a rule for itself to follow Principles of Policy or to declare it for subordinate judiciary to act in accordance with said principles—Superior judiciary, held, not barred in performance of its functions and duties and in exercise of its jurisdiction and powers to act or to declare law in accordance with Principles of Policy and immune from attack qua its actions and declarations of law on any ground relatable to Principles of Policy subject to some other constitutional limitations and important compulsions qua statute law.

The responsibility of deciding whether any action of an organ or authority of the State or of a person performing functions on its behalf is in or the person concerned. In other words, no other organ or authority or person in the State not included in Article 7 can direct the organs, authorities and person included in the definition of the State cannot direct the organs, authorities and persons included in the definition of the State to act in accordance with the Principles of Policy. But this does not mean that the Superior judiciary would not be able, on account of the said bar, either; (i) to set down a rule for itself to follow the Principles of Policy; or (ii) to declare it for the subordinate judiciary to act in accordance therewith; because, by doing that it would not at all be dealing/interfering with the responsibility enjoined by the Constitution upon other organs of the State included in Article 7 to act or not to act in accordance with the principles of policy. The second bar, as contained in clause (2) of Article 30, appears on face to be of more real import, namely, that if a certain individual, institution, organ or authority in Pakistan takes any action or makes any law which seems not to be in accordance with the Principles of Policy, it would not be possible for any one to call in question any such action or law on the ground that it is not in accordance with the Principles of Policy. Not only this, but it has also been provided that no formal action which would obviously include legal proceedings shall lie against the State, any organ or authority of the State, or any person, in this behalf. It is significant to note that here, in clause (2) expression “the State” has also been used independently of and in addition to any organ or authority of the State or any person, which would show that in the context of this clause the protection has been afforded, not only to the organs of the State included in the definition thereof in Article 7, but also to other organs and authorities of and persons in the State. Thus expression “the State” used in clause (2) of Article 30, in the context thereof, carries wider connotation and is not controlled by the definition contained in Article 7. The above analysis would show that this second bar keeps protected all organs, etc. mentioned in Article 7 as also the judiciary form any attack/challenge from any source, whatever, calling in question the validity of law declared or rules made by it, on the ground of negation of any principle of policy. If the negation is immune from attack, it cannot at all be canvassed that affirmation of a principle of policy would be prohibited. Thus, there is no bar to the superior judiciary in the performances of its functions and duties and in exercise of its jurisdiction and powers to act or to declare law in accordance with those principles.

(c) Constitution of Pakistan (1973) Art. 31(1)

Words and phrases—“Islamic way life”—Connotation—[Words and phrases]. It needs to examined as to what is the real content of principle of policy contained in Article 31 (1) which has very aptly been captioned “Islamic way of life.” Each word and phrase used therein, it appears, has been very carefully selected. An attempt shall now be made to find connotations of these words and phrases and find meaning of the judiciary are concerned. “Taking steps” by the judiciary, broadly speaking, would, include; making of rules wherever empowered to do so—Supreme Court and High Courts do have the power to make rules concerning the procedures: issuing of directions in accordance with law to other Courts—High Courts have such power; and conscious re-orientation in thought and process of reasoning; All judiciary in matters of interpretation of enacted law; in exercise of discretion; and when applying general principles of law, in fields unoccupied by enacted law or other statutory direction, is in continuous process of development, progress and evolution. “Steps” can allays be taken in one way for the other. “To enable” the Muslims of Pakistan, individually and collectively, “to order their lives” means no more than providing aids, motivations, guidance with tangible practical, psychological, sociological results. It is well-known that those laws, enacted or declared, are more respected and obeyed which are in accord with the moral beliefs of people to whom they apply. “In accordance with the fundamental principles and basic concepts of Islam.” Field of law and lawful behaviour and assertion, enforcement and protection of legal rights, is one of the major concerns of the State and the citizen. Article 4 and 5 of the Constitution are sufficiently explanatory of this aspect of individual’s life in Pakistan. “To enable the Muslims of Pakistan to order their lives in accordance with the fundamental principles and basic concepts of Islam” is, if not the most important, at least one of the major steps to resolve legal controversies on these bases, wherever possible, under the subject to the existing constitutional and legal limitations and arrangements. To put the reasoning differently and in a concrete form, a question can be posed; whether recourse to accepted juridical norms and philosophy of Islam by the judiciary in cases coming for decision, subject to there being no contrary statutory indication in that behalf, can be a step opposed to “enabling the Muslims to order their lives in accordance with the fundamental principles and basic concepts of Islam.” The answer would be in the ‘negative’. Rather, on the other hand, it will be in aid of achieving the said desired object. The above brief analysis of the ‘content’ of Article 31 (1) qua judiciary is by no means exhaustive. New situations would always continue to lead to discovery of fresh meanings and shades. [p. 980] Q et seq

(d) Constitution of Pakistan (1973) Art. 31

Words and phrases—Expression ” to enable the Muslim of Pakistan individually and collectively to order their lives in accordance with the fundamental principles and basic concepts of Islam”—Meanings.—[Words and phrases]. [p. 980] R et seq