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  • Thursday, 13 June 2024
Article 2A of the Constitution of Pakistan, 1973

Article 2A of the Constitution of Pakistan, 1973

TOPIC:

ANALYSIS OF THE CONSTITUTIONAL EVOLUTION OF ARTICLE 2A OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973 WITH REGARD TO THE RELEVANT INTERPRETATIONS OF COURT OF LAW.

 

 

TABLE OF CONTENTS

  • INTRODUCTION……………………………………………………......2
  • AIMS & OBJECT………………………………………………………..3
  • JUDICIAL INTERPRETATION…………………………………......4-11
  • ARTICLE 2A…………………………………………………………….4
  • SUPRA CONSTITUTIONAL……………………………………………5
  • SUBSTANTIVE PART OF CONSTITUTION…………………….……6
  • HAKIM KHAN CASE……………………………………………...……7
  • ELECTION ACT CASE…………………………………………...…..8-9
  • ASMA JILANI CASE……………………………………………….10-11
  • OTHER RELEVANT CASES………………………………………….11
  • CONCLUSION……………………………………………………...….12


Introduction:

One of the foremost noticeable tensions within the constitutional fabric of Pakistan has been regarding the involvement of faith and politics. Over the course of Pakistan’s constitutional history, various arrangements have happen in an effort to strike the balance between the 2 seemingly opposite forces; sometimes by way of a constitutional and ordinary legislation, and other times by way of the judicial process. The primary time that this question was expressly dealt with was between presenting and spending of the Objectives Resolution that's from March 7-12, 1949.

The amendment by P.O 14 of 1985 has made the Objectives Resolution a substantive part of the Constitution. After addition of Article 2A in the Constitution, the Holy Quran and Sunnah have become the supreme law of Pakistan and the Courts are obliged to enforce the existing laws with such adaptations as are necessary in the light of the Holy Quran and Sunnah to uphold the holy provisions thereof. Every organ of the State is duty bound to act and implement the Islamic principles as enshrined in the Holy Quran and Sunnah.

Article 2A was added to the Constitution by the President Order No. 14 of 1985, promulgated on the 2nd March 1985 by the President of Pakistan General Zia ul Haq. As a result of insertion the Objectives Resolution has became a substantive a part of the Constitution. In all the Constitutions, the Objectives Resolution has been the pervading sprit. It spells out broad principles for the governance of the country. The common factors throughout are federal democratic sort of government guaranteeing all these rights of freedom, equality, tolerance and social justice, as enunciated by Islam and fully securing the independence of judiciary. The opposite aspect singularly unique is that Sovereignty over the whole universe belongs to Almighty Allah and therefore the authority to be exercised by the people of Pakistan within the bounds prescribed by him may be a sacred trust. The parliament therefore isn't as independent because the British Parliament. It is very important and main support of the Constitution, for it reflects aspirations of the people of Pakistan so as to what they want and how they want to be governed.

 

Aims & Object:

It is interesting to note that the version of the Objectives Resolution initially annexed to the Constitution by that Amendment did not include the word “freely” in the sixth paragraph of the Resolution. This omission lends proof to the concerns raised by members of the Constituent Assembly in 1949 regarding the Resolution being used as a means to quell minority rights in the future. The word “freely” was reinserted into the Annex by the Amendment.[1]

Constitution is an organic whole and all the Articles have to be interpreted in a manner that its soul or spirit is given effect to in harmonizing various provisions.[2] The object of addition of Article 2A within the Constitution of Pakistan is that the enforcement of Quran and Sunnah within the principles and provisions of the target Resolution as under this text it becomes the duty of court to make a decision cases before them during accordance with the tenets of Islam as laid down within the Holy Quran and Sunnah and more particularly to hunt guidance from the Islamic principles within the field presently unoccupied by the Statute in a given case. Objectives Resolution is thus the charter on the inspiration of which the edifice of the State of Pakistan is to be raised.

The mandate of the Constitution as is clear from the Objectives Resolution under Article 2A is that Muslims shall be enabled to order their lives within the individual and collective spheres in accordance with the teachings and requirements of Islam as began within the Holy Quran and Sunnah, and therefore the adequate provision shall be made for the minorities to profess and practice their religions and develop their cultures and also that fundamental rights including equality of status, opportunity and before law, social economic and political justice, and freedom of expression, belief, faith, worship and association but subject to law and public morality shall be guaranteed.

 

Judicial Interpretation:

Since the Objectives Resolution has served because the preamble to each Constitution adopted by Pakistan and a substantive a part of the Constitution since 1985, it's been subject to interpretation by the Courts. The Constitutional courts of Pakistan have at different time assigned different roles and statuses to the Objectives Resolution.

Article 2A:

Article 2A was inserted into the Constitution by way of the Eight Amendment to the Constitution.[3] The text of Article 2A is as follows:

The principle and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.

The insertion of Article 2A reignited the debate that had been settled in the Zia-ur-Rehman case[4] This time, the argument that the Objectives Resolution has a supra-constitutional status had on its side the express language of the Constitution.  In the Hakim Khan case,[5] the question came up for adjudication before the Supreme Court. It was argued before the Court that since the decision regarding the Objective Resolution in the Zia-ur-Rehman case that it was not in control of the Constitution because it was not a substantive part of it, the insertion of Article 2A would, by that logic, have the inevitable effect of placing the Constitution under the control of the Objectives Resolution. This position, however, did not prevail. Instead, the Courts held that Article 2A puts the provisions and principles of the Objectives Resolution at an equal footing with other parts of the Constitution, meaning that an inconsistency of any part of the Constitution with the Objectives Resolution would be harmonized and would not lead to the repugnant part being struck down.

 

Supra Constitutional:

In the case of Mahmood Khan Achakzai v. Federation of Pakistan,[6] Theory of basic structure has been completely rejected so far as Constitution of Pakistan is concerned. Provisions of the Constitution cannot be struck down on the ground of being violative of any prominent feature, character or structure of the Constitution. Objectives Resolution is not the basic structure of the Constitution of Pakistan. Even in the presence of Article 2A as a substantive part of the Constitution, the Court cannot strike down any provision of the Constitution on its touchstone.

Article 2A is not a supra Constitutional provision in as much as it has become an essential and integral part of the Constitution possessing the same weight and status as the other Articles of the Constitution. However it cannot be disputed that Objectives Resolution is very important and is the sheet anchor of the Constitution for it reflects aspirations of the people of Pakistan as to what way want and how they want to be governed.

However, the newest interpretation of the law is that Article 2A of the Constitution isn't a supra-Constitutional provision, nor its self-executing, nor the Courts have power to use the test of repugnancy by invoking this text. If any Article of the Constitution isn't in conformity with Article 2A, the acceptable procedure is to possess it amended in accordance with the procedure laid down within the Constitution.

 

Substantive part of the Constitution:

The Court enjoys the power to strike down any law which is in conflict with the provisions of the Constitution. In spite if this power vested in the Superior Courts, they do not have power to strike down any provision of the Constitution which may in conflict with any provisions.  Even in the presence of Article 2A as substantive part of the Constitution, the Court cannot strike down any provision of the Constitution on its touchstone.[7]

The Constitution makes it the exclusive power and responsibility of the judiciary to make sure the sustenance of system of separation of powers supported checks and balances. This is often a legal obligation assigned to the judiciary. It's called upon to enforce the Constitution and safeguard the elemental Rights and freedom of people. To do so, the judiciary has got to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances and also has got to be strong and independent judiciary which may foster an appropriate legal and judicial environment where there's peace and security within the society, safety of life, protection of property, and guarantee of essential human rights and fundamental freedoms for all individuals and groups, regardless of any distinction or discrimination within the basis of caste, creed, colour, culture, gender or place of origin etc. Objective Resolution as now forming substantive a part of the Constitution by virtue of Article 2A had its own preamble and was neither proposed as preamble to the Constitution nor labeled intrinsically before the Constituent Assembly.

Objective Resolution actually was tabled and debated even much before the drafting of the proposed Constitution. Wording of the Preamble of the Constitution itself shows that the Objectives Resolution may be a mandate given by the people to their representatives to border a Constitution within the light of guidelines supplied. All measures which conflict with the ideology, aim and final object of the country and nation are often questioned under this Article 2A.

 

HAKIM KHAN CASE:

In Hakim Khan v. Government of Pakistan,[8] the presidential powers to continue, pardon and remit under Article 45 of the Constitution were challenged. Ms. Benazir Bhutto, on assuming powers as prime Minister of Pakistan, gave advice to the President to issue a ‘commutation order’ to pardon, commute and remit all those convicted by military courts by General Zia’s Martial Law Regulations. On 8th December, 1988, the President issued a commutation order to commute, pardon and remit the sentence awarded by military courts. This action was challenged by the petitioners. On behalf of the petitioners, it was contended that since the order of commutation was in violation of Article 2A of the Constitution, it must be declared illegal. The crux of the argument of the petitioner was that under Article 2A, Allah is the only supreme authority to pardon or commute in matters relating to death sentences and the President has no power or authority whatsoever to pass an order of commutation. In the light of this contention, the petitioner asserted the point that since there was a conflict between articles 2A and 45 of the Constitution, Article 2A is a supra constitutional provision and can, therefore, be used to strike down other parts of the Constitution. The Court, while accepting the importance of the Objectives Resolution which later on became Article 2A of the Constitution, declared that the said Article cannot be granted power to test of repugnancy of any provision of the Constitution on the touchstone of it. In the Court’s view, the President of Pakistan had no such power to commute the death sentence awarded in matters of Hudood, Qisas and Diyat Ordinance.

 

In this view of the matter, the power of pardon in such cases only vests with the heirs of the deceased. Therefore, the cases in which death sentences have been awarded, the President had no power to commute, remit or pardon such sentence. However the cases, would be on different footings, if a person has been punished by way of Tazir as in such cases, the Head of the state has the power to pardon the offender and that too in public interest. The Court further noted that if Article 2A is given power to strike down the provisions, then Constitution of Pakistan will have to be re-written afresh and that if any article of the constitution is in conflict with article 2A the appropriate procedure is to have it amended in accordance with the prescribed provision for the purpose.

 

ELECTION ACT CASE:

In the recent Elections Act case,[9] the Supreme Court relied on the Objectives Resolution along with other Islamic provisions in the Constitution to construct a “general scheme” of the Constitution and found that sections 203 and 232 of the Elections Act 2017 were subject to that “general scheme, theme and jurisprudential architecture of the Constitution”. This appears to be a continuation of the uneasy relationship that the principles enshrined in the Objectives Resolution related to religious morality have had with principles of representative democracy. The judiciary in the said case relied, in large part, on the religion-based morality of the Objectives Resolution to override the express intention of the legislative branch, the representative organ of the State.

The constitutional status of the Objectives Resolution became relevant again recently in the decision of the Elections Act case. By way of background, the petitioners challenged sections 203 and 232 of the newly enacted Elections Act 2017 which was enacted to codify all existing laws relating to elections into one Act. The petitioners challenged the omission of the proviso to section 5 of the repealed Political Parties Order 2002, which provided that no person disqualified to be a member of Parliament could serve as an office-bearer of a political party. The Court held that the provisions of the impugned sections 203 and 232 of the Election Act 2017 were to be read subject to Articles 62, 63, and 63A of the Constitution. The Court effectively reinserted the proviso to section 5 of the repealed Political Parties Order 2002 into the Election Act 2017. Consequently, Respondent No. 4 in that case.

The Court made references to the Objectives Resolution extensively in its short order, as well as the detailed judgment. The unanimous judgment, authored by the Chief Justice Mian Saqib Nisar, develops what it calls the “general scheme” of the Constitution. The starting point of this analysis is that Pakistan is a State created “in the name of Islam” with its guiding principles enunciated in the Objectives Resolution of 1949 which serves not only as the preamble to the Constitution, but since the insertion of Article 2A also an enforceable and substantive part of it.

Therefore, the Court reasons that, in accordance with the Muslim faith, our democracy cannot be “in conflict with Islamic Principles.” In addition to the emphatic reliance on the Objectives Resolution, the Court also relies on Articles 2, 31, 41(2), 50, 62, 63, 203, and 227 to hold that the “underlying theme and focus of the Constitution is to ensure that only those individuals enter the electoral process who fulfill the prerequisites and requirements spelt out in the Constitution itself to be worthy delegates of Almighty Allah in order to exercise His powers in trust for Him and for the welfare of the people of Pakistan by joining the political process. Further developing this line of reasoning, the Court emphasizes the importance of the party head under the Election Act 2017. To allow a person to control the fates of Members of Parliament if he himself is not qualified to be a Member of Parliament would, therefore, be an absurdity.

With regards to the argument that Article 17 of the Constitution includes the right to be a head of a political party, the Court responds that “morality is a part and parcel of the Islamic ideology of Pakistan and is included in the expression “integrity of Pakistan. This is in line with the theme and underlying spirit of the Objectives Resolution, various Articles of the Constitution discussed above and the pronouncements of this Court” To hold this, the Court relied on the precedent set in Benazir Bhutto v. Federation of Pakistan[10] from which it quotes that “Article 17(2) of the Constitution contains the declaration of the right and the restriction in its exercise as authorized by the Constitution. Thus, it is not an absolute or uncontrolled liberty and is accordingly limited in order to be effectively possessed." However, the Court completely disregarded the words immediately after the excerpt it quoted which are that “the restrictive clause is exhaustive and must be strictly construed”.

From this, it can clearly be concluded that the Supreme Court in the Benazir Bhutto case severely limited the restrictions that could be imposed on the right enshrined in Article 17 of the Constitution. In the Elections Act case, 48 however, in clear contravention to the judgment in the Benazir Bhutto case, but relying on that very precedent, the Supreme Court held that restrictions on the Right in Article 17 of the Constitution could be imposed even if they violated a conception of morality based on Islam, which the Court itself developed out of its own reading of the Objectives Resolution and the various Islamic Provisions in the Constitution.

 

ASMA JILANI CASE:

In Asma Jilani v. The Government of Punjab,[11] the then Chief Justice Hamood-ur-Rehman in overturning the precedent laid down in the Dosso case[12] held that if there is a ground norm in Pakistan, it is in the doctrine enshrined in the Objectives Resolution that sovereignty solely belongs to God and that the “authority exercisable by people within the limits prescribed by Him is a sacred trust.” He stated that the Objectives Resolution from which he recognizes this principle has not been abrogated since it was passed giving it added validity. It is important to note that the entire Resolution was not held to be the ground norm. Only the principle addressing the role of religion in the democratic Constitution as enshrined in its first paragraph was accorded that status.

Observed in the Zia-ur-Rehman v. The State[13] that the Objectives Resolution was the manifestation of the ideology which was the very foundation of Pakistan and to which all generations, including the founding fathers, of Pakistan had assented. Therefore, he concluded there was no bar in holding that it was a supra-constitutional provision. Subsequently, the position was clarified by the Chief Justice Hamood-ur-Rehman himself when the same case reached the Supreme Court. The Chief Justice, in no uncertain terms, stated that the Objectives Resolution did not enjoy a supra-constitutional status. He went on to explain that the Resolution was a preamble and therefore, while it could be used to clarify an ambiguity within the language of the Constitution, it could in no way override an express provision of it. He also explained that the decision in Asma Jilani case only upheld the principle of God’s exclusive sovereignty and the exercise of God’s authority delegated to the State through its people and pointed out that this principle was found in the Resolution. It did not hold that the Resolution was the ground norm. Leaving no room for doubt, the Chief Justice added that the preamble, or any resolution adopted by any assembly could not be in control of the substantive provisions of the Constitution. He held that after the Constitution was adopted, the Objectives Resolution was “no more than what it describes itself to be, namely, that it is an enunciation or declaration of the goals sought to be attained by the people.”

The Chief Justice went on to hold that nothing outside the Constitution, no “laws of God or of nature or of morality or some other solemn declaration” could be held by the judiciary to be superior to a validly adopted and accepted Constitution. Such a proposition, he observed, was inconceivable even to the movers of the Resolution.

 

OTHER RELEVENT CASES:

In the case of Hussain Naqi v. District Magistrate, Lahore[14] also, it was categorically held that even if the Objectives Resolution was in fact the ground norm as argued by counsel, it was the preamble to the Interim Constitution of 1972 and as such, it could not be enforceable in the courts of law.

The status of the Objectives Resolution was again discussed in the Zaheeruddin case.[15] In that case, the question was whether the word “law” used in Article 20 of the Constitution is limited only to enacted law or includes also those Islamic principles which have not been enacted. The Court held that Article 2A recognized the sovereignty of God as a substantive part of the Constitution and by extension “the Constitution has adopted the injunctions of Islam as contained in Qur’an and Sunnah of the holy Prophet as the real and effective law.” Therefore, it was held that by virtue of Article 2A limitations on Article 20 could be those imposed by Islamic principles, not just by enacted law.

In the Kaneez Fatima case,[16] which was heard in the same year that Zaheeruddin case was decided, the Supreme Court considered whether by virtue of Article 2A, it had the authority to strike down laws due to inconsistency with Islamic injunctions. The five-member bench, however, unanimously answered the question in the negative. The Court reasoned that it had no authority under Article 2A like it did under Article 8 of the Constitution which empowered it to strike down laws on the touchstone of inconsistency with Fundamental Rights. Thus, even after the insertion of Article 2A into the Constitution, the Court found that the status of the Objectives Resolution was neither supra-constitutional, nor the same as the Fundamental Rights enshrined in Chapter 1 of Part II of the Constitution.


Conclusion:

It had been Pakistan’s first major constitutional landmark. Seventy years on, this Resolution continues to be one among the foremost significant constitutional documents; more significant at times than the Constitution of the Islamic Republic of Pakistan, 1973 itself. Since its adoption, Pakistan has experimented with an array of constitutional arrangements. None, however, has discarded the Resolution and each constitution has embraced it as its preamble with minor alterations. In terms of the constitutional relevance, the Resolution peaked in 1985 when it had been made a substantive a part of the Constitution by the insertion of Article 2A.

Rules of interpretation are not our masters, they are our servants. They are aids to construction, presumptions and pointers. They are meant to assist the Court in advancing the ends of justice. However, there are some principles of interpretation that are to be applied on the different situations.  With my opinion, in this case where Article 2A is in conflict with the other provisions, here rule of Harmonious Construction has been applied by the Judges while interpreting the provision in conflict. As the rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be interpreted that, if possible, effect should be given to both. This is what is known as the rule of harmonious construction.

It is no doubt true that if two sections of an Act of Parliament are in truth irreconcilable, then prima facie the later will preferred. But these are arguments of the last resort. The first duty of the court must be, if the result if fairly possible, to give effect to the whole expression of the parliamentary intension. It is the duty of the Court firstly, to interpret the matters arising out of any conflict. In such situation the court is to harmonize the conflict between the provisions of law as to balance provisions and resolve the matter raised before the Court.

 

[1] Constitution Eighteenth Amendment Act, 2010

[2] Farough Ahmed Siddiqui v. The Province of Sindh PLD 1996 Kar. 267

[3] By P.O No. 14 of 1985, (March 2, 1985)

[4] The State v. Zia-ur-Rehman PLD 1973 SC 49

[5] Hakim Khan and three others v. Government of Pakistan, through Secretary Interior and others

PLD 1992 SC 595

[6] Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426

[7] Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426

[8] Hakim Khan and three others v. Government of Pakistan, through Secretary Interior and others

PLD 1992 SC 595

[9] Zulfiqar Ahmed Bhutta and 15 others v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs and others PLD 2018 SC 370

[10] Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416

[11] Asma Jilani v. The Government of Punjab PLD 1972 SC 139

[12] The State v. Dosso PLD 1958 SC 533

[13] Zia-ur-Rehman v. The State PLD 1972 Lahore 382

[14] Hussain Naqi and another v. The District Magistrate, Lahore and 4 others PLD 1973 Lahore 164

[15] Zaheeruddin v. State 1993 SCMR 1718

[16] Mst. Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901

 

ALEEM AKHTAR SHAIKH

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