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Home Critical Analysis/Archives ERROR AT THE APEX
The Error
Article 2A
Another question on which the majority opinion has departed from the well established legal position in Pakistan is the interpretation of article 2A of the Constitution which was incorporated during the Martial law period. Abdul Qadeer J. observed:
“The Article 2A, made effective and operative the sovereignty of Almighty Allah and it is because of that Article that the legal provisions and principles of law, as embodied in the Objectives Resolution, have become effective and operative. Therefore, every man-made law must now conform to the Injunctions of Islam as contained in Qur’an and Sunnah of the Holy Prophet (p.b.u.h). Therefore even the Fundamental Rights as given in the Constitution must not violate the norms of Islam.[13]
To support this conclusion about the overriding effect of article 2A and Islamic provisions, Abdul Qadeer J. relied on the judgment of Nasim Hassan Shah and Shafi ur Rahman JJ. in Pakistan Vs Public at large (PLD 1987 SC 304; at 356) but significantly omitted to mention the subsequent view of these two judges much more elaborately expressed in Hakim Khan.
Even the jugment in Pakistan Vs Public at large holds exactly opposite of what Abdul Qadeer J. has argued to support the overriding effect of Article 2A. The quotation reproduced by Abdul Qadeer J. from the judgment of Nasim Hassan Shah reads:
“Accordingly unless it can be shown definitely that the body of Muslims sitting in the legislature have enacted something which is forbidden by Almighty Allah in the Holy Qur’an or by the Sunnah of the Holy Prophet or of the principle emanating by necessary intendment therefrom “no Court can declare such an enactment to be un-Islamic.[14]
(emphasis added)
So it was necessary to show that religious freedom granted by the Constitution was forbidden by Qur’an and Sunnah.
Contrary to the above observation Abdul Qadeer J. has held that the Constitutional provision embodied in Article 20 can be struck down as being un-Islamic without showing how it was so. Justice Shafi ur Rahman in Pakistan Vs Public at large case dealt with the delegated authority held in trust by the chosen representatives of the people. This concept was elaborated with specific reference to article 2A and its overriding effect in the case of Hakim Khan. Abdul Qadeer J. failed to notice the opinion of Shafi ur Rahman and Nasim Hasan JJ. in the case of Hakim Khan where the opinion of both these judges was further elaborated. Omission to notice Hakim Khan and relying on the earlier case has lead to confusion. He also relied on PLD 1990 Supreme Court page 1172. This case does not pointedly advert to the question nor shed any light on the effect of making the Objectives Resolution as a substantive part of the Constitution. It only takes notice of the fact and applies it to a situation which may be defined as “unoccupied” field. In Zaheer ud Din it was not a case of unoccupied field where recourse could be had to Islamic common law principles. It was a case of fundamental rights and Constitutional guarantee provided by Article 20 of the Constitution. Abdul Qadeer J. has given an overriding effect of Islamic common law principles, assuming that there were no provisions available in the Constitution, and overlooked the fact that it was not merely another provision of the Constitution but a provision relating to the fundamental rights. This view obviously needs very close re-examination.
Whether Article 2A is a supra-Constitutional provision and has an overriding effect over and above the other provisions of the Constitution has come under consideration of the Pakistan Supreme Court in a large number of cases. But let us first examine the history and content of Article 2A. Article 2A reads:
“2A. Objectives resolution to form part of substantive provsions:-
The principles 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 Objective Resolution, which hitherto formed the preamble of the Constitution and was made sub-stantive part thereof by article 2A reads:
Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;
And whereas it is the will of the people of Pakistan to establish an order-Wherein the State shall exercise its powers and authority through the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;
Wherein the 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;
Wherein adequate provision shall be made for the minorities freely to profess and practice their religions and develop their cultures;
Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;
Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;
Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;
Wherein the independence of the judiciary shall be fully secured;
Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;
So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity:
Now, therefore, we, the people of Pakistan, Conscious of our responsibility before Almighty Allah and men;
Cognizant of the sacrifices made by the people in the cause of Pakistan;
Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, that Pakistan would be a democratic State based on Islamic principles of social justice;
Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny;
Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order;
Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.
Prior to the incorporation of Article 2A the principles of Objectives Resolution were cited in aid of certain propositions urged before the Supreme Court in a large number of cases. The Objectives Resolution was sometimes described as the grund norm of Pakistani legal order, sometimes as an embodiment of our national ethos and sometimes as the conscience of the Constitution. It was sometimes described as the corner stone of Pakistan’s legal edifice as embodying the spirit and fundamental norms of the Constitutional concepts of Pakistan. The Supreme Court in those cases had always maintained that preamble is not enforceable and that it could be used only as a guiding principle and not as an enforceable provision of the Constitution. It was in this background that the Martial Law dictator intending to make it enforceable introduced Article 2-A making the Objectives Resolution as a part of the Constitution without adverting to the fact that the document is not set in the words of an enforceable legal or Constitutional provision. It was set in the form of ideals and principles. The introduction of Article 2-A gave rise to a truly animated debate in our law courts. The situation was, to start with, quite anomalous and confusing.
The Lahore High Court took divergent views. In the case of Masoo versus United Bank Ltd., held that Article 2-A is not a selfexecuting provision of the Constitution and it can be rendered effective by appropriate legislature [15] whereas in Sakina Bibi’s case, the Lahore High Court treated the Article 2-A as supra Constitutional and even struck down the provisions of the Constitution being repugnant to Article 2-A. [16]
Similarly, different benches of the Sindh High Court also rendered conflicting judgments. One view was that 2-A was self-executing and was in control of the rest of the Constitution while others held the view that it was not so.
In a Karachi case Habib Bank Limited versus Wahid Textile Mills Limited Justice Mamoon Qazi sitting as a single judge observed:
“There being no further rule supplied by the Constitution rendering the Objectives Resolution enforceable by the Courts it cannot be considered as self-operative, notwithstanding the introduction of Article 2A in the Constitution.
Although the fundamentals of our policy are clearly reflected in the Objectives Resolution and the principles of democracy and social justice as enunciated by Islam are to be clearly reflected in our laws, but no legislation in our country can be tested and struck down by the Courts on the touchstone of the Objectives Resolution or Article 2A of the Constitution or for that purpose, the Principles of Policy enshrined in our Constitution in Chapter 2, Part II thereof, as the Resolution is no more than a Declaration defining the ideology of Pakistan, not capable of being enforced by the Courts.” [17]
The situation finally crystallized in the Supreme Court in Hakim Khan’s case. In that case the Lahore High Court had taken a view that Article 2A is a supra Constitutional provision. The Chief Justice undertook an elaborate discussion of the objectives resolution as a preamble and then as a substantive part of the Constitution and its effect on the other Constitutional provisions as a controlling and supervening provision. On the basis of historical data and process of interpretation he came to the conclusion that the Lahore High Court did not give proper effect to the rules of interpretation and observed that:
“This rule of interpretation does not appear to have been given effect to in the judgment of the High Court on its view that Article 2A is a supra-Constitutional provision. Because, if this be its true status then the above-quoted clause would require the framing of an entirely new Constitution. And even if Article 2A really meant that after its introduction it is to become in control of the other provisions of the Constitution, then most of the Articles of the existing Constitution wall become questionable on the ground of their alleged inconsistency with the provisions of the Objectives Resolution… Thus, instead of making the 1973-Constitution more purposeful, such an interpretation of Article 2A, namely that it is in control of all the other provisions of the Constitution, would result in undermining it and pave the way for its eventual destruction or at least its continuance in its present form… The role of the Objectives Resolution, accordingly in my humble view, notwithstanding the insertion of Article 2A in the Constitution (whereby the said Objectives Resolution has been made a substantive part thereof) has not been fundamentally transformed form the role envisaged for it at the outset; namely that it should serve as beacon light for the Constitution-makers and guide them to formulate such provisions for the Constitution which reflect ideals and the objectives set forth therein. In practical terms, this implies in the changed context, that the impugned provision of the Constitution shall be corrected by suitably amending it through the amendment process laid down in the Constitution itself.” [18]
Mr. Justice Shafi-ur Rahman in a concurring judgment in the same case interpreting Article 2-A and Objectives Resolution said:
Objectives Resolution has three separate distinct components. The first is purely structural feature of it that the sovereignty of Almighty descending on the people of Pakistan constituting State of Pakistan is to be exercised through their chosen representatives.
The second is its qualitative feature.
The third is its normative feature.
Nowhere in the Objective Resolution, either expressly or impliedly one finds either a test of repugnancy or of contrariety, nor empowering of an individual or of an institution or authority or even a Court to invoke, apply and declare Divine limits, and go on striking everything that comes in conflict with it by reference to Article 2A. Such an interpretation of Article 2A of the Constitution and appropriation of authority so to do amounts to usurpation. It would indeed be so when the amplitude of power reserved for the Parliament in the same Constitutional instrument is kept in view.
Apart from these broad features noted there are settled, classic, accepted principles of interpretation of Constitutional provisions. They ‘should not be lost sight of, ignored or violated in euphoria for instant lslamization of Constitution, Government and society.” [19]
The opinion in the Hakim Khan case was not a casual observation. It was the opinion of the Supreme Court percolated through different cases at various High Courts. By the time the Supreme Court of Pakistan decided Hakim Khan’s case the views of the various High Courts on different aspects of the question had been thoroughly examined. The Karachi case of Habib Bank Ltd. versus Waheed Textile Mills had dealt with the juristic and forensic principles of interpretation of Constitution, Nasim Hasan Shah J. had adopted the historical method, which is a scientific method of reasoning. Shafi ur Rahman J. had clarified the conceptual and philosophical aspects. All these cases had brought the issue under focus and shed a flood of light on the subject. Hakim Khan was thus the percolated wisdom of the superior courts of Pakistan.
This was the position of the Supreme Court, loud and clear, on the Constitutional status of Article 2A vis-à-vis the provisions relating to fundamental rights. The majority opinion in Zaheer-ud-Din ignored this judgment without even referring to it. This could not be a mere omission. The minority judgment had particularly referred to this case and quoted from Hakim Khan in extenso. The majority view “had the benefit of going through the draft judgment proposed to be delivered” by Shaft ur Rahman J. [20] This omission to note Hakim Khan’s case which was the binding law on the day when Zaheer ud Din was decided renders the case of Zaheer ud Din a fit case for re-consideration.’ (Case reported in the collection for review).
Shortly after decision of Zaheer ud Din Article 2A again came up for consideration of the full court in the case of Mian Mohammad Nawaz Sharif. In that case the full court held that:
“Fact that Objectives Resolution has been incorporated as a substantive part of the Constitution by virtue of Article 2A, does not justify reading into it any additional Fundamental Rights in Chapter pertaining to Fundamental Rights contained in the Constitution—Courts, however, while construing Fundamental Rights have to keep in view the Objectives Resolution and to place widest possible construction as advance the goals targeted/envisaged therein.” [21]
Mr. Justice Abdul Qadeer who authored the majority opinion in Zaheer ud Din was a party to the judgment in Mian Mohammad Nawaz Sharif and did not dissent from the opinion. In yet another case in the same year Mr. Justice Abdul Qadeer Ch. was again a party to 5 judges bench in the case of Kaniz Fatima versus Wali Mohammad and others in which the court held:
Article 2A cannot be pressed into service for striking down any provision of the Constitution on the grounds that it is not self-executing and also that another provision of the Constitution cannot be struck down being in conflict with any provision of the Constitution. Provisions of Article 2A, however, can be pressed into service when any enactment is in conflict with provisions of the Constitution. [22]
The court further held:
Superior courts may not strike down such aws, rules, and regulations on the touchstone of Art.2A or 227(1) of the Constitution but the action under law can be tested in case where judicial review is permissible.” [23]
and that:
“Courts, however, are not vested with the jurisdiction to declare a law void on the touchstone of Art.2A as distinguished from Art.8 of the Constitution as such provision has not been made to enforce Art. 2-A in the same manner as the fundamental rights can be enforced or the laws can be tested on the touch-stone of fundamental rights. [24]
The full court in Mian Nawaz Sharif relied on Hakim Khan. Abdul Qadeer Choudhary J did not dissent. In the case of Kaniz Fatima again Hakim Khan’s case was relied upon. Abdul Qadeer J again did not dissent. The settled position thus boils down to this: Prior to the Zaheer ud Din case Article 2A had no overriding effect on the fundamental rights and was not self executing. After the Zaheer-ud Din case the same principle was reiterated, Abdul Qadeer J participating all along. Yet in the case of Zaheer ud Din an Ahmadi case, Abdul Qadeer J writing the majority judgment opened a window of exception. To an independent objective legal analyst this discriminatory exception meted out to Ahmadis tends to create a feeling that the course of justice has been sullied in Zaheer ud Din’s case. The guarantees of Constitution would be rendered nugatory if the expediencies of the government of the time or the popular majority were to be made the basis of decision. A court which does not protect minorities may soon find itself able to protect none.
A close scrutiny of the judgment would indicate that the finding on the overriding effect of article 2-A does not really command the majority even in Zaheer ud Din. Shafi ur Rahman J specifically referred to Hakim Khan’s case and positively held that Article 2-A would not override the fundamental rights. Saleem Akhtar J in para 3 of his note said “as regards applicability of Article 2-A, I reiterate the view expressed in Hakim Khan’s case PLD 1992 S.C. 595.”
Mr. Muhammad Afzal Lone J was a party to Hakim Khan concurred with leading judgment of the Chief Justice Mr. Nasim Hassan Shah and did not append any note of his own as was done by Shafi ur Rahman and Abdul Shakoor-us-Salam JJ. Thus he concurred not only in the judgment but also in the reasoning of Nasim Hassan Shah J. Mr. Justice Muhammad Afzal Lone sitting in Zaheer ud Din case signed the majority judgment and did not write a note to indicate his change of mind or to show that he no longer held the views expressed in Hakim Khan. The Hakim Khan case could not have escaped the notice of the majority judgment because the leading judgment by Shafi ur Rehman J specifically relied on Hakim Khan. Absence of any comment by Mr. Muhammad Afzal Lone J can either be attributed to an oversight or non application of mind by the learned judge on the overriding effect of Article 2A. If Muhammad Afzal Lone J be considered to be holding onto his views concurring in Hakim Khan then there is a majority in Zaheer ud Din for the proposition that Article 2-A has no overriding effect. If it be attributed to an omission then the opinion on Article 2-A is equally divided; Shafi ur Rahman and Saleem Akhtar JJ holding against the overriding effect and Abdul Qadeer and Wali Muhammad JJ holding for the overriding effect. In either case the majority of the Supreme Court found in Zaheer ud Din case is not in favour of overriding effect of article 2-A. On a larger analysis when we see the subsequent developments, preponderance of Supreme Court view is heavily tilted against the overriding effect of Article 2-A and for good reason, available in scholarly judgment of Shafi ur Rahman and Nasim Hassan Shah JJ, this anomaly in Zaheer ud Din needs to be resolved.
Though Abdul Qadeer J held that Article 2A will have overriding effect and the Islamic injunctions would prevail as the supreme law, it did not pursue the argument any further to show how the right guaranteed under Article 20 was un Islamic or against the letter and spirit of Objectives Resolution which according to Abdul Qadeer J. had been given overriding effect by Article 2A. The Objectives Resolution inter alia provided that
Wherein adequate provision shall be made for the minorities freely to profess and practice their religions and develop their cultures;
Is it, then, the case of the majority opinion that this part of Article 2A is also against Islam and must give way to the Islamic provisions? Whatever the concept of Islamic provisions may be. Does Article 2A then override not only the other provisions of the Constitution but overrides itself. Is Article 2A eating itself up. The reasoning of the majority opinion is self-destructive. There could be no better case for review.
The Pakistan Supreme Court judgment in Zaheer ud Din lays down the foundation of inquisitional proceedings. Whereas, the minority judgment argues that the practices not being per se offensive cannot be treated as offensive by reaching the inner recesses of the minds of accused Ahmadis to dig out offensive meaning into those practices, the majority opinion does exactly the same.
The majority opinion argues that because the practices of Ahmadis offend the mainstream Muslims, they can be prohibited. And further the majority opinion tries to read into the minds of the Ahmadi accused what is not expressed in words or overt acts.
Referring to section 298-C Professor Antonio Gultaree observes:
The most sinister feature of Section 298(c) is that it amounts to a kind of Orwellian attempt at the thought control. Persons are to be charged and tried not on the basis of alleged antisocial acts, offensive even as the definition of these acts might be, such as calling one’s place of worship a mosque. Rather, one is to be tried on the basis of one’s inner state of mind or intentions, whether one deliberately intends to mislead or deceive other people with respect to his/her identity as a Muslim. Who can ascertain this short of a confession?” [25]
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