FAMILY LAWS ORDINANCE AND THE CONSTITUTION

FAMILY LAWS ORDINANCE AND THE CONSTITUTION <!--[if gte mso 10]> FAMILY LAWS ORDINANCE AND THE CONSTITUTION By Mr. Justice Tanzil-ur-Rehman, Judge, High Court of Sind It seems necessary to first recall the historical background of the promulgation of the Muslim Family Laws Ordinance, 1961. For this I would like to refer to a passage from the book "Woman in Muslim Family Law" By John Esposito, New York, 1982, at page 83. The learned author writes:‑ "On August 4, 1955, eight years after Pakistan's founding, the Commission on Marriage and Family Laws was established to review Muslim Family Law to determine whether changes were necessary. The Commission was composed of three men, three women and one religious scholar (to represent the Ulama). The report (in June, 1956), represented the recommendations of the six laymen majority. However, shortly thereafter in August 1956, Maulana Ihtishamul Haq (Thanvi) a religious scholar (alim, pl.ulama) and a traditionalist published a vigorous dissenting report taking issue with virtually every major recommendation of his colleagues on the Commission. There then ensued an extended debate between the modernists and traditionalists". It appears that as a result of countrywide protest of the Ulama, the said report remained lying dormant with the Government for several years. It however, received an impetus during the military rule of Field Marshal Ayub Khan who could impose it on the Muslims of Pakistan, under the cover of Martial Law. The strong support came from All Pakistan Women's Association (APWA), headed by Begum Ra'na Liaquat Ali Khan, wife of the first Prime Minister, Shaheed-e-Millat, Liaquat Ali Khan. So, Field Marshal Ayub Khan, as Chief Martial Law Administrator and self-appointed President of Pakistan promulgated the Muslim Family Laws Ordinance on 2nd March, 1961 which came into force or. 15th July, 1961. Notwithstanding the rigours of the Martial Law, there was a countrywide resentment, particularly by the Ulama community over the promulgation of the said Ordinance, as being against the injunctions of Islam. Later on, the said Ordinance on the enforcement of one-man made Constitution of 1962, was given Constitutional protection, keeping it outside the ambit of the authority of the Courts of Pakistan from being challenged as violative of Fundamental Rights and repugnant to Islam (See Gardezi's case, PLD 1963 SC 51 at page 74). Although the protection to this Ordinance was first afforded in the Constitution of 1962 but this protection continued in the subsequent Constitutions of 1972 and 1973 and still continues to be so after the revival of the Pakistan Constitution of 1973 by President's Order No.14 of 1985, perhaps, because of the secular influences working both in and outside the relevant quarters. The protection to Family Laws Ordinance of 1961 under Article 8(3) by the Constitution, 1973 amounts to suspension of the Fundamental Right guaranteed to the people of Pakistan by Article 20 of the Constitution, 1973 which reads as under:‑ "20. Freedom to profess religion and to manage religious institutions.-- Subject to law, public order and morality,-‑ (a) every citizen shall have the right to profess, practise and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions. In fact, by protecting the Muslim Family Laws Ordinance, Article 20 of the Constitution has become, to that extent, nugatory. This amounts to tinkering of Article 20. It means that an ordinary statute has been allowed to run counter to Article 20 of the Constitution, for being included in the First Schedule, so as to claim immunity from the attack of contravening the fundamental right to profess and practise one's religion according to his own faith as gauranteed under Article 20. But, to my mind, after insertion of Article 2-A in the Constitution by President's Order No.14 on 2nd March, 1985 and the Objectives Resolution being made substantive part of the Constitution allowed by the Eighth Constitutional Amendment by the Parliament the position has undergone a change. The Article 2-A and the Objectives Resolution as its Annex are reproduced below:‑ "2-A. The Objectives Resolution to form part of substantive Provisions.--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 Objectives Resolution. In the name of Allah, the Beneficent, the Merciful. Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust; This Constituent Assembly representing the people of Pakistan resolvers to frame a Constitution for the sovereign independent State of Pakistan. 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 the Sunnah: Wherein adequate provision shall be made for the minorities to profess and practise 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 power 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." It, therefore, seems necessary to see whether the said Ordinance comes into conflict with the principles and provisions of the said Objectives Resolution. In the face of Article 2-A, subsequently added, it would not perhaps, be possible to extend recognition to the said protection in so far it derogates or comes into conflict with the principles and provisions underlying the Objectives Resolution, which would ultimately affect the religio-social guarantee given to the people of Pakistan which the Constitution so solemnly proclaims, envisages and secures, The Muslim Family Laws Ordinance, when examined from the point of view of the infringement of fundamental rights, in my humble view, it comes into conflict with Article 20 of the Constitution inasmuch as it prevents Muslims to practise their religion according to their belief and faith (See my Article "Constitution and the freedom of Religion"). It also negatives the express provision as contained in Article 227 which, inter alia, provides that in the application of clause (1) as contained in Article 227, in so far it relates to the personal law of any Muslim sect, the expression "Qur'an and Sunnah" shall mean Qur'an and Sunnah as interpreted by that sect. In other words the interpretation of the Qur'an and Sunnah will be recognised and applied in accordance with the belief of every Muslim sect. It is true that the right guaranteed under Article 20 is subject to law and morality, but these two expressions, law and morality, will now be subjected to the interpretation in the light of Explanation to Article 227 and Article 2-A; with the result that the said Ordinance, if found against law and morality, judged by Islamic standards, it will amount to transgressing the limits and will not be saved merely because it comes within the expressions of law and morality simpliciter used in Article 20 or clause (6) of the Objectives Resolution as referred to in Article 2-A of the Constitution, as the law and morality should nevertheless be in conformity with the provisions of Article 2-A or, to be more precise, so far as the law and morality relate to Muslims, it would mean conformable to the law and morality as laid down in the Qur'an and Sunnah of the Holy Prophet. It is true, as pointed out earlier, that the Muslim Family Laws Ordinance is a protected piece of legislation, since its inception, by its inclusion in the First Schedule so as to save it from being challenged in a Court of law on the ground that it infringes fundamental right of a Muslim to profess and practise his religion. It cannot, therefore, be attacked on the basis of violation of fundamental right guaranteed under Article 20 of the Constitution. Let it be added that the very fact that the Muslim Family Laws Ordinance has been protected is sufficient to contend that the framer of the law was conscious in his mind that the same, being against the fundamental right as guaranteed in Article 20 of the Constitution, was liable to be challenged in a Court of law and the result being obvious, and, perhaps, for that reason, protection was afforded to that law from being so challenged since its very inception. Thus, the very inclusion of the Muslim Family Laws Ordinance in the first Schedule, which saved it from the operation of Fundamental Rights guaranteed under the Constitution, is enough to show that the Legislature was itself, or I must say, because there was no Legislature in those days, the sole framer of the Constitution and of the said Ordinance, Field Marshal Muhammad Ayub Khan was himself conscious of the fact that the said law was apparently opposed to, in the conflict and inconsistent with the fundamental right to profess and practise one's own religion. Not only that, no provision of the said Ordinance was challengeable in any Court of law on the ground of its repugnancy to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, under the Constitutions of 1962, 1972 and 1973. This fact is further fortified by further excepting the said Ordinance from the jurisdiction of the Federal Shariat Court as constituted by the Chief Martial Law Administrator and President, General Muhammad Ziaul Haq, in May, 1980 to be tested on the anvil of the Qur'an and Sunnah, in spite of the fact that the exclusion of the Ordinance from the jurisdiction of Federal Shariat Court seems to be inexplicable, as to why the application of Shariat to a very important branch of law touching the basic foundation of Muslim society was specifically denied to the Shariat Courts? Let me elaborate the point. The Federal Shari'at Court under Article 203-D of the Constitution, has been empowered to examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet. The term 'law' has been defined in Article 203-B of the Constitution 1973, which excludes, inter alia, 'Muslim Personal Law' from the jurisdiction of the Federal Shari'at Court. The Muslim Family Laws Ordinance, 1961 was held to be falling within the scope of "Muslim Personal Law" in the case reported as Federation of Pakistan v. Mst. Farishta P L D 1981 S C 120. The Supreme Court (Shari'at Appellate Bench), while examining the question of its jurisdiction with reference to section 4 of the Muslim Family Laws Ordinance, 1961, (relating to succession), in the aforesaid case, held that section 4 ibid, being part of law applicable to Muslims alone and "Muslim Personal Law", in such context, scrutiny of such section was outside the jurisdiction of Shari'at Courts and the decision of the Shari'at Bench, of the Peshawar High Court in Mst. Farishta v. Federation of Pakistan P L D 1980 Pesh. 47, holding provisions of the said section contrary to Injunctions of Islam was without jurisdiction. The Supreme Court further observed that:‑ "The question is not what is the 'Muslim Personal Law' of the Muslim in the divine sense of that law, but as to what is the law for the time being in force which applies and has been applied to Muslims alone as a class and as a special law. If it has been so applied, it will fall within the set of those laws which apply to the class of people known as Muslims and in resultant sense will be Muslim Personal Law for them. This law will not be challengeable before the Shari'at Courts and the wrong, if any, done by that law, will be remedied by the Council of Islamic Ideology." A survey of the criticism on the Muslim Family Laws Ordinance, 1961 will show that some of the provisions of that Ordinance, prima facie, seem to be in conflict with Shari'at, but they have all along been given effect to by the Courts in the absence of the proper forum to examine the provisions of the said Ordinance in the light of the Qur'an and Sunnah. "Muslim Personal Law" is nothing but Shari'at which is also obvious from the short title of the enactments on the subject, namely. The Muslim Personal Law (Shari'at) Application Act, 1937 (since repealed) and the West Pakistan Muslim Personal Law (Shari'at) Application Act, 1961. The history of statutory law on "Muslim Personal Law" has always been equated with the word "Shari'at" but unfortunately, the Federal Shari'at Court was precluded from its review. The Council of Islamic Ideology, of which the present writer happened to be its Chairman for four years (1980-84) had suggested to the Government of Pakistan certain amendments in the Muslim Family Laws Ordinance, 1961, to bring it in accord with the Injunctions of Islam as laid down in the Qur'an and Sunnah (See Council's report on Family Laws). The Government, probably, for fear of opposition of a section of women, felt hesitant to implement the recommendations in respect of the Muslim Family Laws Ordinance, 1961 not only of the Council but the Ministries of Law and Religious Affairs as well. Under the circumstances, the Council and Ansari Commission and the several Ulama Conventions held under the auspices of the Ministry of Religious Affairs, Government of Pakistan, during 1980-84, presided over by the President himself recommended that it would be advisable that the expression "Muslim Personal Law" be omitted from the definition of 'law' occurring in Article 203-B of the Constitution so as to extend the jurisdiction of the Federal Shari'at Court to questions involving 'Muslim Personal Law' including the Muslim Family Laws Ordinance. If the Federal Shari'at Court comes to the conclusion that the provisions of Muslim Family Laws Ordinance or for that matter any other statutory law falling within the domain of 'Muslim Personal Law' is in conflict with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, it will pave the way for the Government to amend the law accordingly and the Government will also be avoiding the criticism being apprehended, on this account. (See Council's Fifteenth Report on "Islamization of Laws"). It was only in early 1986 that the Senate of Pakistan gave effect to that recommendation and passed the 9th Amendment Bill to the Constitution, in fact, to redeem the pledge given by the Ruling party to the Senators belonging to the Jamaat-e-Islami and some of the members of Independent group, at the time of passing the Eighth Constitutional Amendment Bill in November, 1985. But this Bill remained lying dormant in the National Assembly, till the National Assembly was dissolved by the President by his Proclamation dated 29th May, 1988, when the said Bill died, its own death. However, in the judgment pronounced by me on a Constitutional Petition, Qamar Raza v. Tahira Begum (P L D 1988 (March Part) Karachi 169), I expressed my view that the Muslim Family Laws Ordinance, notwithstanding the aforesaid protection under Article 8(3) of the Constitution, is open to be challenged under clause (2) and (3) and the First paragraph of the Objectives Resolution, made substantive part of the Constitution under Article 2-A, and the Explanation added to clause (1) of Article 227 of the Constitution and that the said Ordinance or any provision thereof may, therefore, be ignored by the High Court under Article 268 of the Constitution to the extent of its repugnancy to the injunctions of Islam as laid down in the Qur'an and Sunnah. I wrote:‑ "48. Now, looking to the Muslim Family Laws Ordinance, it is settled proposition of law that Constitution is the fundamental and Supreme Law of the land and all laws are subservient to it. It, therefore, follows that if there be a law which is not in conformity with the Constitution, it must, in its application to a particular case, yield to the Supreme Law, that is, the Constitutional provision. Thus, notwithstanding the legal position that the Muslim Family Laws Ordinance, 1961 overrides any other law or custom having the force of law, it remains subservient to the Constitution to the extent that it is inconsistent with or comes into conflict with any provision thereof. No doubt, the Ordinance is protected under Article 8(3)(b) from application of Article 8(1) and (2). Clause (6) of Article 2-A of the Constitution may also be invoked in aid, and, thus, is not challengeable on the ground that it violates any of the fundamental rights enumerated in and guaranteed by the Constitution, but it is still available to be challenged under any of the provisions of the Constitution, particularly the principles and provisions of the Objectives Resolution (except clause (6) thereof) as made substantive part of the Constitution under Article 2-A and, in view of the provisions of Article 2-A, making the Objectives Resolution as substantive part of the Constitution, "any Court, Tribunal or authority required or empowered to enforce an 'existing law' is now obliged under Article 268 of the Constitution 'to construe the same with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution". The provisions of the Muslim Family Laws Ordinance, thus, do not stand immune except for the protection provided under Article 8(3)(b) of the Constitution itself. Any provision of the said Ordinance, thereof, can be challenged to the extent that it comes into conflict with the provisions of Article 2-A of the Constitution, except clause (6) thereof relating to the fundamental rights. 49. Testing section 7 Of the Muslim Family Laws Ordinance, in particular, on the touchstone of Article 2-A (read with the Objectives Resolution) it appears that, for detailed reasons which will follow shortly, it violates the limits prescribed by Allah Almighty as stated in the opening paragraph of the Objectives Resolution and is in conflict with clauses (2) and (3) of the said Resolution' inasmuch as it violates the principles of social justice enunciated by the Qur'an and Sunnah, and disables the Muslims to order their lives, in accordance with the teachings and requirements of Islam, as set out in the Holy Qur'an and Sunnah. (p. 202 of the Law Report)". Now, the President of Pakistan, on 15th of June, 1988 has promulgated the "Enforcement of Shari'ah Ordinance". Preamble of the said Ordinance, inter alia provides:‑ "Whereas the Principles and Provisions set out in the Objectives Resolution have been incorporated in the Constitution of the Islamic Republic of Pakistan as substantive part thereof; And whereas the Objectives Resolution provides that 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; And whereas it is necessary to carry out the purposes of the Objectives Resolution and provide that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah; And whereas the National Assembly is not in Session and the President is satisfied that circumstances exist which render it necessary to take immediate action; Now, therefore, in exercise of the powers conferred by clause (1) of Article 89 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to make and promulgate the Ordinance." The Ordinance defines Shari'ah as under:‑ (e) 'Shari'ah' means the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. Explanation.--As envisaged in Article 227 of the Constitution, in interpreting the Shari'ah with respect to the personal law of any Muslim sect, the expression 'Qur'an and Sunnah' shall mean the Qur'an and Sunnah as interpreted by that sect." Subsections (3), (4) and (5) of section 4, being relevant, are also reproduced below:‑ "4(3). The High Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government or on a reference made under the first proviso to subsection (1) examine and decide whether or not any law relating to Muslim Personal Law, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure or any provision of such law, is repugnant to Shari'ah: Provided that while examining and deciding the question, the High Court shall call for and hear the views of experts having specialized knowledge in the field to which the question relates and of such other persons as the High Court may deem fit. (4) Where the High Court takes up the examination of a law or provision of law under subsection (3), and such law or provision of law appears to it to be repugnant to Shari'ah, the High Court shall cause to be given to the Federal Government in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List in the Constitution or to the Provincial Government in the case of a law with respect to a matter not enumerated in either of those Lists, a notice specifying the particular provisions that appear to it to be so repugnant, and afford to such Government adequate opportunity to have its point of view placed before the High Court. (5) If the High Court decides that any such law is repugnant to Shari'ah, it shall set out in its decision-‑ (a) the reasons for its holding that opinion; (b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect." ............................................................ ........................................................ Thus, the Ordinance, among some other things, empowers all the High Courts and the Supreme Court of Pakistan in its appellate jurisdiction to examine the question of the vires of Muslim Personal Law which includes the Muslim Family Laws Ordinance of 1961, from Shari'ah point of view, in the light of the Holy Qur'an and Sunnah and declare it or any provision thereof as void, if found repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. Despite the fact that the Ordinance has its Constitutional limitation as to its short span of life under Article 89(2) of the Constitution, if the age-old public controversy on the Muslim Family Laws Ordinance of 1961 is almost over, at least, for the present, and the venue has now shifted from the National Assembly to the High Courts and the Supreme Court in its appellate jurisdiction. ***