Islamic provisions of the constitution of the islamic republic of pakistan, 1973, what more is required?

ISLAMIC PROVISIONS OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973, WHAT MORE IS REQUIRED ISLAMIC PROVISIONS OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN, 1973, WHAT MORE IS REQUIRED? By Mr. Justice (R) Dr. Tanzil‑ur‑Rehman Legal fraternity may be aware that the first Article of the First Constitution of Pakistan, 1956 provided that: ARTICLE 1‑‑PAKISTAN TO BE ISLAMIC REPUBLIC: 1 (i) Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan." This Constitution of 1956 was abrogated on 7th of October, 1958 and Martial law was imposed; and when on 8th of June, 1962, Field Marshal Muhammad Ayub Khan, the Chief Martial Law Administrator, enforced his self‑made constitution, the word "Islamic" from its name was‑ omitted. It was only named as "Republic of Pakistan." However, when the first session of the National Assembly was convened at Dacca, on the move of the well‑known member of Jama'at‑e‑Islami of the then East Pakistan, Barrister Akhtaruddin, the word "Islamic" was added before the word "Republic of Pakistan" and so by the first "Constitution Amendment Act, 1963," Pakistan was again named as "Islamic Republic of Pakistan". Its Islamic identification by its very name, as originally provided in the first Constitution of Pakistan, 1956, made by the chosen representatives by both the wings of Pakistan, was thus, restored. And since then, the name of this State continues to be "the Islamic Republic of Pakistan". By the name itself it is plainly meant that this part of the land will be a cradle for Islamic Democracy but the rulers of this Islamic Republic, whether elected or self‑imposed, neither exhibited their knowledge of Islam nor Democracy as recognized by Islam. ARTICLE 2‑‑ISLAM TO BE STATE RELIGION: Article 2 of the Constitution of Pakistan, 1973, for the first time provides that: "2. Islam shall be the State Religion of Pakistan." All Islam‑loving people were very happy to find Islam to be the State Religion of Pakistan. But when this Article 2 came to be interpreted in the Court of Law, a Full Bench of the Sindh High Court comprising of 5 Judges, headed by its Chief Justice, held that: "Article 2 is incorporated in the Introductory Part of the Constitution and as far as its language is concerned, it merely conveys a declaration. The question arises as to the intention of the Makers of the Constitution by declaring that 'Islam shall be the State Religion of Pakistan'. Apparently, what the Article means is that in its outer manifestation the State and its Government shall carry on Islamic Symbol. This Article does not even profess that by its force, it makes Islamic Law to be the Law of the land." The Court further observed: " . ... There is, therefore, no scope for the argument that Islamic Laws are to be enforced, in their entirety by virtue of Article 2 itself." (Niaz Ahmed v. Province of Sindh PLD 1977 Karachi 604 at pp.648‑49). This judgment, to say the least, depicts. Constitutional constraints of our Courts, while interpreting Article 2 of the Constitution. ARTICLE 2A‑‑PRINCIPLES AND PROVISIONS SET OUT IN THE OBJECTIVES RESOLUTION TO BE EFFECTIVE PART OF THE CONSTITUTION: This Article was added on 2nd March, 1985, to the original 1973 Constitution, by the late General Muhammad Zia‑ul‑Haque, the then President and Chief Martial Law Administrator by President's Order No. 14 of 1985 dated 2nd March, 1.985. It reads as under: "2A. 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. " In order to give background of the insertion of the above Article 2A, it may be added that the First Constituent Assembly, created under the Indian Independence Act, 1947, to frame a Constitution for Pakistan, as an independent State, passed on 12th March, 1949, a Historic Resolution called the "Objectives Resolution" which, inter alia, laid down the parameters of the future Constitution of Pakistan to be framed by the Constituent Assembly. Unfortunately, the Constitution‑making was delayed for various reasons which need not detain us here. The First Constitution was, however, promulgated on 23rd March, 1956, and the Objectives Resolution was made as its preamble only, and it continued to be so in 1962, 1972 and 1973 Constitutions. It was General Zia‑ul‑Haque who made the Objectives Resolution as substantive part of the Constitution by inserting Article 2A therein, for the observations made by the late Chief Justice Hamoodur Rahman in Ziaur Rehman's case PLD 1973 SC 49 on the question of the legal effect of the Objectives Resolution then incorporated as preamble to the Constitutions of 1956 and 1962 and later on, in interim and Permanent Constitutions of 1972 and 1973 respectively. In the case of State v. Zia‑ur‑Rahman PLD 1973 SC 49 regarding the Objectives' Resolution the Chief Justice Hamoodur Rahman observed that: "... the Objectives Resolution of 1949, even though it is a document which has been generally accepted and has never been repealed or renounced, will not have the same status or authority as the Constitution itself, until it is incorporated within it or made part of it. So, in short, this was the background, among other things, that General Ziaul Haque incorporated the principles and provisions set out in the Objectives Resolution as substantive part of the Constitution and made them effective accordingly. This Article 2A came up for consideration in several judgments of the High Courts of Sindh and Lahore as well as Supreme Court of Pakistan. Perhaps, the last of such judgments, wherein the effect of Article 2A was discussed in detail, is that of the Supreme Court reported as Hakim Khan and others v. Government of Pakistan and others PLD 1992 Supreme Court 595) decided in July, 1992 on appeal from Full Bench Judgment, dated 14‑1‑1992 of the Lahore High Court reported as "Sakina Bibi v. Federation of Pakistan PLD 1992 Lahore 99. The point at issue directly involved in the case was whether Article 45 of the Constitution empowering the President of Pakistan to grant pardons, contravenes, in some respects, the Injunctions of Islam and if so, can it be struck down as repugnant by virtue of Article 2A or not? The High Court held it to be so. The Supreme Court in Hakim Khan's case while examining Articles 45 and 2A accepted the appeal against the said judgment of the Lahore High Court and observed that: . ...in the instant case, if the High Court considered that the existing provision of Article 45 of the Constitution contravened the Injunctions of Islam in some respects it should have brought the transgression to the notice of the Parliament which alone was competent to amend the Constitution, and could initiate remedial legislation to bring the impugned provision in conformity with the Injunctions of Islam. Mr. Justice Dr. Nasim Hasan Shah, who headed the Bench, restricting to the main issue, held that a provision of the Constitution cannot be tested tin the touchstone of Article 2A of the Constitution. Mr. Justice Shafiur Rehman, however, went a step further while observing that even a law, as to its repugnancy, cannot be tested on the touchstone of Article 2A of the Constitution and even if found repugnant to the principles and provisions set out therein, cannot be struck down. With due respect, my impression is that the Hon'ble Supreme Court has sidestepped the issue by saying "let Parliament do it". It should have examined the inconsistency between the two Articles, and if upheld the finding of the High Court as to the repugnancy, it should have declared Article 45 as repugnant to Article 2A to the extent of such repugnancy and it should not have left the matter to the Legislature alone. It is worthy to note that the entire Resolution, as such, has not been made part of the Constitution. It is only the principles and provisions of the Objectives Resolution which have been made operative by virtue of Article 2A. Perhaps, this fact was not brought to the notice of the Hon'ble Supreme Court. This may, perhaps, be one of the reasons that the matter was left to the Legislature alone, as is apparent from the Resolution, reading it as a whole. However, in my humble view, a High Court is empowered to declare repugnancy of a provision of the Constitution or law and strike it down on the basis of Article 2A, and then it may advise the Legislature to re‑enact the same. The two provisions, inconsistent with each other, cannot be allowed to exist as equally operative, if the question is agitated before the Court. According to the present view of the Honourable Supreme Court, the principles and provisions set out in the Objectives Resolution even after they have become part of the Constitution by virtue of Article 2A is devoid of any practical value. According to them, its value is that of an abstract declaration which is useless, unless there exist the wheel and the means to make it effective. With due respect, I beg to differ. If the view expressed in Hakim Khan's case is accepted that Article 2A is not self‑executory in nature, and will require another statue to bring it into action, it negates the well‑recognized and very widely known principle of the interpretation of every country's Constitution that any law repugnant to the Constitution is void. The reasoning, that since there is no indication in the Constitution that the violation of the principles and provisions of the Objectives Resolution as made effective under Article 2A, will not automatically come into play without a law, is hardly acceptable. Analogy has been sought from Article 8 which specifically provides that any law contrary to the fundamental right is void. In fact, there was no need for making a specific provision that a law coming into conflict with the fundamental right. will be void to be provided in the Constitution. It is inherent in itself (see American Constitution) that any law which is repugnant to any provision of the Constitution is void and the Fundamental Rights being also part and parcel of the Constitution the same rule will apply to them without making a specific provision for the same. Putting the question on the reverse, suppose there is no declaration in the Constitution that a law against the Fundamental Rights guaranteed by the Constitution will be void, what will be its effect? Will the Courts not strike down the law if it comes into conflict with the Fundamental Rights conferred and guaranteed by the Constitution? Certainly, they will not refuse to do so. Therefore, no such express provision in the Constitution is required to declare a law found against the Fundamental Rights as void. Similarly, if a law passed by an Assembly not properly constituted, will the Courts abstain themselves form declaring as void the said law passed by the so‑called Assembly? The Constitution is the Supreme Law. It controls the entire legislative activity and whatever law is brought into force it is to be in line with the fundamental law of the country, i.e. the Constitution, otherwise the whole scheme of things provided in the Constitution will become superfluous. I regret to say that after leading the judgment in Hakim Khan's case the impression about the effect of Article 2A of the Constitution that one gets is that Article 2A appears to be simply a decoration piece of legislation, as it lacks enforceability. The Honourable Supreme Court has shown its inability to declare Article 45 as repugnant to the Injunctions of Islam‑‑‑laid down in the Qur'an and Sunnah in terms it is couched in Article 2A, being itself the creation of the said Constitution. Maintaining its absolute neutrality, the Supreme Court feels satisfied to leave the matter to the Parliament without giving any finding, if there existed any repugnancy in Article 45 of the Constitution to the principles and provisions as set out in the Objectives Resolution now made an effective part of the Constitution under Article 2A. I may therefore, conclude the discussion on the point of the enforceability of Article 2A through Courts of law, by adding that the principles and provisions set out in the Objectives Resolution by virtue of Article 2A furnish an example of Legislation by Reference and have the potential of being positive Constitutional Law and thus, the provisions, in case of contrariety, shall be held as repugnant. However, the judgment of the Supreme Court as pronounced in Hakim Khan's case still holds the field. It, therefore, seems imperative that the Parliament in order to uphold the supremacy of the Qur'an and Sunnah makes the following amendments in Article 2A: (i) The phrase "notwithstanding anything contained in the Constitution" be added to Article 2A. (ii) In order to remove any ambiguity, a new clause (2‑B) be inserted in the Constitution as under: "2B. Any provision of the Constitution or law or any custom having the force of law found inconsistent with he principles and provisions set out in the Objectives Resolution reproduced in the annex shall, to the extent of such inconsistency, be void. I may here venture to remind the Hon'ble Prime Minister, Muhammad Nawaz Sharif, of his speech made by him on 10th of April, 1991 on the floor of the Parliament while moving the Enforcement of Shariat Bill, 1991, that the Constitution will be amended so as to make 'the Qur'an and Sunnah to be the Supreme Law of the land'. Perhaps, at that time, he did not have the full support. But now Allah the Almighty has given to him three -fourth majority in the Parliament, and he may easily fulfil his promise to the nation made by him some six years ago. ARTICLES 31, 37(h), 38 (f) and 40 ‑‑ PRINCIPLES OF POLICY OF THE STATE: The Constitution under Chapter 2 lays down certain principles of policy of the State, such as Article 31 provides that the steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam, according to the Holy Qur'an and Sunnah. Article 37 (h) casts a duty on the State to prevent the consumption of alcoholic liquor other than for medicinal and, in case of non‑Muslims, religious purpose. Article 38 (f) casts a duty on the State to eliminate Riba as early as possible. Article 40 provides for strengthening bonds with Muslims and promotion of international peace. But this very Chapter of the Constitution itself provides that‑- . "the responsibility of deciding whether any action of an. organ or authority of the State, or of a person performing functions on behalf of an organ or authority of the State, is in accordance with the Principles of Policy is that of the organ or authority of the State, or of the person, concerned." (Article 30(1)). It further provides that‑‑ "the validity of an action or of any law shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State, any organ or authority of the State or any person on such ground." (Articles 30 (2)). With the result that the Principles of Policy, however, solemn or sacrosanct they may appear to be, are not justifiable through Courts of law, as also held by our superior Courts to be so. Late Justice M. Munir, a former Chief Justice of Pakistan, in his Commentary on the Constitution of Pakistan, 1962 (p.215) while discussing the Principles of, Policy has, thus, observed that: "It is usual in constitutional instruments to set out the aims and objects of the State. The part of the Constitution in which they are stated is a sort of manifesto of the Constitution‑makers, and, except where a strong ideological party controls the Government from outside, such declarations remain as dead as the manifestoes of demagogues after elections." ARTICLES 41(2), 62(d), 62(e) and 62(h) ‑‑‑ QUALIFICATIONS OF THE MEMBERS OF THE ASSEMBLY: The Constitution by Article 41 (2) provides that: 'A person shall not be qualified for election as President unless he is a Muslim...' Article 62 (d) then provides that a person shall not be qualified to be elected or chosen as a Member of Majlis‑i‑Shoora (Parliament) unless 'he is of good character and is not commonly known as one who violates Islamic Injunctions.' Article 62 (e) prescribes as one of the conditions for a Muslim to be elected or chosen as a member of Majlis‑i‑Shoora (Parliament), that he has adequate knowledge of Islamic teachings and practises obligatory duties prescribed by Islam as well as abstains from major sins. " The provisions of Article 62 (alongwith Article 63 regarding disqualification and Article 113 regarding application thereof to the members of the Provincial Assemblies) came up for examination before the Federal Shariat Court in the case reported as Muhammad Salahuddin (Editor of Weekly Takbeer) v. Government of Pakistan (PLD 1990 FSC 1) wherein it was, inter alia, observed that the spirit of the Qur'anic Injunctions has been embodied into the Constitution's Articles 62 and 63 (alongvvith Section 99 of the People Representation Act) for their enforcement but the law (in practice) has been made a mockery. The judgment underlined a number of suggestions for the proper scrutiny of the candidates and the enforcement of the provisions of law. The then Government, instead of giving due consideration and effect to the suggestions and findings of the Federal Shariat Court, tiled an appeal against the said judgment before the Shariat Appellate Bench of the Supreme Court where the said appeal is lying dormant for about eight years, alongwith several other appeals against the judgments of the Federal Shariat Court in some other important matters which are also pending since long. In the recent general elections, there has been much hue and cry in the public about the scrutiny of the candidates of the National and Provincial Assemblies as provided under Article 62 but the persons holding top positions showed their apathy towards it and termed them as unworkable, rather impracticable. But the said Government functionaries avoided the hearing of the appeal before the Shariat Appellate Bench against the said Judgment of the Federal Shariat Court. They also failed, rather neglected to frame a proper law for the same. One may very well‑construe the meaning and purpose for such acts and omissions of all concerned. ARTICLES 227‑230 ‑‑ THE COUNCIL OF ISLAMIC IDEOLOGY 'these provisions relate to the establishing of a Council of Islamic Ideology under the Constitution of 1973. Earlier the Constitution of 1956 (Chapter 1 of Part XIII contained two Islamic provisions, namely Article 197 and Article 198. Article 197 required the President to set up an Organization for Islamic Research and Instructions in advanced studies to assist in the re construction of Muslim Society on truly Islamic basis. Article 198 provided that no law shall be enacted which is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. and that the existing laws shall be brought in conformity, with such Injunctions. The second clause of Article 198, however, provided that the effect shall be given to the above requirement as to the law‑making in the manner indicated in the third clause of the Article.. This clause of the Article enjoined upon the President to appoint a commission to make recommendations as to the measures for bringing existing laws in conformity with the Injunctions of Islam and the stages by Which such measures shall be brought into, effect. The Commission was also made responsible to compile in a suitable form, for the guidance of the National and Provincial Assemblies, such Injunctions of Islam as can be given legislative effect. However, one day before the expiry of one year's time fixed in the Constitution, a Chairman of the above Commission was named by the then President of Pakistan, but no members were appointed nor any step taken to achieve the objectives indicated in Article 198. In fact, before any beginning could be made in this direction, the said Constitution of 1956 was abrogated by the proclamation made by Iskandar Mirza, the then President of Pakistan, on 7th October, 1958, with General Muhammad Ayub Khan, Commander‑in‑Chief of Pakistan Army, as Chief Martial Law Administrator. Ayub Khan assumed the office of President of Pakistan and imposed on the country his self‑made Constitution in 1962. In that Constitution, however, the setting up of an Advisory Council of Islamic Ideology was provided for in place of the Commission, as aforesaid. The Constitution of 1962 was abrogated in 1969 and a permanent Constitution was passed by the collective will of the people of Pakistan expressed through their chosen representatives, in August, 1973. This Constitution, too provided 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 that "no law shall be enacted which is repugnant to such Injunctions". A Council for Islamic Ideology (the‑word "Advisory" having been dropped) was also provided for and unlike the previous Constitution, a time‑limit of 9 years, in all, was fixed to bring all the existing laws in conformity with the Qur'an and Sunnah (Articles 227‑‑30). The entire Part IX (Articles 227 to 230) of the Constitution is devoted to the process of Islamization, which is evident from the very fact that the Part has been named as "Islamic Provisions". Article 227 (1) provides that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Qur'an and Sunnah. Sub‑Article (2j of Article 227 provides that no law, which is repugnant to such Injunctions, shall be enacted, An explanation to clause (I) to this Article added by Constitution (Third Amendment) Order, 1980 (P.O. No.2 of 1980) with effect from September 17, 1980. provides that in the application of clause (1) of Article 227 to the personal laws of any Muslim sect the expression "Qur'an and Sunnah" shall mean the Qur'an and Sunnah, as interpreted by that sect. Article 228 provides for the constitution and composition of the members of the Council of Islamic Ideology by the President who shall ensure, as far as practicable. that various schools of thought are represented in the Council. Article 229 provides for making a reference to the Council by the President of Pakistan or the Governor of Province or by a House or a Provincial Assembly. if two‑fifth of its total membership so requires, for advice as to whether a proposed law is or is not repugnant to the Injunctions of Islam. Article 230 states the Islamic Council's functions which are enumerated as under: "(1) The functions of the Islamic Council shall be‑‑ (a) to make recommendations to Majlis‑e‑Shoora (Parliament) and the Provincial Assemblies as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their Ives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Qur an and Sunnah; (b) to advise a House, a Provincial Assembly, the President or a Governor on any question referred to the Council as to whether a proposed law is or is not repugnant to the Injunctions of‑Islam: (c) to make recommendations as to the measures for bringing existing laws into conformity with the Injunctions of Islam and the stages by which such measures should be brought into effect; (d) to compile in a suitable form, for the guidance of Majlis‑e‑Shoora (Parliament) and the Provincial Assemblies, such Injunctions of Islam as can be given legislative effect." Article 230 further provides that "(2) When under Article 229. a question is referred by a House. a Provincial Assembly, the President or a‑ Governor to the Islamic Council, the Council shall, within fifteen days thereof inform the House,‑ the Assembly, the President or the Governor, as the case may be. of the period within which the Council expects to be able to furnish that advice. (3) Where a House, a Provincial Assembly, the President or the Governor, as the case may be, considers that in the public interest, the making of the proposed law in relation to which the question arose should not be postponed until the advice of the Islamic Council is furnished, the law may be made before the advice is furnished, provided that, where a law is referred for advice to the Islamic Council and the Council advises that the law is repugnant to the Injunctions of Islam, the House or, as the case may be the Provincial Assembly the President or the Governor shall reconsider the law so made. (4) The Islamic Council shall submit its final report within seven years of its appointment, and shall submit an annual interim report. The report, whether interim or final, shall be laid for discussion before both Houses and each Provincial Assembly within six months of its receipt, and Majlis‑e‑Shoora (Parliament) and the Assembly. after considering the report, shall enact law in respect thereof within a period of two years of the final report. " As would appear from the provisions quoted above, the Council holds an advisory capacity; its recommendations are to be placed before both the Houses and each Provincial Assembly and these shall enact laws in respect thereof. As provided in Article 227 (2), the existing laws are to be brought in conformity with the Injunctions of Islam, as mentioned in clause (1) only in the manner provided in Part IX. It seems to me that the Council may recommend the transformation of laws either in the form of a simple recommendation or a draft laws and submits an interim annual report or final report. It, therefore, implies that the Council will forward its annual reports which may be deemed to be the interim reports and they will be considered by the two Houses and each Provincial Assembly within six months of their receipt, and whatever objections are raised or explanations are sought or questions are asked the Council will, then, submit its final report keeping in view the objections by the Assembly involving reconsideration by the Council on the points raised on matters covered by that annual interim report It will be then re‑submitted by the Council as final report, and the Parliament will enact laws in respect thereof, as provided in Article 230 (4) quoted above, within the next two years. Thus, as provided under Article 227 (2). it is the business of the Legislature only to enact and promulgate laws in conformity with the Injunctions of Islam as laid down in the Qur'an and Sunnah but a glance through the legislative history reveals that the authority of the Parliament or the Provincial Assembly as envisaged under the Islamic Provisions in Chapter IX, has seldom been exercised. This, at least, is certain by their working during 1962‑1977 as no law appears to have been brought in conformity with Islamic Injunctions, in the light of the reports of the Council submitted to the Government of Pakistan which, again, appears to have been seldom laid before the National and Provincial Assemblies. General Muhammad Zia‑ul‑Haque in September, 1977, reconstituted the Council. All provisions relating to the Council remained the same and intact, except that its maximum number of members was increased from 15 to 20 and the condition for the appointment of its Chairman that he shall be a person who is or has been a Judge of the High Court or the Supreme Court, was amended by him in or about September 1982 (P.O. No. 13 of 1982) as he felt uneasy and found it difficult to get along smoothly, with a judge. (I was then the Judge of the High ours of Sindh. and also Chairman of the Council.) Now any person from amongst the members of the Council can be appointed Chairman of the Council. However, during his period, too, no annual reports of the Council were laid before the Majlis‑e -Shoora nominated by him. In fact, the Council was denied permission in writing to send its various reports to the members of the Majlis‑e‑Shoora The Law of Pre‑emption, Qanun‑e‑Shahadat and the Law of Qisas and Diyat and Ihtiram‑e‑Ramazan Ordinance drafted by the Council and vetted by the Ministry of Law were, however, laid, discussed and passed by the Majlis‑e- Shoora. The newly elected National Assembly and the Provincial Assemblies in 1985, after lifting of the Martial Law and Revival of the Constitution, and so onward in 1988, 1990 and 1993, no report of the Council is reported to have been laid;" for discussion and enactment" before the Assemblies; except once in 1996 on the personal request of Maulana Fazlur Rahman (then M.N.A), Secretary General of Jamiat Ulema‑e‑Islam as reported in the Press. This report, too, was simply laid in the House, but not discussed at all. With this short resume one can very well ascertain the attitude of the Government and the National and Provincial Assemblies and; also the Senate towards the enforcement of Islam in Pakistan. And particularly after 1993. the wheel turned the other way round: Secularization moved ahead. Islam has been no more on the agenda. Council of Islamic Ideology has been politicized inasmuch as the General Secretary of a political party, which happened to be an ally of the ruling party was appointed the Chairman of the Council. ARTICLES 203(c) TO 203(h): FEDERAL SHARIAT COURT: On or about Ist of January, 1978, General Muhammad Zia‑ul‑Haq made a public announcement that the Superior Courts of Pakistan will be empowered to strike down any law repugnant to the Qur'an and Sunnah, as void. But, perhaps, on second thought, instead of conferring general jurisdiction on the High Courts and the Supreme Court to implement that announcement four Shariat Benches in all the four High Courts and one Appellate Shariat Bench in the Supreme Court were established‑ by a Presidential Order promulgated on 10th February. 1979, with powers to declare as void, any law as defined, if found repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Prophet. After nearly 15 months, a separate Court for the purpose called "Federal Shariat Court" came into being and for that purpose a Constitution Amendment Order was promulgated on 26th June, 1980, and a new Chapter 3‑A was added to the Constitution. The Federal Shariat Court was, thus, constituted comprising of one Judge from each of the four High Courts as members thereof and retired Judge of the Supreme Court as its Chief Justice. After about a year, it was found expedient that three Ulema of traditional learning and well versed in Islamic law; be also included in the said Federal Shariat Court as members thereof. Later on, two Ulema with similar qualifications were also included in the Shariat Appellate Bench of the Supreme Court, to make the entire set‑up workable and acceptable to the people. CRITICAL STUDY OF THE PROVISIONS OF THE CONSTITUTION RELATING TO FEDERAL. SHARIAT COURT: (i) Article 203‑A provides that the provisions of Chapter 3‑A pertaining exclusively to the Federal Shariat Court shall have effect notwithstanding anything contained in the Constitution. It means that in case the provisions of Chapter 3‑A come into conflict with any other provisions of the Constitution, the provisions contained to Chapter 3‑A will prevail and override any other provision of the Constitution to the extent of inconsistency. All powers enumerated in Chapter 3‑A are thus vested in the President of Pakistan. (ii) Article 203‑B(c) defines "law" which means and "includes any custom or usage having the force of law but does not include the Constitution, Muslim Personal Law; any law relating to the procedure of any Court or tribunal or, until the expiration of ten years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure". It is, thus, apparent that the scope of the jurisdiction of Federal Shariat Court is restricted. It cannot examine the provisions of the Constitution, notwithstanding their 'repugnance to the Injunctions of Islam as laid down in the Qur'an and Sunnah. So, was the position relating the Muslim Personal Law. The Muslim Family Laws Ordinance promulgated by General Ayub Khan during Martial Law and made effective since 15th July 1961, could not be challenged in the Federal Shariat Court even if any provision 'thereof was repugnant to the Injunctions of Islam. All laws relating to the procedure of any Court or Tribunal are also beyond the purview of the Federal Shariat Court. Furthermore, the jurisdiction of the Federal Shariat Court stood barred from examining any fiscal law or an), law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure. However, this bar relating to fiscal law was provided in the Constitution for a period of ten years from the commencement of Chapter 3‑A which came to an end on 25th June, 1990. The bar was, thus, lifted automatically, on expiry of the period fixed in the Constitution. It Was only then that the Federal Shariat Court on having acquired the jurisdiction, to examine fiscal law was able to pronounce its most renowned judgment, inter alia, on banking interest, holding it to be Riba, as prohibited in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). (iii) The Federal Shariat Court was also debarred, as, aforesaid, to entertain, a Shariat petition wherein any provision in the Muslim Personal Law was challenged on the ground of its repugnancy to the Injunctions of Islam. However, in 1979. the then Shariat Bench of the High Court of Peshawar headed by its able and under present Chief Justice Mr. Justice Abdul Hakim Khan, gave a judgment on the provisions of section 4 of the Muslim Family Laws Ordinance 1961, relating to succession of an orphan grandson, declaring the same to be repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. The case was reported as Mst. Farishta v. Federation of Pakistan (PLD 1980 Peshawar 47). The Government filed an appeal in the Shariat Appellate Bench of the Supreme Court which set aside the said judgment, holding that the Federal Shariat Court had no jurisdiction to examine Muslim Personal Law. And that the Muslim Family Laws Ordinance, 1961, fell within the domain related to Muslim Personal Law. The decision is reported in (PLD 1981 Supreme Court 120). It may be added that dozens of petitions have been filed, at intervals, in the Federal Shariat Court, challenging the various provisions of the Muslim Family Laws Ordinance and some other statutes relating to the Muslim Personal Law but they were all dismissed summarily during all these years in view of the judgment of the Shariat Appellate Bench of the Supreme Court, as the said judgment was binding on the Federal Shariat Court. Fortunately; the point was again agitated in or about 1993 before the Shariat Appellate Bench of the Supreme Court in another case, challenging in an appeal some provision of the Muslim Family Laws Ordinance 1961. This time the Shariat Appellate Bench of the Supreme Court had become wiser by the inclusion of the two Ulema as ad hoc members of the Shariat Appellate Bench. The Bench reviewed the judgment in Farishta's case. The Supreme Court, however, remanded the case in appeal to the Federal Shariat Court. The case is reported in PLD 1994, SC 507. Now, therefore, the curbs on examining the provisions of Muslim Personal Law stand removed, with certain limitations, by virtue of the above judgment of the Supreme Court and in my humble view now any citizen of Pakistan will be at liberty to file Shariat Petition challenging the provisions of Muslim Family Laws Ordinance on the ground of their repugnancy to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. The present position is that not only the case in which the Supreme Court reviewed its earlier judgment as remanded to the Federal Shariat Court for reconsideration and fresh decision, some other petitions have also been filed challenging several provisions of the Muslim Family Laws Ordinance 1961 which are pending decision for the last several years before the Federal Shariat Court. (iv) However the bar to examine any provisions of the Constitution or any procedural law relating to Court or Tribunal still continues. It would, therefore, be advisable to redefine the term "law" so as to bring within the jurisdiction of the Federal Shariat Court to provisions of the Constitution and laws relating to the procedure of any Court or Tribunal. It will be further advisable to delete the words "Muslim Personal Law" from its definition in order to avoid any ambiguity or confusion which may arise from the latter judgment of the Supreme Court on the possibility of reinterpretation in future by another Bench of the Supreme Court. The last phrase of this definition clause "or until the expiration of ten years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or, banking or insurance practice and procedure" may be deleted, as having become redundant due to expiry of time fixed therein. These steps if taken will help to establish supremacy of the Holy Qur'an and Sunnah through the Federal Shariat Court and also of the Parliament which is to ultimately implement the decision of the Federal Shariat Court by means of the re‑enactment of a law or any provision thereof, to bring it in conformity with Islamic Injunctions. (v) Article 203‑C provides that the Federal Shariat Court shall consist of not more than eight Muslim Judges, including the Chief Justice, to be appointed by the President. The Chief Justice shall be a person who is, or has been or is qualified to be Judge of the Supreme Court or who is or has been a permanent Judge of High Court. Of the Judges, not more than four shall be persons, each one of whom is or has been or is qualified to be a Judge of High Court and not more than three shall be Ulema who are well‑versed in Islamic Law. The Chief Justice and a Judge shall hold office for a period not exceeding three years, but may he appointed for such further term or terms as the President may determine. It was further provided that serving Judge of a High Court shall not be appointed to be a Judge of Federal Shariat Court for a period exceeding two years except with his consent and, except, where the Judge is himself the Chief Justice, after' consultation by the President with the Chief Justice of the High Court. (vi) The appointment of a Judge of the Federal Shari'at Court including the Chief Justice is purely temporary. The term of office will not exceed 3 years at one point of time; it may beg for a lesser period say, for one year or two or till further order. He "spay be removed at the whim of the appointing authority i.e. the President, e.g. Mr. Justice Salahuddin, a retired Judge of the Supreme Court, was appointed as the first Chief Justice of the Federal Shari'at Court for one year only. His term of office was not extended. Justice Sardar Fakhr‑e‑Alam of Peshawar High Court, now Chief Election Commissioner, was appointed Chief Justice to replace immediately the Chief Justice Sheikh Aftab Hussain (now deceased). till further orders. Sardar Sahib was removed from Chief Justiceship only after few months. He, however, continued to be a Judge of the Federal Shari'at Court to complete his term of office for two years. In my own case, on my retirement as Senior Pusine Judge of the High Court of Sindh in June, 1990 I had gone outside Pakistan and joined International Islamic University, Malaysia, as Full Professor of Shari'ah Law. I was then offered by the President Ghulam Ishaq Khan to come back and head the Federal Shariat Court. I was, thus, appointed its Chief Justice but for one year only. The term was extended for another year but probably due to my delivering Judgment on Riba, my term was no more extended. So, I could serve the Shariat Court only for two years. (vii) So, far as the appointment of a serving Judge of a High Court or Supreme Court as a Judge or Chief Justice of Federal Shariat Court his term ‑of office could not exceed two years except with his consent. Now by virtue of the famous Judgment of the Supreme Court in the Judges' Case delivered on 20th March, 1996, it is no more possible for the appointing Authority to transfer any serving Judge of High Court or Supreme Court to the Federal Shari'at Court for whatever period it may be, except with his consent. As you know, Mr. Justice Nasir Aslam Zahid. the Chief Justice of the Sindh High Court, and Mr. Justice Khalil‑ur‑Rehman Khan, the "would be" Chief Justice of Lahore High Court, were transferred to the Federal Shariat Court during Benazir Bhutto's premiership, though for a period of two years, but without their consent. So the provision of law relating to the appointment of serving Judges of the High Court was generally used as a measure to get rid of "undesirable" Chief Justice and Judges of the High Court. Earlier, in November 1992, Mr. Justice Muhammad Ilyas Khan of the Lahore High Court, who was next to Chief Justice Mian Mahboob Ahmed, and was likely to be the Chief Justice of the Lahore High Court on Mian Mahboob Ahmed's going to Supreme Court, was transferred as Judge of Federal Shariat Court during Mr. Muhammad Nawaz Sharif's premiership: But when Mr. Muhammad Nawai Sharif was compelled to say good‑bye to his high office of premiership of 'the country and the reins of power came into the hands of Benazir Bhutto the tables were turned in favour of Mr. Justice Muhammad Ilyas Khan .who was appointed as a Judge of Supreme Court, and was then appointed as the Acting Chief Justice of Lahore High Court in place of Mr. Justice Mehboob Ahmed who was appointed to be the Judge of the Federal Shariat Court. Mian Mehboob Ahmed not having accepted the appointment as a Judge of the Federal Shariat Court was deemed to have retired from his high office of Chief Justice of the Lahore High Court, as provided under sub‑Article (5‑C) of Article 203‑C(4)&(5). There are several other cases as to how serving Judges of the High Court of Lahore, Peshawar, Sindh and Balochistan were made to serve unwillingly as Judges of the Federal Shariat Court under the orders of General Muhammad Zia‑ul‑Haque and Ghulam Ishaque Khan. Federal Shariat Court, thus, became a dumping ground for the serving Judges who were considered to be "undesirable" by the President or the Prime Minister of the country. Thanks to Almighty Allah that this process of victimization of serving Judges came to an end by virtue of the Supreme Court's Judgment on 20th March, 1996. (vii) On top of it, was provided under sub‑Article 4‑B of Article 203‑C that the President may, at any time, by order in writing‑‑ (a) modify the term of appointment of a Judge; (b) assign a Judge to any other office; and (c) require a Judge to perform such other functions as the President may deem fit and pass such other order as he may consider appropriate. In this clause and clause (4‑c), "Judge" included Chief Justice. However, while holding any other office assigned to him under clause (4‑b), he shall be entitled to the same salary, allowances and .privileges as are admissible to the Chief Justice or as the case may be, Judge of the Court. To give an example of the victim of these provisions of law, Sheikh Aftab Hussain, a Senior Judge of the Lahore High Court and the Chief Justice of Federal Shariat Court, while on' an official trip to Sudan in or about September/October 1984 was removed from the office of Chief Justiceship of Federal Shariat Court and was made an Advisor to the Ministry of Religious Affairs. This position for a man like Shaikh Aftab Hussain, or for that matter any other Chief Justice, was highly derogatory and so he totally refused to accept that position and submitted his resignation to President General Ziaul Haque. I would, therefore, humbly suggest that Mian Muhammad Nawaz Sharif, the Prime Minister of Pakistan, while bringing amendments in the Constitution relating to Judiciary, must not lose sight of the present terms and conditions of the appointment of the Judges and Chief Justice of the Federal Shariat Court. Sub‑Article (4‑B), (4‑C), and (5) of Article 203‑C must be deleted to restore the dignity and honour of the Judges and Chief Justice of Federal Shariat Court. Moreover, their terms of appointment, privilege and pension should be rationalized with the Judges of the High Court and the Supreme Court, as also recommended by the Chief Justices Committee in 1992, of which I was a member, as Chief Justice Federal Shariat Court. (ix) Regarding Ulema Judges, it is necessary to mention that in the case of Federal Shariat Court not more than three Ulema who are well -versed in Islamic Law would be appointed in the Federal Shariat Court (203‑C (3‑A)). It is further provided that not more than 2 Ulema will be appointed as ad hoc members of the Shariat Appellate Bench. It is noticeable that only one Aalim Judge is working in the Federal Shariat Court for the last seven years. I emphasize that two more Ulema Judges should be appointed in Federal Shariat Court as soon as possible. (x) Ad hocism in the matter of appointment of Judges of Supreme Court has been done away with by virtue of the Judgment of the Supreme Court dated 20th March, 1996. It will be in the fitness of things if the Ulema members of the Shariat Appellate Bench are also made permanent Judges of the Supreme Court; they must serve as full time Judges of the Supreme Court like other Judges. with full devotion and loyalty to Shari'ah in the Supreme Court. If the Registrar of the Supreme Court is required to submit a chart of the actual sitting days of the Ulema members of the Shariat Appellate Bench, I am sure it will not exceed two to three weeks a year. With the result that the appeals against the decisions of the Federal Shariat Court 'are lying dormant for years together in the Shariat Appellate Bench of the Supreme Court. This, to my mind, is a vital reason for delays in Justice in the matter of Shariatization of Pakistan Laws. It is also necessary that the qualifications of Ulema Judges should be mentioned in the Constitution and their age of retirement should be in accordance with Judges of the High Court and Supreme Court, to make the whole set up workable, efficient and meritorious. A New Approach: (xi) And, last but not the least, there are a number of suggestions which may revolutionize the whole process of Islamization through Federal Shariat Court, which is a composite Court of all Federating Units of Pakistan. These suggestions are summarized as under:‑‑ (a) The provisions relating to Council of Islamic Ideology, for its ineffectiveness, and due to the existence of Federal Shariat Court, be deleted. This will avoid unnecessary duplication of the work of Islamization of laws and save expenditure. Moreover, the examination of "Existing Laws" i.e. up to 14‑8‑1973 as provided under Article 227(1) of the Constitution has already been completed by the Council. (b) The functions of the Federal Shariat Court may be expanded so as to include some of the functions of advisory nature of the Council which may be assigned to the Federal Shariat Court. The present staff recruited by the Council may be absorbed in the Federal Shariat Court. Those who are working in the council on deputation may be sent back to their parent departments. (c) The provisions relating to the Shariat Appellate Bench in the Supreme Court should be deleted. The ad hoc Ulema members of the Shariat Appellate Bench who have been appointed from amongst the Judges of the Federal Shariat Court should be sent back to the Federal Shariat Court. (d) The Federal Shariat Court should be constituted in two permanent Benches, i.e. (1) The Federal Shariat Court, on its Original Side, will hear Shari'ah petitions and also advise a House, a Provincial Assembly, the President, or a Governor, on any question referred to the Shariat Court as to whether or not a proposed law is or is not repugnant to the Injunctions of Islam. This function is currently being performed by the Council of Islamic Ideology under sub‑clause (b) of clause (1) of Article 230 of the Constitution, and is suggested to be included in the functions of the Federal Shariat Court, as already stated. (2) The Federal Shariat Court (Appellate Side) will hear Shari'ah Appeals arising out of the decisions of the Original Side Bench of the Federal Shariat Court. (e) The minimum number of the Judges of the Federal Shariat Court, including Chief Justice, should be fixed as not less than eleven. Out of whom three shall, at least, be Ulama Judges. (f) The present appellate jurisdiction of the Federal Shariat Court to hear criminal appeals against the Judgments of the Sessions Courts in Hudood Cases should be transferred to the High Courts of respective provinces. This will speed up the disposal of the criminal appeals and will make justice less expensive. The Judges of the Federal Shariat Court will then find more time to be devoted to Shari'ah petitions. The relevant provisions in the Hudood laws may accordingly be amended. (g) The Revisional jurisdiction of the Federal Shariat Court as conferred on it under Article 203‑DD should, however, continue with it. It is hoped that these steps, if taken, will make the creation of the Federal Shariat Court purposeful for which it was originally conceived.