1993 PLP 1989 (CLC)

(v) Allah Ditta v. The State PLD 1992 Lahore

45. Mr. Abdul Mujeeb Pirzada, on the other hand, submitted that the Shariat Petition filed by the defendants challenging section 4 of the Ordinance and the right of the plaintiffs and the defendant No.13 to inherit shares in the estate of the late Mustajab Khan was dismissed by the Federal Shariat Court on the ground that the matter raised therein did not fall within the jurisdiction of that Court. He has produced copies of the petition and the order which are on record. Mr. Pirzada Nubmitted further that notwithstanding Article 2A of the Constitution, the Courts have to follow the "existing law" Article 268(7) of the Constitution and that Article 2A directed to the Legislature rather than to the Courts. He relied on Mst. Kanrz Fatima v. Wali Muhammad and another (PLD 1989 Lahore 490) Khan and 3 others v. Government of Pakistan (PLD 1992"SC 595). In view of the recent pronouncements on the subject of the amplitude of Article 2‑A of the Constitution by the Supreme Court of Pakistan, it is not necessary to discuss all the cases cited by the counsel. The case of Sardar Ali v. Muhammad Ali (PLD 1988 SC 287) the question involved related to the effect of the judgment of the Supreme Court in its Shariat Appellate Bench in the case of Government of N.‑W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360) whereby certain provisions N.‑W.F.P. and Punjab Pre‑emption Acts and MLR 115 regarding the right pre‑emption were declared as repugnant to Injunctions of Islam and which was to take effect on the 31st July, 1986. It was contended inter alia, that the Objectives Resolution having become substantive part of the Constitution, the provisions of pre‑emption laws which were held to contrary to injunctions of Islam in Said Kamal's case have to be ignored, notwithstanding the other provisions of the Constitution, and Article 2A would have to be implemented as "self‑executory" Constitutional instrument. Muhammad Afzal Zullah, J. (as he then was), observed (at page 330):‑‑, "It has to be mentioned here that arguments on Article 2A of the. Constitution having been addressed during the oral hearing, it was pointed out to all the learned counsel that the Constitution had provided the mechanism and methodology of Islamisation of the existing laws in various provisions thereof. For example Part III, Chapter 3‑A (Federal Shariat Court and Shariat Appellate Bench of Supreme Court of Pakistan and the Legislature); Part IX (Council of Islamic Ideology and the Legislature); Part II Chapter 2 (Implementation of the Basic Principles relating to Islamisation by the Executive and Legislative Organs of the State). They were asked to reconcile the specific provisions which barred the jurisdiction of the Courts regarding the process of Islamisation with their plea for direct application (by the Courts) of the Islamic law in preference to Statute Law. The specific provisions which created difficulty in this behalf were also pointed out to them." His Lordship then went on to observe:‑‑ ` "It has to be noted that no serious attempt has been made by any of the learned counsel to face the difficulty presented by the afore‑quoted provisions, of the Constitution in the acceptance of their contention regarding the direct operation of the Resolution, so as to annul the enacted provisions of statute law. While making this remark we should not be understood to have minimised its Constitutional position by virtue of Article 2A or even without its becoming a formal part of the Constitution. What is being emphasised is that no argument suggesting a reasonable and acceptable reconciliation of the aforestated barring provisions has been advanced. They prima facie create bar of various types for treating the 1949 Resolution as a self executory instrument enforceable by the Courts, for the change of the existing statute law into Islamic enforceable law, over and above the methods envisaged in various Constitutional provisions, Article 30(2); 203‑G; and 227(2); it cannot be ignored, do at least prima facie create '` direct bar of the type aforementioned regarding Islamisation of Laws and the Constitution; as distinguished from their interpretation and enforcement even in the existing form, with the help of Islamic principles. Moreover, a question of great Constitutional importance arises with regard to the conferment of the special jurisdiction on the two forums created under Chapter 3‑A in this behalf‑‑‑the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court. It may be argued that an indirect bar is also contained in Article 203‑A. It gave an overriding effect, vis‑a‑vis the remaining Constitution, to the Islamisation process envisaged in Chapter 3‑A. An VU important question, for example, would arise whether, the fields kept '~"r out of jurisdiction of the Federal Shariat Court and the Supreme Court in their Islamisation jurisdiction under Articles 203‑D and 203‑F by virtue of the definition of law in Article 203‑B (c), were intended to be included in the jurisdiction of all the Courts‑‑say, civil judges and the other forums including revenue, under MLR‑

115. And that too when the former's jurisdiction is exclusive under Article 203‑G. It will have to be determined as to whether in the matter of Islamisation, when keeping the excluded laws out of the jurisdiction of the forums created in this behalf, by the Constitution itself under Chapter 3‑A, the same object was intended to be achieved through other Courts, tribunals or functionaries. In this respect no attempt has been made even to visualise any answers to these questions nor any reason for bypassing the specific afore quoted barring provisions and Chapter 3‑A (as interpreted earlier), except for the claim that the Resolution would override the same. These questions need to be answered notwithstanding the fact that the superior Courts in Pakistan have since long applied the Muslim Law and principles m field of interpretation as distinguished from the change of statue law on that basis." "

38. The generalisation in some of the submissions that all these provisions are to be read with the Resolution, has no proved to be of much help. The Courts are required to act in accord with the constitution and cannot ignore altogether the limitations mentioned above. They have to be reconciled. An attempt has been made in some recent judgments by the Sindh High Court to rely on Article 268 of the Constitution for the proposition that the Resolution having become a part of the Constitution, `adaptations' can be made under clause (6) thereof by the Courts, `as are necessary to bring them in accord with the provisions of the Constitution'. It is remarked that, prima facie this power existed for the transitional period, only for `adaptation' by not only the Courts but also by all `Tribunals' and `authorities', concerned with the enforcement of the laws. Such an interpretation of Article 268(6) cannot be upheld without a fuller examination and proper assistance. Moreover, this or similar other exercise has, for the same reasons, to be deferred till that type of cases come before the Court." In the case of Hakim Khan v. Government of Pakistan (PLD 1992 SC 595) the question for consideration was whether Article 2A resulted in denuding the President of the power of commuting the sentence of death conferred on him by Article 45 of the Constitution. Nasim Hasan Shah, J. (as he then was) analysed the history of the Objectives Resolution and the relevant judgments and observed:‑‑ "Now the well‑established rule of interpretation is that a Constitution has to be read as a whole and that it is the duty of the Court to have recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision. And where any apparent repugnancy appears to exist between its different provisions; the Court should harmonise them, if possible (See Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (PLD 1957 SC 219 at p. 235). 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 2‑A is a supra‑Constitutional provision. Because, if this be its true status then the abovequoted clause would require the framing of an entirely new Constitution. And even if Article 2‑A 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 will become questionable on the ground of their alleged inconsistency with the provisions of the Objectives Resolution. According to the opening clause of this Resolution the authority which Almighty Allah has delegated to the State of Pakistan is to be exercised through its people only "within the limits prescribed by Him". Thus all the provisions of the existing Constitution will be challengeable before Courts of law on the ground that these provisions are not "within the limits of Allah" and are in transgression thereof. Thus, the law regarding political parties, mode of election, the entire structure of Government as embodied in the Constitution, the powers and privileges of the President and other functionaries of the Government will be open to question. Indeed, ,the very basis on which the Constitution is founded namely the trichotomy of powers i.e. that the three great organs of the State have their own particular spheres of authority wherein they exercise their respective powers or the system of checks and balances could be challenged, alongwith all the ancillary provisions embodied in the 1973 Constitution in relation thereto. 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. This presumably was not the intention of General Muhammad Ziaul Haq while adding Article 2A in the Constitution under the Revival of the Constitution Order, 1985 (President's Order No.14/1985). It certainly was not the intention of the law‑makers who enacted Article 270‑A (vide section 19 of the Constitution (Eighth Amendment) Act, 1985) which provision affirmed and adopted, inter alia, P.O. 14/1985 (whereby article 2A was inserted in the Constitution). Their intention simply was that the Objectives Resolution should no longer be treated merely as a declaration of intent but should enjoy the status of a substantive provision and become equal in weight and status as the other substantive provisions of the Constitution. In case any inconsistency was found to exist between the provisions of the 1973 Constitution and those of the Objectives Resolution, it would, they expected, be harmonised by the Courts in accordance with the well established rules of interpretation of the Constitutional documents already mentioned. Being creatures of the Constitution it was not visualised that they could annul any existing Constitutional provisions (on the plea of its repugnancy with the provisions of Article 2A) as no Court, operating under a Constitution, can do so. To use the picturesque words of Mr. Justice (Rtd.) Sh. Aftab Hussain, former Chief Justice of the Federal Shariat Court, in his discourse on the subject of "the Shariat Bill and its implications" PLD 1986 Journal 327, "The Courts are the creation of the Constitution and on no principle of law can they be allowed to cut the tree on which they are perched." His Lordship then went on to observe and to hold as follows:‑‑ "In this connection, the submissions made before us by Dr. Abdul Basit (learned counsel for respondents Nos.10 and 11 in Civil Appeal No.39 of 1992) are very pertinent. According to him the concept of Divine Sovereignty enunciated in the Objectives Resolution namely that all sovereignty vests in Allah Almighty which has been delegated to the State of Pakistan through its people to be exercised through his chosen representatives shows that idea of State, in the Objectives Resolution, has been linked with that of people and this, in turn is linked with that of "Chosen Representatives". Thus, the only authentic expression of the Delegated Sovereignty is expressed through the chosen representatives of the People of Pakistan. The result in the ultimate analysis is that the Legislative Body, becomes the exclusive repository of the delegated Divine Sovereignty in Pakistan, since this is the body which has been elected on the basis of adult franchise and consists of the chosen representatives of the people. Thus, in the above concept (in relation to the exercise of sovereignty in the State of Pakistan) the people's representatives having been made the repository of the Divine Sovereignty the Courts do not have the jurisdiction to declare any law invalid on the ground of it not being within the "limits prescribed by Allah Almighty". The submission of Dr. Basit is that while the Superior Courts undoubtedly will continue to exercise the power and have the jurisdiction to declare laws void on the basis of the other criterion as provided for in the Constitution, but the particular criterion contained in Article 2A of ensuring that no man‑made law transgresses the limits prescribed by Allah and is invalid if it does so, is not within the scope of judicial review. In other words, if an Article of the Constitution or any existing statutory provision is alleged to fall outside the limits prescribed by Allah and needs to be invalidated on that score, such a plea would furnish a ground for legislative but not judicial review, because the limits to be observed in this regard have been addressed to the chosen representatives of the people and not to the Courts. Hence they furnish grounds for legislative and not judicial review. However, the Courts shall retain full powers to identify and apply the proper law to concrete facts situations which are brought before them for adjudication. This submission undoubtedly has force:' and "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 from 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." Shafiur Rahman, J. agreed with the conclusion arrived at by Nasim Hasan Shah, J. (as he then was) and observed: "Through an individualised dispensation (P.O. No.14 of 1985) which of course received subsequently the approval of the Parliament, among others, two important amendments in the Constitution of 1973 (relevant to the present discussion) were made. One such amendment (Article 2A) at first sight appears to 'be formal, not very consequential, declaratory in nature, inoperative by itself. But in our milieu it has given rise to a controversy and a debate which has had no parallel; shaken the very Constitutional foundations of the country, made the express mandatory words of the Constitutional instrument yield to nebulous, undefined, controversial juristic concepts of Islamic Fiqh. It has enthused individuals, groups and institutions to ignore, subordinate and even strike down at their will the various Articles of the Constitution by a test of what they consider the supreme Divine Law, whose supremacy has been recognized by the Constitution itself. What does the Objectives Resolution contain? It 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. So the people operating through their chosen representatives and the Almighty Allah at the Appex exhaust the pristine, devolution, distribution and sharing of Divine Sovereignty: The individuals, the authorities, the institutions, the Courts, do not figure in this structure. They make their appearance on terms, with limitation as a result of further delegation of authority expressly made or impliedly conferred. The second is its qualitative feature. The sovereignty shared or enjoyed is delegated, capable of further delegation, is by its very nature a sacred trust and has to be exercised within the limits prescribed by the Almighty Allah. The third is its normative feature. The norms, the goals, the ideals, mostly mundane in nature are spelt out with particularity which have to be achieved through the Constituent Assembly and by the process of framing a Constitution.

11. Nowhere in the Objectives Resolution, either expressly or impliedly do I rind 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.

12. Apart from these broad features noted by me, there‑ are settled, classic, accepted principles of interpretation of Constitutional provisions. They should not be lost sight of, ignored or violated in our euphoria for instant Islamization of Constitution, Government and society." His Lordship then noted the numerous cases in which Article 2A of the Constitution was considered by the superior Courts of this country and referred to Bindra's Interpretation of Statutes, 7th Edition; and held: . "The ascertainment of the absolute principles of Islamic Law with regard to political power, its distribution and delegation and financial institutions is itself a matter requiring detailed study, thorough research and meaningful debate before acquiring concrete shape so as to be adopted as a test of repugnancy of the Constitutional provisions. It cannot summarily be done. Such an exercise can more appropriately be undertaken under the control and supervision of the legislature and the expert bodies like the Islamic Ideology Council and Islamic Research Institute. The provisions of Article 2A were never intended at any stage to be self‑executory or to be adopted as a test of repugnancy or of contrariety. It was beyond the power of the Court to have applied the test of repugnancy by invoking Article 2A of the Constitution for striking down any other provision of the Constitution (Article 45):" 1n view of the dicta of their Lordships of the Supreme Court in Sardar Ali's case and Hakim Khan's case, it is clear that this Court has no power to declare any law invalid on the touchstone of Article 2‑A of Constitution. Section 4 of the Muslim Family Laws Ordinance will, therefore, govern the rights of the parties in this case. The preliminary issue set out above is decided accordingly. AA./R‑246/K Order accordingly.