ANALYZATION OF THE CONSTITUTIONAL EVOLUTION OF ARTICLE 2-A
ANALYZATION OF THE CONSTITUTIONAL EVOLUTION OF ARTICLE 2-A OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973 WITH REGARD TO THE RELEVANT RULES OF STATUTORY INTERPRETATION
By Ihsanullah Butro. Adv
Before heading towards the constitutional evolution of Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973 with regard to the relevant rules of statutory interpretation, it is pertinent to understand the brief historical background of the objective Resolution prior to the insertion of Article 2-A in the Constitution. Historical background of the objective Resolution prior to the insertion of Article 2-A in the Constitution: The first thing in the framing of a constitution for Pakistan was taken by the first Prime Minister of Pakistan, Liaquat Ali Khan who introduced the resolution in the constituent Assembly of Pakistan on 7TH March 1949, as “embodying the main principles on which the Constitution of Pakistan is to be based”. It laid the foundation of the constitution and indicated the broad outline of the structure. However, such resolution was supported by the other members that the Objectives Resolution will only be a means to ensure that the very purposes of this new State are met, without trampling on the rights of minorities, and to determine what kind of State Pakistan was going to be, it was important to determine the relationship it would have with the creator of the universe, while Objective Resolution was also opposed by various members that it will turn the Pakistan into a theocratic state. In a nutshell, Constituent Assembly passed a Objectives resolution on March 12 1949, in the spirit of constitution. Since the 8th amendment, Article 2A has now become substantive part of the constitution which has dramatically changed the concept of sovereignty of Parliament. As per the Islamic point of view, the sovereignty over the entire universe belongs to Almighty Allah the State has been recognized as the delegatee thereof which is to exercise that sovereignty through chosen representatives of the people within the limits set out by Almighty Allah as a sacred trust. It may be pertinent to point out that while conceding sovereignty to a democratically elected Parliament, the Constitution simultaneously circumscribes that sovereignty by confining it to the limits prescribed by Almighty Allah. This is just because of a Muslims belief that they may be free to make their own choices in life but not to exceed the limits prescribed by Almighty Allah. Undoubtedly, the Constitution of Pakistan, conforming to the Islamic perceptions, recognizes democracy as the only mode of governance but a democracy which does not come in conflict with a Muslim's faith. This may seem to be ambiguous but we the Muslims of Pakistan have no difficulty in understanding and applying this concept. It therefore, fits into the corner when the Objectives Resolution refers to "the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam" and Muslims shall spend their lives in accordance with the teachings of Islam as provided in the Holy Qur'an and the Sunnah". Insertion of Article 2-A in the Constitution of Islamic Republic of Pakistan: Article 2-A of the constitution of Islamic Republic of Pakistan, 1973 was inserted through 8th amendment in the constitution on 2nd March 1985 by the President General Zia-ul-haq. The text of Article 2A is as given as under: “The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made a substantive part of the Constitution and shall have effect accordingly.” It may be significant at very outset to define the word “substantive”. In the case titled Hakim Khan and others v. Government of Pakistan and others, Supreme Court defined the word “substantive” means an essential part or constituent or relating to what is essential. In a nutshell, Article 2A is an essential part of the constitution but it carries same weight and status as of other Articles of the constitution. After insertion of Article 2A in the Constitution the principles and provisions of the Objectives Resolution including Injunctions of Islam, have become substantive part of the Constitution, the status or authority of Injunctions of Islam is not delegated to Parliament laws. The Injunctions of Islam as laid down in the Holy Qur’an and Sunnah are the supreme law of the land and all the Parliament laws have to conform with the Injunctions of Islam. It is vital to say that laws inconsistent with fundamental rights secure underneath under the Constitution are void by virtue of the provisions of Article 8 of the Constitution. Therefore, it can be concluded without any hesitation that laws inconsistent with supreme law of the land, i.e. Injunctions of Islam, are also void. Since the Article 2A has been added as a substantive part in the constitution, injunction of Islam as laid down in Holy Quran and Sunnah are positive law of the country then superior courts of Pakistan- most probably Federal Shariat Court has jurisdiction to determine whether any manmade laws or orders, acts and actions of executive are consistent with the Injunctions of Islam. Justice Munir, the former Chief Justice of Pakistan, Justice Munir has defined the Article 2A in the following words: “It has been freely admitted that the Resolution, though grandiloquent in words, phrases and clauses is nothing but a hoax.” Justice Munir emphasized that the Objectives Resolution ordered a precedent of actions and principles that the Pakistani government might never embody and it rather distributed the government onto a path that it ought to never have ventured into in the first place.
Status of Objective Resolution before and after the insertion of Article 2A:
Before the insertion of Article 2A in the Constitution, the status of Objectives Resolution as a part of the Preamble to the Constitution had been examined by Supreme Court of Pakistan in the case titled The State VS Zia-ur-Rahman, the Court held that a body having the power of framing a Constitution is not “omnipotent” nor can it disregard the mandate given to it by the people for framing a Constitution or can frame a Constitution which does not fulfil the aspirations of the people or achieve their cherished objectives, political, social or economic. These restriction on its power, however, are political restriction and not justiciable by the courts. If a Parliament so acts in contrary the aspirations of the people, then the people have first and foremost right to correct it. The Courts have no power to declare any provision of the Constitution null and void on the ground that it exceeds the mandate given to the Constituent Assembly concerned or that it does not fulfil the wishes or objectives of the people. Ex Chief Justice Mr. Hamoodur Rahman further held 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.
After insertion of Article 2A in the Constitution making the Objectives Resolution a substantive part of the Constitution its status as compare to the other provisions of the Constitution came under the roof of Pakistan Supreme Court in the case titled Hakim Khan VS Government of Pakistan through Secretary Interior and others, In that case question came up for consideration as to whether the power of the President under Article 45 of the Constitution to grant pardon, reprieve and respite and remit, suspend or commute any sentence passed by any Court, tribunal or other authority was in conflict with Article 2A of the Constitution which was introduced as substantive part of the Constitution. Contention was raised whether the President have power to waive right of Qisas under the Injunctions of Islam, or such power could be exercised by Walis of the deceased only. Majority view of the Judges was that Article 2A has been inserted in the Constitution with the intention that the Objectives Resolution ought not be treated merely just as a declaration but should enjoy the status of substantive provision and become equal in weight and status as other substantive provisions of the Constitution. In case of any inconsistency was found to exist between the Constitutional provisions and those of the Objectives Resolution the same would be harmonised by the Courts in accordance with the well-known rules of interpretation of the Constitutional provisions. It was further held that where any apparent repugnancy appeared to exist between its different provisions, the Court was to harmonise them, if possible. The case was remanded with the opinion that if the High Court had considered that if the Article 45 of the Constitution is repugnance the Injunctions of Islam, then it should have send back to the Parliament to amend the relevant controversial provision. It further appears from the judgment that the case had to be remanded in view of the contention that judgment of the High Court was liable to interference on other grounds as well, and final opinion was made that it was not within the jurisdiction for the High Court to examine that case on the touchstone of Article 2-A of the Constitution of Pakistan.
What remains to be seen in this case that the provisions of Article 2A of the Constitution or of the Objectives Resolution of 1949 cannot be used as a touchstone or a test of repugnancy for defeating the other provisions of the Constitution. Undoubtedly, objective resolution by way of Article 2A had been made substantive part of the constitution but, sigh should not be lost of that Superior courts of Pakistan have no authority to strike down any constitutional provision on the ground of repugnancy.
Interpretation of constitutional provisions i.e. Article 2A in light of rule of Harmonious Construction:
It is 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 entire instrument in order to ascertain the true nature and meaning of any constitutional provision. In order to avoid any inconsistency or repugnancy between the constitutional provisions, constitution must be interpreted as a whole so that true spirit of the constitutional provisions may be maintained. Question may also arise when two constitutional provisions cannot be reconciled then in such situation, latter provision can be prevailed in case of conflict. In Al-Jehad Trust case, Justice Ajmal Mian applied the latter interpretation as it was more in consonance with the various provisions of the constitution.
Pakistan Supreme Court in its Advisory jurisdiction in the case Reference by President of Pakistan under Article 162, held that effect should be given to every part and every word of the constitution. Hence, as a general rule, the Courts should avoid to make any construction which renders any provision meaningless or inoperative and should lean in favour of a construction which is able to render every word operative instead of one which can make some words worthless and nugatory. In case of any interpretation of written provision, whether they are constitutional provision or ordinary statutes or other instruments, the real object of the Court is to examine the intention of the author and such intentions to be gathered from the words used in the statute or document. In the case titled Justice Khurshid Anwar Bhinder and others VS Federation of Pakistan, with respect to the Article 2A, Supreme Court held that judicial consensus seems to be that while interpreting the Constitution, the Objectives Resolution must be examined by the Judge and where the language of the Constitutional provision provides exercise of choice, the Court must choose that rule of interpretation which is guided by the principles embodied therein. In another case titled Mst. Amir Khatoon VS Faiz Ahmed, Supreme Court held that interpretation should be made so as to harmonise and to remain consistent with other laws having relevance or nexus with the law sought to be interpreted. In a nutshell, it can be stated that interpretation of Article 2A must be in conformity with other provisions of constitution and courts must try to harmonize Article 2A with other provisions in case of any apparent conflict between constitutional provisions. However, difficulty can also be raised when two conflicting constitutional provisions cannot be harmonized then in such situation, in order to maintain the true spirit of both contradictory provisions, effect must be given to both provisions by courts of law. Since 2A is a constitutional provision, then it must be interpret in the spirit of constitution and effect must be given in order to reconcile it. It must be borne in mind that Article 2A cannot be used to defeat the other constitutional provisions as it was held in Hakim Khan’s case, wherein Supreme Court rejected the plea to use it to defeat the another- Article 45 but court applied the rule of harmonious construction in order to resolved the matter in controversy.
Article 2A being a grund-norm of the constitution: The status of Article 2A being a grund-norm has been mainly discussed by the superior courts of Pakistan over the years. The word grund-norm is a German word which means a basic norm is a norm for testing the validity of law, including a constitution. Whether Article 2A can be treated as grund-norm of the constitution was discussed by the Supreme Court in affirmative way in the case of Asma Jilani Vs Government of the Punjab, Supreme Court treated Objective Resolution as a grund-norm enshrined in its own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority governed by the people within the prescribed limits set out by him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution. The basic concept underlying this unchangeable principle of sovereignty is that the entire body becomes a trustee for the discharge of sovereign functions. Since in a advanced society every individual cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations underneath a trust. The question of grund-norm of the constitution was again raised before the Karachi High Court in the case titled Farhat Jalil VS Province of Sindh, in which Court held that constitution is the grundnorm for the other legislation and the Objectives Resolution made substantive part of the Constitution is the grundnorm of the Constitution itself. Supra-constitutional status of Article 2A: The question with respect to the supra-constitutional of Article 2A has been raised before superior courts of Pakistan over the years yet such status of Article 2A is uncertain and ambiguous because there are diverse views of courts regarding the supra-constitutional status of Article 2A. Although, it has been determined by the supreme court of Pakistan that one provision of the Constitution cannot be struck down being in conflict with any other Constitution provision but, in the cases of Bank of Oman Ltd VS East Trading Co. Ltd, and Irshad H. Khan VS Parveen Aijaz, Article 2A was held to be supra-Constitutional and paramount and except to the extent of its subordination of Chapter 3-A of Part VII of the Constitution and even it was adopted as a test of repugnancy of any other provision of the Constitution. With due respect, i do not concur with the ruling of Karachi High Court for simple reason that judiciary being itself the creation of constitution and cannot struck down any constitutional provision. Undoubtedly, Article 2A has been made substantive part but it doesn’t mean that Article 2A is paramount clause of the constitution and all other provisions of constitution to be interpreted as subordinate to this paramount clause. Therefore, Supreme Court in the case of Hakim Khan v. Government of Pakistan, has righty held that by virtue of Article 2A, the Objectives Resolution had become a substantial part of the Constitution. However, it was not a supra-Constitutional provision and hence carried the same weight and status as other Articles of the Constitution which were already a substantive part thereof. Consequently, amendment to the Constitution cannot be tested on the touchstone of Article 2A. Subsequently in the case of Mst. Kaneez Fatima VS Wali Muhammad, Supreme Court had observed that Article 2A of the Constitution cannot be pressed into service for striking down any provision of the Constitution being in conflict with any other provision of the Constitution. However, in the case of Zaheer-ud-din VS The State, Justice Abdul Qadeer has opened up a following few exceptions to this provision; “The majority of the population believes that Sharia is not suited to modern times and creates a theocratic state. Such criticisms and accountability issues, especially in line with international law and human rights, have put our legislature under pressure to conform with international standards and thereby flee from the Sharia. Islam and its principles are being criticized due to the perception that Sharia might be the cause of rudimentary and oppressive laws being instilled in Pakistan”. Conclusion with suggestions to amend Article 2A: There is no denying the fact that Article 2A has been most controversial Article in the constitutional history of Pakistan since its insertion. Superior courts have often applied the rule of harmonious construction in order to resolve the matter but, when the constitutional provisions are incapable to be resolved then the courts ought not to embark upon choosing or preferring one provision of the constitution over the other because superior courts are itself creation of the constitution that it derives its powers and jurisdiction from the Constitution and that it will even confine itself within the limits prescribed by the Constitution which it has taken oath to protect and preserve. Therefore, in case of any apparent conflict between the two provisions of the constitution, courts have no power to strike down any constitutional provision and in such situation matter should be left to parliament to resolve the same through its power to amend the constitution. There is dire need to amend Article 2A in order to uphold the supremacy of injunction of Islam as laid down in Holy Quran and Sunnah. Parliament must consider following amendment in Article 2A; i. The phrase "notwithstanding anything contained in the Constitution" be added to Article 2A. ii. In order to get rid of any ambiguity, a new clause (2 B) be inserted in the Constitution as under: "2B. Any provision of the Constitution or law found inconsistent with the principles and provisions embodied in the Objectives Resolution reproduced in the annex shall, to the extent of such inconsistency, be void.