Historical
Development
of The Islamic Provisions In Pakistan's
Constitution
Dr. Tanzilur Rahman
You may be aware that when a child is born, parents, in the first instance give him a good
name. Thus the first article of the First Constitution of Pakistan 1956 provided that:
Article I
Pakistan to be Islamic Republic
"1 (i) Pakistan shall be 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 Jamaat-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 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 Vs. 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 President and Chief Martial Law Administrator by
President's Order No.14 of 1985 dated 2nd March 1985. 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 of' Pakistan, as an independent State, passed on
12th March, 1949, 2 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 Constitution of 1956 and 1962 and later on, in interim and Permanent
Constitutions of 1972 and 1973 respectively.
In the case of State Vs. Zia-ur-Rabman (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 Zia-ul-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,
where in the effect of Article 2A was discussed in detail, is that of the Supreme Court
reported as Hakim Khan and Others Vs. Govt. 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 Vs. Federotion of Pakistan (PLD 1992 Lah ore
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 he 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 Hassan Shah, who headed the Bench, restricting to the main issue,
held that a provision of the Constitution cannot he tested on 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 are devoid of any practical value. According to them,
their 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 bringing 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 right 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 right 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 right as void.
Similarly, if a is 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 reading 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 Honorable 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.
It is respectfully submitted that no proper appreciation was made by the learned Judges of
the Supreme Court that the principles and provisions (only) of the Objectives Resolution
by virtue of Article 2A have been an effective and operative part of the Constitution.
Otherwise there was hardly any justification to insert Article 2A to burden the
Constitution at all.
May I ask, with all humility at my command, had the law-makers intended to make the
principles and provisions set out- in the Objectives Resolution an operative part, what
other words would have been appropriate or necessary to do so in place of what has been
used here? Certainly, the law-makers were not involved in an exercise in futility.
In furtherance of my view as expressed above, I may seek aid from the majority judgment
dated 3.7.1993 written by Mr. Justice Abdul Qadeer Chaudhary (now retired) in Qadiani's
case reported as Zaheeruddin and others Vs. State (1993 SCMR 1718), wherein the learned
Judge observed that:
"It was for the first time in the Constitutional history of Pakistan, that the
Objectives Resolution, which
henceforth formed part of every Constitution as a preamble, was adopted and incorporated
in the
Constitution in 1985, and made its effective part. This was an act of the adoption ofa
body of law by reference, which is not unknown to the lawyers. It is generally done
whenever a new legal order is enforced. Here in this country, it had been done after every
Martial Law was imposed or the Constitutional Order restored after the lifting of Martial
Law. The legislature in the British days had also adopted the Muslim and other religious
and customary laws, in the same manner, and they were considered as the positive
laws."
The learned Judge further observed:
"It is thus clear that the Constitution has adopted the Injunctions of Islam as
contained in Qur'an and Sunnah
of the Holy Prophet as the real and the effective law. In this view of the matter, the
Injunctions of Islam as
contained in Qur'an and Sunnah of the Holy Prophet are now the positive law. The Article
2A made effective
and operative the sovereignty of Almighty Allah and it is because of that Article that the
legal provisions and
principles of law, as embodied in the Objectives Resolution, have become effective and
operative. Therefore, every man-made law must now conform to the Injunctions of Is lam as
contained in Qur'an and Sunnah of the Holy Prophet (P.B.U.H.). Therefore, even the
Fundamental Rights as given in the Constitution must not violate the norms of Islam."
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.
Now, to end with this discussion, the purpose of insertion of Article 2A is the
enforcement of the Qur'an and Sunnah through Courts of law within the framework of the
principles and provisions of the Objectives Resolution. It is, therefore, very humbly
submitted that the fundamental purpose and spirit of the Constitution must not be lost
sight of. It should not be construed so as to avoid the higher norm deducible from the
fundamental theme which is the significant feature of our Constitution of 1973.
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" he added
to Article 2A.
(ii) In order to remove any ambiguity, a new clause 2B 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 the 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 he amended so as to make the
Qur'an and Sunnah to he 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 fulfill 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 medical, and, in case of non-Muslims, religious purpose. Article 38 (1)
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." (Article 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 manifestos 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 be 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-Sboora (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 practices obligatory
duties prescribed by Islam as well as abstains form major sins."
The provisions of Article 62 (along with 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) Vs. Govt. of Pakistan (PLD 1989 FSC) 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 (along with Section 99 of the Peoples
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, filed 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, along with 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.
Article 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 I of part XII) 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.
About these provisions Mr. A.K. Brohi observed that:
"The overall effect of this Article was that the Legislature was supreme inasmuch as
a law passed in
contravention of the requirement of Article 198 could not be successfully challenged in a
Court of Law, nor a
writ of Mandamus could lie to compel the Executive or the Legislature to bring existing
laws in conformity
with the Injunctions of Islam." (Reference may be made to Brohi's Fundamental Laws of
Pakistan, p.782).
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.
Articles 199 to 203 of the Constitution of 1962 provided for the formation of the Council
of Islamic Ideology, its constitution, appointment of its members and term of their
office, as well as that of the Chairman.
Article 204 provided that the functions of the Council shall be:
"(a) to make recommendations to the Central Government and the Provincial Governments
as to means of enabling
and encouraging the Muslims of Pakistan to order their lives in all respects in accordance
with the principles and
concepts of Islam, and to examine all laws in force immediately before the commencement of
the Constitution (First
Amendment) Act, 1963, with a view to bring them into conformity with the teachings and
requirements of Islam as
set out in the Holy Qur'an and Sunnah; and
(b) to advise the National Assembly, a Provincial Assembly, the President or a Governor on
any question referred to
the Council, that is to say, a question as to whether a proposed law is or is not
repugnant to the teachings of Islam as
set out in the Holy Qur'an and Sunnah."
Under Article 205, it was. made incumbent on the Council that-
"not later than the 15th day of January in each year it shall prepare a report in
regard to its proceedings during the
year ending on the previous 31st day of December and submit the same to the President, who
shall cause it to be
laid down before the National Assembly"
Article 206 names the Council as "Advisory Council of Islamic Ideology."
Article 207 relates to establishing an Islamic Research Institute. Under the Rules of
Procedure, it was provided, later
on, that the
Council was to seek opinion of the Institute on references received from the Government
etc. on Islamic issues.
Late Chief Justice M. Munir in his commentary on the Constitution of Pakistan, 1962,
observed that the provision of
law-making concerning Islam, as envisaged in 1962 Constitution was "merely
illusory". In his own words:
"It remained merely as a statement of the position about Islam as a sort of manifesto
of Constitution-makers. In fact,
it proved to be a dead letter of the Constitution. So far as the Court's jurisdiction to
declare a law as repugnant to
Islam was concerned, it was denied to them."
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 (2) of Article 227
provides that no law, which is repugnant to such Injunctions, shall be enacted. An
explanation to clause (1) 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 lives
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 Majlise-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
placeed before both the Houses and each Provincial Assembly and these shall existing laws
in respect thereof. As provided
in Article 227 (2), the existing laws are to be brought in conformity with the Injunctions
Islam, as mentioned in Clause (I)
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 law and submit an interim annual report or
final report.
It, therefore implies that the Council will forward its annual reports which may deemed to
be the interim reports and they
will be considered by t 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 cover 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, least, is certain by their working during 1962-1977 as no law appeal to
have been brought in conformity
with Islamic Injunctions, in the light of the reports of the Council submitted to the
Government.
Pakistan which, again, appear to have been seldom laid before the National and Provincial
Assemblies. Let me quote from
the Book "Reflections of Islam" by late Justice Hamoodur Rahman, former Chi
Justice of Pakistan (Lahore: 1983, pp.
119-20). The learned author( who also happened to be the Chairman of the Council during
1974-77, referring to the
setting up of the Advisory Council of Islam Ideology under the Constitution of 1962,
stated:
"Then came the 1962 Constitution of Field Marshal Ayub Khan. This too retained the
Objectives Resolution as its
preamble, repeated the prohibition against making of laws inconsistent with the
injunctions of Islam and directed that
existing laws should be brought into conformity with such injunctions. These, however,
were made principles of State
policy. The validity of an action or law not in accordance with these principles could not
be called in question in any Court.
The Commission under the 1956 Constitution was replaced by a Council of Islamic Ideology
whose functions were more
or less similar to those of the Commission but the Council was required to submit annual
reports to the President with
regard to its proceedings and the latter was to cause them to be presented before the
National Assembly."
"Such a Council was set up and it functioned till the second Martial law in 1969 but
none of its reports, I understand, were
presented to the National Assembly, * The Second Martial Law abrogated the 1962
Constitution. No new Council was
set up. No further steps were taken for Islamization until 1974. Similar provisions are to
be found in the interim Constitution
of 1972 and the Constitution of 1973. A new Council of Islamic Ideology was set up in
February, 1974, with a term of
three years. It was required to complete its task within seven years. The tasks assigned
to it were the same as those
assigned to the Commission under the 1956 Constitution and in addition it was called upon
to make recommendations as to
the ways and means of enabling Muslims in their individual and collective capacity to
order their lives in accordance with
the principles and concepts of Islam. It had also an advisory jurisdiction. If a question
arose as to whether a law proposed
to be enacted was in conflict with the injunctions of Qur'an and Sunnah it had to be
referred to the Council for its opinion,
only if a fixed number of members insisted.
"The Council submitted its first interim report under clause (4) of Article 230 of
the Constitution direct to the Speakers of
the respective Assemblies for being laid before the Assemblies. It was so laid, discussed
and adopted by the Assemblies of
Baluchistan and N.W.F.P. No action was taken by the Speakers of the other Assemblies but
the Central Government
promptly amended the rules of procedures of the Council requiring it to submit its reports
to the Central Government. After this no report was laid before any
Assembly even though the Constitution required this to be done within six months of its
receipt."
Justice Hamoodur Rahman further observed:
"In this background, it is not surprising that present Martial Law Authorities should
have decided to give importance
to the process of Islamization as it is still the belief of the overwhelming majority of
the people of Pakistan that their
salvation lies in this. They also believe that the dismemberment of the country in 1971
was mainly due to the failure of
the previous regimes to realize this basic fact that Islam is the only force that can
cement the people of Pakistan into
a nation. If the principles of justice, equality and brotherhood preached by Islam had
been put into practice, the
secession of East Pakistan might well have been avoided. This still holds good for what is
now left of Pakistan.
Hence, the anxiety to see that the process is implemented as speedily as possible."
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 Court 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 report of the Council was 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, Qanoon-e-Shahadat and the Law of Qisas and Diyat and Ihtiram-e-Ramzan
Ordinance drafted by the
Council and vetted by the Ministry of Law were, however, laid, discussed and passed by the
Majlis-e-Shoora.
The reports of the Council for 1977-78 to 1983-84 alongwith many other subject-wise
reports after lifting of Martial law
and Revival of the Constitution were laid before the National Assembly and the Senate.
Some of these reports were
discussed therein but no legislation was made in respect thereof. But in the National
Assemblies elected in 1988, 1990, and
1993, no report of the Council is reported to have been laid before the Assemblies, except
once in 1996 on the personal
request of Mawlana Faziur Rahman (then M.N.A), Secretary General of Jamiat Ulama-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 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 Chairman of the Council.
Articles 203A to 203H
Federal Shariat Court
On or about 1st of January 1978, General Muhammad Zia-ul Haq made a public announcement
that the Superior Court of
Pakistan will be empowered to strike down "any" law repugnant to the Qur'an and
Sunizah, 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 one Judge from
each of the four High Courts as
members thereof and a retired judge of the Supreme Court as its Chief Justice. After about
a year, it was found expedient
that three 'ulama' of traditional learning and well versed in Islamic law, be also
included in the said Federal Shariat Court as
members thereof. Later on, two 'ulama' 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.
Chapter 3A
Federal Shariat Court
In order to give fuller idea, the whole Chapter 3A relating to the Federal Shariat Court
is reproduced as under:
"203A. The provisions of this Chapter shall have effect notwithstanding anything
contained in the Constitution.
203B. In this Chapter, unless there is anything repugnant in the subject or context,
1[(a) "Chief Justice" means Chief Justice of the Court;)
(1))"Court" means the Federal Shariat Court constituted in pursuance of Article
203C;
1[(bb) "Judge" means Judge of the Court);
(c) "law" 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 2[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; and [(d)...)
203C. (1) There shall be constituted for the purposes of this Chapter a court to be called
the Federal Shariat Court.
(2) The Court shall consist of not more than eight Muslim judges including the [Chief
Justice, to be appointed by the
President).
5(3) The Chief Justice shall be a person who is, or has been, or is qualified to be, a
Judge of the Supreme Court or who is
or has been a permanent Judge of a High Court.
(3A) 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
a High Court and not more than three shall be Ulema [who are well-versed in Islamic law).
(4) The 4[Chief Justice) and a 4[Judge shall hold office for a period not exceeding three
years, but may be appointed for
such further term or terms as the President may determine:
Provided that Judge of a High Court shall not be appointed to be a 4[Judge) for a period
exceeding 5[two years) except
with his consent and 6[except where the Judge is himself the Chief Justice), after
consultation by the President with the
Chief Justice of the High Court.
[(4A) The 4(Chief Justice), if he is not Judge of the Supreme Court, and a 4 [Judge] who
is not a Judge of a High Court,
may, by writing under his hand addressed to the President, resign his office].
7[(4B) The President may, at any time, by order in writing,
(a)modify the term of appointment of a Judge;
(b)assign to Judge 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.
Explanation. In this clause (4C), "Judge" includes Chief Justice.
(4C) while he is performing the functions which he is required under clause (4B) to
perform, or holding any other office
assigned to him under that clause, a Judge 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].
(5)A Judge of a High Court who does not accept appointment as a 8[Judge] shall be deemed
to have retired from his office
and, on such retirement, shall be entitled to receive a pension calculated on the basis of
the length of his service as Judge
and total service, if any, in the service of Pakistan.
(6)The principal seat of the Court shall be at Islamabad, but the Court may from time to
time sit in such other places in
Pakistan as the [Chief Justice] may, with the approval of the President, appoint.
(7)Before entering upon office, the [Chief Justice] and a [Judge] shall make before the
President or a person nominated by
him oath in the form set out in the Third Schedule.
(8)At any time when the 9 [Chief Justice] or a 9[Judge] is absent or is unable to perform
the functions of his office, the
President shall appoint person qualified for the purpose to act as 9[Chief Justice] or, as
the case may be, 9[Judge].
(9)A 9[Chief Justice] who is not a Judge of the Supreme Court shall be entitled to the
same salary, allowances and
privileges as are admissible to a Judge of the Supreme Court and a 9[Judge] who is not a
judge of a High Court shall be
entitled to the same salary, allowances and privileges as are admissible to a Judge of a
High Court.
1o[203 CC. Panel of Ulema and Ulema members] Omitted.
203D. (1) The Court may, '1[either of its own motion or] on the petition of a citizen of
Pakistan or the Federal Government
or a Provincial Government, examine and decide the question whether or not any law or
provision of law is repugnant to
the Injunctions Islam, as laid down in the Holy Qur'an and the Sunnah of the Ho Prophet,
hereinafter referred to as the
Injunctions of Islam.
12[(1A) Where the Court takes up the examination of any law provision of law under clause
(1) and such or provision of
law appeal to it to be repugnant to the Injunctions of Islam, the 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, or to the
Provincial Government in the case of a la with respect to a matter not enumerated in the
either of those List a notice
specifying the particular provisions that appeal to it to be repugnant, and afford to such
Government adequate opportunity
have its point of view placed before the Court.]
(2)If the Court decides that any law or provision of law repugnant to the Injunctions of
Islam, it shall set out in its decision
(a)the reasons for its holding that opinion; and
(b)the extent to which such law or provision is so repugnant;
and specify the day on which the decision shall take effect
'3[Provided that no such decision shall be deemed to take effect before the expiration of
the period within which an appeal
therefor may be preferred to the Supreme Curt or, where an appeal has be( so preferred,
before the disposal of such
appeal].
(3)If any law or provision of law is held by the Court to repugnant to the Injunctions of
Islam,
(a)the President in the case of a law with respect to a matter in the Federal Legislative
List or the Concurrent
Legislative List, or the Governor in the case of a law with respect to a matter not
enumerated in either of those Lists,
shall take steps to amend the law so as to bring such law or provision into conformity
with the Injunctions of Islam;
and
(b)such law or provision shall, to the extent to which it is held to be so repugnant,
cease to have effect on the day on
which the decision of the Court takes effect.
[Clause 4 omitted).'4
15[203DD (1) The Court may call for and examine the record of any case decided by any
criminal court under any law
relating to the enforcement of Hudood for the purpose of satisfying itself as to the
correctness, legality or propriety of any
finding, sentence or order recorded or passed by, and as to the regularity of any
proceedings of, such court and may, when
calling for such record, direct that the execution of any sentence be suspended and, if
the accused is in confinement, that he
be released on bail or on his own bond pending the examination of the record.
(2)In any case the record of which has been called for by the Court, the Court may pass
such order as it may deem fit and
may enhance the sentence. Provided that nothing in this Article shall be deemed to
authorize the Court to convert a finding
of acquittal into one of conviction and no order under this Article shall be made to the
prejudice of the accused unless he
has had an opportunity of being heard in his own defence.
(3)The Court shall have such other jurisdiction as may be conferred on it by or under any
law].
203E. (1) For the purposes of the performance of its functions, the Court shall have the
powers of a Civil Court trying a
suit tinder the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following
matters, namely:
(a)summoning and enforcing the attendance of any person and examining him on oath;
(b)requiring the discovery and production of any document; (c) receiving evidence on
affidavits; and
(d)issuing commission for the examination of witnesses or documents.
(2)The Court shall have power to conduct its proceedings and regulate its procedure in all
respects as it deems fit.
(3)The Court shall have the power of a High Court to punish its own contempt.
(4)A party to any proceedings before the Court under clause (1) of Article 203D may be
represented by a legal
practitioner who is a Muslim and has been enrolled as an advocate of a High Court for a
period of not less than five years
or as an advocate of the Supreme Court or by a jurisconsult selected by the party from out
of a panel of jurisconsuIts
maintained by the Court for the purpose.
(5)For being eligible to have his name borne on the panel of jurisconsults referred to in
clause (4), a person shall be an
aalim who in the opinion of the Court, is well versed in Shariat.
(6)A legal practitioner or jurisconsult representing a party before the Court shall not
plead for the party but shall state,
expound and interpret the Injunctions of Islam relevant to the proceedings so far as may
be known to him and submit to the
Court a written statement of his interpretation of such Injunctions of Islam.
(7)The Court may invite any person in Pakistan or abroad whom the Court considers to be
well-versed in Islamic law to
appear before it and render such assistance as may be required of him.
(8)No court fee shall be payable in respect of any petition or application made to the
Court under 16[Article 203D].
17[(9) The Court shall have power to review any decision give! or order made by it.]
203F. (1) Any party to any proceedings before the Court under' Article 203D aggrieved by
the final decision of the Court
in such proceedings may, within sixty days of such decision, prefer an appeal to the
Supreme Court [:)18
18[Provided that an appeal on behalf of the Federation or of Province may be preferred
within six months of such decision].
(2)The provisions of clauses (2) and (3) of Article 203D an clauses (4) to (8) of Article
203E shall apply to and in relation
to the Supreme Court as if reference in those provisions to Court were reference to the
Supreme Court.
19[(2A) An appeal shall lie to the Supreme Court from an, judgment, final order or
sentence of the Federal Shariat Court:
(a)if the Federal Sharia' Court has on appeal reversed an order of acquittal of an accused
person and sentenced him
to death or imprisonment for life or imprisonment for a term exceeding fourteen years; or,
on revision, has enchanted
a sentence as aforesaid; or
b)if the Federal Shariat Court has imposed any punishment on any person for contempt of
the Court.
(2B) An appeal to the Supreme Court from a judgment, decision order or sentence of the
Federal Shariat Court in a case
to which the preceding clauses do not apply shall lie only if the Supreme Court grants
leave to appeal].
20 (3) For the purpose of the exercise of the jurisdiction conferred by this Article,
there shall be constituted in the Supreme
Court a Bench to be called the Shariat Appellate Bench and consisting of:
(a)three Muslim Judges of the Supreme Court and
(b)not more than two Ulema to be appointed by the President to attend sittings of the
Bench as ad hoc members
thereof from amongst the Judges of the Federal Shariat Court or from out of a panel of
Ulema to be drawn up by
the President in consultation with the Chief Justice.
(4) A person appointed under paragraph (b) of clause (3) shall hold office for such period
as the President may determine.
(5) Reference in clauses (1) and (2) to "Supreme Court" shall be construed as a
reference to the Shariat Appellate Bench.
(6) while attending sittings of the Shariat Appellate Bench, a person appointed under
paragraph (b) of clause (3) shall have
the same power and jurisdiction, and be entitled to the same privileges, as a Judge of the
Supreme Court and be paid such
allowances as the President may determine].
203 G. Save as provided in Article 203F, no court or tribunal, including the Supreme Court
and a High Court, shall
entertain any proceedings or exercise any power or jurisdiction in respect of any matter
within the power or jurisdiction of
the Court.
21[203GG. Subject to Articles 203D and 203F, any decision of the Court in the exercise of
its jurisdiction under this
'Chapter shall be binding on a High Court and on all courts subordinate to a High Court].
203H. (1) Subject to clause (2) nothing in this Chapter shall be deemed to require any
proceedings pending in any court or
tribunal immediately before the commencement of this Chapter or initiated after such
commencement, to be adjourned or
stayed by reason only of a petition having been made to the Court for a decision as to
whether or not a law or provision of
law relevant to the decision of the point in issue in such proceedings is repugnant to the
Injunctions of Islam; and in such
proceedings shall continue, and the point in issue therein shall be decided, in accordance
with the law for the time being in
force.
(2)All proceedings under clause (1) of Article 203B of the Constitution that may be
pending before any High Court
immediately before the commencement of this Chapter shall stand transferred to the Court
and shall be dealt with by the
Court from the stage from which they are so transferred.
(3)Neither the Court nor the Supreme Court shall in the exercise of its jurisdiction under
this Chapter have power to grant
an injunction or make any interim order in relation to any proceedings pending in any
other court or tribunal.
Critical Study of the Provisions of the Constitution Relating to Federal Shariat Court
I)Article 203A provides that the provisions of chapter 3A pertaining exclusively to the
Federal Shariat Court shall have
effect notwithstanding any thing contained in the Constitution. It means that in case the
provisions of Chapter 3A come into
conflict with any other provisions of the Constitution, the provisions contained in
Chapter 3A will prevail and override any
other provision of the Constitution to the extent of inconsistency. All powers enumerated
in Chapter 3A are thus vested in
the President of Pakistan.
ii)Article 203B (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,
not with standing 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 any
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 3A
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.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 Chief Justice Mr.
Justice Abdul Hakirn Khan, gave a
judgment on the provisions of Section 4 of the Muslim Family Law 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 Vs. 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 provisions
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 'ulama' 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 Dow 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. It is regretable.
(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 the 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 203C 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 'ulama' 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 be 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 Shariat Court including the Chief Justice
is purely temporary. The term of
office will not exceed 3 years at one point of time; it may be for a lesser period, say,
for one year or two or till further
order. He may 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
Shariat 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 a few
months. He, however, continued to be
a judge of the Federal Shariat 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 for two years only.
(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 Judge's 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
Shariat Court for whatever period it
may be, except with his consent. 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 Mehboob Ahmed, and was likely to be the
Chief Justice of the Lahore
High Court on Mian Mehboob Ahmed's going to Supreme Court, was transferred as Judge of
Federal Shariat Court
during Mr. Mohammad Nawaz Sharif's premiership. But when Mr. Mohammad Nawaz 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 Mohammad 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 SC of Article 203 C(4 and 5). There are several other
cases as to how serving
Judges of the High Courts of Lahore, Peshawar, Sindh and Baluchistan were made to serve
unwillingly as Judges of the
Federal Shariat Court under the orders of General Mohammad 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.
(viii) On top of it, it was provided under sub-article 4B 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 (4C), "Judge" included Chief Justice. However, while
holding any other office assigned to him
under clause 4b, 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 this provision
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 Justice ship of
Federal Shariat Court and was
made an Advisor to the Ministry of Religious Affairs. This position for a man like Sheikh
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 Zia-ul-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 Articles 4B,
4C and 5 of Article 203C 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 'ulama' Judges, it is necessary to mention that in the case of Federal
Shariat Court not more than three
'ulama' who are well-versed in Islamic Law would be appointed in the Federal Shariat Court
(203C) (3a). It is further
provided that not more than 2 ‘uIama' will be appointed as ad hoc members of the
Shariat Appellate Bench. It is noticeable that only one Aalim ('alim) judge is working in
the Federal Shariat Court for the last seven years. I emphasize that two more 'ulama'
Judges should be appointed in Federal Shariat Court as soon as possible.
(x)Ad holism 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
'ulama' 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 number of actual days of sittings of
the 'ulama' members of the Shariat
Appellate Bench, for hearing of appeals against judgments on Shari'ah petitions, I am
sure, the total number of days will
not exceed 20 days 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 'ulama'
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 SE up workable, efficient and meritorious.
A New Approach
(xi) And, last but not the least, there are a number of suggestion 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, f its ineffectiveness, and due
to the existence of Federal Shariat
Court be deleted. This will avoid unnecessary duplication of the work Islamization of laws
and save expenditure.
(b)The functions of the Federal Shariat Court may be expand so as to include some of the
functions of advisory nature of
the Council which may be assigned to the Federal Shariat Court. The press staff recruited
by the Council may be absorbed
in the Federal Shariat Court. Those who are working in the Council on deputation may 1
sent back to their parent
departments.
(c)The provisions relating to the Shariat Appellate Bench the Supreme Court should be
deleted. The ad hoc 'ulama'
members the Shariat Appellate Bench who have been appointed from among the Judges of the
Federal Shariat Court
should be sent back to t Federal Shariat Court.
(d)The Federal Shariat Court will constitute its two Permian Benches, i.e.,
1. The Federal Shariat Court, on its Original Side, will hear Shari'ah petitions and also
advise a House of the Parliament, 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 there shall, at least, be six '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 Sharuit 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.
NOTES and REFERENCES
1. Substituted, inserted and omitted by P.O. No.5 of 1982, Arts. 2 and 3.
2. Substituted successively by P.O. No.7 of 1983 and P.O. No.2 of 1984 and P.O. No.14 of
1985, Ar.t 2 and Sch. to
need as above.
3. Substituted by P.O. No.7 of 1981, Art. 2.
4. Substituted by P.O. No.5 of 1982, Art. 2.
5. Substituted by P.O. No.24 of 1985, Art. 4.
6. Inserted by P.O. No.4 of 1980, Art. 2.
7. Inserted by P.O. No.14 of 1985, Art. 2 and Sch.
8. Substituted by P.O. No.5 of 1982, Art. 3.
9. Substituted by P.O. No.5 of 1982, Art. 3.
10. Article 203 CC, which was inserted by P.O. No.5 of 1981, omitted by P.O. No.7 of 1981,
Art. 4.
11. Inserted by P.O. No.5 of 1982, Art. 4.
12. inserted by P.O. No.1 of 1984, Art. 2.
13. Substituted and added, and shall be deemed always to have been so substituted and
added, by P.O. No.1 of 1984,
Art. 2.
14. Clause (4) omitted by P.O. No.4 of 1980, Art. 3.
15. Article 203DD, as inserted ibid., substituted by P.O. No.5 of 1982, Art. 5.
16. Substituted by P.O. No.4 of 1980, Art. 5 for 'this Article.
17. Added by P.O. No.5 of 1981, Art. 3.
18. Substituted and added by P.O. No.5 of 1983, Art. 2.
19. Inserted by P.O. No.5 of 1982, Art. 6.
20. Substituted by P.O. No.12 of 1982, Art. 2.
21. Inserted by P.O. No.5 of 1982, Art. 7.
