STATUS OF ARTCLE 2A IN THE 1973 CONSTITUTION
Court’s observations In Hakeem Khan Case:
· Constitution
has to be read as a whole. Court is bound to have recourse to whole instrument
in order to ascertain the true intent and meaning of any particular provision.
· Where
any apparent repugnancy appears to exist between its different provisions, the Court
has to harmonies them.
· All three limbs of the state namely executive,
legislature and judiciary in Islamic polity can exercise the delegated functions
of the sovereignty within their respective spheres and the reference in the Quran
to the obedience of (ullu-ul-alamar minkum) is equally applicable to members of
judiciary.
· If
the court considered that the existing provisions of the constitution contravened
the injunctions of Islam in some respects it should have brought 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 injunction of Islam.
· The
Superior Judiciary of Pakistan has expressed different views about the
interpretation of the Constitution and statutory law in the light of the
Islamic provisions of the Constitution, and the position is still uncertain.
which leads to considerable confusion in the minds of laymen and professionals
alike.
In Mst. Kaneez Fatima v. Wali Muhammad
PLD 1993 SC 901
· The
Supreme Court held that failure to send notice to the Chairman of Union
Council, on the basis of which Kaneez Fatima claimed maintenance from her
husband Wali Khan, does not by itself lead to the conclusion that Talaq has
been revoked. It may only be ineffective but not revoked. [S.7 (1) of MFLO
1961] "Whoever, contravenes the provisions of sub-section (1) shall be
punishable with simple imprisonment for a term which may extend to one year, or
with fine which may extend to five thousand rupees, or with both." [MFLO
S.7 (2)] Divorce in Islamic law become effective from the moment it is pronounced.
· The procedure prescribed by Section 7 of
Muslim Family Laws Ordinance, 1961 which is also applicable to delegated
divorce (tafwid) in Pakistani law, is in direct conflict with Islamic law. No
human authority can suspend the effect of divorce when the Divine law has made
it effective from the moment of its pronouncement. So Kaneez Fatima's case
raises the contradiction between article 2A of the constitution and section 7
of Muslim Family Law Ordinance, 1961.
· The
main point of this case was that what the status of article 2A is? Is it the
preamble of the constitution of Pakistan? Or is it the supra part of the
constitution ? Or is it overriding other articles? Whether this point raised by
Kaneez Fatima had some validity or not?
· Justice
Allah Nawaz nevertheless declared the divorce valid. According to him the wife
has entered into an agreement with her husband had contracted out of the
otherwise compulsory provisions of section 7 (Section 7 did not apply to
consensual divorce).
In
Zaheeruddin v. The State,
The Supreme Court held that the constitutional right
to freedom of religion was limited by Islamic law. The result was that a law
had to fulfil two distinct tests:
1). was it in accordance with the fundamental Rights?
2). was it in
accordance with Islam?
The freedom
of religion is guaranteed by Article 20 which includes the right to profess,
practice and religion. The over-riding limitation as provided by Article 20 is
the law, public order and morality. The law cannot over-ride Article 20 but has
to protect the freedom of religion without transgressing bounds of morality and
public order. Propagation of religion by the appellants who as distinguished
from other minorities, having different background and history, may be
restricted to maintain public order and morality.
Therefore, their right to profess, practice and
propagate their religion cannot be restricted provided they profess, propagate
and practice without adopting Sharia-e-Islam in a manner which does not offend
the feelings of the Muslims. Zaheeruddin
v. The State is a problematic decision. Not only does it confirm the legality
of the continued persecution of members of the Ahmadiyya community, which is in
itself a worrying prospect, but it also attempts to establish a new interpretation
of the scope and the limits of fundamental rights in Pakistan.
This restrictive interpretation of fundamental
rights stands in stark contrast with the recent development of Public Interest
Litigation in Pakistan, which is based on the argument that Islamic law can be
used to add new rights to the list of fundamental rights contained in the
Constitution rather than to limit them. Justice Abdul Qadeer Chaudhry relied
almost exclusively on U.S. constitutional and trademark law (by citing to
Hamilton v. Regents) to arrive at his decision to uphold the constitutionality
of Pakistan's anti-blasphemy laws. Justice Chaudhry's legal arguments by
analogy demonstrate the court's striking in attention to the relevant
distinctiveness of U.S. constitutional and trademark law. Legal argument by
comparative analysis is an ill perceived instrument. The trend of Pakistani
Courts to use article 2A in the interpretation of statutes continued unabated
despite the restrained urged by the Supreme Court in the cases of Kaneez
Fatima, Zaheeruddin, and other cases.
As Supreme Court in Kaneez Fatima case observed that
virtually all provisions of the Objective Resolution were in fact incorporated
in the constitution mainly as Directive Principles. The Objective Resolution
was equal in weight and status to the provisions of the Constitution but Courts
being the creature of the constitution could not annul any existing Constitutional
provisions (on the plea of its repugnancy with provisions of article 2A).
Repugnancy of constitutional provisions to Islam could be rectified by amending
the constitution and likewise statutes could be amended by the competent
legislative bodies or the Courts should stretch such articles.
Comments
Post a Comment