Constitution Series – I
Discussion on important Articles of the Constitution of Pakistan, 1973 as amended (“Constitution”)
Topic for Discussion:
Article 2: Islam to be state religion.
It is interesting to note that the Article under discussion was not part of the Constitution at the time of partition when the constitution of India was tweaked to form the constitution of the newly founded Pakistan. There were references, however, to Islam and the importance thereof, stemming from the Two Nation Theory and the use of Islam as a catalyst to achieve partition of India. It is noteworthy that Jinnah, an eloquent and competent lawyer, did not attempt at even a basic draft of the constitution of the newly founded state, nor firmly set the ground of a secular or Islamic state.
We are all very aware of his oft-quoted speech to the first Constituent Assembly on 11 August 1947. He is quoted to have said:
“You are free; you are free to go to your temples, you are free to go to your mosques or to any other place of worship in this state of Pakistan. You may belong to any religion or caste or creed, that has nothing to do with the business of the state. … We are starting with this fundamental principle that we are all citizens, and equal citizens, of one state.”
It appears that the state Jinnah envisaged seemed to be one where “religion” would have “nothing to do with the business of the state”. Though, contrarily, Jinnah never confirmed the involvement or non-involvement of religion in the affairs of the state; whether this was due to lack of foresight or an attempt to recognize the sacrifice of the muslim majority pouring into Pakistan from India, is a matter for academics to debate and beyond the scope of this discussion.
An interesting anecdote in this regard was recalled by Mr. Yasser Latif Hamdani in his article titled “Religion under our constitution” in the Daily Times, 1 November 2014:
“As a member of the Viceroy’s Council, Jinnah, the founding father of this country, had argued in favour of the bill to allow members of different communities to marry each other without compulsorily renouncing their links with their parent community. When a law member of the council objected on the grounds that this would be un-Islamic, Jinnah opined that as a matter of policy the legislature had the right to overrule religious and customary laws where necessary or where it is a matter of public policy.”
The topic, and recognition, of Islam as a state religion, did not enter the houses of parliament up until 1962. Further along, the separation of Bangladesh sparked the debate around religion with an increased fervor. Muslim brothers had separated from Muslim brothers. The ideology that a separate state needs to be created for the Muslims came under threat. There was a separate state created, why could the Muslim brothers not live peacefully in it? The fragility of internal institutions and the involvement of outside forces is a matter of constant debate but the ideology, nevertheless, took the hit. The 1973 Constitution, as it stands today, appeared to be the carrot that the then Bhutto-led government had to hand over to the religious parties, eager to be part of the state salad. With the appropriate amendments, the 1973 Constitution included, in letter, the involvement of the religion in the state but retained its state-supreme abilities such as: (i) the laws would be made by the parliament and the parliament would be elected by the general will of the citizens of Pakistan, all citizens, irrespective of “religion, creed and caste”; (ii) the interpreters of such laws would be the Supreme Court of Pakistan and not a religious body; and (iii) the freedom to practice religion, any religion, as a citizen of Pakistan. Theory is, however, very different from practice.
II. Implications of Article 2
Article 2 appears in the introductory part of the Constitution, distinguishable from the next part on “Fundamental Rights”. It may be argued that Article 2 is a direction to the Constitution and how the citizens of Pakistan are encouraged (not forced) to live their lives. They are basic principles on good values instead of an enforcement of a way of life.
The jurisprudence of the courts, in this regard, from 1970 onwards, show a general trend of the environment of the country. The judgments range from discussing it as a way of life or an emphasis on the principles of natural justice to a harsher and stricter implementation of the same.
Today, the legal mechanism of the country is prepared to instantaneously recognize a law abhorrent to Article 2 and strike it down. Article 227 of the Constitution, read with Article 228 of the Constitution, provide, unequivocally that “all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah” and “no law shall be enacted which is repugnant to such injunctions”. Moreover, Article 228 constituted the Islamic Council whose functions involve making recommendations and advising the parliamentary bodies, the assemblies, governors and the President on how to bring the laws within the injunctions of Islam.
Additionally, the injunctions of Islam are preserved in various other important laws as well, such as inter alia, in the criminality of alcohol and blasphemy laws, marriage, family and custody laws, inheritance laws, property laws, etc.
Due to Article 40 of the Constitution, the foreign affairs of Pakistan are also affected by the injunctions of Islam, in that, the state shall “shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means.”
Arguably, the controversial Article 62 and 63, also find their basis in the Islamic influence of the Constitution.
With the inclusion of the Objectives Resolution in the Constitution vide Article 2A, the principles of Islam were reinforced as an essential, albeit introductory, component of the Constitution. Certain resolutions are stated herein below to give a synopsis of what the annexure entails:
“Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust;
…. Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah…”
III. Courts interpretation of Article 2 of the Constitution
- The trends of the jurisprudence of the courts have remained fluid in the discussion of Article 2 of the Constitution, a few examples are provided to understand the variety of views of the courts:
(1) In PLD 1976 Lahore 930, the courts held that the courts could enforce only basic judicial principles and concepts of Islam where permissible by the Constitution but the entire way of life as envisaged by Islam cannot be enforced by the courts;
(2) In PLD 1983 Supreme Court 457, the courts held that the injunctions of Islam were only used as emphasis of the principles of natural justice and used as the principle of “due process” is used in the American Constitution. Article 2 was not a fundamental right as it only embodies the rule of law and cannot be used to invalidate a law but only to invalidate an action which does not have the sanction of law.
The Supreme Court in this case further held that Article 2 was not at par with Article 6 in so far as it places limitation on power of legislature to legislate so as to deprive a person of his life, liberty and property.
(3) In 1997 MLD 229 (Lahore), the Lahore High Court held that this Article being a substantive part of the Constitution, certainly has meaning, purpose and practical utility and “is singularly different from an empty slogan”. The purpose is to declare unequivocally that in the State of Pakistan, the Islamic way of life shall be following and that it shall be governing in accordance with the Islamic Sharia.
(4) The Lahore High Court in 1997 PCRLJ 1437 Lahore seemed to equate it with the general good principles of life and held that laws that promote immorality and vices are neither valid nor permissible.
(5) The Supreme Court, in PLD 1998 Supreme Court 388, held that Articles 2, 2A and 227 of the Constitution have given Islamic character to the Constitution by fully securing the independence of the judiciary and by providing that all existing laws should be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
- The superior courts have remained fluid in their discussion of Article 2 and have either held that Article 2 merely introduces a good way of life or, conversely that it is the controlling provision for all the laws of the land. A study of the laws of the land suggests that in certain matters such as family, inheritance, marriage, custody, murder, rape (and other criminal provisions), the injunctions of Islam are supreme with limited involvement of the legislators. There have also been times in the history of Pakistan where the Islamic provisions of the Constitution have been held as the justification for certain diplomatic and foreign relations. In any case, a purview of history suggests that the involvement of religion is a marked diversion of the supposed (and contested) secular notion of the newly founded state in 1947; there are many academics who suggest that the involvement of religion was foreseen if not deliberately included in the affairs of the state.
With the recent, uncontested, dismissal of Dr. Atif Mian, it seems that the influence of religion is rooted in the internal workings of the state wherein even an outspoken, and valiant attempt by a democratically elected government could not sustain the pressure and had to succumb to it.