Islamic Provisions in the Constitution
Asif Saeed Khosa

    There are different theories as to why the Muslims of India demanded a separate homeland for themselves in the first half of this century. Some believe that it was for economic reasons and others maintain that it was purely on religious compulsions. However, the fact remains and there is no denying it that it was in the name of Islam that Pakistan emerged on the map of the world and the ground norm of the new state and its society, which came to be known as the ideology of Pakistan, was nothing but Muslim faith. Before embarking upon the task of framing of our first constitution, this ideology was translated into words in precise from by the first Constituent Assembly of Pakistan in a resolution passed by it in the year 1949. This resolution known as the ‘Objectives Resolution’, provided as follows:  
    ‘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;  
    This Constituent Assembly representing the people of Pakistan resolves to frame a constitution for the sovereign independent state of Pakistan;  
    Wherein the state shall exercise its powers and authority through the chosen representatives of the people;  
    Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;  
    Wherein the Muslims shall be enable 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 Qur’an and the Sunnah 
    Wherein adequate provisions shall be made for the minorities to profess and practice their religions and develop their cultures;  
    Wherein the territories now included in or in accession with Pakistan and such other territories as ma hereafter be included in or accede to Pakistan shall form a federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;  
    Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, worship and association subject to law and public morality;  
        Wherein adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;  
    Wherein the independence of the Judiciary shall be fully secured;  
    Wherein the integrity of the territories of the federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded;  
    So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and progress and happiness of humanity.’  
    In the successive constitutions that were adopted by the people of Pakistan over the last four  decades, the principles and provisions of the ‘Objectives Resolution’ were added as a preamble thereto till the year 1985 when, through the insertion of Article 2-A in the constitution of Pakistan, 1973, it was categorically provided that ‘The principles and provisions set out I the ‘Objectives Resolution’ reproduced in the Annex are hereby made a substantive part of the constitution and shall have effect accordingly.’  
    There are certain remarkable Islamic features of this ‘Objectives Resolution’, now a substantive part of our constitution, which cannot escape notice. For instance a new dimension has been given therein to the concept of sovereignty of Parliament. Although sovereignty of Almighty Allah over the entire universe has been acknowledged, yet the state has been recognised as the delegate thereof which is to exercise that sovereignty through chosen representatives of the people within the limits prescribed by Almighty Allah as a sacred trust. Thus, 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 an exact conformity with a Muslim’s belief that he may be free to make his own choices in life but he may not overstep the limits prescribed by his Creator. Looked at in this perspective, the Pakistani constitution, conforming to Islamic perceptions, recognises democracy as the only mode of government – but a democracy that does not come into conflict with a Muslim’s faith. To an outsider this may appear to be enigmatic but we, the Muslims of Pakistan, have no difficulty in understanding and applying this concept. It, therefore, fits into the scheme when the ‘Objectives Resolution’ refers to ‘the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam’ and envisions a state ‘wherein the Muslims shall be enable 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 Qur’an and the Sunnah.’ The scheme, unmistakably, is the establishment of a modern and democratic Islamic State in fulfilment of the wishes of the Muslims of this region and the manifestations of this scheme are to be found spread over the entire constitution of Pakistan.  
    Article 1 (I) of the constitution of Pakistan, 1973 provides that ‘Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan’. It may be pertinent to point out that Pakistan has been the first country in modern history to introduce the concept of an ‘Islamic Republic’ which was later on also adopted by Iran and  Libya. Not only the name of the country itself but also the political system of its governance incorporated therein shows the wishes of its people to blend modernity with their faith. Article 2 of the constitution, providing that: Islam shall be the state religion of Pakistan’, again highlights the same theme and accomplishes the same object of the creation of Pakistan. Under Article 41 (2) of the constitution, the president, who is to be the head of the state of this Islamic Republic, has to be a Muslim. Under Article 50 of the constitution, the parliament of the state is to be called the ‘Majlis-i-Shura’ in accordance with Islamic traditions. The qualifications of being elected to the ‘Majlis-i-Shura’ or the Provincial Assemblies also have a distinct Islamic overtone and the following provisions of Article 62 of the constitution bear ample testimony to that:  
    (d) he is good of character and is not commonly known as one who violates Islamic Injunctions;  
    (e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins;  
    (f) he is sagacious, righteous and non-profligate and honest and ameen;  
    (g) he has not been convicted for a crime involving moral turpitude or for giving false evidence;  
    (h) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan: Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a non-Muslim, but such a person shall have good moral reputation;’  
    These qualification for the legislators are understandable if it is kept in mind that such members are to exercise the sovereignty of Almighty Allah as His delegates by way of a ‘sacred trust’.  
    Even the laws that are to be made by such legislators cannot cross the  limits prescribed by Almighty Allah because by virtue of the ‘Objectives Resolution’ read with Article 2A of the constitution the sovereignty of the ‘Majlis-i-Shura’ does not transcend the limits prescribed by Almighty Allah. To clarify any doubt in this respect Article 227 (1) of the constitution provides as follows:  
    ‘All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Qur’an and Sunnah, in this part referred to as the injunctions of Islam and no law shall be enacted which is repugnant to such injunctions.’  
    Under article 228, the constitution has created a Council of Islamic Ideology which is to perform the following functions under article 230 (1) of the constitution.  
    ‘(a) to make recommendations to the ‘Majlis-i-Shura’ (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 proposal or 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; and  
(d) to compile in a suitable form, for the guidance of the ‘Majlis-i-Shura’ (Parliament) and the Provincial Assemblies, such injunctions of Islam as can be given legislative effect.’  
    The functions of the ‘Council of Islamic Ideology’ are primarily advisory and recommendatory in nature and its advice or recommendation is not self-executory.  
    The adjudicatory jurisdiction in this respect is conferred by Chapter 3-A of the constitution on the ‘Federal Shariat Court’ which has the following jurisdiction under Article 203-D(I) of the constitution:  

    ‘The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine or decide the question whether or not any law or provision of law is repugnant to the injunctions  of Islam, as laid down in the Holy Qur’an and Sunnah of the Holy Prophet (sws), hereinafter referred to as the Injunctions of Islam.’  

    Under the other provisions of article 203-D of the constitution any law or provision of law declared by the ‘Federal Shariat Court’ to be repugnant, to the injunctions of Islam is, to the extent of such repugnancy, to cease to have effect on a date fixed by the Court for the purpose. An appeal in this respect is provided before the Shariat Appellate Bench of the Supreme Court of Pakistan under Article 230-F of the constitution.  
    In the chapter relating to the principles of policy, the constitution gives top priority to the state’s adoption of a social policy in consonance with the state religion, i.e Islam. Article 31 of the constitution, laying down the first principle of policy, provides as follows:  
    ‘(1)  Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with t he fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Qur’an and Sunnah 
    (2) The state shall endeavour, as respects the Muslims of Pakistan:  
    (a) to make the teaching of the Holy Qur’an and Islamiyat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Qur’an 
    (b) to promote unity and the observance of zakah, ushr, auqaf and mosques.  
Likewise, Article 37, dealing with the principles of policy regarding promotion of social justice and eradication of social evils, provides in its clauses (g) and (h) that the state shall:  
    ‘(g) prevent prostitution, gambling and taking of injurious drugs, printing, publishing, circulation and display of obscene literature and advertisements;  
        (h) prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the case of -Muslims, religious purposes;  
    In the economic field, the constitution of Pakistan, in its Article 38(f), requires the state to ‘eliminate riba as early as possible’ and Article (31)(2)(c) thereof requires the state ‘to secure the  proper organisation of zakah and ushr’ so that a truly Islamic welfare State could be established in Pakistan.  
    One can notice in the constitution of Pakistan an Islamic tilt even in the matter of foreign policy to be adopted by the state. Article 40 of the Constitution provides that:  
    ‘The State 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.’  
    This survey of the constitution of Pakistan, 1973 shows, and shows very clearly, that the wishes of our forefathers who had given great sacrifices for the creation of a separate homeland for the Muslims of this region have found full expression in the constitution of this homeland. As seen above, the constitution envisions a modern, democratic and welfare Islamic state but, unfortunately, practically we have not been able to travel much in either of those directions so far. Now the need of the hour is to give full effect to that expression so that the true objective behind the creation of this state is accomplished and justified.           

(Courtesy ‘The Nation’)