Judicial History of Objectives Resolution
-> As a Preamble to the Constitution
-> As its substantive part
Guideline Speech of Quaid e Azam Muhammad Ali Jinnah
In his guideline speech to the constituent assembly on 11th August, 1947 Quaid-e-Azam M. Ali Jinnah 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 all citizens and equal citizens of one state…. and you will find that in the course of time Hindus will cease to be Hindus and Muslims will cease to be Muslims, not in the religious sense because that is the personal faith of each individual, but in the political sense as citizens of the state”
However, within six months of his death the Constituent Assembly of Pakistan passed a resolution on the ‘Aims and Objects of the Constitution’ on 12th March 1949, popularly known as Objectives Resolutions.
Liaquat Ali Khan then PM said that “We, the people of Pakistan, have the courage to believe firmly that all authority should be exercised in accordance with the standards laid down in Islam so that it may not be misused.”
Limits prescribed by Him?
Chandra Chattopadyaya, a member of Pakistan National Congress in the Constituent Assembly, said that so long as we had an idea that the constitution would be based on principles of equality, democracy and social justice. We thought that religion and constitution would not be mixed up as declared by Muhammad Ali Jinnah on the floor of this house. Criticizing the objectives resolution he asked that “what are the limits prescribed by Him within which the state is to exercise the authority, who will interpret them? ….One day a Louis XIV may come and say “I am the state, appointed by the Almighty.”
Recipient of Allah’s authority
The Objectives Resolution of 1949 had talked of Allah Almighty having delegated His authority to the state. Professor Raj Kumar Chakravarty, a member of the Pakistan National Congress party which was largely based in East Pakistan, suggested that the delegate of God’s authority should be the people and not the state. He argued that “First come people and then the state… a state is formed by the people, guided by the people and controlled by the people.” The professor took exception to the text of the Objectives Resolution as it meant that “once a state comes into existence it becomes all-in-all; it is supreme, quite supreme over the people…” He argued that the state had to be responsive to the public opinion and to the public demand but the resolution implied that the state need not meet these criteria.
Object and Scope of the preamble
The preamble of an Act usually states the general object and intention of the legislature for enacting it. If the enacting part is ambiguous or open to doubts, the preamble may be referred to resolve this ambiguity or doubt. Generally, for the purpose of interpretation, the preamble of the constitution stands in the same position as the preamble of an Act. (Maxwell, The Interpretation of Statutes)
But the the the Objectives Resolution contained in the preamble to the Constitution of Pakistan has sometimes been referred to as a supra constitutional instrument and Grund Norm by which the constitutionality of the provisions of the constitution is to be judged.
Basic Norm, the law from which all other laws in a society derive…..the validity of all laws is tested against the basic norm.
A concept of Continental jurists indicating a basic pattern of rights, obligations and procedure rooted in the thoughts, habits and life of the people like Common law of the Anglo-Saxon system. Its jurisprudential value is that the law makers are bound to pay regard to the norm relevant to the law they are making. (Black’s Law Dictionary).
CJ of Lahore High Court, Hussain Naqi v/s The District Magistrate of Lahore, defined Grund Norm as “the ideology, aim and final object of a country or nation.”
Asma Jillani Case (PLD 1972 SC 139)
CJ Hamoodur Rehman observed in Asma Jillani Case PLD 1972 SC 139) that in any in any event, if a Grund norm is necessary for us I do not have to look to the Western legal theorists to discover one. Our own Grund norm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by him a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March 1949. Justice Sajjad observed that the Objectives Resolution is not just a preface. It embodies the spirit and the fundamental norms of the constitutional concept of Pakistan.
The observations in Asma Jillani case have been interpreted as pronouncement by the Court of Objective Resolutions to be grund norm of constitution of Pakistan having a supra constitutional status.
However, this ambiguity was cleared by Hamoodur Rehman himself in a later case i.e. State v/s Zia Ur Rehman (PLD 1973 SC 49.) Supreme Court in State v/s Zia Ur Rehman (PLD 1973 SC 49), held that Objective Resolutions is neither the grund norm nor the supra constitutional instrument, it has not the same status or authority as the operative part of the constitution itself unless it is incorporated therein…it can be looked at to ascertain the meaning of a provision of constitution but cannot control the substantive provisions. CJ, Hamoodur Rehman, clearing the ambiguity created by his observation in Asma Jillani Case, observed that “So far as the Objectives Resolution of 1949 is concerned, there is no dispute that it is an important document which proclaims the aims and objectives sought to be attained by the people of Pakistan; but it is not a supra‐Constitutional document, nor is it enforceable as such, for, having been incorporated as a preamble it stands on the same footing as a preamble. It may be looked at to remove doubts if the language of any provision of the Constitution is not clear, but it cannot override or control the clear provisions of the Constitution itself.”
Statement of Hamoodur Rehman is conditional in Asma Jillani Case
Ambiguity can be further cleared if the excerpt from the Asma Jillani case is read with reference to context. CJ, Hamoodur Rehman while discussing the Dosso Case (PLD 1958 SC 533), where the grund norm as elaborated by Kelsen was presented before him, observed that there is no need to look into western philosophies to import the grund norm. Hamoodur Rehman referred to Objective Resolutions only as a possible grund norm. It should also be noted that his statement is conditional statement i.e. “in any event, if a grund norm is necessary….” Clearly providing that it was only an argument stated to counter the use of Western legal theorist in the said case and not to state an binding opinion of the Court.
Insertion of Objectives Resolution in the Constitution as article 2A
The confusion surrounding its status was exasperated after Objectives Resolution was made a “substantive” part of the Constitution through Article 2A, inserted through President’s Order No.14 of 1985. For some it means that the Objectives Resolution was not a Supra‐Constitutional document and that Courts being the creatures of the Constitution could not strike down any of its provisions and, therefore, it was not open to a Court to countenance any prayer to that effect.
While others understood these observations to imply that in case the Objectives Resolution got incorporated into the Constitution and became its substantive part, it then could control the other provisions of the Constitution.”
Sakina Bibi v/s Federation of Pakistan (PLD 1992 Lah. 99)
For example, Sakina Bibi v/s Federation of Pakistan (PLD 1992 Lah. 99) the Lahore High Court observed that wording of the preamble itself shows that Objectives Resolutions is a mandate given by the people to their representatives to frame a constitution in the light of guidelines supplied. The tenor of the objectives resolution is that it is an acknowledged command of the people directed against their representatives to act in the manner provided therein. All measures which conflict with the ideology, aim and final object of the country and nation can be questioned under article 2A.
Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901)
Justice Saleem Akhtar, relying on the earlier case of Hakim Khan, held that: “As is obvious from the aforestated weighty observations, Article 2A cannot be pressed into service for striking down any provision of the Constitution on the grounds that it is not self‐executory and also that another provision of the Constitution cannot be struck down being in conflict with any other provision of the Constitution.”
Benazir Bhutto and others v/s President of Pakistan and others (PLD 1998 SC 388)
The Court held that the provisions in the Constitution are to be construed in such a way which promotes harmony between different provisions and should not render any particular provision to be redundant as the intention is that the Constitution should be workable to ensure survival of the system which is enunciated therein for the governance of the country.
Mahmood Khan Achakzai v/s Federation of Pakistan (PLD 1997 SC 426)
Court stated that the basic structure as such is not specifically mentioned in the Constitution of 1973 but Objectives Resolution as preamble of the Constitution and now inserted as the substantive part in the shape of Article 2-A when read with other provisions of the Constitution reflects salient features of the Constitution highlighting federalism, parliamentary form of Government blended with Islamic provisions.
Court also held that basic structure theory has been completely rejected so far as the Constitution of Pakistan is concerned. Provisions of the constitution cannot be struck down on the basis of being violative of any prominent feature, character or structure of the constitution. Even in the presence of article 2A as substantive part of the constitution, the court cannot strike down any of the provision of the constitution on its touchstone.
Distt. Bar Association, Rawalpindi and others v Federation of Pakistan which challenged 18th and 21st Constitutional amendments, NASIR‐UL‐MULK, C.J held that the basic structure theory has been recognized only to the extent of identifying salient or fundamental features of our Constitution. However, the theory has never been accepted or applied as a ground for striking down amendment in the Constitution. The Court has consistently refused to follow the position taken by the Supreme Court of India on the subject.
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