Article 2-A : A Draconian Clause In The Hands Of “Azad Adlia”

By YL Hamdani esq.

The famous American constitutional case Marbury V. Madison was arguably the first time the judiciary in the history of the world declared anything “unconstitutional”.  The door was thrown open that day which subverted the time honored principle of parliamentary sovereignty (established through English parliament’s positive assertion of sovereignty in 1688).  Today we in Pakistan are face to face to most unsavory aspects of the judicial tyranny that may emerge through an abuse of this principle.

The question of a federal or a supreme court interpretting an issue of fundamental law in the subcontinent first came up when Nehru recommended that the provision in the Cabinet Mission Plan pertaining to provinces’ right to opt out would be determined by the Federal Court instead of by what framers of the plan had in mind. Significantly – for Pakistan- Muslim League refused to agree.

Pakistan’s second constituent assembly chose to induct this principle in Pakistan’s constitution by giving judiciary the right to interpret the constitution in 1956. This was a fundamental departure from the English parliamentary system presumably to enforce the fundamental rights chapter of the constitution.  The Supreme Court has since 1956 jealously guarded its right.  To an extent this power is reasonable.  It helps guard against several tyrannies, till ofcourse the Supreme Court itself becomes oppressive.

In Pakistan’s case two other matters further complicate things. The first matter is that of the basic structure theory.  Abdul Hafeez Peerzada, the principal author of the constitution of 1973, has been insisting in the recent past that the basic structure of the Pakistani constitution ie parliamentary democracy, federalism, independence of judiciary, fundamental rights and Islamic provisions is inviolable and requires the election of the constituent assembly.  He also claims that a parliament under a constitution such as Pakistan is therefore not supreme but has to work within the paramters of the basic structure. To further bolster his argument, he claims that the parliament cannot legalize murder of a child by his mother.  How ironic ofcourse to hear Mr. Peerzada argue the same line Sir Zafrulla had taken in 1974 against the second amendment.   Then Mr. Peerzada, Bhutto’s law minister and framer of the  Islamic and democratic constitution of 1973, had argued that Pakistan’s national assembly was perfectly sovereign to undertake the task of deciding who is Muslim and who is not.

It may also be mentioned that the basic structure theory is utilized by only one country in the world and that is India.   In Pakistan the judiciary uses it to negotiate with its position within the federation.   In this our judiciary aided by another clever device ie article 2 A of the Pakistani constitution. In 1984 General Zia through a presidential order (which was later ratified as the 8th Amendment) inserted the Objectives Resolution in the constitution, making it the substantive part thereof and therefore binding.

The Objectives Resolution has been around since 1949.  It puts a contradictory set of objectives to be achieved by the state. It seeks to create democracy but vests ultimately sovereignty in Allah.  It promises equality of citizenship but then seeks to also create some special privileges for Muslims to live according to Quran and Sunnah. It speaks of the right of the minorities to practise their religion “freely” (though this word was dropped from the copy annexed to 2 A).

Regardless of this early concession to the Islamist sections of society, Pakistan’s interplay with religion can roughly be divided into two distinct phases 1947-1973 and 1973 to present.   The state in Pakistan from 1947 was a relatively secular institution, sometimes completely secular and at other times secular with a flavor of Islam here and there.   The constitution of 1973 changed all of this.  It not only introduced a state religion and limited the Prime Minister’s office to Muslims, but created a positive obligation on the parliament  to Islamize the country.   What changed in 1985 was that the obligation was converted from mere parliamentary obligation to a tool in the hands of judiciary.  The ill-advised attempt by Nawaz Sharif in 1999 to become the Ameer ul Momineen was partly the attempt to wrest it from judiciary’s hands.

Now consider in this light if you will the Communist Party’s challenge to Presidential immunity under Article 248 of the constitution.  Immunity arises from the principle of English Law.  The petition itself raises the matter of “corruption” being a civil matter and therefore not covered by the immunity granted under 248.    Thanks to 2 A, the fear is that the court might  actually bring the issue of corruption into civil law by  arguing that Islam does not recognize the distinction between civil and criminal law. After all analogously,  a murder may well be treated as having  tortuous liability instead of a criminal one under Qisas and Diyat.  The other fear ofcourse is that it will just overrule 248 by invoking the Islamic provisions of the constitution.  Thus perhaops for the first time in history, religion will supercede a written constitution.

Either way, in face of an aggressive judiciary,  brace yourself for our judges’ final assault on Pakistan’s democracy.

(An edited version was first published in the Friday Times)

11 Comments

Filed under Pakistan

11 responses to “Article 2-A : A Draconian Clause In The Hands Of “Azad Adlia”

  1. Laila Isphandyar

    Raza Sahib
    May I suggest legal clauses may be dealt by ONLY lawyers writing?There are many lakunas non legal persons do not know.
    Just a suggestion.

  2. YLH

    Laila,

    What is your point precisely?

  3. Laila Isphandyar

    Non Legal Persons generally cannot comment well on legal points.Like a non medical person cannot diagnose the disease & treat.

  4. YLH

    So who is non-legal person exactly ? The author?

  5. Laila Isphandyar

    You are uneccessarily being abrasive & personal.Unless you are a lawyer,yes.

  6. YLH

    So genius tell me …what do you think “esq.” stands for?

    Take a wild guess!

  7. Laila Isphandyar

    Your rudeness merits no reply.You are as full of yourself as I am told u are.
    Bye.

  8. YLH

    And you are as stupid as your pointless comments indicate.

    What …did your sugar daddy give you a PC for birthday and you decided to grace us with your presence begum sahiba?

  9. YLH

    PS to others who are better educated than our social butterfly here.

    It is lacunae in plural and lacuna in singular. Lol on genius’ “lakunas”.

  10. Bin Ismail

    The Golden Words of Quaid-e Azam Muhammad Ali Jinnah:

    “…….IF you change your past and work together in a spirit that everyone of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this State with EQUAL rights, privileges, and obligations, there will be on end to the progress you will make.

    I cannot emphasize it too much. We should begin to work in that spirit and in course of time all these angularities of the majority and minority communities, the Hindu community and the Muslim community, because even as regards Muslims you have Pathans, Punjabis, Shias, Sunnis and so on, and among the Hindus you have Brahmins, Vashnavas, Khatris, also Bengalis, Madrasis and so on, will vanish. Indeed if you ask me, this has been the biggest hindrance in the way of India to attain the freedom and independence and but for this we would have been free people long long ago. No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time, but for this. Therefore, we MUST learn a lesson from this.

    You are free; you are free to go to your temples, you are free to go to your mosques or to any other place or 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.

    As you know, history shows that in England, conditions, some time ago, were much worse than those prevailing in India today. The Roman Catholics and the Protestants persecuted each other. Even now there are some States in existence where there are discriminations made and bars imposed against a particular class. Thank God, we are not starting in those days. We are starting in the days where there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State. The people of England in course of time had to face the realities of the situation and had to discharge the responsibilities and burdens placed upon them by the government of their country and they went through that fire step by step. Today, you might say with justice that Roman Catholics and Protestants do not exist; what exists now is that every man is a citizen, an equal citizen of Great Britain and they are all members of the Nation.

    Now I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would 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…….”

    (Presidential Address to the first Constituent Assembly of Pakistan, 11th August 1947)

  11. Nusrat Pasha

    Y.L.Hamdani esq:

    1: “…….It helps guard against several tyrannies, till ofcourse the Supreme Court itself becomes oppressive…….”

    You are absolutely right. Not only the Supreme Court – any organ of the state or the state itself becomes incapable of serving the people when it becomes oppressive. It is not possible to be ‘for the people’ and oppressive, both. This capability to oppress reaches its zenith, when Religion is allowed to be exploited as a tool, whether through the Constitution or by convention. That is when oppression becomes holy.

    2: “…….Pakistan’s national assembly was perfectly sovereign to undertake the task of deciding who is Muslim and who is not…….”

    Perfect sovereignty comes afterwards. The fundamental question should have been: does a congregation of mortals even have the capacity to assess the spiritual status of fellow-humans?

    3: “…….In 1984 General Zia through a presidential order (which was later ratified as the 8th Amendment) inserted the Objectives Resolution in the constitution, making it the substantive part thereof and therefore binding…….”

    A pro-theocracy ruler simply ensured that a back-door be left agape for the aspiring clergy as well as for those who may choose to use the tool of religion for their political pursuits.

    Regards.