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PLD 1976 LAHORE 930

Frame (3)

Per Muhammad Afzal Zullah, J.

(a) Constitution of Pakistan (1973) Art. 2, 3, 4 & 31

At this stage, it is necessary to see the implications of Article 2 of the Constitution. During the arguments addressed by Mr. Farooq A. Hassan, learned Assistant Advocate-General, he heavily relied on it. The English text reads: “Islam shall be the State religion of Pakistan”

(I have taken the Arabic text from the official Arabic translation of the Constitution prepared by the Ministry of Law and Parliamentary Affairs, Government of Pakistan).

It may be straightway clarified that the word ” ” in the above Arabic translation also means and represents ” ” and ” ” in Arabic, as also “official” and “regular” in English (see ELIAS’ Modern Dictionary Arabic-English). Adoption of any other meaning for this word in the translation would be in violation of the spirit and letter of the Constitution; and thus unacceptable, with consequence of its exclusion from the translation as un-enacted part of the Constitution. The Arabic rendering of Article 2 is analogous to what is contained in Verse 19 of Surah Al’Imran of the Holy Qur’an relevant portion whereof reads as follows:-

To the same effect is a part of Verse 3 of Surah Al’ Maida of the Holy Qur’an and several other verses. The English word “religion” as used in Article 2 has not been defined in the Constitution. Its meaning given in various English dictionaries does not, at all, represent the true significance of the word ” ” as used in its above quoted and understood Arabic text as also in the Qur’an. It is not possible to doubt the proposition that the constitution-makers while enacting Article 2 must have been inspired and motivated by the injunctions in the Qur’an on the subject of Islam as Din. While religion as a Western concept means mere system of faith and worship—practice of sacred rites—the word ” ” in Arabic language of the Qur’an is not confined and used so restrictively. It also represents all that goes with “statecraft” and “way of life.” The study of the Holy Qur’an show that it ( ) has been used therein, in at least, five different major facets of human life. They are:

(i) sovereignty, control. authority over others and corresponding total submission;
(ii) law of the land and rule of law of God;
(iii) code and way of life and thought;
(iv) judgment and consequential punishment;
(v) religion in restricted sense—submission in faith and prayer.
(See, amongst others, Verse 76 of Surah 12: V. 2 of Surah 24; V. 78 of Surah 38; Vs. 2 & 3 of Surah 39; V. 65 of Surah 40; V. 13 & 21 of Surah 42; V. 26 of Surah 70; V. 46 of Surah 74; and V. 9 of Surah 82 of the Holy Qur’an.)

When Islam is ordained as way of life of the State of Pakistan, it does not carry merely spiritual meaning of submission in faith and prayer, but also has ramifications in the other aspects of life like political and social including juridical. Thus, word “religion” ( ) has been used in Article 2 for the State with the foregoing meanings and connotation specified at Nos. (i), (ii) and (ii) above. Looked at from this angle, it is impossible to agree with the view that this Article visualizes the making of a mere theocratic system. The State not being an ordinary (English) sense. Article 2, therefore, deals with the tangible aspects of Statecraft including realm of political science, jurisprudence, laws and affairs of State properly so-called.

It appears that Part I of the Constitution “Introductory”, in which Article 2 falls, can be divided into directly enforceable and not so directly enforceable parts. for example, Articles 4 and 6 are, on the face, concrete enforceable provisions as of any other practical territorial law, while Articles 1 and 5 can be applied only indirectly as aids to the resolution of other legal controversies, Article 2 and 3 provide two fundamental basis of the polity in Pakistan—one deals with the ‘statecraft’ and ‘way of life’ and the other, with one of its (life’s) major facets, namely, economic and social justice. They can certainly be kept in view while interpreting other provisions of the Constitution and the laws made under and by its authority. But, with respect, I do not agree with the learned Additional Advocate-General that when the Supreme Court held, in the case of Ch. Manzoor Elahi, that Article 4 was directly enforceable, they also meant that all other Articles in the Introductory Part I of the Constitution were similarly directly enforceable. There is another additional reason for coming to this conclusion that Article 2 s such is not so enforceable in Courts. Some mechanism has been provided in various other parts of the Constitution wherein the content and meaning of this Article has been sought to be applied in concrete forms. One of those Parts of the Constitution is Chapter 2 which contains the principles of policy. It is not a mere coincidence that Article 31, which has been discussed above, deals with the particular steps which “shall be taken” to enable the Muslims of Pakistan to conduct themselves in, what the heading of Article 31 describes, “Islamic way of life”. As discussed above, it is only through such like provisions of the Constitution that Article 2 can be given as operative shape. Lest in might be thought that, as in case of Article 2, so also while dealing with Article 31(1) it would not be possible for the Courts to translate the same in practical terms, it needs to be emphasized that the entire controversy in this case revolves round the question whether, in case of absence of any statutory law governing a situation, or where there is sufficient scope while interpreting laws or exercising discretion, the Courts are to seek guidance from Western or any other philosophy and juridical norms or form the fundamental principles and basic concepts of Islam. To put it otherwise, the question is whether in such like situations, if a point is covered by rules of equity, say, as enumerated in Snell’s Principles of Equity or a contrary rule of Istihsan inspired by the Holy Qur’an and/or the life of the Holy Prophet (peace be upon him), will it not be a practical implementation of the mandate for ‘ordering our lives in accordance with fundamental principles and basic’ concepts of Islam context, Article 2 (Islam to be State religion) having been partly translated in practical form in Article 31 (Islamic way of life) would be applied in concrete legal situations by Courts and also on account of general re-orientation of legal thought in Pakistan. The opinion expressed by Mr. Muhammad Munir, formerly Chief Justice of Pakistan, in his commentaries on the Constitution, that this Article means only this that in its outer manifestations the State and its Government should carry an Islamic symbol or that it is vague and general in so far as the legal implication are concerned, with respect, in view of the above analysis, does not appear to be correct. [pp.981, 982, 983] S,T,U,V & W

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