ARTICLE 2A A REFLECTION OF IDEOLOGY OF PAKISTAN AND ITS IMPACT ON ADMINISTRATION OF JUSTICE

 

Author Fazila Nawaz

ABSTRACT 

The contextual based research is conducted in this project. Herein we have discussed the ideology of Pakistan in the objective resolution and its affect on the administration of justice. We have thoroughly gone through the research and have got the material from the primary resources. The research has covered the scope of the topic in the judicial and legislative sphere of the legal system of Pakistan and we have come to the conclusion that rigidity in Islamic law and inconsistent decision of court has set positive as well as negative examples in the administration of justice in Pakistan. However, we strongly believe that flexible and laws purely based on Quran and Shariah can paved the way towards administration of justice in Pakistan.

2          INTRODUCTION

Objective resolution reflects the ideology of Pakistan. The principles of sovereignty, democracy, freedom, tolerance, social justice and equality are incorporated in objective resolution to be fully observed by the state as enunciated by Islam. Objective Resolution has also stressed on ensuring rights of minorities, protecting the fundamental rights of citizens, encouraging independence of judiciary and else that all support the path towards administration of justice

The constitution of Pakistan promises protection of law to every citizen.  Yet, so far our legal system is seemed confused in deciding which law to apply; either the Islamic law or the common law. The overlapping of these two opposite law has created controversies almost in every sphere. However, this has also given opportunity for the legislature and judiciary to fit a suitable law according to the nature of its society. That if availed the society can develop under the significant principles of laid under Islamic principles.  

3          IMPORTANT CONCEPTS

3.2         Objective Resolution

This significant document is based upon the basic principles of Islamic political system and Western Democracy. It serves as a foundation stone for constitutional development in Pakistan. Objective Resolution is made the preamble and a substantive part of constitution of Pakistan.[2]

3.3         Administration of Justice

It is a process via which the legal system of government is executed. Its main concern is administration of justice, according to the rule of law to all those accessing the legal system.[3]

4          BACKGROUND

4.1         Foundation of Pakistan

Force of Islam, socio-cultural differences, treatment of Hindu, bitter attitude of British and the two nation theory became the main factors for founding Pakistan. The two nation theory upholds that Hindus and Muslims are two separate and distinct nations having their own culture, civilization, literature, religion and way of life. Muslims has a distinct identity then other nations becasue their philosophy of life is based on Islamic philosophy. This is the ultimate idea on which ideology of Pakistan is based.[4] The objectives of ideology of Pakistan give freedom of religion and ensure administration of justice as laid by the principles of Islam.     

4.2         Ideology of Pakistan and Farmers of Constitution

Islamic ideals helped as the guiding principles in the Pakistan ideology. The founders aimed at providing the Muslims opportunity for free development, yet were not motivated by a desire to establish a theocratic state for the Muslims. The aim of forefathers was to make a separate homeland where Muslims could freely practice their religion and live according to the Islamic values that give respect to every human being. Therefore, Quaid-e-Azam Mohammad Ali Jinnah believed Islam to be dealing with ideas of liberal democracy. He observed Islam has taught us democracy with the principle of equality and justice. Thus, the desire of founders was to establish a progressive and democratic system in Pakistan based on the Islamic principles of social justice.  

4.3         Implementation of ideology

Two prospective, traditionalist and Modernist evolved with the question of practical implementation of ideology. The modernist Group inspired by the ideas of Sir Syed Ahmad Khan desired Islam to be followed in spirit. They opposed the theocratic idea of government and desire to bring some sort of a compromise between Islamic principles of social justice and the principal of Western democracy. The Modernists were not biased against the concept of an Islamic State. They only desired that the principles of Islam should not be interpreted in severe rigid terms as it will hinder the administration of justice in a fair manner for everyone in the state. The traditionalists on the other hand, fervently demanded establishment of an applied Islamic State in Pakistan. The trouble with the traditional groups was that they interpreted Islam in rigid terms. Each time the solution of any legislative or constitutional problem was brought with the compromise of these two groups. The conflict of ideas between the two wider groups Modernist and traditional group controlled political, constitutional questions and became a cause for harmful social disputes that has disturbed the administration of justice in Pakistan.

5 OBJECTIVE RESOLUTION: REFLECTION OF IDEOLOGY AND ADMINISTRATION OF JUSTICE

5.1         Principles of Objective Resolution and Ideology

The objective resolution is a significant document regarding the place of Islam in Pakistan that reflects its ideology. Hence, in Asma Jilani v.The Gokvernment of the Punjab it was declared grundnorm of Pakistan. That manifest that Allah is the sovereign and he give people to exercise the authority with in prescribed limits. The principles of democracy, freedom, tolerance, social justice and equality are also incorporated in objective resolution to be fully observed by the state as enunciated by Islam. Objective Resolution has also stressed on ensuring rights of minorities, protecting the fundamental rights of citizens, encouraging independence of judiciary and else that all support the path towards administration of justice.[5]

5.2         Objective Resolution and Administration of Justice    

Article 2A was introduced into the Constitution by the Eight Amendment. The decision made in State v. Zia ur Rehman case became a caused to validate the Resolution as a substantive part of the Constitution and made Islamic injunctions practicable in the policy of the state. The said Objectives Resolution became a regular section of law to be employed in the country under this regulation. The constitution made the government machinery responsible to Islamize all the laws. Article 198 of the Constitution was put in its actual form, which provided that no law should be enacted that would be repugnant to Islam's injunctions as set out in the Holy Quran and Sunnah. In this regards Presidents power to pardon was questioned in the Hakim khan case. [6] Hence, president power to pardon without consent of legal heirs was nullified in murder cases in criminal law. Consequently, in nature and spirit, the constitution was tried to make fully Islamic and so as the laws in the country. [7]

However, the inherited Anglo laws and their affect in the society have often opposed the application of rigid Islamic laws. For instance strict Hudood Ordinance hampered the administration of justice for which it was repealed with several amendments. The two different laws Islamic and Western has resulted uncertainty is the system of administration of justice in Pakistan. So far almost thirty cases have been reported regarding conflict between Islamic principles in objective resolution and Western Practices. Yet, the legislation and judiciary of Pakistan are often seemed confused between the Traditional and Modernist groups of the society. Thereby, the end result achieved is always a compromise between both the perspectives. [8] A notable example is Muslim Family law ordinance. Rule of law was needed for the family issues, upon which a commission was settled. The selected members were with two prospective, the modernist and traditionalist. Upon each question of law for family issues, including, khula, polygamy and else there came unconvincing argument between both the groups. Hence, the commission presented a compromise between both prospective and included both the principles of Islamic and Western law. Yet, the judiciary has often followed principle of social equality for dealing with the cases.

6         ROLE OF JUDICAIRY IN ADMINISTRATION OF JUSTICE AND OBJECTIVE RESOLUTION

The integral role of Pakistani judiciary cannot be forfeited while dealing with the essence of ideology of Pakistan in objective resolution and administration of justice in Pakistan. The Pakistani courts are observed to follow either the Islamic Rule of law or Western or deciding a case on the basis of social equality. Hence, this has created uncertainty in rule of law that will be followed while deciding a case.

6.1         Comparing application of law in the milestone cases

6.1.1        Habib Bank Limited 1987 Case v Ghulam Mustafa Case 1988

In the Habib bank case court gave a supra-constitutional status to the Objective Resolution. It supported overriding every law and even the constitution if it comes in conflict with principles in objective Resolution.[9] However, in Ghulam Mustafa case the court held that Article 2A cannot defeat other provisions and cannot be given a higher status than the constitution. [10]  ;

6.1.2        Zia-ur-Rehman case v Hakim Khan Case

In Zia-ur-Rehman case the court supported the supra-constitutional status of Objective Resolution. Consequently, that made it the substantial part to bring the essence of ideology in the constitution and laws of Pakistan[11]. However, the same status and intension didn’t prevail in Hakim Khan Case. The court instead of following its precedent put the principles of Objective Resolution equally footing with the reaming parts. Also supported to read inconsistency between Objective Resolution and Constitution in a harmonized way and stuck down any repugnant part.[12]

6.1.3        Kaneez Fatima Case v Benazir Bhutto Case and Election Act Case

Supreme Court in Kaneez Fatima case held the jurisdiction to strike down law contravening the injunctions of Islam are not vested with Supreme Court but comes under the powers of Federal Shariat Court.[13] However, in Benazir Bhutto case the court allowed to limit restrictions that could impose on the fundamental rights. That was developed by courts own development out of reading the Objective Resolution and various Islamic provisions in the constitution. [14]Then in the Election case went against its own precedent and vastly expanded scope of limitations that can be imposed on the fundamental rights. 

 

7          IDEOLOGY’S ESSENCE IN OBEJECTIVE RESOLUTION AFFECTS ON ADMINISTRATION OF JUSTICE

The strong influence of ideology of Pakistan in the objective resolution has helped Pakistan to strengthen the Islamic laws in the country. However, the inherited common law practices that come in contradiction with the Islamic law have always questioned the promises of proper administration of justice in the country. Additionally, often the strict Islamic laws have threatened the social integrity, equality and justice system in Pakistan. As being in the majority Muslims are always found in violating the rights of minorities. Gender base discrimination, expensive judicial proceedings, faith base discrimination and else are all that Pakistan society is experiencing since its origin. However, yet executive issues are not the scope of this research so we will focus only on the formulated legal system for the administration of justice.  [15]

7.1         Positive Affects

The aim of stretching the ambit of Islamic law in the country has developed significant institutions which functions can strengthen the administration of justice in Pakistan. These include Council of Islamic ideology, Federal Shariat Court and else. Not only the Muslim but minorities can also question the inconsistent practices or law against them in the society on the basis of laws stipulated by the shariah. The incorporation of ideology of Pakistan in objective resolution has widen the scope of justice, as the Islamic principles have made every human being equal and has also promised rights for every creature on earth. A notable example is the inheritance rights of women in Islam. The true application of Islamic law can create a peaceful society as it was created in Madina during the time of prophet where rulers and citizens were heard equally.  [16]

7.2         Negative Affects

Due to the conflict between the two social prospective laws which are health for the system of administration of justice are left unapplied because of the controversies of traditionalist and modernist. For instance the laws on limitation of polygamy were supported by the modernists, yet were not approved because of the opposition of traditionalists.  [17]

The applications of strict Islamic laws are also observed to be negatively influencing. For instance, “during 1980s, the government prosecuted hundreds of women for adultery.” Even Safia Bibi case is a stain on the history of Pakistan where a 13 years old blind girl who was sentenced for three years of imprisonment under hudood ordinance. The blasphemy laws in the country are also being misused by the majority to allege minorities for the offence of blasphemy; notable example is Asia Bibi case. She spent her entire youthfulness in the court and at last she was declared to be innocent.[18]

8          RECOMMENDATIONS

The rigidity in Islamic law and inconsistent decision of court has set positive as well as negative examples in the administration of justice in Pakistan. However, we strongly believe that flexible and laws purely based on Quran and Shariah can paved the way towards administration of justice in Pakistan. For this Pakistan legal system has to bring changes not only in its legal system but also in the norms and values of the society.

One of the main drawbacks of Islamic laws is their rigidity. The basic principles of Islam are more significant than the modern democracy. However, the some rigid laws are attracting the opposition towards the implementation of entire Islamic system. Yet, which can be resolved completely with the step of opening the doors of ijetihad. The rational laws made according to the need of the case solve this issue and can leave a flexible rule for a better system of administration of justice.

Not only the legal but the social values that are inherited from the mixed Indian-common laws have to be abrogated by the Pakistani society to achieve complete positive result of administrative of justice through the Islamic principles. The courts will be able to decide the cases without any delay when the basic principles such as truthfulness, loyalty and else are adopted by Muslims as essential part of their faith. Thus, with changes in the laws we have to change the attitude of Muslims towards Islam. That not only teaches the love for Allah but also explains an ideal life for Muslims and teaches them to observe equality, justice, tolerance in their each act.

Lastly for the consistency in the laws followed for administration of Justice the legal system and for the ideology of Pakistan, it needs to repeal all that laws that are inconsistent to Islamic laws. Against them bring new theories and methods that are parallel to the Islamic principles.

9          CONCLUSION

Ideology of Pakistan is incorporated in the objective resolution for the better Islamic society. However, the system of administration of justice in Pakistan is hampered by the social disputes, application of strict Islamic laws, contradiction in Islamic and common law, and the diverging traditionalist and Modernist prospective.