Relevant Case Law, For & Against: Supra-Constitutionality
The first instance in which the doctrine of supra-constitutionality of Article 2-A was espoused in detail was Bank of Oman Ltd vs. East Trading Co. The case involved a challenge to the Transfer of Property Rules, 1889. In his decision, Justice Tanzil- ur-Rehman rejected the plaint on the grounds that the FSC had already examined the ordinance and declared it Islamic save for its provisions countenancing bank interest, and that such latter provisions had been deemed by the FSC to be beyond its jurisdiction. However, he granted leave to appeal from the impugned decision of the district court pertaining to bank interest on the grounds that the High Court had jurisdiction through Article 2-A to “construe the existing laws in the light of the Holy Qur’an and Sunnah, as enshrined in the constitution, except that when a certain law falls within the exclusive jurisdiction of the Federal Shariat Court.” This decision was clarified in the Irshad Khan case. In this single-judge case before Justice Rehman, relief was granted to the petitioner against interest on a private note. In the course of the decision, a spirited argument was presented supporting the position that financial interest (riba) of any kind is un-Islamic. Similarly in Habib Bank vs. Muhammad Hussain Justice Rehman invoked Article 2-A to enable the High Court to examine the question of bank interest; and as before found that its collection was un-Islamic. However, unlike Irshad Khan, the court was bound by precedent and, hence, was unable to grant relief to the petitioner. In Habib Bank the petitioner had borrowed money from a commercial bank. As a consequence, the transaction was governed by the Banking Companies (Recovery of Loans) Ordinance, 1979. This ordinance, in turn, was protected by Article 270-A of the Constitution as amended by the Eighth Amendment, the legal mechanisms that indemnified actions taken during the Martial Law of Ziaul Haq (1979-85). Earlier the Sindh High Court in a full bench decision had ruled that Article 270-A was valid legislation and that it could not be challenged by Article 2-A. Similarly, in subsequent cases the Supreme Court found that Article 270-A was valid legislation.
Support for Justice Rehman’s findings was subsequently provided by three cases decided in the High Courts. In Shahazuddin Chaudhry vs. Services /T. Justice Khalil-ur-Rehman Khan ruled that Article 2-A gave the courts the right to examine provisions of the Companies Act to ensure that “the affairs of the company are [not] being conducted in a manner prejudicial to the public interest.” Accordingly, he directed that the respondent, a private firm, disinvest from ventures that held a fixed rate of return, and reinvest in permissible forms of investment - e.g. shareholding, or profit-loss. That is, he found that riba was not in the public interest. Similarly, Justice Wajihuddin Ahmed in Aijaz Uaroon vs. Inam Durrani ruled that provisions in the Negotiable Instrument Act, 1881, that provided for fixed interest rates were “un-Islamic”; and that the courts in Pakistan are precluded from decreeing relief “in any form whatever.” Accordingly, he granted relief to the petitioner from paying a fixed rate of interest but ruled creatively that the petitioner should repay the lender an amount that would take into account the effect of currency inflation across the term of the loan. Finally, Justice Nasir Aslam Zahid ruled that provisions of the Sindh Finance Act, 1990, which revised the schedule of court fees in the province, were un-Islamic and hence void. He reasoned that court fees of any type were un-Islamic as they placed restrictions upon access to justice. However, the High Courts’ jurisdiction to declare laws un-Islamic, through the vehicle of Article 2-A, was limited to the consideration of “new-laws,” those enacted after March 1985. Therefore the court did not have standing to rule on the broader question of court fees in general, as they had been enacted prior to 1985.
Provisions of the Muslim Family Laws Ordinance, 1961, also have been challenged by recourse to the Objectives Resolution. The Muslim Family Laws Ordinance is specifically exempted from challenges on Fundamental Rights (freedom of religion) grounds successively in the 1962, interim 1972, 1973 and 1985 constitutions (Article 8-B); as well as by Article 203-B of the 1985 Constitution as interpreted by the Mst. Farishta case. In Qamar Razahowever, Justice Tanzil-ur-Rehman ruled that Article 2-A allowed review of the Muslim Family Laws Ordinance on the grounds of repugnancy to Islam. In this case, an appeal against a decision of a family court, Justice Rehman found several provisions of the ordinance repugnant to Islam, including the provi- sion that mandated that divorce decrees (talaq) need be recorded by the chairman of the family court to become valid. Although this decision has not yet been directly considered by other superior courts, the FSC has cited the case in support of its finding that divorce does not require the registration of a valid decree as it applies to the charge of adultery (zina).
However compelling the logic of the supra-constitutionality of Article 2-A, there is a strong counter-argument against such judicial activism. In the Bachal Memon case the Sindh High Court, in a unanimous full-bench decision, found that Article 2-A did not provide the High Court with jurisdiction to examine actions indemnified by Article 270-A of the Constitution. It must be noted, however, that this decision was made prior to the Bank of Oman decision and that neither Justice Tanzil-ur-Rehman nor Wajihuddin Ahmed participated in the decision. Subsequent to Bank of Oman two individual-bench Sindh High Court decisions have been reported in which the Article 2-A doctrine has been rejected. One dealt with jurisdiction regarding riba™ the other with the Muslim Family Laws Ordinance. Also, the Sindh High Court, in a full-bench decision, rejected the contention that Article 2-A gave the High Court standing to strike down constitutional provisions bearing upon the terms and conditions of service of High Court and FSC judges.And, similarly, the Sindh High Court ruled in Abdul Majeed Pirzada that Article 2-A could not invalidate the operation of the Eighth Amendment or Article 270-A.73
There is also considerable extra-judicial resistance to an expanded role for the superior courts via the vehicle of a supra- constitutional interpretation of Article 2-A. The stakes are quite high. A broad interpretation of the jurisdiction of the courts would significantly alter the distribution of power between the branches of Pakistan’s government. Under an extreme interpretation of the powers conferred by Article 2-A, the courts would be empowered to review and to interpret all laws against the benchmark of Islam; and the definition of what that entailed would ultimately lie with the courts themselves. Indeed, it is likely that if such a broad interpretation of the courts’ powers prevails, eventually the bulk of the Islamic activists’ policy agenda(see supra) would be met.
Accordingly, some observers have argued that reliance on Article 2-A is a temporary aberration that is likely to be disposed of in the near future by a Supreme Court decision akin to Zia- ur-Rehman, That is, that the Objectives Resolution (Article 2-A) will again be declared non-justiciable. But such a blanket dismissal of the importance of Article 2-A seems unwarranted and premature.
It may be recalled that President Zia’s Enforcement of Shari'ah Ordinance, 1988, differed from its predecessor Shari'ah bills and proposed Ninth Amendments in one important regard. It assigned jurisdiction for disposal of issues bearing upon Islamization, currently exempted by Article 203-B, to the High Courts, not the ESC. There was an important rationale for this decision: namely, that it is generally acknowledged that the High Courts are less congenial to Islamic judicial reforms than is the FSC, and perforce less likely to adopt a judicial doctrine which claims an expansive role to examine issues for repugnancy to Islam. It is crucial to note in this regard that the Enforcement of Shari'ah Act, 1991 did not alter the locus of jurisdiction for the consideration of Islamic challenges to Pakistan’s existing legal structures. Jurisdiction for the consideration of repugnancy to Islam therefore remains wholly with the FSC and the Shariat Appellate Bench of the Supreme Court. This outcome is a victory for those advocating an activist role for the judiciary as well as for those advocating rapid Islamization of the legal system. Indeed, as of mid-1992, there is strong sentiment in both the FSC and the Shariat Appellate Bench of the Supreme Court which would support expanding the jurisdiction of the judiciary via a supra-constitutional interpretation of Article 2-A. No similar sentiment is found in any of the four High Court benches, nor on the full-bench of the Supreme Court.
This analysis has demonstrated that there is no consensus in regard to either the content nor the desired pace of Islamic reform in Pakistan. The legislature’s attempts to forge such a consensus, through the consideration of various Shari'ah bills, failed, to the extent that the Enforcement of Shari'ah Act, 1991 pro- voked more questions than it answered. In the absence of such consensus, the superior courts have “seized the opportunity” or, alternatively, “have been forced” to adopt an increasingly activist stance in regard to the Islamization process. In either case the superior courts have become, largely through default, the primary locus of legislative authority in the State. This development is of profound importance to the future effectiveness of democratic institutions in Pakistan.
Source: Islamization of Laws and Economy: Case Studies on Pakistan, Charles Kennedy. Republished with permission.