A Comparative Analysis Of The Preamble Of Different Constitutions

A Comparative Analysis Of The Preamble Of Different Constitutions 

  1. Preamble to the Constitution of Pakistan

Preamble means an introductory statement in a constitution, statute or act, and it explains the basis and objective of such a document.[1] The Preamble of the Constitution of Pakistan is a charter comprising nine commands ordained by the people of Pakistan for all instrumentalities of the State, including the Parliament and judiciary. The Preamble says that “it is the will of the people of Pakistan to establish an order”.[2]

  1. History of the Preamble to the Constitution of Pakistan

The Preamble of the Constitution of 1956 was almost identical to the Objectives Resolution passed by the first Constituent Assembly on 12 March 1949 during the government of Liaquat Ali Khan. It was later followed by all subsequent Constitutions.[3] The Preamble of 1962 Constitution was almost identical to the Objectives Resolution, just like the Preamble of the previous Constitution. However, while the previous Constitution was enacted by an assembly, the Constitution of 1962 (on the recommendation of the Constitution Commission), declared that it was enacted by President Ayub Khan.[4]

  1. Nine Commands Provided for in the Preamble to Pakistan’s Constitution
  1. The State shall exercise its powers and authority through the chosen representatives of the people;
  2. The principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;
  3. The Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;
  4. Adequate provision shall be made for the minorities freely to profess and practice their religions and develop their cultures;
  5. The territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;
  6. Fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association shall be guaranteed, subject to law and public morality;
  7.  Adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;
  8.  The independence of the judiciary shall be fully secured; and
  9. The integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded.[5]

These nine commands can also be simplified under the heads of sovereignty, democratic system, injunctions of Islam, freedom of autonomous units, safeguarding the integrity of Pakistan, fundamental rights, protection of minority rights, independence of judiciary, and happiness and prosperity of the people. Our honorable judges consider it as a “grundnorm” or “beacon light” and the “key” to understanding the Constitution.[6] 

  1. Unique Features of Preambles of Different Constitutions

Twelve countries do not display a translation of their preambles in English on their websites. Of the remaining 162 Constitutions, only in 10 (not including Pakistan) does the preamble refer to an independent judiciary.[7]

  1. Social Contract in the Preamble to Constitution of Pakistan

The Preamble can, in its existing form, be seen as the embodiment of the nation’s social contract; the architectural plan and mould which the people of Pakistan have given to their representatives in the National Assembly for the order which they have chosen to construct for themselves, the state and its institutions. The relationship of the people with their instrumentalities is clearly contained in the Preamble. In contention, this “social contract of governance is in fact our own ‘Social Contract’ spelt out in understandable language and not dependent on theorizing and philosophizing.[8]

  1. Caselaw

The significant aspect of the Preamble is that “it has to be read for the purpose of proper interpretation of the Constitution in order to find out as to what scheme of governance has been contemplated” for Pakistan.[9] Constitution will serve the same purpose as any other preamble.[10] In Ashoka Kumar Thakur, the court held that “when a constitutional provision is interpreted, the cardinal rule is to look to the Preamble to the Constitution as the guiding star … The preamble embodies the hopes and aspirations of the people…”[11]  Recently in the case of Dr Mubashar Hassan v. Federation of Pakistan (PLD 2010 SC 265), Ch. Ijaz Ahmed, J. most accurately summed up the position of the Preamble. He noted that “the Preamble … shows the will of the people … and is the key to understanding the Constitution.”

  1. Preamble to the United States Constitution

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

  1. Indian Constitution’s Preamble

“We, the people of India, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

Justice, social, economic and political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and of opportunity; and to promote among them all

Fraternity assuring the dignity of the individual and the unity and integrity of the Nation;

In our Constituent Assembly this twenty-sixth day of November 1949, do hereby adopt, enact and give to ourselves this Constitution.”

 Conclusion

Preambles can also be legally binding constitutional clauses and serve as independent sources of rights and obligations. Constitutional framers can either determine the legal status of the preamble in the constitution themselves or let the courts decide the issue. For Plato, a preamble is a soul of the law and a device through which the legislator convinces people to obey the law.[12] For Schmitt, preambles express the society’s fundamental political decisions. For Blackstone, a preamble is the key to opening up to us the minds of lawmakers. For individuals, a preamble reflects national consciousness, defines constitutional identity and defines who the “we” is. [13]

———-

References:

[1] http://thelawstudy.blogspot.com/2014/08/preamble-of-constitution-of-pakistan.html.
[2] PLD 2015 Supreme Court 401, page,109.
[3] http://pakistanspace.tripod.com/archives/56_00.htm.
[4] http://pakistanspace.tripod.com/archives/62_00.htm.
[5] PLD 2015 Supreme Court 401,  page, 109.
[6] PLD 2015 Supreme Court 401page,109, para 53.
[7] PLD 2015 Supreme Court 401, 121,Para 56.
[8] PLD 2015 Supreme Court 401, page, 120, para 53.
[9] Mahmood Khan Achakzai vs. Fderation of Pakistan (PLD 1997 SC 426).
[10] State vs. Zia ur Rehman (PLD 1973 SC 49).
[11] Ashoka Kumar Thakur vs. Union of India (2008 [6] SCC 1).
[12] The preamble in constitutional interpretation Liav Orgad* The Author 2010. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please email: journals.permissions@oup.com. I•CON (2010), Vol. 8 No. 4, 714–738 doi: 10.1093/icon/mor010
[13] The preamble in constitutional interpretation Liav Orgad* The Author 2010. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please email: journals.permissions@oup.com. I•CON (2010), Vol. 8 No. 4, 714–738 doi: 10.1093/icon/mor010.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Tahir Mehmood

The writer is an undergraduate student of School of Law, University of Karachi and is currently in the 4th year of BA-LL.B degree.



Related posts