Objectives Resolution In Limbo
The preamble of any constitution is its most important part as it highlights the fundamental principles and/or purposes which the constitution pursues or elucidates. In the Constitution of Pakistan, the preamble defines limits on Parliament’s constituent and legislative powers. These limits are so fundamental that after their introduction – even though new constitutions were drafted several times, or were revived – every government, even the dictators, considered themselves bound by the static nature of these limitations enshrined in the preamble and did not make even a single change to it. It would be worth quoting Justice Jawwad S.Khawaja here:
“I have examined the preambles to the constitution of various countries of the world. It is of relevance that none of these preambles contains wording by way of command, comparable to our Preamble which requires inter alia, that the principles of democracy shall be fully observed or that independence of the judiciary shall be ‘fully secured’. The command is addressed to the instrumentalities and functionaries of the state. This remarkable feature of our Preamble makes it unparalleled in the present day world. Can such uniqueness be disregarded? Surely not.”
-Jawwad S. Khawaja, J. (Text of detailed SC judgment on 18th and 21st amendments).
The purpose of this article is to critically analyze the role or status of the preamble of the Constitution of Islamic Republic of Pakistan, regarding its interpretation and its connection with the basic structure theory. Content of the preamble is also enshrined as a substantive part of the Constitution as the Objectives Resolution in article 2A. The analysis is primarily based on the judgments of Justice Jawwad. S.Khawaja and Justice Nasir-ul-Mulk given in the constitutional petitions challenging the 18th and 21st amendments in the Constitution.
To begin with, the basic structure doctrine is a theory which entails that every constitution possesses certain features which are so fundamental that they constitute the basic structure of the constitution. Therefore, the Parliament cannot amend such provisions embodying the basic structure and the framework of the constitution.
There is always a milestone historical document which outlines the foundations of a country. This landmark document, in the context of Pakistan, is the Objectives Resolution. I believe it is worth mentioning here that on the 7th of March, 1949, Mr. Liaqat Ali Khan, who was among the founders of Pakistan, delivered a speech while presenting the Objectives Resolution and called it the aims and objectives for the Constitution, and it will be apt to quote him here:
“Mr. President, I beg to move the following Objectives Resolution embodying the main principles on which the constitution of Pakistan is to be based.”
One can easily conclude the significance of this document for the Constitution from these words. As it is clear from the name of the document, it contains the objectives and principles going into the ultimate underpinnings and groundwork for the formulation of the constitution. Content of the preamble is the same as the content of the Objectives Resolution; it just adds the will of the people, amongst other things, in order to give it a more democratic touch.
Similarly in the context of United States of America (U.S.), the Declaration of Independence is one of the most important documents in history. The document was drafted by the founding fathers of the U.S. and presented in Congress on the day of independence i.e. July 4, 1776. This document delineates the limitations by citing certain inalienable rights, values and principles, which the representatives of the people would pursue, deriving their power from the people by manifesting their will. The document also guaranteed that these very values and principles would be the foundation of any government and whenever any government would depart from these limitations, the people of the U.S. would have a right to rebel against the government. This document greatly inspired the drafters of the U.S. Constitution and Abraham Lincoln called it a key document through which the Constitution should be interpreted. This influence is evident from the words of its preamble which starts with the following captivating words:
“We the people of the United States…”
It shows how the will of people was considered and ensured in the Constitution which is the supreme law of any state.
Justice Jawwad S. Khawaja has devoted most of the space in his judgment discussing the very issue of limitations on Parliament while referring to the preamble. He has raised very sound arguments which support and substantiate my claim here. He calls the preamble a social contract, which is absolutely a valid argument as it provides protection and guarantees for the rights of people in return for their obedience and respect for the laws enacted by the representatives in Parliament whom they have chosen. A representative is one who does not have any discretionary power or authority but derives his authority or power from another source. This provides for a kind of limitation that Parliament is under an obligation to enact only the laws which protect rights promised in the preamble and people are also under an obligation to obey those laws of Parliament as long as the promise is fulfilled. The reason that Parliament is not supreme or sovereign in Pakistan, unlike the Parliament in the United Kingdom (UK), is because in Pakistan the ultimate Sovereign is Allah and the limitations are there to comply with the injunctions of Islam which the Muslim majority demands and for which the promise is made in the preamble and in article 2 and 2A. Thus, if Parliament enacts any law stating that the country should no longer be an Islamic Republic, there would be hue and cry, as was the case when the issue of declaring Pakistan a secular state was raised. This identifies it as a salient feature or the basis of the Constitution of the Islamic Republic of Pakistan because of its recognition among the public.
Some constitutional experts believe that a constitutional amendment passed by Parliament can be struck down by the judiciary only by applying the concept of basic structure theory. They criticize the doctrine by highlighting the example of India, where its application has led to twenty seven different basic features decided by the Supreme Court in different cases. They argued that the concept is very subjective and varies from case to case therefore it is not pragmatic to apply such an abstract concept in the context of Pakistan. Consequently the judiciary cannot strike down any amendment passed by the Parliament. This is a flawed argument made by the counsels in the petition on one hand and Justice Nasir-ul-Mulk in his judgment on the other. We do not to rely on any such doctrine which is subjective in nature since we possess a well framed, well drafted document in the form of the Objectives Resolution; as is evident from the name, the Resolution is purely objective and clearly states the salient features of the Constitution. This document provides a domain to Parliament, overstepping of which can be invalidated by the judiciary – that organ of the state which is usually considered the guardian of the constitution, especially in common law countries like Pakistan or the U.S.
Justice Khawaja, highlighting the significance of the preamble, has also rejected these arguments. He argues that we can apply a similar concept in a more refined or nuanced way unlike the basic structure because we possess a unique and unparalleled tool which is the preamble. He argues that it clearly states the relationship of the state with its people, by recognizing nine commands or directives which are the limitations on the authority delegated and conferred upon Parliament by the people. Hence, Parliament cannot exceed its power delegated by the people and it is obliged to pursue the most fundamental nine directives which depict the salient features and objectives of the Constitution. He argues that the preamble of our Constitution is unique as it is in the form of a command and is analogous to a power-conferring provision. Therefore, its significance and uniqueness cannot be underestimated. In other words, it is the key to understanding and interpreting the Constitution.
At this point, I would want to touch upon Hans Kelsen’s pure theory of law. According to his theory, in any country’s legal system there exist various hierarchical norms. One norm derives its legitimacy from the higher norm and so on. This all ends at a “grundnorm” which is the highest norm i.e. all other norms or laws derive their validity from the grundnorm which to some extent can be deemed as supra-constitutional. Hence, one can say in the context of Pakistan that the preamble, which contains the nine directives, is a grundnorm and all laws must be consistent to it and derive their legitimacy or validity from it. Justice Khawaja has also called the preamble of the Constitution a grundnorm in the legal jurisprudence of Pakistan which may not be changed or defeated.
Justice Nasir-ul-Mulk has unequivocally stated that the Objectives Resolution cannot be used to strike down amendments. For this, he has cited two reasons. The first reason was that the 1973 Constitution was not framed by the founding fathers. By contending this, the learned judge ignored the fact that the Objectives Resolution was put forward by none other than one of the founding fathers of Pakistan i.e. Liaqat Ali Khan. It should also be noted here that Justice Nasir-ul-Mulk’s rejection of Objectives Resolution as a grundnorm is based on the premise of the basic structure doctrine being flawed from the outset. Though this might be true, one cannot deny that on another instance, he did not shy away from considering the Objectives Resolution as a way of delineating the fundamental features of the Constitution which can be used as an interpretive tool. Hence, there is an inherent contradiction in his contention and a closer scrutiny of his arguments reveal that somehow somewhere he recognizes the importance of the Objectives Resolution.
His second reason for not giving the Objectives Resolution the status of a ‘guiding principle’ arises from his reasoning that it does not depict the will of the people for it does not explicitly mention these words and that Article 2A was a product of some maneuvering by dictators. However, the Objectives Resolution is at par with the social contract theory when it states “WHEREIN the state shall exercise its powers and authority through the chosen representatives of the people”. The nine directives contained in the Objectives Resolution have provided the necessary guidance to the framers of the previous constitutions and denying its importance is tantamount to giving unchequered power to the legislative body. Justice Nasir-Ul-Mulk, however, believes that the Parliament under Article 239 (5) and (6) has unimpeded power to amend the Constitution. The contradiction in his judgment is manifested once again in that where he is willing to shun the Objectives Resolution on the basis of Article 2A, which was a mere dictate of a military ruler, he forgets that Article 239 (5) was incorporated by the same.
In lieu of the above discussion, it can be seen that there are competing claims with regards to the Objectives Resolution. For some, it is a grundnorm, for others, it is merely an interpretive tool. However, within these competing claims we forget one important thing: the Objectives Resolution has been that one document on which the foundation of our other three constitutions was laid. It is unique in itself and in the words of Justice Jawwad S.Khawaja, reliance on the Objectives Resolution will end the constitutional transplantation on which Pakistan’s legal jurisprudence has relied since time immemorial. Maybe, it is time to own up to what we have and to give the Objectives Resolution its due importance. The purpose of this is not to state that Pakistan should be an ‘Islamic’ state in letter and spirit for this is what many believe when the term ‘Objectives Resolution’ is brought up. It is just to state that if and when an amendment needs to be struck down, it can be done on the basis of the Objectives Resolution for it clearly spells out the fundamental features of the Pakistani Constitution which are only peculiar to Pakistan.
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.
well written piece of legal philosophy it is , and the author should be appreciated for the task, but simultaneously it is the considered opinion of the Full bench of the Hon’able Supreme Court of Pakistan that objective s resolution could not be used to strike down statutes. in such a situation, what to talk about striking the amendments of the Constitution? the view has been expressed in 2015 SCMR 1739 SUPREME-COURT