A Critique On Article 2A Of The Constitution
Article 2A of the Constitution of Pakistan states,
“The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.”
The “Objectives Resolution” was presented to the Constituent Assembly by Liaquat Ali Khan in 1949. The aspect of every Pakistani Constitution would furthermore be enunciated upon the pattern of this Objectives Resolution. The principles indicate that the Constituent Assembly shall represent the will of the Pakistani people and shall produce the Constitution accordingly.
A controversial principle within the resolution states that “democracy, freedom, equality, tolerance and social justice are to be established through the articles of Islam”. Our Constitution declares the sovereignty of God as a figure above all political, philosophical and judicial aspects of the system in Pakistan; this is a quality distinct from Western constitutions. The Resolution’s main objective states that the Pakistani Constitution was not to be modeled after any European statue or constitution. Instead it would be based on Islamic democracy and ideology. In fact “Bismillah” and the opening sentence of “sovereignty belongs to Almighty Allah”, have been incorporated in every subsequent Pakistani constitution, creating a dichotomy within the system by introducing on one side a federal parliamentary system that decides the law, and on the other hand prescribing what the laws would be and what would remain “within the limits prescribed to Him”. The question to be asked is, who will prescribe the limits? The last person to “prescribe these limits” was Zia-ul-Haq, a man whose interpretation included a coalition of politics and Islam that produced a definition of democracy not commonly, or conventionally known and one that was greatly criticized and has since allowed “the limits” to be dictated according to the needs and moral corruption of political figures.
Since the addition of 2A, the Constitution has been criticized by leaders and judges and a worldwide cry for its amendment and revision has existed. Justice Munir, the former Chief Justice of Pakistan talks about Article 2A in the following words:
“It has been freely admitted that the Resolution, though grandiloquent in words, phrases and clauses is nothing but a hoax.”
Justice Munir emphasized that the Resolution ordered a precedent of actions and principles that the Pakistani government could never embody and it rather distributed the government onto a path that it should never have ventured into in the first place.
Maulana Maududi (the founder of Jaamat-e-Islami), was a fan of the Resolution but admonished its results stating that: “it was a rain, which was neither preceded by a gathering of clouds nor was it followed by vegetation”. Maulana Maududi’s point needed to be understood and comprehended within the Constituent Assembly. His point was not that the Resolution was not profound in its own right, it was in fact its establishment and maintenance that was unworkable in the sphere of turmoil and corruption found in the Pakistani political system.
Practically, the Resolution has struck down fundamental rights that have been inconsistent with the “interpretation” of Islam. Other laws have been invalidated or injunctions have been placed upon them through arbitrary decisions made by judges, on an ad hoc basis.
The fundamental laws had been replaced with laws such as the Hudood Ordinance and Zina Ordinance. After much speculation and thought, the Women’s Rights Protection Bill elaborately revised the Hudood Ordinance in 2006.
The Zina Ordinance, another byproduct of Shariah law, was criticized by the Human Rights Watch and journalists, an example of which has been expressed by Martin Lou as follows:
“While it was to file a case against a woman accusing her of adultery, the Zina Ordinance made it very difficult for a woman to obtain bail pending trial. Worse, in actual practice, the vast majority of accused women were found to be guilty by the trial court only to be acquitted on appeal to the Federal Shariat Court. By then they had spent many years in jail, were ostracized by their families and had become social outcasts.”
Girls, as young as twelve years were accused of extra marital intercourse “under circumstances that would have otherwise mandated statutory rape charges against their assailant,” according to the Human Rights Watch.
These examples showcase how the void in law has led to mass injustices and led millions of people to commit to injustices due to the overriding fact that no one will speak against religion. Religion is a form of taboo in our society. People who speak up or interpret Islam in a way that is not in line with the political sphere will be openly assaulted. A recent example is Maulana Kokab Noorani, who openly insinuated the public to kill an actor (Hamza Ali Abbasi) for disrespecting Islam. The said actor spoke on the controversial topic of Ahmedis and so, he should have been killed according to Mualana Kokab Noorani. The scandal resulted in the actor being banned from live television. In contrast, there were no consequences for the Maulana who had threatened a man’s life! This highlights the ripple effect of Article 2A and its insinuation of the articles of Islam.
The point of this article remains that the Constitution has created rifts and needs amendments due to the various interpretations of Islamic principles and not due to Islamic procedures. Another problem that arises from Article 2A is that there is a deep misunderstanding of what rule can be applied under Pakistani law. For example, the recent Protection of Women Against Violence Bill 2015 was rejected or silenced by clerics for allegedly contradicting Shariah law. Which article of the Shariat does this conflict with? This is still unclear and will remain unclear, as there will be no debate and no further assessment. Instead such issues would silently be brushed under the rug as those in power could arbitrarily dismiss laws where they would deem necessary.
2A has again generated a continuance of questions: which law is supra-constitution and which is not? The High Court in the case of Hakim Khan finally ruled that 2A is a supra-constitutional provision. However, in the case of Zaheer-ud-din, Abdul Qadeer has opened up a few exceptions to this provision.
The majority of the population believes that Shariah is not suited to modern times and creates a theocratic state. Such criticisms and accountability issues, especially in line with international law and human rights, have put our legislature under pressure to conform with international standards and thereby flee from the Shariat. Islam and its principles are being criticized due to the perception that Shariat might be the cause of rudimentary and oppressive laws being instilled in Pakistan. This is not what Liaquat Ali Khan intended to produce when the Objectives Resolution was introduced. Liaquat Ali Khan envisioned a modern democratic state that remained within the bounds of Islamic authority, yet the reality today is far from this.
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 she might be associated.