Petitioner Muhammad Siddiq Mirza, a practicing lawyer, seeks to challenge Articles 184, 209 and 211 of the Constitution of Pakistan through this Shariat Petition. His contention is that these Articles are in conflict with Injunctions of Islam in so far as administration of justice is concerned because no right of appeal has been provided to the aggrieved person therein. It is prayed that the respondent be directed to insert a provision in these Articles through an Act-of Parliament or through any other enactment for providing right of appeal to the affected party.
2. The precise arguments of the petitioner are as follows:
(i) That Article 184 of the Constitution of Islamic Republic of Pakistan is adjudicatory and punitive in nature. It empowers the Supreme Court to pass orders in the nature mentioned in Article 199 of the Constitution when a question for the enforcement of any Fundamental Flight is involved. In the event of an order adverse to the interest of a person is passed by the Supreme Court of Pakistan the affected person has no remedy by way of appeal; (ii)That Article 204 contemplates punishment for contempt of Court but there is no provision of appeal when a person is convicted for contempt by the Supreme Court and lastly.
(iii)That Articles 209 through 211 relate to the Supreme Judicial Council. It is contended that if after inquiring into the matter the Council reports to the President that a Judge be removed from his office, the President, may remove the judge accordingly. The right of appeal is denied to the Judge affected by this order. The Article 211 states as under: "Article 211. Bar of Jurisdiction: The proceedings before the council, its report to the President and the removal of a Judge under clause (6) of Article 209 shall not be called in question in any Court."
A complete negation of any remedy is against the Injunctions of slam.
3. The petitioner also relied upon various Injunctions of Holy Quran and the Tradition of Holy Prophet
(PBUH) to contend that right of appeal is a cardinal principle in matters of adjudication.
4. Insofar as Islamic Injunctions are concerned there is no cavil with the proposition that right of appeal to an aggrieved person has been conceded therein. The Federal Shariat Court has already In re The Civil Servants Act (LXXI of 1973) reported as PLD 1984 Federal Shariat Court 34 held that right of appeal against the finding of Court Martial was not available under the Army Act, 1952; Air Force Act, 1953 and Navy Ordinance, 1961. This was found to be a deficiency in laws relating to judicial hierarchy of Army, Air Force and Navy. It was found that according to the Code of Criminal Procedure and the Hudood Law the right of appeal is conceded to a convict. The Constitution also confers jurisdiction upon Supreme Court to hear appeals against the decision of the High Court and grant special leave to appeal. These remedies are available to a civilian convict which are denied to a convict sentenced under either of these laws. It was therefore found to be discriminatory for which there "is not the slightest justification." This precedent very clearly establishes the fact that a law passed by appropriate legislature was challenged. No provision of the Constitution was assailed in that case. The basic question is whether the petitioner has chosen the correct forum for the redress of his grievances.
5. Learned counsel then referred to various definition of law. He relied upon the following observations of Mr. Justice Yaqub Ali (as His Lordship then was) made in the case of Miss Asma Jilani versus The Government of the Punjab, PLD 1972 Supreme Court 139 (at page 235):- "Pakistan is an Islamic Republic. Its ideology is enshrined in the Objectives Resolution of the 7th April 1949, which inter alia declares wherein the Muslims shall be enabled to order their lives in their individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Suanah. We should, therefore, turn more appropriately to Islamic Jurisprudence for the definition of "law". One method of defining "law" is to know its source. In Shariat laws have divine origin. They are contained in the Holy Quran and Hadith, namely, precepts and actions of the Holy Prophet (peace be upon him). The other sources are Ijma: Consensus and juristic deductions including Qiyas: Analogy, Istihsan or Juristic Equity, Public Good, Istidlal; Reason and Ijtihad; Juristic Exposition. While Juristic Deductions are judge-made laws, Ijma is based on the doctrine of Imam Shafi'i that the voice of the people is the voice of God", and is the most fruitful source of lawmaking in Shariat. In the present day context the Legislative Assemblies comprising of chosen representatives of the people perform this function. Thus, in Islamic Jurisprudence, the will of a sovereign, be he the monarch, the President or the Chief Martial Law Administrator is not the source of law. The people as delegate of the Sovereignty of the Almighty alone can make laws which are in conformity with the Holy Quran and Sunnah. A remark may be added that often the head of the State or a Province of the State is included in the composition of Legislature and if the Assembly is not sitting he may enact Ordinances which are temporary and expire when the Assembly meets."
6. These observations do not advance the case of petitioner. For the purpose of this petition we have to look into the definition of law as provided in chapter 3A of the Constitution and interpret the same. The term Law has been defined in clause (c) of Article 203B of the Constitution. This definition determines the jurisdiction of the Federal Shariat Court to examine laws on the touchstone of Islamic Injunction. The provision relating to the definition of law reads as follows:
(c) "LW includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any Court or tribunal or, until the expiration of [ten] years from the commencement of this Chapter, any fiscal law or any law relating to the levey and collection of taxes and fees or banking or insurance practice and procedure; and"
7. The term "existing law" has been employed in Article 227 of the Constitution. The Council of Islamic Ideology was mandated to examine existing laws which term, according to Article 260 has the same meaning as in clause (7) of Articles 268. Clause [7] reads as follows:-- "In this Article, "existing laws" means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extraterritorial validity, immediately before the commencing day."
8. Article 260 also defines "Federal Law" and "Provincial Law to mean a law made by or under authority of Parliament or Provincial Assembly as the case may be.
9. The term Pakistan Law has been already defined in the General Clauses Act, 1897 in the following terms"-- "[(37b) "Pakistan law" shall mean any Act, Ordinance, Regulation, rule, order, bye-law or any other instrument which has or had the force of law in Pakistan or any part thereof; but does not include an Act of Parliament of the United Kingdom or any Order-in-Council; rule or other instrument made thereunder;]"
The term law does not include the Constitution.
10.A bare reading of Article 203D shows that the term law does not include the Constitution.
According to this provision whenever the Federal Shariat Court takes up the examination of any law or provision of law and such law or provision of law appears to be repugnant to the Injunctions of Islam, the Court shall then cause a notice to be given to the Federal Government in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or to the Provincial Government in the case of a law with respect to a matter not enumerated in the either of those lists. Law have therefore a nexus with the legislature which enact such legal instruments.
However we are conscious of the fact that the term law includes in its scope the judge made law.
Preference the case of Kundan Bibi and 4 others versus Wilayat Hussain, Controller of Estate Duty, Government of Pakistan, Karachi and another reported as PLD 1971 Lahore 360. This Division Bench judgment is from Lahore High Court. Mr. justice Sardar Muhammad Iqbal (as His Lordship then was) on pages 365, 366 of the report held as under: "Law does not mean only the statute law but also includes the principles which are laid down by the judicial pronouncements of the superior Courts. In Government of West Pakistan vs. Begum Agha Abdul Karim Shorish Kashmiri (4), Hamoodur Rehran, J. (now his Lordship the Chief Justice) observed that "law' in Pakistan is "not confined to statue law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law". The principle of natural justice has been authoritatively enunciated by the Supreme Court whose decision, to the extent that it decides a question of law or is based upon or enunciates a principle of law, is binding under Article 63 of the late Constitution of 1862 on all other Courts in Pakistan. It is a law declared. We would, therefore, read this principle in section 58-A and the Controller's order, if he finally determines the valuation under the said section without giving an opportunity to the accounting party to be heard, will be invalid."
11.The Constitution, in Article 70, contemplates legislative procedure with respect to any matter in the Federal List or in the Concurrent Legislative List. Articles 141 through 144 in Chapter 1 of Part V of the Constitution identify the areas where, subject to the Constitution, the Parliament and Provincial Assemblies may make laws.
12.The Constitution has even otherwise used the term law, custom and usage in Articles 7 and 8 in Part II Fundamental Rights and Principles of Policy. Article 7 read as follows:-- "In this Part, unless the context otherwise requires, "the State" means the Federal Government, [Majlis-e-Shoora (Parliament)], a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess."
Article 8 reads as follows:-- (1)Any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2)The State shall not make any law which takes away or abridges the rights so conferred and law made in contravention of this clause shall, to the extent of such contravention, be void.
3. The Provisions of this Article shall not apply to--
[a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or [(b) any of the-- (i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule; (ii) other laws specified in Part I of the First Schedule;] and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter. [4] Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in [Part II of the First Schedule] into conformity with the rights conferred by this Chapter: Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months."
Part I and Part II of the First Schedule enumerate various laws which have been exempted from the operation of Article 8(3) (b) and (4). It is therefore clear that the term law generally means all such instruments which have been made by competent legislative authorities. The term law has also been used in Articles 1, 4, 5, 6, 7, 9,10, 11,12, 14,15,16, 17, 19, 20, 22, 23, 24, 25, 30, 241, 243, 245, 250, 251, 252, 253, 264, 268, 270, 275, 279 etc. in this very sense. Article 5 of the Constitution makes a clear distinction between the term Constitution and the term law in Article 5(2) in the following terms: "Obedience to the Constitution and law is the [inviolable] obligation of every citizen wherever he may be and of every other person for the time being within Pakistan." -- 13. Chapter 3A, entitled Federal Shariat Court, was introduced in the 1973 Constitution with effect from 26 May 1980 and consequently this term could not possibly include the term Constitution in its scope because this chapter is creation of 1973 Constitution and not the vice versa. The "commencing day" of the Constitution, according to Article 265(2), is 14 August 1973.
14.It may also be added that the mode of introducing, enacting, amending a law in legislature is quite different from the mode and manner of adopting, enacting and giving to the entire nation a Constitution. Chapter 6 of Part XII of the Constitution deals also with repeal of laws but there is no law which determines mode and manner of repeal of Constitution. There is no concept of repeal of Constitution. The laws have to conform to the Constitution and not the other way round.
15.The word "law" has also been used for not less than seven times in Article 199 of the Constitution. Even according to this Article the exercise of jurisdiction by the High Court is subject- to the Constitution. The distinction between the law and the Constitution is very much clear. The written Constitution is the basic norm of the state and it in fact regulates all other legal norms.
16.The petitioner has also referred to the terms "custom" and "usage" to draw support for his arguments for maintainability of his petition to impugn provisions of the Constitution through the medium of. Federal Shariat Court. Philosophical dialectics of various concepts of law as mentioned by learned counsel is quite different from the specific definition given in the Constitution under Article 203B which in turn determines jurisdiction of the Federal Shariat Court under Article 203- D.
17.Learned counsel then relied upon the case of Hakim Khan versus Government of Pakistan reported as PLD 1992 Supreme Court 595 to urge that a Constitutional provision could be challenged. This precedent also does not advance the case of petitioner because it was held therein that appropriate procedure in case of a conflict between a Constitutional provision and Article 2A is by way of Constitutional amendment in accordance with prescribed procedure contained in the Constitution. It clearly indicated that the choice of forum was faulty. The functions of the Parliament cannot be usurped by the Federal Shariat Court.
18.The framers of the Constitution stated in very clear terms in Article 227 of the Constitution that all existing laws shall be brought in conformity with the Injunctions of Islam and no future legislation should be repugnant to the said Injunctions. In other words the Constituent Assembly made it clear that the provisions of the Constitution do not violate any Injunction of Islam. Ever since the Constitution was promulgated, it has not been adjudged as un-Islamic either by the Parliament or the Superior Judiciary. The wordings of Article 227 also indicate that the term law is different from the term Constitution.
19.It will be instructive to refer to a portion from the judgment delivered by Hon'ble Supreme Court of Pakistan In re Government of N.W.F.P. vs. Said Kamal Shah PLD 1986 Supreme Court 360 at pages 465-466 contributed by Mr. Justice Shafiur Rehman. It reads as follows:- "Two facts stand out in the appeals under consideration so far as the bar of jurisdiction is concerned. The first is that no specific Constitutional provision was at any stage pleaded or upheld against the pristine provisions of N.W.F.P Pre-emption Act or the Punjab Pre-emption Act. It is the engrafted provisions of Land Reforms Regulation 1972 para. 25 clause (d) conferring on the tenant of agricultural land in respect of his tenanted land, the first right of pre-emption which was sought to be protected by invoking a Constitutional bar. The second fact is that there was no direct, categorical unequivocal bar, Constitutional or otherwise pleaded at any stage. What was pleased was an indirect, inferential bar, deduced or implied from other provisions of the Constitution e.g. Articles 269, 268(2) and 8(3). The learned Judge upholding the bar observed:-- "The question arises: can the Court declare anything invalid or bad which is declared valid by the Constitution? The answer to this question must be in the negative. But here the Court is confronted with another difficulty which to say the least is insurmountable. It cannot declare any provision of the Constitution as repugnant to Islamic Injunction. Any declaration of repugnancy with Shariah of the provisions of law placing ceiling on ownership or reducing it, would amount to declaration of those Constitutional provisions as bad which declare those laws either valid or untouchable. The question of the validity of the Regulation came up for consideration before the Supreme Court in, Mehreen' Zaibunnisa u. The Land Commissioner, Multan and others PLD 1975 S.C. 397. It was held to be Constitutionally immune from attack. It was further held that: All amendments made to Martial Law Regulation 115 were given protection from the Fundamental Rights, and saved from repeal being included in the first and the Seventh Schedule to the Interim Constitution, and such inclusion was given retrospective effect from the commencing day of the Constitution." We do not think that any such bar in fact exists so far as the new Constitutional dispensation is concerned. An entirely new power was conferred on the Specified Courts or benches thereof. A test of repugnancy i,e, Injunctions of Islam was prescribed. This empowerment had its own inhibitions and limitations, and, but for these, it transcended all Constitutional protections and safeguards. For example all laws, but not the Constitution, Muslim Personal Law, any law relating to the procedure of any Court for Tribunal" or, any fiscal law or law relating to the levy and collection of taxes and fee or banking or insurance practice and procedure" could be tested on this standard "notwithstanding anything contained in the Constitution". To apply this test of repugnancy to the Constitution or a provision thereof is one thing and to apply this test to any other law. Validated, continued or protected under the Constitution is another. The first is prohibited, the second is not." (Emphasis added) "
20. Constitution is a solemn mandate by the people of a country directed towards the various branches of Government. It is the fundamental law of a state containing the principles on which states Government is founded. It regulates the division and exercise of sovereign powers. It is an extra-ordinary piece of legislation which establishes the structure and mechanism of Government.
It is the supreme law of the land. The laws have to be in conformity with the Constitution. Laws made by legislature deal with specific subjects which is not the case with Constitution. Constitution is adopted by a Constituent Assembly. Laws are made by appropriate legislature under the authority of Constitution. It is therefore not correct to urge that the term law as used in Article 203- D includes Constitution.
21. In this view of the matter we are not persuaded to admit this petition for regular hearing because the mandate of the Federal Shariat Court is clearly mentioned in Article 203-D read with Article 203-B of the Constitution. There is a specific exclusion of Constitution from the definition of the term law. Consequently, this petition is dismissed in limine.