Regarding the Islamic status of Pakistan’s Constitution, we have stated on numerous occasions that its foundation rests upon the supreme sovereignty of Allah Almighty, and the supremacy of the Qur’an and Sunnah has been constitutionally recognized. Moreover, having pledged to enforce the rulings and laws of the Qur’an and Sunnah, Parliament has been prohibited from enacting any legislation inconsistent with them. Therefore, given this ideological foundation, it is not correct to label this Constitution as un-Islamic. This is especially so because, in its drafting, such eminent scholars as Mawlānā Muftī Maḥmūd, Mawlānā ‘Abd al-Ḥaqq, Mawlānā Ghulām Ghawth Hazāravī, Mawlānā ‘Abd al-Ḥakīm, Mawlānā Ni‘matullāh, Mawlānā Ṣadr al-Shahīd, Mawlānā Shāh Aḥmad Nūrānī, Mawlānā ‘Abd al-Muṣṭafā Azharī, Mawlānā Muḥammad Zākir, Mawlānā Ẓafar Aḥmad Anṣārī, and Professor Ghafūr Aḥmad — may Allāh have mercy on them all — were actively involved. Likewise, among those who have taken oath under this Constitution and rendered services in various constitutional institutions are towering figures of religious learning, including Mawlānā Sayyid Muḥammad Yūsuf Banūrī, ‘Allāmah Shams al-Ḥaqq Afghānī, Mawlānā Ḥasan Jān, Mawlānā Nūr Muḥammad, Mawlānā Muḥammad ‘Abdullāh Shahīd, Professor Sājid Mīr, Mawlānā Qāḍī ‘Abd al-Laṭīf, Mawlānā ‘Abd al-Sattār Khān Niyāzī, Mawlānā Mu‘īn al-Dīn Lakhvī, Qāḍī Ḥusayn Aḥmad, Mawlānā Gawhar Raḥmān, and Mawlānā Qārī Sa‘īd al-Raḥmān — may Allāh have mercy on them all.
Nevertheless, the question of how the Constitution is interpreted and applied within the country’s system undoubtedly merits serious consideration, and reservations in this regard have been expressed in every era. These reservations pertain to the domain of interpretation and application (ta‘bīr and taṭbīq), and cannot be attributed to the foundational principles of the Constitution itself. Rather, responsibility lies with those classes and individuals who either operate the Constitution or obstruct it from functioning in accordance with its true spirit.
In the context of interpreting constitutional provisions and applying them to the country’s system and laws, we ourselves have repeatedly voiced reservations. By way of example, I consider it appropriate to mention just two at this juncture:
- When the late General Muḥammad Zia-ul-Ḥaq, during his tenure, made the Objectives Resolution a binding part of the Constitution, and it formally became part of the constitutional text, a process began whereby various laws were challenged before the courts. One such instance pertained to the law of qiṣāṣ (retribution), wherein the authority to pardon the killer rests solely with the heirs of the victim, whereas our Constitution had also vested this power in the President. A petition was filed before the High Court contending that granting the President the power to pardon the killer was against the Sharī‘ah, and since the Objectives Resolution had established the supremacy of Sharī‘ah, this presidential power ought to be struck down. The High Court accepted this argument and nullified the President’s authority. However, when the matter was appealed before the Supreme Court, the pivotal question arose: does the Objectives Resolution enjoy supremacy over the other provisions of the Constitution? If so, the High Court’s decision was correct; but if the Objectives Resolution is merely one provision among others, then the High Court’s ruling could not stand. On this matter, a full bench of the Supreme Court, headed by the Mr. Justice (Retired) Dr. Naseem Hassan Shah, ruled that the Objectives Resolution is simply an ordinary provision of the Constitution, possessing no superiority over other constitutional provisions. Consequently, the High Court’s judgment was overturned.
Thus, the present situation is that the Objectives Resolution — which affirms the supreme sovereignty of Allah Almighty — is but an ordinary constitutional provision, enjoying no precedence over other clauses. Such a state of affairs is not acceptable for a Constitution that purports to be Islamic. This case is recorded in legal documentation under the title Ḥākim ‘Alī binām Sarkār, and we had earlier published its summary in Urdu during that period as a booklet titled Qarār-dād Maqāṣid binām Suprem Court of Pakistan through the Al-Sharī‘ah Academy, Gujranwala. - Similarly, during his first tenure as Prime Minister, Mīān Muḥammad Nawaz Sharīf had the “Sharī‘ah Bill” passed through Parliament. While this bill was ostensibly founded upon the supremacy of the Qur’an and Sunnah, it introduced a qualifying clause: “provided that the political system and governmental structure are not affected.” This exception effectively circumscribed the supremacy of the Qur’an and Sunnah. At that time, we sought the opinion of the country’s leading religious scholars on this matter. In response, the senior ‘ulamā’ declared this proviso contrary to the requirements of Sharī‘ah. Those inquiries and their responses were published in that era in the monthly Al-Sharī‘ah, Gujranwala.
Thus, the present situation is that the Objectives Resolution — which affirms the supreme sovereignty of Allah Almighty — is but an ordinary constitutional provision, enjoying no precedence over other clauses. Such a state of affairs is not acceptable for a Constitution that purports to be Islamic. This case is recorded in legal documentation under the title Ḥākim ‘Alī binām Sarkār, and we had earlier published its summary in Urdu during that period as a booklet titled Qarār-dād Maqāṣid binām Suprem Court of Pakistan through the Al-Sharī‘ah Academy, Gujranwala.