ERROR AT THE APEX - On The Way To Supreme Court

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ERROR AT THE APEX

On The Way To Supreme Court

Challenge Before The Shariat Court

The conflict between the Ordinance XX of 1984 and the fundamental right was apparent and manifest. But the country was then under Martial Law and the fundamental rights stood suspended. However, General Zia-ul-Haq, had introduced chapter 3-A in the Constitution by Constitutional amendment order P.O. No. 1 of 1980 establishing Federal Shariat Court which could strike down any law as being repugnant to Qur’an and Sunnah. The article 203-D reads:

“203-D. (1) The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Qur’an and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.”

In sub-article (2) it was further provided that:

“If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision:

(a)	the reasons for its holding that opinion; and
(b)	the extent to which such law or pro vision is so repugnant;”

and also provided that:

If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam:”

and that:

“Such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.”

Immediately on the promulgation of the Ordinance XX, some Ahmadi individuals challenged the Ordinance before the Federal Shariat Court for declaration that the Ordinance was against the Islamic injunctions of Qur’an and Sunnah.

It was contended that:

(a)	The Ordinance violated the letter and spirit of Quranic injunctions about freedom of conscience and religious liberty.
(b)	Qur’an and Sunnah do not justify any compulsion in the matter of faith.
(c)	What has been declared to be lawful by Qur’an and Sunnah cannot be declared unlawful by State authorities and that the acts declared laudable and commendable by Qur’an and Sunnah cannot be made criminal offences punishable under law.
(d)	There is nothing in the Qur’an and Sunnah to stop a non-Muslim from believing in and declaring the unity of Allah or to acknowledge the Holy Prophet of Islam to be truthful in his claim or to adopt the teachings of Qur’an as a code of life or to act upon the injunctions of Islam if he voluntarily so chooses.