Another question on which the majority opinion has departed from the well established legal position in Pakistan is the interpretation of article 2A of the Constitution which was incorporated during the Martial law period. Abdul Qadeer J. observed:

To support this conclusion about the overriding effect of article 2A and Islamic provisions, Abdul Qadeer J. relied on the judgment of Nasim Hassan Shah and Shafi ur Rahman JJ. in Pakistan Vs Public at large (PLD 1987 SC 304; at 356) but significantly omitted to mention the subsequent view of these two judges much more elaborately expressed in Hakim Khan.

Even the jugment in Pakistan Vs Public at large holds exactly opposite of what Abdul Qadeer J. has argued to support the overriding effect of Article 2A. The quotation reproduced by Abdul Qadeer J. from the judgment of Nasim Hassan Shah reads:

So it was necessary to show that religious freedom granted by the Constitution was forbidden by Qur’an and Sunnah.

Contrary to the above observation Abdul Qadeer J. has held that the Constitutional provision embodied in Article 20 can be struck down as being un-Islamic without showing how it was so. Justice Shafi ur Rahman in Pakistan Vs Public at large case dealt with the delegated authority held in trust by the chosen representatives of the people. This concept was elaborated with specific reference to article 2A and its overriding effect in the case of Hakim Khan. Abdul Qadeer J. failed to notice the opinion of Shafi ur Rahman and Nasim Hasan JJ. in the case of Hakim Khan where the opinion of both these judges was further elaborated. Omission to notice Hakim Khan and relying on the earlier case has lead to confusion. He also relied on PLD 1990 Supreme Court page 1172. This case does not pointedly advert to the question nor shed any light on the effect of making the Objectives Resolution as a substantive part of the Constitution. It only takes notice of the fact and applies it to a situation which may be defined as “unoccupied” field. In Zaheer ud Din it was not a case of unoccupied field where recourse could be had to Islamic common law principles. It was a case of fundamental rights and Constitutional guarantee provided by Article 20 of the Constitution. Abdul Qadeer J. has given an overriding effect of Islamic common law principles, assuming that there were no provisions available in the Constitution, and overlooked the fact that it was not merely another provision of the Constitution but a provision relating to the fundamental rights. This view obviously needs very close re-examination.

Whether Article 2A is a supra-Constitutional provision and has an overriding effect over and above the other provisions of the Constitution has come under consideration of the Pakistan Supreme Court in a large number of cases. But let us first examine the history and content of Article 2A. Article 2A reads:

The Objective Resolution, which hitherto formed the preamble of the Constitution and was made sub-stantive part thereof by article 2A reads:

Prior to the incorporation of Article 2A the principles of Objectives Resolution were cited in aid of certain propositions urged before the Supreme Court in a large number of cases. The Objectives Resolution was sometimes described as the grund norm of Pakistani legal order, sometimes as an embodiment of our national ethos and sometimes as the conscience of the Constitution. It was sometimes described as the corner stone of Pakistan’s legal edifice as embodying the spirit and fundamental norms of the Constitutional concepts of Pakistan. The Supreme Court in those cases had always maintained that preamble is not enforceable and that it could be used only as a guiding principle and not as an enforceable provision of the Constitution. It was in this background that the Martial Law dictator intending to make it enforceable introduced Article 2-A making the Objectives Resolution as a part of the Constitution without adverting to the fact that the document is not set in the words of an enforceable legal or Constitutional provision. It was set in the form of ideals and principles. The introduction of Article 2-A gave rise to a truly animated debate in our law courts. The situation was, to start with, quite anomalous and confusing.

The Lahore High Court took divergent views. In the case of Masoo versus United Bank Ltd., held that Article 2-A is not a selfexecuting provision of the Constitution and it can be rendered effective by appropriate legislature ¹⁵ whereas in Sakina Bibi’s case, the Lahore High Court treated the Article 2-A as supra Constitutional and even struck down the provisions of the Constitution being repugnant to Article 2-A. ¹⁶

Similarly, different benches of the Sindh High Court also rendered conflicting judgments. One view was that 2-A was self-executing and was in control of the rest of the Constitution while others held the view that it was not so.

In a Karachi case Habib Bank Limited versus Wahid Textile Mills Limited Justice Mamoon Qazi sitting as a single judge observed:

The situation finally crystallized in the Supreme Court in Hakim Khan’s case. In that case the Lahore High Court had taken a view that Article 2A is a supra Constitutional provision. The Chief Justice undertook an elaborate discussion of the objectives resolution as a preamble and then as a substantive part of the Constitution and its effect on the other Constitutional provisions as a controlling and supervening provision. On the basis of historical data and process of interpretation he came to the conclusion that the Lahore High Court did not give proper effect to the rules of interpretation and observed that:

Mr. Justice Shafi-ur Rahman in a concurring judgment in the same case interpreting Article 2-A and Objectives Resolution said:

The opinion in the Hakim Khan case was not a casual observation. It was the opinion of the Supreme Court percolated through different cases at various High Courts. By the time the Supreme Court of Pakistan decided Hakim Khan’s case the views of the various High Courts on different aspects of the question had been thoroughly examined. The Karachi case of Habib Bank Ltd. versus Waheed Textile Mills had dealt with the juristic and forensic principles of interpretation of Constitution, Nasim Hasan Shah J. had adopted the historical method, which is a scientific method of reasoning. Shafi ur Rahman J. had clarified the conceptual and philosophical aspects. All these cases had brought the issue under focus and shed a flood of light on the subject. Hakim Khan was thus the percolated wisdom of the superior courts of Pakistan.

This was the position of the Supreme Court, loud and clear, on the Constitutional status of Article 2A vis-à-vis the provisions relating to fundamental rights. The majority opinion in Zaheer-ud-Din ignored this judgment without even referring to it. This could not be a mere omission. The minority judgment had particularly referred to this case and quoted from Hakim Khan in extenso. The majority view “had the benefit of going through the draft judgment proposed to be delivered” by Shaft ur Rahman J. ²⁰ This omission to note Hakim Khan’s case which was the binding law on the day when Zaheer ud Din was decided renders the case of Zaheer ud Din a fit case for re-consideration.’ (Case reported in the collection for review).

Shortly after decision of Zaheer ud Din Article 2A again came up for consideration of the full court in the case of Mian Mohammad Nawaz Sharif. In that case the full court held that:

Mr. Justice Abdul Qadeer who authored the majority opinion in Zaheer ud Din was a party to the judgment in Mian Mohammad Nawaz Sharif and did not dissent from the opinion. In yet another case in the same year Mr. Justice Abdul Qadeer Ch. was again a party to 5 judges bench in the case of Kaniz Fatima versus Wali Mohammad and others in which the court held:

A close scrutiny of the judgment would indicate that the finding on the overriding effect of article 2-A does not really command the majority even in Zaheer ud Din. Shafi ur Rahman J specifically referred to Hakim Khan’s case and positively held that Article 2-A would not override the fundamental rights. Saleem Akhtar J in para 3 of his note said “as regards applicability of Article 2-A, I reiterate the view expressed in Hakim Khan’s case PLD 1992 S.C. 595.”

Mr. Muhammad Afzal Lone J was a party to Hakim Khan concurred with leading judgment of the Chief Justice Mr. Nasim Hassan Shah and did not append any note of his own as was done by Shafi ur Rahman and Abdul Shakoor-us-Salam JJ. Thus he concurred not only in the judgment but also in the reasoning of Nasim Hassan Shah J. Mr. Justice Muhammad Afzal Lone sitting in Zaheer ud Din case signed the majority judgment and did not write a note to indicate his change of mind or to show that he no longer held the views expressed in Hakim Khan. The Hakim Khan case could not have escaped the notice of the majority judgment because the leading judgment by Shafi ur Rehman J specifically relied on Hakim Khan. Absence of any comment by Mr. Muhammad Afzal Lone J can either be attributed to an oversight or non application of mind by the learned judge on the overriding effect of Article 2A. If Muhammad Afzal Lone J be considered to be holding onto his views concurring in Hakim Khan then there is a majority in Zaheer ud Din for the proposition that Article 2-A has no overriding effect. If it be attributed to an omission then the opinion on Article 2-A is equally divided; Shafi ur Rahman and Saleem Akhtar JJ holding against the overriding effect and Abdul Qadeer and Wali Muhammad JJ holding for the overriding effect. In either case the majority of the Supreme Court found in Zaheer ud Din case is not in favour of overriding effect of article 2-A. On a larger analysis when we see the subsequent developments, preponderance of Supreme Court view is heavily tilted against the overriding effect of Article 2-A and for good reason, available in scholarly judgment of Shafi ur Rahman and Nasim Hassan Shah JJ, this anomaly in Zaheer ud Din needs to be resolved.

Though Abdul Qadeer J held that Article 2A will have overriding effect and the Islamic injunctions would prevail as the supreme law, it did not pursue the argument any further to show how the right guaranteed under Article 20 was un Islamic or against the letter and spirit of Objectives Resolution which according to Abdul Qadeer J. had been given overriding effect by Article 2A. The Objectives Resolution inter alia provided that

Is it, then, the case of the majority opinion that this part of Article 2A is also against Islam and must give way to the Islamic provisions? Whatever the concept of Islamic provisions may be. Does Article 2A then override not only the other provisions of the Constitution but overrides itself. Is Article 2A eating itself up. The reasoning of the majority opinion is self-destructive. There could be no better case for review.

The Pakistan Supreme Court judgment in Zaheer ud Din lays down the foundation of inquisitional proceedings. Whereas, the minority judgment argues that the practices not being per se offensive cannot be treated as offensive by reaching the inner recesses of the minds of accused Ahmadis to dig out offensive meaning into those practices, the majority opinion does exactly the same.

The majority opinion argues that because the practices of Ahmadis offend the mainstream Muslims, they can be prohibited. And further the majority opinion tries to read into the minds of the Ahmadi accused what is not expressed in words or overt acts.