‘Pak Objectives Resolution borrowed from India’

ISLAMABAD: The Supreme Court judgement on 18th and 21st Amendments has discussed the importance of Objective Resolution at length and Justice Saqib Nisar in his note has highlighted both, the historical context and the weight of Objective Resolution in the Constitution. The Supreme Court judge has elaborated that Pakistan’s Objective Resolution was borrowed from Indian Objective Resolution which was passed in January 1947 and the borrowers even did not change verbatim of many clauses of Indian resolution.
Justice Saqib Nisar has mentioned that the opening paragraphs of the Objective Resolution ‘encapsulate the Islamic Doctrine of sovereignty’. “The doctrine states that sovereignty over the entire universe belongs to Allah Almighty alone and the authority to be exercised by the people of Pakistan is a sacred trust. What is critical to note is that the resolution explicitly states and delineates who is to exercise that authority? The language is: “Wherein the State shall exercise its powers and authority through the chosen representatives of the people”.
It does not state that the authority is to be exercised by the judicial officers appointed by the State. The repository of ultimate power is the body of elected representatives. The final word must always therefore rest with them and with no one else. The judicial organ of the State cannot, and ought not, to claim that it is the ultimate authority in the land. Such a claim would be clearly violative of the explicit language of the Resolution.”
While discussing the Objective Resolution, Justice Saqib Nisar penned down that the intention of the framers of the Constitution was exactly opposite in context of the resolution as has been portrayed over the decades. ‘It is worth noting that the theory that the Constitution contains an unidentified, and constantly shifting, “supra-constitution” within itself is manifestly self-contradictory. If that were so what prevented the framers of the Constitution from identifying certain features of the Constitution and declaring them unamendable. Why should it be assumed, without the slightest shred of historical evidence, that is what was intended in relation to the Objectives Resolution? And if they did not intend it, are we justified in ascribing such an “intention” to them? In fact, their intention was the exact opposite since they, in common with the framers of the earlier Constitutions, left it with the status of a non-binding preamble. The title itself made it clear: it is a “resolution” which sets out the “objectives” which are contemplated, and not an iron straitjacket. In fact if the text of the Objectives Resolution is compared with the text of the substantive parts of the Constitution, numerous contradictions become self-evident.”
Regarding the historical context of the Objective Resolution, Justice Saqib has written: “However, to confer a similar status on the rest of the Resolution is to clearly stray very far from the historical record. The conceptual roots and contents of the Objectives Resolution (which was passed on 12th March, 1949 when the Quaid-e-Azam had already expired) are neither unique to Pakistan and, nor indeed, did the formulation of the Resolution even originate within the country.
In order to explore the subject further it is necessary to look over the border. On 9th December 1946 the constituent assembly of India met for the first time in New Delhi. The session was fiercely opposed by the Muslim League, who boycotted it. But Nehru was adamant and defiantly declared that whatever form of constitution was adopted by the constituent assembly would become the constitution of India. He moved an Objectives Resolution, which was passed by the constituent assembly on January 20, 1947. Thus the concept of an Objectives Resolution originated in the Indian Congress, and how it travelled across the border is something that we will see in a moment. This was unanimously adopted on 22nd January 1947. Subsequently, on 29.8.1947 a drafting committee was set up under the chairmanship of Dr. BR Ambedkar to draft the Indian Constitution which was adopted on 26 November, 1949 and came into force on 26 January, 1950.
In the meanwhile, in terms of the Mountbatten Plan of 3 June, 1947 a separate Constituent Assembly was set up for Pakistan which carried on after 14th August, 1947 but unfortunately never succeeded in finalising a constitution. It is not necessary to trace the troubled constitutional history of this country further for purposes of the present case but if we set out both Objectives Resolutions, the original one as passed in India in 1946, and the Pakistan Resolution which was adopted two years later but modeled on the earlier document, the striking similarities will at once become apparent. As will be noted the framework, the structure and even occasionally the precise language of the Pakistan Objectives Resolution was based on the Indian document. Indeed, a significant part has been copied out verbatim.
The similarity between the nomenclature and structure of the two Objectives Resolutions is so striking as to leave no need for further debate or discussion on the point. In particular, the all-important paragraph relating to fundamental rights, equality of status, social, economic and political justice and freedom of thought, expression, belief, faith, thought and association subject to law and public morality is virtually a word-by-word copy. The provision referring to minorities is also strikingly similar. The paragraphs relating to the integrity of the territory of the state and its sovereign rights on land, sea and air are also notable for their convergence of concept and phraseology.
One additional point needs to be made. Nehru obviously did not consider that the Objectives Resolution was so uniquely important that it should be embodied as part of the Indian constitution by being made the preamble thereto.
It can be seen therefore, that the originators of the concept of an Objectives Resolution did not consider, or attach, so much importance to its phraseology and structure as to justify it being made a part of the Indian Constitution. It would seem to follow from the above that any attempt to attach a quasi-mystical, or supremely overarching significance and importance to the Objectives Resolution by this Court, as if it had been uniquely conceived by the founders of Pakistan, is not altogether justified, to say the least.
What is special about the Objectives Resolution is something else, namely its reference to the Islamic doctrine, which states that sovereignty over the entire universe rests in Almighty Allah alone. That is the true basis of the Islamic Republic of Pakistan. Furthermore, and critically, the categorical assertion in it that the exercise of the power of the State is to rest in the chosen representatives of the people needs to be highlighted. In other words supreme power is to rest in the elected representatives of the people and not in the judicial officials of the State. If there is any moral to be drawn from this saga then surely this is it. And this perhaps is the underlying reason that this Court has, in all its previous decisions on the point, firmly rejected the basic structure doctrine as itself being alien to the basic structure of the Constitution of Pakistan.”