Conflicting Salient Features of the Constitution

Abstract

The Constitution of the Islamic Republic of Pakistan, 1973 has various salient features including its democratic character and the Islamic colour. It is reflected by the conferment of certain fundamental rights, and their enforcement mechanism by the Supreme Court and the High Courts exercising powers under articles 184(3) and 199 respectively. Likewise, the Federal Shariat Court under article 203D may declare a law void if the same is repugnant to the injunctions of Islam. Thus, a law to be valid must neither be inconsistent with the fundamental rights nor repugnant to the injunctions of Islam. Any singular declaration of inconsistency with the fundamental rights is not sufficient for the validity of that law so long as that law does not pass the test of repugnancy with the injunctions of Islam. Nonetheless, on the basis of article 189 and article 203G read with other provisions of chapter 3A both the Supreme Court as well as the FSC have held that the decision of the either court is binding on the other. Consequently, they have shown reluctance to determine the fate of a law on the touchstone of the other test if one of the tests has been validly passed.