How has Pakistan’s legal system — inheriting a colonial penal code at the time of its birth in 1947 — adjusted with its identity as an Islamic republic with a written Constitution. In this illuminating post, Amber Darr traces the complex journey of the nation as it has navigated various steps to accommodate Islamic values and regulations within the legal corpus, and how it has fared over the last 75 years.
Since its creation in August 1947, Pakistan has experienced considerable political turmoil: it has ousted several elected prime ministers before they completed their terms, spent nearly half its life under martial law, and most notably, has adopted three — and abrogated two — Constitutions. Amid all this instability, one factor has remained constant: a constitutional commitment to Islam.
The 1956, 1962 and 1973 Constitutions, despite the considerable political and institutional factors that distinguish them, all proclaim Pakistan as an ‘Islamic Republic’ in which sovereignty belongs to ‘Allah Almighty’; pledge to uphold ‘the principles of democracy, freedom, equality and social justice as enunciated by Islam’; and affirm the commitment of the state to enable Muslims to lead their lives according to the ‘teachings and requirements of Islam’.
Given the steadfastness of purpose evident from even this cursory review of successive Constitutions, it is entirely reasonable to expect that in the more than seven decades since it came into being, Pakistan would have succeeded in creating a legal system that is designed and equipped to deliver decisions that uphold the substantive and procedural values of Islam to thereby realise the Islamic ideals promised in the Constitution. In this commemorative post, I trace the evolution of the interaction between Islam and the Pakistani legal system to understand whether this is in fact the case.
By the will of the Constitution
The 1956 Constitution had strong Islamic overtones: it mandated the state to make policies for ‘Muslim unity and international policy’ (Article 24) and for the facilitation of ‘an Islamic way of life’ (Article 25) — though it clarified that these requirements were only ‘principles of policy’ and could not be enforced through the courts. It also stipulated that only a Muslim may be appointed as President (Article 32) and barred the enactment of laws ‘repugnant to the injunctions of Islam’ (Article 198). Beneath these overtones, however, the Constitution largely retained the legislative and executive infrastructure and nomenclature of the Government of India Act 1935.
Further, despite promising in its Preamble to uphold the principles of ‘social justice as enunciated in Islam’, the Constitution couched the Fundamental Rights of Pakistani citizens in the language of the Universal Declaration of Human Rights that the country had signed in 1949. The only institutional concession that the 1956 Constitution made to Islam was by way of a direction to the President to establish ‘an organisation for Islamic research and instruction’ (Article 197). However, it did not clarify how the research conducted by this organisation would feed back into the workings of any of the organs of the state.
The 1962 Constitution largely reproduced the Islamic provisions of the 1956 Constitution with two important exceptions: first, it relegated the provision barring the enactment of laws repugnant to the injunctions of Islam to a principle of policy, thereby making it unenforceable (Article 1A of Principles of Policy); and second, it introduced an ‘Advisory Council of Islamic Ideology’ with the mandate to recommend appropriate Islamic laws and policies to the government and legislature (Articles199–206). As in the 1956 Constitution, the legal system was left out of the Islamising agenda.
The 1973 Constitution, as it was originally formulated, made some important advances towards Islamisation: it declared Islam to be the state religion (Article 2); reinstated the injunction barring enactment of laws repugnant to Islam as an enforceable provision (Article 227); and most importantly, proposed a new Council of Islamic Ideology (Articles 228–231) which drew its members from the superior judiciary as well as Islamic scholars, thereby for the first time creating a bridge between the secular and Islamic legal values.
However, it was President Zia ul-Haq (1978–88) who made the Pakistani legal system the focus of the Islamisation project. In 1979, he introduced Islamic Benches in the superior courts, and in 1980 established the Federal Shariat Court (FSC; Articles 203A–203J) comprising exclusively of Muslim judges (Art 203C(2)). However, the FSC’s mandate extended only to evaluating the Islamic-ness of laws (Article 203D) and the legality of decisions enforcing Hudood(Article 203DD). Also, all decisions of the FSC remained appealable to the secular Supreme Court (Article 203F) which retained its position as the apex court of the country.
As the law above, so the law below
In addition to these infrastructural changes, the Zia regime also introduced a number of ‘Islamic laws’ including the Offence of Zina (Enforcement of Hudood) Ordinance 1979 which redefined rape and adultery; the Pakistan Penal Code (Amendment) Ordinances 1980, 1982 and 1984 and the Criminal Law (Amendment) Act 1986 that introduced additional blasphemy provisions in the Pakistan Penal Code 1860; the Zakat and Ushr Ordinance 1980 that mandated the compulsory deduction of Islamic tax; and the Qanun-e Shahadat Order 1984 that amended the rules of evidence in the country.
The adoption of Islamic laws continued under subsequent leaders: President Ghulam Ishaq Khan in 1988–93 (during the interim government of Prime Minister Ghulam Mustafa Jatoi, Aug–Nov 1990) promulgated the Qisas and Diyat Ordinance 1990 providing for the payment of blood money; the governments of Prime Ministers Benazir Bhutto(1988–90; 1993–96) and Nawaz Sharif (1990–93; 1997–99; 2013–17) promulgated the Nifaz-e Nizam-e Shariah Regulation 1994 and the Shari-Nizam-e Adl Regulation 1999 for the tribal areas and President Asif Ali Zardari (2008–13) ratified the Nizam-e Adl Regulation 2009. The Nawaz Sharif government also introduced the Enforcement of Shariat Act 1991, the Fifteenth Constitutional Amendment Bill 1998 (dubbed the ‘Shariat Bill’, not passed by the Legislature) and the Criminal Laws (Amendment) Act 2017 that tightened law against blasphemy.
The emphasis on Islam has meant that certain laws, like the Domestic Violence Bill 2020, could not be passed due to opposition from religious political parties and the Council for Islamic Ideology; and conversely, certain other laws, such as the blasphemy laws from Zia ul-Haq’s time, could not be repealed despite repeated calls from civil society. However, it did not mean that all laws enacted by the federal or provincial legislatures prioritised the views of Islamic parties or the Council. Most recently, the Transgender Persons Act 2018 and the Punjab Protection of Women against Violence Act 2016 were challenged before the FSC for being contrary to the injunctions of Islam.
The judges say, so it is
Being qualified to apply complex rules of Sharia is not a requirement for appointment to the superior judiciary of Pakistan. It is perhaps for this reason that Supreme Court judges have often refrained from pronouncing on religious matters. For instance, in its 2002 review judgement in the ‘Riba’ case, the Supreme Court asked the FSC to re-determine the matter ‘after a thorough and elaborate research and comparative study of financial systems which are prevalent in the Muslim World’, and in its 2005 judgement in the ‘Hisba’ case, while it considered the views of the Council of Islamic Ideology and Islamic scholars, it pronounced its opinion only in terms of the Constitution and judicial precedent.
In recent years, however, the Supreme Court appears to have become more comfortable in invoking Islam in its judgements even when Islamic questions have not been raised explicitly. For instance, in its 2012 judgment in the ‘Anita Turab’ case the Supreme Court cited the teachings of Caliph Ali in discussing the requirements of good governance. Also, in its 2014 judgment affirming the rights of minorities to practice their religion freely it drew support from the Islamic principle of religious freedom even though the matter could equally have been decided by reference to the Fundamental Rights guaranteed in the Constitution. In both these cases, however, religious arguments and examples are cited to bolster Constitutional arguments on which judgments in these matters are rendered.
In certain other cases, however, the Supreme Court has gone beyond simply drawing support from Islam for Constitutional arguments to directly citing Qur’anic verses in interpreting legal provisions. In doing so, the Court has not only blurred institutional boundaries between secular courts and the state’s Islamic institutions but has allowed the personal understanding of religion of individual judges to supplant legal reasoning based on precedent. This is evident, for instance, in the 2015 judgment of the Supreme Court in the ‘Asia Bibi’ case, where the Supreme Court cited and interpreted Qur’anic verses in support of the offence of blasphemy, and in its 2017 judgment in the ‘Panama Papers’ case, where it relied upon the Qur’an to understand the principles of ‘Sadiq’ and ‘Ameen’ for the purposes of Article 62 of the Constitution.
To you your law, and to me mine
Interestingly, even as all tiers of the Pakistani legal system have been gradually brought into greater alignment with the injunctions of Islam the country has been besieged by calls for even greater Islamisation from quarters that do not share the Islamic vision of the state. Some of these calls have been academic, such as the very early criticism of the 1973 Constitution by Late Professor Fazlur Rahman of the University of Chicago who argued that it was not Islamic enough and was the result of ‘some heavy compromises’ between the religious Right and the ‘extreme Leftists of the Pakistan People’s Party’ and therefore did not entirely distance itself from secular values and terminology.
Other calls, such as those of Maulana Sufi Mohammad’s Tehreek-e Nifaz-Shariat-e Mohammadi (TNSM) have been more aggressive. As far back as 1994, the Maulana had called for the establishment of Shariah Courts in tribal areas that would only enforce laws in consonance with Islam, under the supervision of specially appointed Qazis, and appeals from whose decisions would lie to the FSC rather than to the secular courts. Even this call seemed mild compared to the militancy of the TSNM under his son-in-law Mullah Fazlullah, which eventually gave way to the Taliban who not only still hold power in the region but also pose a considerable challenge for the state itself.
There is also a third category of people who have taken it upon themselves to uphold what they consider to be the sanctity of Islam. This has resulted in increasing religious vigilantism which, despite its overt religious fervour, is often simply a ruse for settling personal scores. While blasphemy accusations usually target persons belonging to Pakistan’s religious minorities or the lowest rungs of its very stratified society, it has not spared its élite. The 2011 murder of Governor of Punjab Salman Taseer at the hands of his security guard was particularly shocking; even more shocking perhaps was the reverence afforded to his murderer as he was sentenced to death by the Supreme Court.
In the last 75 years, Pakistan’s Islamisation project has gone from being purely aspirational, to being haphazardly institutionalised, to becoming gradually personalised, even privatised. In all these phases, those who have acted in the name of Islam have claimed to draw support and legitimacy from the will of the ordinary people who, it is said, wish to have their lives ordered in accordance with the injunctions of Islam.
However, rather than yielding a robust, predictable and reliable system that not only speaks to Muslims of all persuasions but also generates certainty and confidence in them, the zeal to integrate Islamic principles in an otherwise secular legal system, most often without consultation with Islamic scholars, has not only oversimplified the very principles it claims to uphold but has also created space for other/personal interpretations of Islam, undermining further the rule of law in the country.
The question of whether it is appropriate to consider Islamic principles in adjudication or dispute resolution or indeed any other matters of the state in Pakistan is beyond the remit of this discussion. However, what can be said with confidence is that the system presently in force in the country is little more than an odd patchwork of Islamic and secular laws administered largely by persons who have no qualification or training to reconcile the two beyond the stirrings of their personal consciences.
The views expressed here are those of the author and do not represent the views of the ‘South Asia @ LSE’ blog, the LSE South Asia Centre or the London School of Economics and Political Science.
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