Islamic Judicial Review in Practice (2): Strategic Islamization of Laws

 The most significant impact of Islamic judicial review is the incorporation of qiṣāṣ and dīyah in the legal system of Pakistan. During the colonial period, the British replaced Islamic criminal law with the Indian Penal Code 1860. There are two important components of Islamic criminal law: ḥudūd and qiṣāṣ. Ḥudūd are fixed offences, prescribed in the Qur’ān and Sunnah, and include illicit sex (zinā), slander (qadhf), theft (sariqa) and consumption of alcohol (shurb al-khamr). Qiṣāṣ covers homicide and injury. While Zia ul-Haq introduced Hudood Ordinances in 1979 along with the creation of the Shariat Benches at high courts, he did not replace the provisions of the British penal code with qiṣāṣ. Therefore, one of the earliest challenges to penal laws was based on the Islamic law of qiṣāṣ.

In Gul Hassan Khan v Government of Pakistan,[1] the Shariat Bench of the Peshawar High Court declared several sections of the Pakistan Penal Code 1860 and the Codes of Criminal Procedure 1898 as repugnant to Islamic injunctions for not incorporating the Islamic principles of qiṣāṣ and dīyah. In this case, two petitioners who committed murder but were pardoned by the legal heirs of the deceased, approached the Shariat Bench to challenge the provisions of the Pakistan Penal Code 1860 which did not recognise pardon in murder cases in accordance with Islamic legal principles of qiṣāṣ and dīyah. The Bench reviewed the relevant sections of the Pakistan Penal Code 1860 in light of the Qur’ān and Sunnah which unequivocally lay down rules for qiṣāṣ and dīyah. Chief Justice Abdul Hakeem Khan observed that Islam reformed the Arabian custom whereby in retaliation for the murder of a nobleman, hundreds of people from the murderer’s tribe were killed. Islam replaced this custom with the law of qiṣāṣ and dīyah which is based on the principle of equality.

Justice Khan also reviewed the Code of Criminal Procedure 1898 which provided that offences related to the human body could not be forgiven either by the victim or his/her legal heirs. He did so because in his words, “the Government in its anxiety to expedite Islamization of the Penal Code would appreciate if such amendments are suggested as will cover Chapter XVI [of offences affecting human body] of the Pakistan Penal Code in its entirety.”[2] It is not clear if Justice Khan passed these remarks sarcastically because the government of Zia ul-Haq was reluctant to promulgate the law of qiṣāṣ and dīyah despite promulgating the Hudood Ordinances in 1979.[3]

The Shariat Bench gave the government two months to amend the law. The government did not take any action to amend the law in accordance with the order of the Bench. Therefore, one petitioner filed a suit for contempt of court against the government for non-compliance with the order of the Shariat Bench in the Gul Hassan case.[4] The Bench dismissed this petition and held that no period for implementing the proposed amendments had been prescribed in the Constitution. The Shariat Bench observed that its function is limited to examining laws for their conformity with the injunctions of Islam. The Shariat Bench, however, held that the law declared repugnant ceases to have effect from the date the judgment of the Shariat Bench becomes effective. Despite this clear order of the court, the penal law related to murder and injuries remained in force. The Zia ul-Haq regime continued to resist the incorporation of qiṣāṣ and dīyah in the penal code until his death in August 1988 despite the fact that the FSC endorsed the judgment of the Shariat Bench in the Gul Hassan case in its first reported judgment in 1980.[5] The government filed an appeal before the Shariat Appellate Bench, Supreme Court (SAB) which was decided nine years later.[6] The SAB confirmed the FSC judgment and the principles of qiṣāṣ and dīyah were incorporated into the Pakistan Penal Code 1860 and the Code of Criminal Procedure 1898 through the Criminal Law (Amendment) Act 1997.[7]

Notes:

[1] PLD 1980 Peshawar 1.

[2] Ibid, para 756.

[3] One explanation for the government’s reluctance was the pending murder trial of the ousted Prime Minister, Z.A. Bhutto who was likely to escape the gallows if murder was to become a compoundable offence. This might have been one but not the sole consideration for the reluctance of the Zia ul-Haq regime to the promulgation of qiṣāṣ and dīyah law. The Supreme Court had already confirmed the death sentence of Z.A. Bhutto on 6 February 1979 by upholding the judgment of the Lahore High Court, his review petition was rejected on 25 March 1979, and he was hanged on 4 April 1979. The Shariat Bench of the Peshawar High Court delivered its judgment in the Gul Hassan case on 1 October 1979, six months after the hanging of Z.A. Bhutto.

[4] Mumtaz Khan v. Government of Pakistan, PLD 1980 Peshawar 154.

[5] Muhammad Riaz v. The Federal Government, PLD 1980 FSC 1.

[6] Federation of Pakistan v Gul Hassan Khan PLD 1989 SC 633. It appears that the Zia ul-Haq regime simply disregarded the judgments of the Shariat Bench of the Peshawar High Court and the FSC. It was only when the number of the FSC judgments declaring various laws repugnant increased that in 1984 a proviso was added to article 203-D(b) in respect of the effectiveness of the FSC decisions. This proviso reads, “… no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal.” Constitution (Amendment) Order 1984.

[7] For details see Tahir Wasti, The Application of Islamic Criminal Law in Pakistan: Sharia in Practice (Brill 2009).