Since its beginning in 1979, Islamic judicial review was unlikely to cause major constitutional and legal changes because of its inherent design to maintain the status quo. This can be explained by a number of factors. Firstly, the Federal Shariat Court (FSC) did not have jurisdiction over the provisions of the Constitution. In its early years, the judges of the FSC cautiously exercised their review powers and even refused to examine laws that were indirectly linked to the Constitution.[1] Secondly, the controversial areas of laws such as Muslim personal law, procedural laws of courts, and fiscal laws were also excluded from the jurisdiction of the FSC.[2] Thirdly, the judges of the FSC did not have security of tenure as they served at the discretion of the President and could be removed at any time.[3] Fourthly, the FSC did not include any ‘ulamā’ judges initially, and when the Constitution provided for the appointment of ‘ulamā’ judges, they were a minority, three out of the eight judges at the FSC. Finally, the FSC judgments were appealable before the Shariat Appellate Bench of the Supreme Court (SAB) which included two ‘ulamā’ judges and three regular judges of the Supreme Court. The FSC judgments did not become effective until the appeal was decided and in a number of politically sensitive legal issues, the SAB did not adjudicate appeal cases for decades.[4]
Despite its jurisdictional and structural limitations, the FSC has been able to limit state authority by declaring various laws repugnant to the injunctions of Islam. The impact of the judgments of the FSC has been significant upon criminal laws and land reform laws. As a result of the FSC judgment, Islamic legal principles of qiṣāṣ and diyat have been incorporated into the Pakistan Penal Code 1860 (PPC).[5] The relevant provisions in the Code of Criminal Procedure 1898 have also been amended to remove executive discretion to compound offences of murder and bodily injury.[6] Similarly, several land reform laws have also been declared as repugnant because they violated the sanctity of private property enshrined under Islamic law by seizing land above certain limitations and imposing restrictions on the ownership rights of landlords.[7] The FSC judgments also impacted civil services regulations as the FSC declared various regulations repugnant to secure the rights and entitlements of civil servants.[8]
While the incorporation of Islamic principles of qiṣāṣ and diyat into the statutory law and invalidation of land reform laws have been widely criticized for adversely affecting vulnerable and marginal groups, the rights-based jurisprudence of the FSC and SAB has been commended.[9] The achievements of Islamic judicial review have been significant, especially during the 1980s when fundamental rights enshrined in the 1973 Constitution were suspended. During the dictatorial regime of the 1980s, the superior judiciary was unable to adjudicate on the constitutionality of the legislative and administrative actions of the military regime. In this context, the FSC and SAB relied upon the principles of Islamic law to derive various principles of natural justice and human liberties from the Qur’ān and Sunnah. While declaring a number of state laws repugnant to the injunctions of Islam to protect fundamental rights and liberties, the judges of SAB formulated legal rules based on Islamic principles of ʿadl (justice), qisṭ (fairness), and iḥsān (equity) to support the right to due process; namely, the right to be heard and the right to defense.[10]
Notes:
[1] The FSC held that it did not have jurisdiction to review the Political Parties Act 1962 and the Representative of the People Act 1976 because they relate to various articles of the Constitution. Habib-ur-Rehman v. Government of Pakistan, PLD 1981 FSC 131.
[2] The fiscal laws were excluded initially for three years and this period was later extended to ten years.
[3] The Chief Justice of the FSC, Aftab Hussain, was removed from his office in 1984 when the Zia ul-Haq regime expected unfavourable judgment from him in a case relating to the Ahmadiyya community. Sadia Saeed, “Politics of Exclusion: Muslim Nationalism, State Formation and Legal Representations of the Ahmadiyya Community in Pakistan” (PhD diss., University of Michigan, 2010), 329–33. This power was removed in 2010 and a judge could only be removed under the process which applied to a judge of the Supreme Court, as per Act No. 10 of 2010.
[4] Currently, around thirty appeals against FSC judgments have been pending before the SAB. The oldest appeal has been pending since 1989. In Begum Rashida Patel v. Government of Pakistan, PLD 1989 FSC 95, the FSC had declared certain sections of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 as repugnant to the injunctions of Islam.
[5] Muhammad Riaz v. The Federal Government, PLD 1980 FSC 1.
[6] Federation of Pakistan v. Gul Hassan Khan, PLD 1989 SC 633. For details see Tahir Wasti, The Application of Islamic Criminal Law in Pakistan: Sharia in Practice (Boston: Brill, 2009).
[7] Sajwara v. Federal Government of Pakistan, PLD 1989 FSC 80; Muhammad Ismail Qureshi v. Government of Punjab, PLD 1991 FSC 80; Qazalbash Waqf v. Chief Land Commissioner, PLD 1990 SC 99.
[8] In Re: Civil Servants Act 1973, PLD 1984 FSC 34; I.A. Sharwani v Government of Pakistan M-should this MLD 1991 FSC 2613.
[9] Charles Kennedy, “Islamization and Legal Reform in Pakistan, 1979–1989,” Pacific Affairs 63, no. 1 (1990): 62; Martin Lau, The Role of Islam in the Legal System of Pakistan (Leiden: Brill, 2006).
[10] Pakistan v. Public at Large, PLD 1987 SC 304 (Rights of civil servants were given protection); Province of Sindh v. Public at Large, PLD 1988 SC 138 (Right to show cause notice is provided); Pakistan v. Public at Large, PLD 1989 SC 6 (Right to appeal against the orders passed by the Court Martials is provided).
This blog post was first published at the Harvard Law School's Islamic Law Blog
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