Islamic Judicial Review in Practice (1): Decolonization through Islamization of Laws

 In my previous blog posts, I identified Islamic judicial review as the distinctive feature of Pakistan’s legal system. In my next three posts, I shall scrutinize how Islamic judicial review works in practice through the analysis of a few important judgments related to criminal law and family law.

In this first post, I examine an unexplored judgment of the Shariat Bench of the Balochistan High Court. This judgment did not receive much attention not only by scholars and researchers who explore judicial Islamization of laws in Pakistan[1] but it was also forgotten by the judges of the superior courts in Pakistan.

In Maulvi Muhammad Ishaque Khosti v Government of Baluchistan,[2]  the petitioner challenged the Frontier Crimes Regulation 1901 (FCR), the colonial era law that governs frontier tribal territories adjacent to Afghanistan border. The FCR was an exception to the colonial legal framework prevalent in rest of British India to cater to the special conditions of the frontier inhabited by tribes who self-governed themselves based on their age-old traditions. The FCR supplanted the tribal community-based governance through its official, the Deputy Commissioner, who exercised wide executive and judicial powers. To effectively establish the colonial order, the FCR imposed collective punishments and reversed the presumption of innocence in criminal trials. The petitioner identified these features of the FCR and challenged it on the ground that it violated Islamic principles of justice and equality.

Justice Zakaullah Lodhi, who wrote the judgment, observed that the historical background of the FCR showed that it was promulgated merely for the purpose of convenience or expediency, rather than to ensure justice and fairness in tribal areas. He held that the FCR is arbitrary and discriminatory for two reasons: firstly, it gives the state official, the Deputy Commissioner, unconstrained powers; and secondly, it is discriminatorily enforced only in two provinces, Baluchistan and North West Frontier Province, targeting two ethnicities, Baluchis and Pathans. Justice Lodhi held that the FCR violates several substantial and procedural principles of Islamic law because it imposes various punishments such as collective fines, exile based on apprehension of an offence, and whipping for certain offences. It was also held to be disregarding evidentiary rules related to credibility of witnesses, collection of evidence, and cross examination of witnesses.

On behalf of the government, the Advocate General defended the FCR on the basis that the head of an Islamic state has powers to make suitable laws to ensure law and order. Justice Lodhi rejected this argument by referring to the history of the FCR, which, unlike the Islamic legal principle of public good (maṣlaḥa), was not promulgated to protect the interests of the people who were subject to it.

A more formidable objection of the Attorney General was related to the jurisdiction of the Shariat Bench to examine the validity of the procedural parts of the FCR because Article 203-B of the Constitution excluded procedural law of a court or tribunal from the definition of the “law” that could be subjected to Islamic judicial review. Justice Lodhi rejected this objection and held that the FCR is a “strange mixture of interdependent substantive and procedural provisions”[3] and once its substantive provisions are held invalid for violation of Islamic injunctions, its procedural provisions also become invalid. In the end, Justice Lodhi declared all the provisions of the FCR repugnant to Islamic principles of justice, equality and non-discrimination as well as fundamental rights enshrined in the Constitution.

Despite this judgment, however, the FCR continues to be in force. Strangely, the above judgment of the Shariat Bench was simply ignored. The government neither filed an appeal against this judgment nor did it repeal the FCR. It is unclear why this was the case. It appears that the promulgation of two statutes, which limited the scope of the FCR, played a role in lack of attention to this judgment: the Hudood Ordinances 1979 which covered several criminal offences and the Baluchistan Civil Disputes (Shariat) Application Regulations 1976 which established Qazi Courts for civil disputes in the tribal areas of Baluchistan.[4]

Around three decades later, the FCR was challenged before the FSC on grounds that were similar to the ones already discussed in the judgment of the Shariat Bench delivered in 1979.[5] There was, however, one crucial additional ground for the challenge that related to Regulation 30 of the FCR which provided the punishment of five years of imprisonment or a fine or both for adultery for a woman.[6] The Federal Shariat Court (FSC) declared this Regulation as repugnant to the injunctions of Islam because, according to the judges, the punishment of adultery under Islamic law is stoning (rajm). The FSC asked the government to amend Regulation 30 of the FCR to bring it in conformity with the inunctions of Islam.

In complete contrast to the judgment of the Shariat Bench of the Baluchistan High Court, the FSC declared the rest of the provisions of the FCR in conformity with the injunctions of Islam. The FSC found the procedural parts of the FCR in consonance with the requirement of the administration of justice which had to be dispensed with care, caution, speed and by taking into account the particular conditions of the frontier area. Justice Fida Muhammad Khan, who wrote the judgment, observed that the main purpose of the FCR is to ensure speedy trial to forestall bloodshed and crush insurgency, connivance and conspiracy to maintain law and order in the area. Regarding collective punishments imposed under the FCR, Justice Khan acknowledged that as a general rule of Islamic law, nobody could be made liable for the wrong committed by others; however, in exceptional circumstances, joint liability can be imposed, for example, the entire community is held collectively liable to pay dīyah (blood money) in cases where murderers could not be identified.

The judgment of the Shariat Bench of the Baluchistan High Court in 1979 depicts the enthusiasm of the judges to exercise newly vested powers of Islamic judicial review. Similar enthusiasm was shown by the judges of the Shariat Bench of the Peshawar High Court who went ahead and broadly construed their powers by reviewing procedural laws and Muslim personal law which were explicitly excluded from Islamic judicial review. I will discuss some of their judgments in the next two posts.

Notes:

[1] Martin Lau, The Role of Islam In the Legal System of Pakistan (Leiden: Martinus Nijhoff 2006); Shoaib A Ghias, Defining Shari’a: The Politics of Islamic Judicial Review (University of California, 2015).

[2] PLD 1979 Quetta 217.

[3] Ibid, para 11.

[4] The Act provided for the establishment of Majalis-e-Shura, which were to act as appellate courts similar to the District Courts. The High Court was the court of appeal against the judgments of the Majalis-e-Shura. Under the Baluchistan Civil Disputes (Shariat) Application Rules 1977, a graduate of a religious seminary (madrasa) could be appointed a judge (qazi).

[5] Abid Ali Bangash v Government of Pakistan, PLD 2017 FSC 39.

[6] Regulation 30 of the FCR reads, “(1) A married woman who, knowingly and by her own consent, has sexual intercourse with any man who is not her husband, is guilty of the offence of adultery, and shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (2) Cognizance shall not be taken of an offence under this section unless a complaint has been made by the husband of the women, or, in his absence, by a person who had care of the women on his behalf at the time when the offence was committed.”

This blog post was first published at the Harvard Law School's Islamic Law Blog

The Impact of Islamic Judicial Review in Pakistan

 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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Islamic Constitutionalism in Pakistan: Is it Theocratic?

 Despite assigning a significant role to Islam, the Pakistani constitutional model does not propose a theocratic order. Rather, the theocratic tendencies resulting from the substantial role of Islam in the legal system are checked by a curious synthesis of Islamic constitutionalism and liberal constitutionalism. Instead of assigning the interpretative authority of Islamic legal texts to a particular state institution, as is the case in the Islamic Republic of Iran and the Kingdom of Saudi Arabia, the Pakistani Constitution distributes this authority amongst the legislature as the representative of the people, the judges of the Federal Shariat Court (FSC) and the Shariat Appellate Bench of the Supreme Court (SAB) as impartial arbiters, and the Council of Islamic Ideology, representing ‘ulamā’ belonging to various sects, as an advisory body. This distribution forecloses the possibility of the monopoly of one institution on the interpretation of Islam, and functions as a system of checks and balances to safeguard the constitutional model, without compromising its Islamic identity.

This unique constitutional model of Pakistan took its roots from the first Constitution adopted in 1956 that declared Pakistan as an “Islamic Republic” in which the sovereignty belonging to Allāh was to be exercised by the people through their elected representatives. The 1956 Constitution vested the parliament with the authority to test laws against Islamic injunctions with the assistance of an advisory council of ‘ulamā’. The framers of the constitution rejected the proposal to vest the authority to exercise “Islamic judicial review” with the Supreme Court. This model also continued under the 1962 constitution. Even the current Constitution, adopted in 1973, originally instituted the Council of Islamic Ideology only as an advisory body comprised of ‘ulamā’ to ensure the conformity of laws to the injunctions of Islam.

Until 1979, the Islamic repugnancy clause had remained non-justiciable and the Council of Islamic Ideology could only advise the parliament on the conformity of state laws with Islam. However, the dictatorial regime of General Zia ul-Haq established the Shariat Benches at the four provincial high courts to Islamize laws in 1979. A year later, the FSC replaced the Shariat Benches to centralize the process of Islamization of laws. Despite relying upon Islamization of laws for legitimacy, the Zia ul-Haq regime carefully crafted the jurisdiction of the FSC to exclude the review of constitutional provisions for their conformity with the injunctions of Islam (aḥkām e Islām) as laid down in the Qur’ān and Sunnah.[1] Judges of the superior courts of Pakistan rationalized this limitation on FSC’s jurisdiction on the basis that since the FSC was created by the Constitution, it cannot declare the Constitution invalid.[2] Relying upon this argument, the judges refused to assign themselves a supra-constitutional role, as exercised by the Iranian Guardian Council. It is true that the Council of Islamic Ideology, comprising of ‘ulamā’, has the authority to review the provisions of the Constitution for their conformity with Islamic injunctions, but the recommendations of the Council are non-binding upon the legislature, unlike the judgments of the FSC.

Pakistan’s experience of incorporating Islam in its constitutional set up illustrates the flexibility of Islamic constitutionalism.[3] Islam neither prescribes nor proscribes a particular constitutional model for the political organization of the Muslim community. Islamic constitutionalism is based on the concepts of consultation (shūrā), consent (bayʿa), and public interest (maṣlaḥa), which are fluid enough to accommodate a wide variety of governmental models. Therefore, it is unsurprising to find Islamic justifications for such diverse constitutional models as the theo-monarchy in Saudi Arabia based on the doctrine of siyāsa sharʿīa (Islamic governance) and the theo-democracy in Iran supported by the theory of wilāyat e faqīh (mandate of the jurist). Similarly, other Muslim countries have accommodated various governmental models including constitutional monarchies (Jordan), military dictatorships (Egypt), consociational democracies (Lebanon), authoritarian presidential systems (Central Asia), as well as parliamentary (Malaysia) and presidential democracies (Indonesia, Nigeria).[4]

What distinguishes Pakistan’s legal system from other Muslim-majority countries is the existence of a separate court, the FSC, to exercise Islamic judicial review. Since 1980, the FSC has examined hundreds of state laws, many of them promulgated during the British colonial period. In doing so, the FSC declared a number of state laws repugnant to the injunctions of Islam. In the next post, I evaluate the impact of Islamic judicial review on the legal system of Pakistan.

Notes:

[1] The FSC is vested with original jurisdiction to review any law, with certain exceptions, to assess its conformity with the injunctions of Islam as laid down in the Qur’ān and Sunnah, appellate jurisdiction over criminal appeals arising from the Hudood Ordinances 1979, and review jurisdiction over its own decisions. The FSC was precluded from reviewing the Constitution, Muslim Personal Law, and any law relating to the procedure of any court. The FSC could not review any fiscal law or any law relating to the levy of taxes, fees, banking, or insurance practice and procedures for ten years starting from 1980, as per the Constitution (Amendment) Order of 1980.

[2] BZ Kaikaus v. President of Pakistan, PLD 1980 SC 160.

[3] Jeffrey A. Redding, “Constitutionalizing Islam: Theory and Pakistan,” Virginia Journal of International Law 44 (2003–2004): 759; Matthew J. Nelson, “Islamic Law in an Islamic State: What Role for Parliament?,” in Constitution Writing, Religion, and Democracy, eds. Asli Ü. Bâli and Hanna Lerner (Cambridge: Cambridge University Press, 2017), 235–64.

[4] Rainer Grote and Tilmann Röder, eds., Constitutionalism in Islamic Countries: Between Upheaval and Continuity (Oxford: Oxford University Press, 2012), 15­–16.

This blog post was first published at the Harvard Law School's Islamic Law Blog

Islamic Constitutionalism in Pakistan: Does it Matter?

Pakistan came into being through a constitutionally governed election when Muslims in British India voted for an independent state that comprised the Muslim-majority parts of India. It had two wings: East Pakistan (currently Bangladesh) and West Pakistan, geographically separated by more than a thousand kilometers. Since Islam was the only common link between the two wings, it played a significant role in drafting the first Constitution which was adopted in 1956 and lasted less than two years. For the past seventy-three years, Pakistan has been experimenting with a variety of constitutional models. Interestingly, Islam has had a pivotal role in all of these models. These constitutional models have accommodated a variety of systems of governments in different periods such as a federal parliamentary system (1947-58), a presidential system (1962-69), a parliamentary system (1971-77), a parliamentary system with the army chief as the president (1978-88), a parliamentary system with a strong civilian president (1989-98), a return to a parliamentary system with the army chief as the president (2000-06), and a decentralized federal parliamentary system (2010-present).

Although Islam has consistently maintained a significant role in the constitutional system of Pakistan, various state institutions have taken turns in dominating the state. During the first ten years (1947-1958), the bureaucracy dominated politics. It was the bureaucrat Governor General, Ghulam Muhammad, who manipulated politicians and dissolved the first legislative assembly in 1954. Subsequently, Iskandar Mirza, formerly a civil servant, served as the Governor General and then became the President of Pakistan after the adoption of the 1956 Constitution. Mirza conspired to impose the first Martial Law in October 1958 at the behest of Ayub Khan, then Army Chief. For the next eleven years, Ayub Khan ruled as President. Although he supported “Islamic modernism” as a political slogan, his 1962 Constitution unsuccessfully tried to minimize the role of Islam in the legal system. During the late 1960s, the charismatic feudal lord-turned-politician, Zulfikar Ali Bhutto, mobilized masses under the slogan of “Islamic socialism.” After the secession of East Pakistan in 1971, he established the supremacy of the legislature over the bureaucracy and the military. General Zia ul-Haq toppled Bhutto’s government in a military coup in July 1977 and legitimized his military rule through the promise to establish a Prophetic Order (Nizām e Muṣtafā). Zia ul-Haq’s Islamist sloganeering attracted not only the Islamist parties such as Mawdudi’s Jamat e Islami, but the feudalist and capitalist classes who were adversely affected by the nationalization and land reform policies of Z.A. Bhutto. Bolstered by the US support against the Soviet Union during the Afghan war, Zia ul-Haq introduced crucial constitutional changes by establishing the Federal Shariat Court (FSC) with the mandate to examine state laws for their conformity with the injunctions of Islam. Although Zia ul-Haq’s regime came to a sudden end with his death in August 1988, his institutional structure for the Islamization of laws has survived successive civil and military regimes over the past three decades.

In the post-Zia ul-Haq era, Pakistan’s judiciary started to assert itself and relied upon the entrenched constitutional role of Islam to strengthen its position vis-à-vis other state institutions. During the 1990s, the FSC and the Shariat Appellate Bench of the Supreme Court declared a number of laws repugnant to the injunctions of Islam. Such laws included financial laws which allowed interest (ribā),[1] criminal laws related to homicide and bodily injury (qiṣāṣ and diyat),[2] blasphemy laws,[3] land reform laws,[4] and land acquisition laws.[5] The hallmark of this period is the judgment in which the FSC declared various provisions of the Enforcement of the Shariah Act 1991 as repugnant to the injunctions of Islam.[6] While this Act declared sharīʿa as the “supreme law of Pakistan,” it provided that the validity of the “present political system” shall not be challenged before any court and interest (ribā) would be allowed “till an alternative economic system is evolved.”[7] The FSC struck down the Act by declaring it unconstitutional and un-Islamic because it curtailed the process of Islamization of laws by limiting the jurisdiction of the FSC. The government filed an appeal against this judgment before the Shariat Appellate Bench of the Supreme Court which remains pending to this day. The judicial activism of the FSC came to an end with another military coup in October 1999. The army chief, General Parvez Musharraf, removed a number of judges and legitimized his coup through the Supreme Court judgment by employing the notorious doctrine of state necessity which had legitimized previous military coups in Pakistan’s checkered constitutional history.[8] In the aftermath of September 11, 2001, General Musharraf won US support during the “war on terror.” His dictatorship received an unlikely challenge from the Chief Justice Iftikhar Chaudhry whom he attempted to depose in 2007. After his restoration to the position of Chief Justice, Chaudhry initiated the suo motu regime by effectively trying to run the government from his court room until his retirement in 2013.

During this turbulent constitutional history, the role of Islam has persisted in the constitutional order of Pakistan. The endurance of Islamic constitutionalism and its continued popularity amongst the masses in Pakistan has depended upon the generality and flexibility of the principles of God’s sovereignty (ḥākimiyya), consultation (shūrā), consent (bayʿa), and public interest (maṣlaḥa). These principles have allowed state institutions to align such diverse groups as the military, feudalists, capitalists, ‘ulamā’ (modernist, conservative, and reformists), urban middle-class professionals, civil society, and foreign powers to dominate state power in changing circumstances. Similarly, the range of political sloganeering involving appeals to Islam has also been diverse and has included: Islamic nationalism (1947-58), Islamic modernism (1958-69), Islamic socialism (1970-77), Islamic jihād (1977-88), Islamic democracy (1988-99), Islamic “enlightened moderation” (1999-2008), Islamic juristocracy (2008-18), and Islamic mysticism/spiritualism (2018-present).

The FSC is one remarkable feature of the constitutional system in Pakistan that is vested with the authority to examine any law, with certain exceptions, for its conformity with the injunctions of Islam. During the past forty years, the FSC has evaluated a wide variety of laws and has declared many repugnant. In doing so, the FSC has introduced significant changes in the legal system of Pakistan. A number of these changes relate to due process: the FSC declared the laws related to the armed forces, civil service regulations, and public administration as repugnant to the injunctions of Islam because they did not provide the right to a hearing, fair trial, and appeal.[9] An important feature of the judgments of the FSC has been its endorsement of fundamental rights on the basis of Islamic legal principles. The FSC upheld the right to non-discrimination and gender equality by declaring the provisions of the Citizenship Act 1951 as repugnant for denying the husband of a Pakistani woman the right to citizenship of Pakistan.[10] The FSC also rejected petitions which challenged the appointment of female judges, and endorsed the principle of general equality as enshrined in verse 2:228 of the Qur’ān.[11]

The constitutional history of Pakistan reflects the flexibility of Islam in accommodating a wide variety of governmental systems that are at ease with both liberal and illiberal values. The democratic, dictatorial, and hybrid democratic-dictatorial regimes have relied upon Islamic values to claim legitimacy and public support. In reality, Islamic constitutionalism has played a minimal role in ensuring a representative and accountable government, though Islamic legal principles have justified putting limits on the state authority to protect the rights of citizens.

Notes:

[1] Dr. Mehmood ur-Rahman Faisal v. Government of Pakistan, PLD 1992 FSC 1. In 2000, the Shariat Appellate Bench of the Supreme Court confirmed the judgment of the FSC. Muhammad Aslam Khaki v. Syed Muhammad Hashim, PLD 2000 SC 225. However, the government filed a review petition and a reconstituted bench of judges of the Supreme Court returned the case to the FSC for fresh adjudication. The FSC has not yet decided the case.

[2] Federation of Pakistan v. Gul Hassan Khan, PLD 1989 SC 633.

[3] The FSC held that the alternative to death punishment in the form of life imprisonment is repugnant. The FSC tried to soften the strictness of the law by clarifying that blasphemy is not a wrong of strict liability, in which neither wrongful intent (mens rea) nor culpable negligence is required for liability. Muhammad Ismail Qureshi v. Pakistan, PLD 1991 FSC 10.

[4] Qazalbash Waqf v. Chief Land Commissioner, PLD 1990 SC 99; Sajwara v. Federal Government of Pakistan, PLD 1989 FSC 80.

[5] Amin Jan Naeem v. Federation of Pakistan, PLD 1992 FSC 252.

[6] Muhammad Ismail Qureshi v. Federal Government of Pakistan, PLD 1992 FSC 445.

[7] Sections 3, 18 and 19 of the Enforcement of the Shariah Act 1991.

[8] Zafar Ali Shah v. Pervez Musharraf, Chief Executive, PLD 2000 SC 869.

[9] The FSC held that equality before the law and equal protection of the law are inherent principles of Islamic law and policy. Therefore, the law which allowed the government to dismiss civil servants before the age of retirement without giving a show cause notice is invalid. Muhammad Ramzan Qureshi v. Federal Government, PLD 1986 FSC 200. The FSC held that certain provisions of the Pakistan Army Act (section 133), the Pakistan Air Force Act 1953 (section 162) and the Pakistan Navy Ordinance 1961 (section 138) are repugnant to the injunctions of Islam because they barred the right of appeal. Pakistan through Secretary Defense v. Public at Large, PLD 1985 FSC 365. The FSC declared that it is against the injunctions of Islam to deny an opportunity for hearing before cancelling, impounding or confiscating one’s passport. Re: Passports Act 1975, PLD 1989 FSC 39.

[10] In Re: Suo Motu Case No.1/K of 2006 (Gender Equality), PLD 2008 FSC 1.

[11] Mian Hammad Murtaza v. Federation of Pakistan, PLD 2011 FSC 117; Ansar Burney v. Federation of Pakistan, PLD 1983 FSC 73. The judges specifically referred to the part of the verse which reads, “And women shall have rights similar to the rights against them, according to what is equitable.” The full translation of the verse 2:228 is as follows: “Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah Hath created in their wombs, if they have faith in Allah and the Last Day. And their husbands have the better right to take them back in that period, if they wish for reconciliation. And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them. And Allah is Exalted in Power, Wise.” Not all judgments of the FSC, however, have been pro-women. In 2016, the FSC refused to declare a colonial law as un-Islamic that allowed husbands to get a decree of restitution of conjugal rights against their wives. Nadeem Siddiqui v. Islamic Republic of Pakistan, PLD 2016 FSC 1.

This blog was first published at the Harvard Law School's Islamic Law Blog