Role of Islam in the Legal System of Pakistan by Martin Lau (Martinus Nijhoff) The purpose and aim of this book is the exploration of the Islamisation of Pakistan's legal system. The focus will, however, not be on the introduction of Islamic laws during and following Lia-ul-Haq's martial law, but on the role of Islamic law in the legal system as a whole. The central thesis is that the Islamization of laws in Pakistan has been primarily a judge-led process, which was initiated to enhance the power of the judiciary and to expand the scope of constitutionally guaranteed fundamental rights. It will be argued that the role of judges in the Islamization of the legal system has been largely obscured by the more visible manifestations of Islamization, namely the promulgation of the infamous Hudood Ordinances' and other isolated pieces of Islamic legislation, such as, for instance, the Enforcement of Shari'ah Act 1991.
It will be argued that the judicial appropriation of Islam and its integration into the vocabulary of courts was a conscious process aimed not only at the fulfilment of a general desire to indigenise and Islamise the legal system after the end of colonial rule but it was also a way of enhancing judicial power and independence. The Islamization of law did, perhaps ironically, not only precede Zia-ul-Haq's regime, but was actually used to challenge him.
The judge-led Islamization of Pakistan's legal system has continued until the present. It is no longer confined to a few distinct areas of law but has become an integral part of the legal discourse being relied on in the context of a wide range of issues, from the permissibility to erect high-rise buildings in Karachi to the dismissal of a prime minister under Article 58(2)(b) of the 1973 Constitution.
The book is thematically divided into three parts. Chapters 1 and 2. the first part of the book, deal with the role of Islam and Islamic law in Pakistan's superior courts, i.e. the Supreme Court and the four provincial high courts, up to 1977. Chapters 3 to 5 form the second part of the book. They deal primarily with the relationship between Islamic law and constitutional norms including fundamental rights. The third and last part comprises Chapters 6 to I 1. These chapters examine the decisions of the shariat courts, i.e. the shariat benches of the four high courts, the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court, and the impact of these decisions on the legal system of Pakistan.
Chapter 1, the first substantive chapter of this book, examines the initial suppression of and subsequent emergence of Islamic law in Pakistan's superior courts between independence and 1977, when martial law was imposed by Zia-ul-Haq. This period is of particular interest, since up to 1977 no legislative effort had been made to make Pakistan's legal system more Islamic. The gradual surfacing of Islamic law within the framework of a legal system which was neither overtly Islamic nor committed to any radical Islamization is intriguing. The objective of this chapter is therefore to examine when, how and why Islamic arguments were used as a basis for judicial decisions.
Chapters 2 and 3 trace and analyse the determined and overt incorporation of Islam and Islamic law into judicial reasoning and discourse, whereas Chapter 4 concentrates on the use of Islamic law in the context of Pakistan's constitutional breakdowns, which occurred after the lifting of martial law in 1985. The role of Islamic law in the advent of public interest litigation and in the interpretation of constitutionally guaranteed fundamental rights is the subject of Chapter 5. The shariat courts are the focus of the remaining chapters. In a first step, a detailed analysis of their position in the constitutional set-up of Pakistan is offered. It will be argued that there was a deliberate attempt to control the shariat courts as much as possible. However, it will also be argued that once created, even Zia-ul-Haq found it difficult to influence and to interfere with the shariat courts. This will be demonstrated on the basis of a comprehensive and detailed analysis of the reported judgments of the shariat courts.
The main source for this book has been reported case law. As can be readily discerned from the Bibliography, there has never been an examination of the role of Islam in judicial decision-making in Pakistan. The focus of virtually all debates and discussions concerning the Islamization of Pakistan's legal system has been either on the Hudood Ordinances or the political motivations behind particular Islamization policies. A particular focus of the academic treatment of Islamization in Pakistan has been the status of women. Whilst fully acknowledging the importance of research on the status of women in Pakistan, it will nevertheless be argued that an approach exclusively centred on women living under Islamic law tends to obscure other facets and consequences of the Islamization of laws in Pakistan. The book is premised on the belief that a proper assessment of the impact of Islam on Pakistan's legal system ought to consider not only the visible hallmarks of Islamization, i.e. the various Islamic laws introduced from the late I 970s onwards, but also the use of Islam and Islamic law in the judicial discourse. It is for this reason that the conclusions of this book are based almost entirely on an analysis of those cases which have considered the role of Islam in the legal system of Pakistan.
The methodology adopted in this book is therefore primarily based on an analysis of reported cases covering a period of just over 50 years, i.e. from 1947 up to 2001. Conclusions based on the analysis of reported decisions handed down by Pakistan's superior judiciary have limitations. Whilst they reflect judicial attitudes and trends in the interpretation of laws, they cannot offer an accurate description of the impact of Islamization on Pakistan's society or economy. Nevertheless, judicial attitudes as expressed in reported decisions are indicative of wider social and cultural perceptions — judges do not exist in a societal or political vacuum but are informed at least to some extent by their personal convictions. The book demonstrates that judicial perceptions of the role of Islam in Pakistan's legal system were often at odds with the official law leading to situations where judges had to decide whether to follow an official law perceived as un-Islamic or to follow their own religious convictions. Thus, the detailed examination of reported judgments offers a perspective on legal developments in Pakistan which not only reveals the changing role of Islam in the legal system but also changing judicial attitudes. Wherever possible, political developments which informed and at times caused judicial reactions have been discussed so as to provide sufficient relevant contextual information on the political and historical setting of a particular case.
The book's focus on the role of Islam in the legal system of Pakistan does not allow for a detailed examination of the nature of those manifestations of Islamic law which have been relied upon by the country's higher judiciary: to put it bluntly, this book is not concerned with Islamic law in its own right. Such a task would justify a separate research project and can therefore not be undertaken within this book. As a result the analysis of reported decisions offered here does not extend to a detailed discussion of Islamic law and Islamic jurisprudence per se but is confined to the way a particular interpretation of Islamic law was used by individual judges and courts.
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