-4 (2), 2011

European Journal of Economic and Political Studies

Good Governance in Action: Pakistani Muslim Law on Human Rights and Gender-Equality
Ihsan Yilmaz1

Abstract Flexibility and pluralism of Islamic law could be used for democratization and good governance, in almost total contradiction to the essentialized stereotypical portrayal of Islamic law. Thanks to the practice of precedent in Pakistan, the lower courts are bound by the decisions of the higher courts but the higher courts are free to resort to ijtihad for deriving new rules from the Quran and Sunnah. The Supreme Court of Pakistan and the Federal Shariat Court significantly contributed to the expansion of human rights in Pakistan for they have developed a human-rights friendly approach. They have interpreted the constitutional commitment to injunctions of Islam to mean conformity with general principles of Islamic law such as equality, justice (adl), and welfare (maslaha) rather than with concrete provisions of traditional Muslim law. Contrary to the stereotypical image of Islamic law as being opposed to womens rights, the constitutionalization of Islam in Pakistan has helped women in a predominantly Muslim society where traditional patriarchal norms prevail and work against women. In order to help women, Pakistani judiciary has directly appealed to the Quran and Sunnah and has employed an interpretative strategy by using a
1

Fatih University, iyilmaz@fatih.edu.tr

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combination of constitutional rights, Islamic law and international human rights in order to advance womens rights. The courts have only maintained differences on the basis of sex when they are favorable to women.

Keywords: Pakistan, Good Governance, Islamic Law, Human Rights, Gender Equality

Producing Positive Law Based on Sharia After the emergence of modern nation-states, Muslims have tried to define Islam as the ideology of the state. Also, the rulers of Pakistan wanted to develop a dominant ideology to provide legitimacy and justification for the creation and existence of Pakistan and to hold together the various ethnic groups. Thus, Islam has become the foundation of state legitimacy in the country. Still in that context, law is used as an instrument by the state to serve the purposes of an Islamic modern nation-state ideology (Mehdi, 1994: 16, see in detail Yilmaz 2005). In the Pakistani plural legal system, laws derived from religious text operate alongside constitutional provisions, secular civil and criminal law, customary practices and more recently, international human rights law (Ali, 2006: 11). The Pakistani legal system is based on both English common law and Islamic law. The bulk of Pakistani law is still Anglo-Indian although Islamic law has also become a source of law (Munir, 2008: 452). The first Constitution was promulgated in 1956, and included a provision known as the repugnancy clause, affirming that no law repugnant to injunctions of Islam would be enacted and that all existing laws would be considered and amended in tune with the injunctions of Islam. The cuurent Constitution was adopted on 10th April 1973, suspended in 1977, and re-instituted in 1985; it has undergone numerous amendments over time. It was suspended again in 1999. Nevertheless, the repugnancy clause has been retained and strengthened in these subsequent Constitutions and amendments. Article 1 of the 1973 Constitution declares that Pakistans official name shall be the Islamic Republic of Pakistan, and Article 2 declares Islam the state religion. The Objectives Resolution of the preamble of the Constitution was made a part of its substantive provisions by the insertion of Article 2A in 1985, thereby requiring all laws to be brought into consonance with the Quran and Sunnah (Munir, 2008: 452-453). Chapter 3A establishes the Federal Shariat Court (FSC). Part IX of the Constitution is entitled Islamic Provisions and provides for the eventual Islamization of all

156 Electronic copy available at: http://ssrn.com/abstract=2218436

European Journal of Economic and Political Studies

existing laws, reaffirming that no laws repugnant to the injunctions of Islam are to be enacted (Sial and Iqbal, 2005). In 10 February 1979, President Zia promulgated four ordinances, collectively referred to as the Hudood Ordinances which revised Pakistans criminal law system. The Zina Ordinance established criminal penalties for sex-related crimes (adultery, rape, kidnapping, enticement, attempted rape, sodomy, prostitution, conspiracy to engage in prostitution, and deceitful marriage). The Qazf Ordinance established criminal penalties for the wrongful imputation of zina. The Prohibition Ordinance established criminal penalties for the possession of alcohol and prohibited drugs. And the Property Ordinance established penalties for theft (Kennedy, 1990: 70). On 28 October 1984, Zia announced the passage of the Qanoon-i-Shahadat (law of evidence) declaring it to have replaced an un-Islamic law with an Islamic law. A close examination of the Qanoon-i-Shahadat indicates that it departed from the 1872 act in only one substantive detail (Kennedy, 1990: 69). Nawaz Sharifs coalition partners demanded the imposition of Sharia laws in every sphere in 1990. For example, religious legislators demanded the end to riba (interest on loans and savings) and other radical changes, which troubled him. He countered them with his own diluted version of the law the Sharia Bill to pre-empt the pressure. The Sharia Bill was ratified by the National Assembly on 16 May 1991. The new legislation reinforced the Objectives Resolution and the other Islamic clauses in the 1973 Constitution, further Islamicizing Pakistan as the government would overhaul the judicial system to make Pakistan an Islamic state (Malik, 2005: 21). Still, the Act provides an exclusion clause, maintaining: Notwithstanding anything contained in this Act, the rights of women as guaranteed by the Constitution shall not be affected. Islamic law guides the interpretation of legislation, fills gaps in the framework of statutory laws, and Islamizes the judicial discourse (Yefet, 2011: 569).2 In the Pakistani constitution, the protection of substantive rightsthe normative limits on constitutional power is founded on Islam (Backer, 2009: 154). While the Quran and Sunnah are stated to be the principal foundations of the Sharia, the formulation of a legally binding code from primarily ethical and religious sources has been a contested matter (Rehman, 2007: 123). Pakistan stands between constitutionalist rule structures, each of which has been naturalized within powerful national elites, which use and discard them to suit their objects of political supremacy (Backer, 2009: 151). The amendments to the Constitution and Hodood Ordinances were
2

Muhammad Bashir v State, PLD 1982 SC 139, 14243; Gulzaran v Amir Bakhsh, PLD 1997 Kar. 309, 310.

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justified as steps towards Pakistans move towards Sharia. Yet, several observers have noted that this was a sort of politically motivated use of Islam to guarantee electoral support by relying on traditionalist social rather than religious norms (Menski, 2006: 373; Malik, 2005: 21).

The Court System and Shariat Courts The Supreme Court sits in Islamabad and has exclusive jurisdiction over disputes between or among federal and provincial governments, and appellate jurisdiction over high court decisions. There are high courts in each province. There are district courts in every district of each province, having both civil and criminal jurisdiction though they deal mainly with civil matters. The High Court of each province has jurisdiction over civil and criminal appeals from lower courts within the provinces. Thanks to the practice of precedent in Pakistan, the lower courts are bound by the decisions of the higher courts but the higher courts are free to resort to ijtihad for deriving new rules from the Quran, Sunnah, ijma, qiyas (analogy), maslahah, custom and other secondary sources of Islamic law. In resorting to ijtihad, courts are not required to confine to a particular school of law (Munir, 2008: 457). The law puts that while interpreting and explaining the Sharia the recognized principles of interpretation and explanation of the Quran and Sunnah shall be followed and the expositions and opinions of recognized jurists of Islam belonging to prevalent Islamic schools of jurisprudence may be taken into consideration.3 The FSC was created in 1980 and the powers exercised by the four Shariat Benches in the four High Courts of the country were transferred to it. Under Article 203D of the Constitution it was given jurisdiction to examine itself or on the request of any citizen of Pakistan whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Quran and Sunnah. The court has exclusive jurisdiction to determine, upon petition by any citizen or the federal or provincial governments or on its own motion (suo moto), whether or not a law conforms to the injunctions of Islam. The decisions of the FSC are subject to appeal before the Shariat Appellate Bench of the Supreme Court. The latter bench consists of three regular Supreme Court justices and two ad hoc judges drawn either from the FSC or from among ulama (Kennedy 1990: 65). Only the FSC and the Shariat Appellate Bench of the Supreme Court have powers to invalidate laws repugnant to Islamic
3

Section 2 of the Shariat Enforcement Act, 1991 (Act X of 1991).

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injunctions (Yefet, 2011: 569).4 Federal Shariat Court comprises eight Muslim Judges including the Chief Justice to be appointed by the President. Of the Judges, four are the persons qualified to be the Judges of the High Courts, while three are ulama. Also,an Islamic advisory council of ulama assists the Federal Shariat Court.5 The FSC also has appellate jurisdiction in Hudood cases decided by Sessions Courts. The extent of jurisdiction of the FSC in Hudood cases under Article 203DD is exclusive and pervades the entire spectrum of orders passed or decisions given by any criminal court under any law relating to the enforcement of Hudood and no other court in Pakistan is empowered to entertain appeal, revision or reference in such cases. No legislative instrument can control, regulate or amend this jurisdiction which was mandated in Chapter 3A of Part VII of the Constitution of Pakistan (FSC, 2010: 70). If a law or provision is determined to be repugnant, the FSC provides notice to the federal or provincial government specifying the reasons for the decision. The FSCs judgments related to its original jurisdiction of the FSC which is to examine and decide whether any law or provision of law is repugnant to the injunctions of Islam attain the status of mere fatwa (juridical opinion) in legal sense since finally the enactment of law is the responsibility of the Parliament (FSC, 2009: 3). If the Federal or Provincial Government fails to amend the impugned law within a specified period, the impugned law or its provision to the extent to which it is held to be so repugnant by the FSC, ceases to have effect on the day on which the decision of the FSC takes effect. Thus, in this way, the status of the FSC judgment does not remain mere fatwa, but transform into a binding force (FSC, 2009: 3). The FSCs jurisdiction in Hudood cases is being eroded by the recently passed enactment The Protection of Women Act, 2006, which took some offences of the Hudood from the Hudood Ordinances and put them in the Pakistan Penal Code (Munir, 2008: 461). Shariat and Human Rights Islamic concepts such as justice and public welfare have bene used by judiciary to tackle the oppressive and illiberal laws made by the politicians (Lau, 2010: 425). Since the late 1990s, judges and courts have been Islamizing the law in the light of human rights standards (Lau 2010: 413). For instance, the Supreme Court underlined in 1996 that: the Court preferred the interpretive approach so as to
4

Kaneez Fatima v. Wali Muhammad, PLD 1993 SC 91213.

http://www.law.emory.edu/ifl/legal/pakistan.htm#text

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achieve democracy, tolerance, equality, and social justice according to Islam (Lau, 2006: 107).6 In Human Rights Case, No. 1 of 1992, the Supreme Court emphasized that Islam has higher human rights standards than the international community. The right to obtain justice and the right to human dignity are more pronounced in Islam. Thus, when interpreting the fundamental rights and their scope as conferred by the Constitution, the court must give effect to the corresponding or extended right in Islamic jurisprudence that is broader in its scope of protection.7 Pakistan Supreme Court, like its American counterpart, acknowledges that fundamental rights that are not enumerated in the constitutional text may exist (Yefet, 2011: 565). Moreover, the Pakistani Courts has expansively construed the right to life to include rights necessary for a dignified existence and for enjoying a meaningful quality of life (Yefet, 2011: 565).8 Thus, Pakistani judiciarys Muslim law has provided a basis for expanding the scope of human rights, and for adding new rights to the catalog of rights rather, making Pakistani law to be more receptive to the addition of unremunerated rights recognized in Islam (Yefet, 2011: 570).9 For instance, the Supreme Court held in Darshan Masih v. State that the constitutional catalog of rights is not sealed or exhaustive, but open and evolving. The Court stated that there is no bar in the Constitution to the inclusion in such laws of these rights, in addition to the rights contained the Constitution. Other basic human rights ensured by Islam can, by law, be made also into an independent inalienable right.10 In this context, Lau (2006: 181) argues that: The Islamic right to equality goes considerably further than the constitutionally guaranteed right to equality in that it incorporates a presumption that those authorized to exercise discretion are unlikely to carry out their discretionary power fairly and equally. The reason for this inherently distrustful approach to civil servants is located not so much in legal theory but in Islamic morality and notions of good governance. Only upright Muslims of the highest moral probity should be allowed to serve as civil
6

Shahida Zahir Abbasi v President of Pakistan, PLD 1996 SC 632, at p. 662. Human Rights Case, No. 1 of 1992, PSC 1993 Lah. 1358, 1363. Shehla Zia v. WAPDA, PLD 1994 SC 693. Ghulam Mustafa Ansari v Punjab, 2004 SCMR 1903; Government of Balochistan v. Azizullah Memon, PLD 1993 SC 341; Shirin Munir v Government of Punjab, PLD 1990 SC 292. For an exception to this trend, see Zaheeruddin v State, 26 SCMR 1718 (1993) where the reference to Islam led to a negation of freedom of religion. The court referred to the Injunctions of Islam to approve laws that treated the Ahmadi religious minority as criminals (Mayer 2004: 209, Lau 2006: 112-119). Darshan Masih v. State, PLD 1990 SC 513.

10

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servants because only then could it be guaranteed that Islamic standards of conduct would be observed. In Pakistan, according to the FSC officials did not meet these high Islamic standards. Therefore, the amount of discretion conferred by a statute to a civil servant had to be significantly reduced under the Islamic equality clause more so than under the secular fundamental right to equality (Lau, 2006: 181).11 Thus, the FSC has invalidated more legislation based on the Islamic principle of equality than on the constitutional right to equality (Yefet, 2011: 565)12 and in some cases, reliance on Islamic law had a real impact on the substantive issues (Lau, 2006: 108).13 In such as case, The Frontier Crimes Regulations was challenged based on discrimination in 1979 before the Shariat Bench of the Balochistan High Court. The Court thoroughly reviewed the FCR and concluded that it was more a law of convenience or expediency than one to ensure justice.14 The Court also held that the FCS was unquestionably contrary to the injunctions of Islam since: Islam invalidates discriminations on the basis of caste, creed, colour, social status, place of birth or of residence, and any other considerations of the like nature, as its basic principle is ADAL [...] In particular, Justice as far as it concerns the decision of cases, both of civil and criminal nature, has to be administered on the basis of equality with all religiousness15 The basic principle with regard to justice is to be found in the Quranic direction [...] Justice stricto sensu which in turn, is not possible without just laws, and one of the qualifications of just law is its universality, or oneness for all, without any kind of discrimination; for discriminations, on any account, much less for administrative or political conveniences, offend against the principle of Justice [...]. Accordingly all discriminatory law are against the injunctions of Islam.16 Thus, the FSC struck the FCR down.17 In a recent but more remarkable case18, in
11

Zibendra Kusherya Acharyya Chowdry v Province of East Pakistan, PLD 1957 SC 9; S. A. Zubari PLD 1989 SC 35. See for some examples: Nusrat Baig Mirza v Government of Pakistan, PLD 1992 FSC 412; S.A. Zuberi v. National Bank of Pakistan, PLD 1989 FSC 35. Human Rights Case No. 1 of 1992 1993 PSC 1358. Muhammad Ishaque Khosti v Government of Baluchistan, PLD 1979 Shariat Bench of the High Ct of Balochistan 217 at 222, 224. Ibid, 224. Ibid, 226. Ibid, 228. Muhammad Aslam Khaki and others v The State and others PLD 2010 FSC 1, 287-288.

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14

15

16

17

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answering questions: What facilities and conveniences be provided to the prisoners and their families? and Whether a prisoner be allowed to perform conjugal rights in the prison?, the FSC held on the 28th August 2009 that the prison authorities must set up conjugal facilities for the prisoners. The inmates must either be released on short parole or provided some reserved place. The FSC asked the jail authorities to facilitate conjugal rights of prisoners either at the jail premises or briefly release the condemned prisoners (FSC, 2009: 56, 57).19 The court referred to 350 verses of the Quran and 64 judgments of higher court in the verdict (FSC, 2009: 57).20 The FCS firmly stated that it was the human and Islamic right of every prisoner to have access to such facilities. The court ordered the authorities to examine international prison systems and gauge what improvements needed to be made in Pakistan.21 The Court appreciated the step taken by the Government of North West Frontier Province and the Punjab for making provision through amendment of Rule 544 to permit the wives of convicts to live with them in the prison houses for certain period. The FSC has expressed the hope that the scope of the amendment will be widened so as to make provision for family get-together in prison compound on auspicious occasions as well as conjugal oriented parole facilities will be duly provided.22

Gender-Sensitivity and Gender-Equality in the Light of the Human Rights Standards Contrary to the stereotypical image of Islamic law as being opposed to womens rights, the constitutionalization of Islam in Pakistan has been in the service of expansion of womens rights (Yefet, 2011: 553). The Pakistani courts have employed an interpretative strategy by using a combination of constitutional rights, Islamic law and international human rights in order to advance womens rights (Ali, 2006: 11). The Pakistani courts have underlined that the Constitution requires genuine and substantial equality for women, and they have only maintained differences on the
19

Muhammad Aslam Khaki and others v The State and others PLD 2010 FSC 1. The Sindh Home Department on Friday granted conjugal rights to convicted inmates under which they would be allowed to meet their spouses for one day or night in three months. A notification was issued following a Supreme Court order on April 6 to implement the same in all the provinces and is part of the governments jail reforms, http://tribune. com.pk/story/11618/prisoners-granted-conjugal-rights/ Muhammad Aslam Khaki and others v The State and others, PLD 2010 FSC 1. http://news.bbc.co.uk/2/hi/south_asia/8226803.stm Muhammad Aslam Khaki and others v The State and others, PLD 2010 FSC 1, 287-288.

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basis of sex when they are favorable to women (Yefet, 2011: 565).23 Activist and creative courts have expanded womens rights by liberalizing Pakistani divorce law (Yefet, 2011: 557). Thus, the invocation of the Quran and Sunnah provided an opportunity for womens rights (Rehman, 2007: 122). In order to help women, Pakistani judiciary has directly appealed to the Quran and Sunnah (see Carroll, 1996). For instance, this allowed women the right to seek khul divorce in situations of irretrievable breakdown of the marriage (Rehman, 2007: 121).24 This right was not given to the wife by Hanafi jurists. The Court based its position on the assertion that in dealing with the the Quran they were not bound by the interpretations of other scholars and opinions of classical jurists (Carroll, 1996: 107). In another reformist judgment, the Supreme Court held that khul is a right to divorce her husband at a court conferred by the Quran on the wife regardless of the husband withholding his consent.25 The Pakistani case law on divorce shows that classical khul has been modified to promote women rights, paving the way for circumscribing traditional male prerogatives (Yefet, 2011: 591).26 Judges routinely utilized khul to expand womens divorce rights, applying the doctrine almost mechanically. A wife is required to give neither objective nor cogent reasons, nor does she even have to disclose (let alone prove) the circumstances justifying her aversion for her husband. Merely the statement that she hates her husband suffices (Yefet, 2011: 588).27 Under the MFLO, the husband has to submit a written notice of the talaq to the Union Council and a copy to the wife. However, in most cases husbands fail to submit these divorce documents and when a second marriage of the former wife takes place, they deny the divorce and accuse the former wife with zina. In these cases, the police had arrested many women without a warrant and on average; women were imprisoned for up to one or two years. To ameliorate the situation, the FSC declared that it was authorized to review the MFLO and to decide its constitutionality.28 The FSC held that the notification requirement was un-Islamic, not because it interfered
23

Fazal Jan v Roshan Din, PLD 1990 SC 661.

24

Balqis Fatima v Najm-ul-Ikram Qureshi, PLD 1959 (Lahore) 566, para 42. Khurshid Bibi v Baboo Muhammad Amin, PLD 1967 SC 114. Ibid. Naseem Akhtar v Muhammad Rafique, PLD 2005 SC 293, 29697. Allah Rakha v Federation of Pakistan, PLD 2000 FSC 1.

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with mens right to talaq, but to protect women.29 In another gender equality case30, the petitioner challenged sub-article 4 of Article 151 of Qanun-e-Shahadat Order, 1984 under Article 203-D (1) of the Constitution of Islamic Republic of Pakistan being repugnant to injunctions of Islam. The petitioner held that the sub-article gives right to a man to impeach the credit of a woman by abducing evidence which right is denied to a woman. This provision protects a man accused of rape to impeach the character of a woman while does not giving a similar right to a woman. The FSC held that: Article 151 (4) of Qanun-e-Shahadat Order, 1984 is discriminatory on the basis of sex and violates Article 25 (2) of the Constitution as it purports to impeach the credit of a woman, and above all it negates the concept of gender equality as enshrined in the Holy Quran as under:- He it is who created you from a single therefrom did make his mate (7:189). They are raiment for you and you are raiment for them. (2:187). And the women have rights similar to those (of men) over them in kindness. (2:28). Indeed we created men out of the essence of clay (23:12), verily we create man in the best of moulds (95:4). Resultantly in exercise of the powers under clause (3) (a) of Article 203-D of the Constitution of Islamic Republic of Pakistan the Court declared sub-Article (4) of Article 151of Qanun-e-Shahadat Order, 1984 as repugnant to the Quran and Sunnah and accordingly directed the President of Pakistan to take appropriate steps for repeal of sub-Article (4) of Article 151 of Qanun-e-Shahadat Order within a period of six months hereof, failing which the said provision of law shall cease to have effect whatsoever.31 The Pakistani courts also implemented gender-equality interpretation with regards to the citizenship rights. Pakistans Citizenship Act granted citizenship right to foreign women married to Pakistani men, but not to foreign husbands of Pakistani women (Yefet, 2011: 608). The FSC used its suo moto powers and held that the Act was not only against Pakistans international legal commitments but also was against Islamic injunctions that consider man and woman equal.32

29

Ibid, 61-62. Mukhtar Ahmed Shaikh v Government of Pakistan, PLD2009 FSC P-65. Ibid. Suo Motu Case No. 1/K of 2006, PLD 2008 FSC 1, 3.

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31

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Concluding Remarks The modern nation-state of Pakistan has been producing positive law based on Shari`a law even though the process is almost chaotic let alone being linear thanks to tensions and interactions between politics, society, local concerns, norms and practices. Considerable variation in the enforcement and interpretation of the Islamic laws by the courts has only intensified this pluralism. However, this flexibility and pluralism of Islamic law have also been used for democratization and good governance, in almost total contradiction to the essentialized stereotypical portrayal of Islamic law. Good governance describes how public institutions conduct public affairs in order to guarantee the realization of human rights. This paper has argued that some recent decisions of the Pakistani courts show that there is an almost linear progression towards good governance in Pakistan thanks to judical activism. Pakistani case law shows that the judges of the Supreme Court and Federal Shariat Court made use of the Islamic concepts such as equality, justice (adl) and public welfare (maslaha) to get rid of the oppressive and illiberal laws made by the politicians. Human rights and gender-sensitivity in the light of the human rights standards have recently been on the agenda of the courts. Moreover, case law shows that the Pakistani judges are increasingly employing plural legal frameworks, including international human rights law, to overcome the negative consequences of the illiberal laws.

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