Repugnance to Islam
The emergence of Islamic law outside the traditional sphere of family law was not confined to the struggle of the judiciary to contain martial law and military take-overs. Islamic law was also used in attempts to invalidate ordinary laws on the basis of an alleged repugnance to Islam. The repugnance argument became a common issue in the late 1980s but it can in fact be traced back to the late 1960s. One of the first cases was Chaudhary Tanbir Ahmad Siddiky v. The Province of East Pakistan and others.123 The case involved attempts by the government to take over certain wakf properties. The petitioner argued that Islamic law must be held to override all other laws. This, according to the petitioner, would mean that any attempt by the government to appropriate wakf properties should be deemed to be repugnant to Islam. The Supreme Court was not impressed with this argument and held that:
Such a plea is, however, not justiciable in Courts under the present Constitution. The responsibility has been laid on the Legislature to see that no law repugnant to the Islamic law, is brought on the statute book. The grievance, if any, therefore should be ventilated in a different forum and not in this Court. 124
A year later, the Labour Federation of Pakistan challenged a whole series of laws restricting trade union activities125 on the basis of repugnance to Islam.126 The petitioner argued that there was a hierarchy of laws in Pakistan. The highest law was Islamic law, which was described as the fundamental permanent law of the sovereign. Next came the constitution but only to the extent to which it was consistent with the fundamental permanent law. At the bottom of the hierarchy were statutes passed by the legislature subject to the proviso that they were consistent with Islamic law. Justice Nasim Hassan Shah dismissed the petition on the ground of lack of jurisdiction holding that, first, the Preamble of the 1973 Constitution was not a source of any substantive judicial power at all and, secondly, that the constitutional provision that no laws should be repugnant to Islam was not justiciable.
Under the 1973 Constitution, it appeared that as a result of the Supreme Court`s decision in Ziaur Rehman127 the Objectives Resolution and with it Islamic law were denied any role in the legal system. However, a number of cases in the mid- 1970s do show that these two sources of law had not been completely obliterated from the legal discourse but continued to flourish in remote corners of Pakistan`s legal landscape, to be visited only by the most desperate or zealous petitioner. In 1976 for instance, Zulfikar Bhutto banned the National Awami Party under the provisions of the amended Political Parties Act 1962. A challenge to the validity of such an order was possible under Article 17 of the 1973 Constitution, i.e. the fundamental right to freedom of association. However, Bhutto had amended Article 17 in 1975 to the effect that this fundamental right was subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality. 128 Article 17 had already been amended once before: in 1974 a new clause was added, which drastically reduced the right to a judicial review of a dissolution order. Under the new subsection 2, whenever a political party was declared to be acting in a manner prejudicial to the sovereignty or integrity of Pakistan, the federal government was to refer the matter to the Supreme Court, whose decision on such reference shall be final. 129
The National Awami Party, which stood accused of operating in a manner prejudicial to the integrity of Pakistan, argued that the two-nation theory had ceased to be operative since the aim of the creation of Pakistan had been achieved in 1947.130 Justice Muhammad Gul strongly disagreed with this contention and embarked on a lengthy exposition of the two-nation theory and the Islamic character of Pakistan since independence. Unperturbed by the decision in Ziaur Rehman, which he did not mention at all, Justice Gul proceeded to re-state the basic structure doctrine. Justice Gul`s judgment deserves to be quoted in extenso, since it represents by far the most determined judicial pronouncement on Pakistan s basic structure:
“The preambles to the four Constitutions we have had since Independence are also eloquent testimony of the affirmation of Pakistan ideology. Part IX of the Constitution enjoins the State to bring all existing laws into conformity with the Divine Laws and forbids the State from enacting any law repugnant to injunctions of Islam. This establishes the supremacy of the Divine Laws and to that extent the legislative powers of Legislatures in Pakistan are abridged. . . . In a secular State, the Legislature is supreme and laws are made in accordance with the will of the majority, free from any outside curbs. Recently legislation was reported to have
123 PLD 1968 SC 185.
124 Ibid., at p. 203-205.
125 Inter alia, the Industrial Disputes Ordinance 1968 and the Trade Union Ordinance 1968.
126 Labour Federation of Pakistan v. Pakistan and another PLD 1969 Lahore 188.
127 Supra, note 72.
128 See the Constitution (Fourth Amendment) Act 1975. Section 1 of Article 17 of the 1973 Constitution had previously made this right only subject to public order or morality.
129 See the Constitution (First Amendment) Act 1974.
130 Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57. On the creation of Pakistan, see Richard Symonds, Making of Pakistan, Karachi, 1966; Zulfikar Khalid Maluka, The Myth of Constitution in Pakistan, Oxford, 1995; Abrar Husain Bokhari, Constitutional History of Indo-Pakistan, Lahore, 1964; Khalid Bin Sayeed, Pakistan The Formative Phase, Karachi, 1968; and the unsurpassed account of Ayesha Jalal, The Sole Spokesman: Jinnah, the Muslim League and the Demand for Pakistan, Cambridge, 1985.
been introduced in one of the Scandinavian countries to legalise marriage between a brother and his sister. This would be an impossibility in Pakistan, even if the measure is passed by an unanimous vote, because of Quranic injunctions. This brings into bold relief the distinction between a secular State and an ideological State. According to this concept the supreme authority vests with the Holy Quran”. 131
Justice Gul`s forceful exposition flies in the face of Ziaur Rehman132 and it might be asked why he felt compelled to rely on the basic-structure doctrine in the first place. The answer can most probably be found in the nature of the issues to be decided: at the heart of the case was the Federal Government s declaration that the National Awami Party had been trying to break up Pakistan and had rejected the two-nation theory. Justice Gul regarded especially the rejection of the two-nation theory as an attack on the ideology of Pakistan. However, in Ziaur Rehman133 the Supreme Court had held that it was up to the people to ensure that the ideological, i.e. religious basis, of Pakistan was preserved and properly reflected in the constitutional set-up. This would, of course, have played into the hands of the National Awami Party, which was willing to let the electorate decide these issues. Justice Gul therefore had to find an immutable basis for the two-nation theory the Objectives Resolution and the claim that the preservation of the Islamic character of the state was a continuing obligation provided such an immutable basis.
Whereas the National Awami Party fought for the right to depart from the two-nation doctrine, others tried to increase the pace of Islamisation. It will be recalled that the 1973 Constitution had adopted an Islamisation mechanism that was, like the previous constitutions, based on parliament. The obligation imposed on parliament to bring the legal system in line with Islamic law was non-justiciable and followed the pattern established in the 1956 and 1962 Constitutions. The Islamic Research Institute was now called the Council of Islamic Ideology134 but there were no departures from the principle that Islamisation was to be carried out by the elected representatives of the people and was as such not justiciable. An attempt by the opposition parties to authorise the superior courts to judicially review laws on the basis of conformity to Islam had not been accepted.135
The Lahore High Court and the Supreme Court made their initial experiences with Islamic public law in the context of constitutional turmoil and civil war, a time when Islam could provide a modicum of legal stability and an ideological foundation unassailable by martial law. However, the potential uses were not lost on those discontented with the sluggish pace of Islamisation under Zulfikar Bhutto. The first challenge to the 1973 Constitution came in 1976 when Kaikus, a retired judge of the Supreme Court, moved a writ-petition in the Lahore High Court seeking a declaration inter alia to the effect that the 1973 Constitution itself and the legal system in its totality were un- Islamic.136 The writ petition invoked Article 199 of the 1973 Constitution and, in addition to this, an inherent Islamic jurisdiction of the High Court. The latter was an attempt by Kaikus to avoid complete reliance on the allegedly invalid and un-Islamic 1973 Constitution. The Islamic jurisdiction of the High Court was described as the judicial Ululamr for the Province of the Punjab and Kaikus claimed that the High Court could, on the basis of that inherent jurisdiction, strike down the Constitution itself on the grounds of being repugnant to Islam. Kaikus petition challenged the entire legal system of Pakistan as being un-Islamic and argued that all Muslims, including the judges of the High Court, were under an obligation to follow Islamic law. Moreover, Kaikus sought a declaration that the President, the Prime Minister and the national and provincial members of parliament had ceased to be Muslims because they had taken the stand that Islamic law was not applicable unless expressly enacted as valid laws.137
In his judgment Justice Sardar Muhammad Iqbal, the Chief Justice of the Lahore High Court, followed the Supreme Court`s decision in Ziaur Rehman138 holding that courts were a creature of the 1973 Constitution and that for this reason their power of judicial review did not extend to the constitution or provisions of the constitution itself. In his submissions, Kaikus had anticipated the application of stare decisis139 and had argued that the High Court was not bound by an otherwise binding precedent if that precedent was itself repugnant to Islam. This issue had not been addressed in Ziaur Rehman.140 The question whether a Muslim was obliged to follow Islamic laws rather than the un-Islamic law of the land had hitherto been confined to the problem of Muslim minorities living in secular states. However, to state that Muslims in Pakistan, if they were to remain faithful to their religion, had to follow Islamic law in preference to the laws and the Constitution of Pakistan, had potentially far-reaching consequences.
It was therefore not sufficient for the High Court to simply follow Ziaur Rehman141 and to hold that no court could question the validity of the Constitution itself, even if the same was alleged to be contrary to Islam, but it had to address directly the question of how Islamic is the legal system of Pakistan? Justice Sardar M. Iqbal adopted two approaches: first, he held that in an Islamic state the members of the judiciary while discharging their judicial functions act as trustees of divine sovereignty . . . .142 Iqbal`s argument can be traced back to the idea of trusteeship embodied in the Objectives Resolution, though he did not expressly refer to it. His second strand of reasoning focused on the Islamic provisions of the 1973 Constitution. After a systematic examination Justice Iqbal found that the 1973 Constitution was neither un-Islamic nor infidel.
131 Ibid., at p. 176.
132 Supra, note 72.
133 Ibid.
134 The curious concept of Islamic ideology to denote the religious character of the state and of public life is a formulation which is unique to Pakistan. The idea that an ideology, i.e. a political theory, could be of a religious character seems to instrumentalise Islam but the term is nevertheless widely used in Pakistan where the country itself is commonly referred to as an ideological state .
135 See Mohammad Amin, Islamization of Laws in Pakistan, Lahore,1989, at p. 47.
136 Mr. Badi-Uz-Zaman Kaikus v. President of Pakistan PLD 1976 Lah 1608.
137 Ibid., at p. 1615.
138 Supra, note 72.
139 Article 189 of the 1973 Constitution provides that, Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.
140 Supra, note 72.
141 Ibid.
142 Supra, note 136, at p. 1619.
The Supreme Court, which heard the appeal four years later, followed the reasoning of the High Court.143 It should, however, be noted that by then a number of Islamisation measures had been introduced by Zia-ul-Haq, including the setting-up of the Federal Shariat Court seized with the power to invalidate certain laws, deemed to be un-Islamic. The Supreme Court could therefore have avoided any discussion about the Islamic character of the legal system by simply declining jurisdiction on the ground that there was a specialist court enjoined with the power to determine any alleged repugnance of a law to Islam.144 This the court did not do: there is no mention of the Federal Shariat Court at all.
Kaikus application to declare the legal system or parts thereof to be repugnant to Islam, would, however, continue to occupy Pakistani courts after 1985, when the incorporation of the Objectives Resolution into the main body of the Constitution triggered another wave of applications. These developments will be examined in Chapter 3.
Islam as Residual Law
However, the seed of Islamic law, once planted, was not easily removed from the judicial discourse. In a variety of contexts, petitioners tried to rely on the argument that a particular law was against the injunctions of Islam or should receive a particular Islamic interpretation. The response of courts to these attempts is illuminating: after a more or less complete refusal to entertain these arguments, individual judges showed at least a willingness to consider repugnance and consonance arguments. This acceptance phase led to the emergence of what was portrayed as a firm judicial policy in 1976.145 In a contempt of court case, for instance, it was argued that it was against Islamic law for a judge to decide a contempt of court matter if the judge himself had been the subject of the contempt.
Judge Muhammad Afzal Zullah did not reject this argument as irrelevant, as he could have done in reliance on Ziaur Rehman,146 but as incorrect: the result was an ambiguous judgment since Justice Zullah did not determine whether his decision would have been any different if Pakistan s law of contempt of court had in fact been against the injunctions of Islam.147 Justice Zullah s failure to reject the argument as irrelevant can be contrasted with another contempt of court case, Ashfaque Ahmad Sheikh v. State,148 decided by the Supreme Court in 1971 under the provisions of the 1962 Constitution. In that case, the petitioner had also argued that the law of contempt of court was un- Islamic. In a first step, the Supreme Court rejected this argument as fallacious since the Directive Principles of State Policy Number 1 of the 1962 Constitution, which provided that no law should be repugnant to Islam and that all existing laws should be brought in conformity with Islam, was non-justiciable and
143 See B.Z. Kaikus v. The President of Pakistan PLD 1980 SC 160, supra, note 23.
144 In Hakim Khan v. Government of Pakistan PLD 1992 SC 595 the Supreme Court adopted this approach.
145 See Nizam Khan v. Additional District Judge, Lyallpur PLD 1976 Lahore 930, supra, note 11.
146 Supra, note 72.
147 See State v. Mujibur Rehman PLD 1972 Lahore 1, at p. 38.
148 PLD 1972 SC 39, decided on 29 November 1971.
not enforceable by virtue of Article 8 (2) of the 1962 Constitution. The latter provided that:
The validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State or any person on such a ground.
The law of contempt, contained in Article 123 of the 1962 Constitution, had to be obeyed by everybody and could not be challenged on the grounds of an alleged repugnance to Islam. This should have been the end of the matter but the Supreme Court nevertheless proceeded to examine the validity of the contention. After quoting from a variety of texts on Islam and Islamic law it was found that even under the Islamic law, one is to obey all persons in authority who necessarily include the Qazi. 149 It was only the Lahore High Court decision in Kaikus, discussed above, which finally settled any remaining ambiguities about using Islam as a touchstone to test the validity of both a constitution and other laws: it could not be done.
However, the role of Islamic law was not confined to questions of repugnance; in many instances judges were asked either to exercise a judicial discretion or to interpret statutory provisions in favour of Islamic law. In the 1970s, Islam was increasingly used to justify a particular exercise of judicial discretion or to interpret a statute in such a way that an Islamic result was achieved. Occasional instances of Islamic interpretations of statutes can be found in earlier decisions but these do appear to be isolated cases.150 At times, judges bolstered a supposedly moral content of a law with a reference to Islam: in the context of an contempt of court case, for instance, Justice Cornelius held that the offence was forgiven if the offender truly repented his action. In order to find further moral support for this decision Justice Cornelius stated that there are texts in the Scriptures of Islam to the effect that to him who repents after his transgression and makes amends, mercy will be shown. 151
However, the most fascinating insight into the importance of Islamic values is offered by the case law under section 491 of the Code of Criminal Procedure 1898. The section empowers a court to set at liberty a person illegally or improperly detained in public or private custody, mirroring the writ of habeas corpus. Cases under section 491 offer a revealing perspective on the moral and religious outlook of Pakistan s judiciary because most cases did in fact concern disputes over women. In many section 491 cases it was the purported husband, i.e. the paramour , who tried to free his wife , who in reality was only his fiancée or girlfriend, from the custody of her parents. The allegation of illegal detention was made to force the parents to produce their daughter in open court, even though the petitioner knew very well that the allegation of illegal imprisonment would ultimately fail. However, similar to habeas corpus proceedings, the court would normally make an order for the allegedly illegally confined woman to be produced in open court. The judge was then called upon to decide first, whether the woman was held in illegal detention. Secondly, if there was a claim that the couple were married, the judge had to decide whether or not there was a valid marriage. More often than not, there was insufficient evidence to support the contention of a valid marriage or an illegal detention. Judges then faced a moral dilemma: even if the judge decided that there was no valid marriage or illegal detention, he was nevertheless compelled to allow the woman present in court to go wherever she wanted to go. However, in many cases this result was very much in conflict with the judge s sense of probity and morality ideally he would want an unmarried daughter to be returned to her parents or, alternatively, to her real husband, rather than allowing her to join her boyfriend. The idea that she was free to leave the courtroom so as to join her paramour, though representing the correct legal position, was unattractive to most judges and in a series of decisions Pakistani courts openly and blatantly denied women their constitutionally guaranteed right to freedom of movement on the grounds that existing laws had to be interpreted in the light of Islamic morality.
The Supreme Court s decision in Muhammad Rafique v. Muhammed Ghafoor152 can serve as an illustration of the application of section 491 without any reference to Islam. The facts of the case are to some extent typical for applications under section
491. One Mr. Rafiq, allegedly a relative of Mrs. Begum, filed an application under section 491 of the Code of Criminal Procedure 1898, alleging that Mrs. Begum had been abducted by a Mr. Ghaffor and was forcibly detained in his house. A bailiff of the High Court was deputed to locate Mrs. Begum and to produce her in court. In court Mrs. Begum corroborated Mr. Rafiq s complaint: she stated that her parents had forced her to marry Mr. Ghaffor against her will. She also claimed that her thumb-impression on the marriage certificate had been obtained by force. Predictably, her parents and her in-laws denied these allegations and maintained that she was the lawful wife of Mr. Ghaffor. The High Court believed the parents and consequently dismissed Mr. Rafiq s petition. Significantly, the High Court also ordered that Mrs. Begum should be returned into the custody of her husband, Mr. Ghaffor. Mrs. Begum, who evidently did not want to return to her husband s house after having been freed by the bailiff, filed an appeal against this order. The Supreme Court did not entertain any moral or religious arguments but remained firmly within the law. According to the Supreme Court, the issue to be decided concerned the kind of order regarding the custody of an adult person that a high court could issue after having found that this person had not been improperly or illegally detained. The Supreme Court held that:
If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is a major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not. The Court may set at liberty , but cannot restore status quo ante against the wishes of the person brought before it. Such a course will lead to curtailment of liberty for which there is warrant under section 491 nor can such an order be sustained under section 561 A of the Code as it cannot be said that allowing a person freedom is an abuse of the process of the Court. 153
This judgment stands in stark contrast to a decision of the Lahore High Court reached just one year earlier. In Fateh Sher v. Sarang154 the Court found that the wife s boyfriend had conspired with the wife to file a petition under section 491 in order to free her from her husband. It appears that he tried to convince the High Court that he was properly married to her and that his wife had been abducted by the respondent. The boyfriend s claim that he was her husband did not, however, succeed and the Lahore High Court was faced with the prospect of having to set her at liberty which, of course, would have meant that she could have joined her boyfriend. The Lahore High Court found that:
If in the exercise of her fundamental right of personal liberty she is allowed to make a choice, I am certain that she would go with the petitioner, her paramour, the two having collusively maneuvered to file this petition invoking the discretionary jurisdiction of this Court under section 491 of the Cr.P.C. Under Islamic Law, the respondent, being the husband of the woman, is entitled to her custody as her legal guardian. His right of guardianship coupled with the liberty granted to him in the above-quoted Quranic verse cannot be allowed to be frustrated by such collusive circumvention and as such in my humble opinion the provision contained in section 491, Cr.P.C. cannot be given full effect to in circumstances of this nature. I am not, therefore, inclined to allow this petition in exercise of my discretionary jurisdiction which would virtually amount to giving this Court s blessings to the immoral activities of two unscrupulous persons who, in Islam, are liable to extreme penalty. 155
Consequently, Justice Cheema restored the wife to her husband, who was present in court. Justice Cheema himself expressed concerns about the clash between Qur anic injunctions and the long line of precedents under section 491, which had never imposed any restriction on the freedom of movement of a person freed from illegal private detention. However, in a departure from established precedent the Supreme Court condoned Justice Cheema s preference of Islamic law to fundamental rights: in Sardara v. Kushi Muhammad the Supreme Court held that Justice Cheema had been correct in restoring the wife to her husband, since this enabled her to correct herself.156 Almost exactly one year after the Supreme Court s decision in Muhammad Rafique v. Muhammad Ghafoor,157 which had held that a woman s freedom of movement could not be restricted on the basis of Islamic law or morality, the Supreme Court changed its position, holding that:
We are also inclined to agree with the views expressed by the learned Judge regarding the tendency to abuse the provisions of section 491 of Cr.P.C. on part of some young men in furtherance of their illicit love affairs. Courts do not function in a vacuum and must take due note of the social and moral environments prevailing in the community for which the law is to be administered. Such being the case the
149 Ibid., at p. 47.
150 See for instance Fahmida Begum v. Syed Mashaf Hussain Shah PLD 1958 SC 284, where the Supreme Court held that Islamic law can be taken into consideration when deciding cases under section 488 of the Code of Criminal Procedure 1898.
151 A.K.M.A. Awal v. The State PLD 1964 SC 562, at p. 568.
152 PLD 1972 SC 6.
153 Ibid., at p. 8.
154 PLD 1971 Lah 128.
155 Ibid., at p. 130, per Justice M.A. Cheema.
156 1973 SCMR 190, at p. 192, per Justice Salahuddin Ahmad.
157 Supra, note 152.
High Court was justified in refusing relief if it came to the conclusion that the petition had been presented for the sake of furthering an illicit love-affair. 158
Justice Muhammad Afzal Zullah considered the relationship between section 491 and Islamic law in the case of Ramzan v. Muhammad Aslam.159 With his usual vigour, Justice Zullah examined in some detail the Islamic law on the issue, finding that the husband had a right to the custody of his wife and was allowed to restrain his wife s movements if he suspected her of wanting to become unfaithful. Unsurprisingly, Justice Zullah found English and American case law on this issue unhelpful, since according to him the legal concept of marriage was different in Christian societies. Justice Zullah could see only one possible scenario in which a judge could be justified in setting at liberty a wife rather than compelling her to return to her husband: if the wife wanted to obtain a khula divorce and her desire for such a divorce was not motivated by immoral or undesirable motives.160 It is interesting to note that Justice Zullah avoided any mention of the constitutionally guaranteed right to freedom of movement, nor did he mention that a husband could apply for a decree for restitution of conjugal rights. Especially the latter would have thrown serious doubts on Justice Zullah s approach, since an order for the restitution of conjugal rights against a wife could only be enforced by the imposition of a fine but not by physically forcing a wife to join her husband. Imprisonment or an order for specific performance were not available. For Justice Zullah to hold that a husband did not even have to apply for a decree for the restitution of conjugal rights in order to win back his wife but instead could just physically take her from the premises of the High Court of Lahore to his residence, where she could be restrained from leaving the house, amounts to an extraordinary departure from fundamental principles of Pakistani public and criminal law. Justice Zullah s only justification for this departure was based on Islamic concepts of law and morality, though there was no indication in the judgment of why Islamic law should be allowed to override fundamental rights.
The failure of the Supreme Court to follow its own precedent and to condone the blatant denial of criminal justice and fundamental rights to women on the basis of Islamic law and morality is indicative of the gradual shift of Pakistan s judiciary away from principles of English or Western concepts of justice in favour of Islamic law.
Filling the Gaps
The interpretation of statutory provisions in the light of Islamic law did indirectly lead to the creation of another gateway for the infusion of Islamic law into the legal system. The key to be turned to open the door to Islam was hidden in the formula justice, equity and good conscience . Since the early days of the East India Company, this formula had been used to provide law for areas of the legal system not covered by statute law or personal laws. The Regulations of 1781 and 1793 for instance, stipulated that in cases not otherwise specially provided for the judges should decide according to justice, equity and good conscience. The formula was copied from Regulation to Regulation and from Regulation to Statute.161 As was convincingly shown by J.D.M. Derrett, this formula, when it was first introduced in the Royal Charters of 9 August 1683, did not exclusively refer to English law but primarily to other sources of law which were deemed to be appropriate as a just rule to the facts of the case.162 This could be the personal laws of Hindus and Muslims, natural justice , the laws of civil law countries, English law (both common and statute) and Natural Law .163 However, by the end of the 19th century, British Indian courts tended to apply under the formula justice, equity, and good conscience in the first instance English law as residual law to fill any legal lacunae. It should be noted that, in spite of the priority of English law as the residual law, in matters of personal law English law was not considered to be the first choice. In fact, Derrett points to examples where analogies were drawn from the nearest personal law of the parties.164
In Pakistan, courts would occasionally apply principles of Islamic law to fill a lacuna in the law. In Abdul Ghani and others v. Mst. Taleh Bibi and another165 for instance, Islamic law of evidence was applied to determine the legitimacy of a daughter, the statute law being silent on the point. Similarly, in Allah Bux v. Jano166 the Islamic law of pre-emption was applied under the formula justice, equity and good conscience . There was, however, no obligation on a judge to apply Islamic law and in practice English law remained the main residual law, even after independence. In other cases, judges expressly refused to rely on Islamic law. For instance, in Niaz Ahmed v. Province of Sindh167 the petitioner challenged the imposition of localised martial law, inter alia, on the basis of Islamic law. He argued that as a result of Article 2 of the 1973 Constitution, which provides that Islam shall be the state religion of Pakistan, Islamic law was part and parcel of the laws of Pakistan. It was held that:
Apparently, what the Article means is that in its outer manifestations, the State and its Government shall carry on Islamic symbol. This Article does not even profess that by its own force, it makes Islamic law to be the law of the land. Otherwise, there would have been no scope for separate provisions being incorporated in a separate Part of the Constitution in Part IX under the Heading Islamic Provisions . 168
One of the first cases which relied heavily on principles of Islamic law in the interpretation of statutes was State Bank of India v. Custodian of Evacuee Property169 decided by the Lahore High Court in 1969. The case concerned the ability of the State Bank of India to pursue civil actions against the Custodian of Evacuee Property after the outbreak of the war between India and Pakistan in 1965. The Defence
158 1972 SCMR 398, at p. 400, per Justice Anwarul Haq.
159 PLD 1972 Lahore 809.
160 Ibid., at p. 834.
161 See, for instance, section 6 of The Punjab Laws Act 1872.
162 See J.D.M. Derrett, Justice, Equity, and Good Conscience , in J.N.D. Anderson, Changing Law in Developing Countries, London, 1963, pp. 114-154, at p. 140.
163 Ibid.
164 Ibid., at p. 144.
165 PLD 1962 Lahore 531.
166 PLD 1962 Karachi 317.
167 PLD 1977 Kar 604.
168 Ibid., at pp. 648 and 649.
169 PLD 1969 Lah 1050.
of Pakistan Ordinance 1965 and the Defence of Pakistan Rules 1965 had prohibited enemy aliens from pursuing civil action against Pakistani citizens. Justice Afzal Zullah interpreted the above -mentioned laws in the light of US case law and common law principles. However, he also added a substantial discourse on the Islamic law of war before holding that the right of the enemy to pursue civil actions was merely suspended during the period of hostilities but was not completely distinguished.
However, none of these cases had elevated the recourse to Islamic law in cases of statutory ambiguity to the level of a legal principal. In Nizam Khan v. Additional District Judge, Lyallpur170 Justice Afzal Zullah, one of the leading proponents of the indigenisation of Pakistani law, in a carefully reasoned and researched decision, held that the formula justice, equity and good conscience meant Islamic law to the exclusion of all other laws. As a result, all areas of law not occupied by statute or binding precedent were to be decided in accordance with Islamic law. Justice Zullah s examination of the charters and regulations which contained the formula revealed that they did not seem to contemplate the introduction of English law into areas not occupied by statute or precedent a result identical to the one arrived at by Derrett. Justice Zullah found that, despite the liberty to refer to other sources of law, even judges of Indian origin preferred, by and large, to follow the general principles of British Jurisprudence with particular reference to common law and equity prevailing in England. 171 However, Justice Zullah was careful to stress that Islamic law could be no substitute for any subsisting law or the 1973 Constitution itself. On the facts of the case this meant that a grandfather in comfortable circumstances was obliged to maintain his grandchildren. No such liability could be imposed under the existing statute law but Justice Zullah held that this gap in the law had to be filled with Islamic law. The creation of new rights and obligations on the basis of Islamic law though, not entirely new as could be seen from the above, had entered a phase where what had been random and haphazard could now be advanced as a firm principle of Pakistani law.
Justice Zullah s approach was radical in that it was absolute. Both British Indian and Pakistani courts had, as could be seen above, occasionally allowed for Islamic law to be applied under the principles of justice, equity and good conscience . Justice Zullah s stress on exclusivity meant that no reference to any other source of law was possible. What was to happen in cases where either Islamic law did not provide an answer or where Islamic law could be considered to be inappropriate, remained unanswered.
In spite of his enthusiasm for Islamic law, Justice Zullah was careful to delineate the limits of judicial Islamisation: judges were not permitted to apply Islamic law to areas of law occupied by statutes and were equally barred from striking down any existing law on the basis of Islamic law. The areas left for Islamisation were, according to Justice Zullah, exceptional :
The exceptional position with regard, however, to their [statutory laws] interpretation, supplying the omissions where they are silent, exercising discretion where allowed by them and construing the norms of justice, equity and good conscience, as discussed already, is different. The Courts in these exceptional branches are free to apply Muslim Common Law and jurisprudence and there is no need now to give preference to the foreign juridical norms including British Common Law or rules of equity or, for that matter, general Anglo-Saxon law. 172
Justice Zullah identified a wide range of concepts which had been hitherto been interpreted in line with Western or, to be more precise, English legal definitions including expressions like natural, universal, rational, humane, moral, substantial, justice, natural laws, laws of God, natural or human jurisprudence, general law, equity, propriety etc. These concepts had, according to Justice Zullah, to be seen in the light of Islamic philosophy and jurisprudence.173
Justice Zullah s new rules of interpretation were made at High Court level and were therefore not binding on any of the other High Courts. However, he applied the same approach after his elevation to the Supreme Court. In 1981, Justice Zullah applied Islamic law in the interpretation of customary international law and Pakistani statutory law. In the case of A.M. Qureshi v. Union of Soviet Socialist Republics174 a Pakistani party to a contract claimed damages for breach of contract against the Soviet Union and its trade representative. The contract involved the sale of military equipment from the Soviet Union to Pakistan. The Soviet Union claimed state immunity, both under general international law and specific provisions of Pakistan s Civil Procedure Code.175 The case is an interesting one, since four separate judgments were delivered, all four to the effect that the Soviet Union could be sued in contract in Pakistan. However, whereas three judgments relied exclusively on Western jurisprudence and case law, Justice Afzal Zullah ignored these precedents completely and instead referred to and repeated his observations on Islamic residual law made in Haji Nizam Khan.176 Justice Zullah held that had it been found that under Western international law, the Soviet Union enjoyed sovereign immunity and could therefore not have been sued in Pakistan, he would have applied Islamic international law:
My learned brother Karam Elahee Chauhan, J., has after a detailed analysis held that the Pakistan Code of Civil Procedure does not bar the suit of the appellant against the respondent. Section 9 of the Code permits the institution of this suit unless it is barred expressly or impliedly. There is no express bar in the Code or any other law. Mr Khalid Farooq Qureshi, the learned counsel for the respondents, tried to spell out an implied bar from the customary International Law but as shown
170 Supra, note 11.
171 Ibid., p. 954.
172 Ibid., at p. 1008.
173 Ibid., at p. 1011. Justice Zullah would refer to principles of Islamic law whenever possible. For instance in a murder case, Justice Zullah bemoaned the collusion between prosecution witnesses and the police and commented that, while doing the important exercise of appreciation of evidence, the Courts should also keep in mind those principles underlying the Islamic law of evidence which are not prohibited by any positive law : Muhammad Nawaz v. The State PLD 1979 BJ 42 at p. 52.
174 PLD 1981 SC 377.
175 See Rule 11 (d) of Order VII and sections 86 and 87 of the Code of Civil Procedure 1908, which govern the instances and circumstances under which foreign sovereign entities such as states and office holders of such states can sue and be sued in Pakistan.
176 PLD 1976 Lah 930.
by my learned brothers Karam Elahee Chauhan and Nasim Hasan Shah, JJ., in an elaborate treatment of the subject, the effort has not succeeded. On my part, even if any such implied bar would have been discoverable in what is called customary International Law and that too on the basis other than that of justice , I would have, consistently with the view taken in Haji Nizam Khan s case (particularly when there is no dissent thereto, so far, rather it is being endorsed and relied upon), applied the Islamic International Law. 177
This was followed by yet another application of Islamic law in 1982. In the case of Muhammad Bashir v. State,178 a murderer contested the imposition of the death penalty on the grounds of grave and sudden provocation. He had fatally stabbed his fiancée after her parents broke their promise to marry her to him. The daughter, his fiancée, had herself refused to elope with him. He relied on earlier decisions, where courts had accepted such a plea in similar circumstances.179 Justice Zullah refused to follow these precedents, all at High Court level, because:
Motive and desire to pursue or to make advances, preparation or attempt regarding illicit liaison/affairs are not approved by Islam and are not acts of justification in Muslim Jurisprudence for mitigation of sentence; as, they impinge upon moral, ethical, matrimonial or sexual norms in Islamic Philosophy . . . 180
In 1988 Justice Zullah claimed that:
Indeed, now there are hundreds of cases wherein, in order to interpret and apply constitutional and other statute laws or where the law is silent or a field is unoccupied by it or when answering discretionary questions, the courts of Pakistan have applied the rules of Islamic law and jurisprudence amongst others as residuary law. It is our effort to continue the process (in an evolutionary manner) as it is the demand of national consensus and ethos. 181
This might have been an exaggeration, since there are certainly not hundreds of cases reported in Pakistan s law reports which involve the application of Islamic law in the interpretation of statutory provisions, or to fill lacunae in the existing law. Nevertheless, in the cases where Justice Zullah s approach was adopted, the infusion of Pakistan s statutory laws with Islamic law more often than not led to a more ethical or just result. Most notable is the case of Ghulam Ali v. Ghulam Sarwar Naqvi.182 At issue was the custom of depriving female relatives, especially sisters, of their right to inherit their prescribed shares to the agricultural land of a common ancestor legally due to them under the Islamic law of inheritance. In Ghulam Ali,183 two sisters had relinquished their share in land in favour of their brothers and a change in the land revenue records was effected, showing that the land was owned by the brothers. Almost 25 years later, the sisters went to court claiming that they had not received their shares in the land. The brothers argued that the claim was time-barred and that the sisters had received a fair share of the estate of the deceased, since money had been spent by the family on their respective marriages, a remarriage of one of the sisters, and the payment of money to settle a murder case which, it was alleged, had been connected to the divorce of one of the sisters.
Justice Afzal Zullah, in a long and learned judgment, upheld the sisters claim. He decided that a time-bar against such suits would operate only in the most exceptional circumstances since, as a matter of Islamic law, the shares of all those who had a right to inherit from the deceased vested in them at the time of his death. No further action had to be taken by the heirs in order to claim their respective shares due to them under the Islamic law of inheritance. An heir who had received more than the share he was entitled to was holding such surplus on trust for the other heirs. However, despite Justice Zullah s vigorous defence of the inheritance rights of female heirs, there was nevertheless a legal hurdle to be surmounted: the sisters had relinquished their share and transferred it to their brothers. Under the Contract Act 1872, such a contract was valid. Justice Zullah overcame this problem by reinterpreting section 23 of the Contract Act 1872, which renders void any contract which is contrary to public policy. He observed that, in Pakistan s constitutional set-up, with the Objectives Resolution being its part, new situations with new principles of public policy with Islamic Ethos/spirit would have to be defined and applied. 184
Justice Zullah s vigorous defence of the inheritance of female heirs on the basis of an Islamic public policy did not stop at inheritance rights: he called upon non-governmental organisations, courts and the legal community to actively assist women living in rural areas who were, according to Justice Zullah, routinely deprived of their inheritance rights and other protective laws accorded to them under Islamic law
on the basis of either common law or pre-Islamic customary law. Justice Zullah went so far as to call upon the government to provide finances for the setting-up of committees in rural areas, charged with the protection of the rights of the womenfolk of rural areas arguing that finances cannot be a problem since the Government, the legislature, the taxpayer and the Urban elite will not grudge this small facility for 80 per cent of these have-nots of the Social Sector, while 20 per cent get all the other facilities of the urban paraphernalia, which includes amongst others, better facilities and services in nearly all fields. 185
Justice Zullah s concern for the protection of the legal rights of women was based on the conviction that Islamic law, properly applied, would support rather then restrict the legal position of women. In the case of Muhammad Akram v. Farman Bi186 he even suggested that fundamental rights could be expanded by interpreting in the light of Islam. The case concerned the tort of malicious prosecution. The appellant, Mr. Akram, had falsely claimed to be married to the respondent, Mrs. Farman Bi. Mrs. Bi successfully refuted this claim and subsequently sued Mr Akram for damages in the tort of malicious prosecution. Counsel for Mr. Akram argued that damages for malicious prosecution could not be claimed as a result of a civil action: the award of costs to the successful party was all that could be claimed by Mrs. Bi. In support of his contention, counsel relied on a number of Indian and English cases and a decision of the Privy Council, all to the effect that there was a distinction to be made between criminal and civil suits whereby only the former could attract damages for malicious prosecution. Justice Zullah, however, was unconvinced, observing that [t]he resort to a rule of common law of England in preference to the one of Pakistan law or a rule of Islamic law or jurisprudence; or for that matter, the Islamic common law, is not now possible under the Pakistan Constitutional set- up. 187 Justice Zullah concluded that under Pakistani law there was a basic right to a good reputation, which derived from the Objectives Resolution. For the first time, Justice Zullah indicated that basic rights could be granted under both the 1973 Constitution and under Islamic law, thereby allowing for the possibility that Islamic law could supplement or complement existing fundamental rights.188
A review of the case law, however, indicates that it was mainly Justice Afzal Zullah who relied on principles of Islamic law in the interpretation of statutes or the filling of gaps not covered by Pakistan s written law. It must be noted that Justice Zullah s application of Islamic law did not proceed on the basis of a detailed or literal reading of the Qur an and Sunnah but appears to proceed on the basis of broad ethical and moral principles, discoverable from his interpretation of Islamic law. As will be seen below, Justice Zullah s reliance on general Islamic principles like justice and morality, were discounted by him as a judge of the Shariat Appellate Bench of the Supreme Court: there he insisted that the Federal Shariat Court was to refer to concrete rules contained in the Qur an and Sunnah whenever a law was declared to be repugnant to Islam. However, as will be seen later, even the Federal Shariat Court and the Shariat Appellate Bench eventually came to accept general principles of Islamic law and equity, which were similar if not identical to those found in the fundamental rights chapter of the Constitution.189 There is one major exception: Islamic sexual mores, for instance Islam s abhorrence of extra-marital sexual intercourse, imposed interpretations of Pakistani statutory laws, which were at odds with the secular tenor of the fundamental rights.
177 Supra, note 174, at p. 432.
178 PLD 1982 SC 139.
179 See for instance Muhammad Siddique v. The State PLD 1958 Lah 601.
180 Supra, note 178, at p. 142.
181 Sardar Ali v. Muhammad Ali 1988 SC 287, at p. 321.
182 PLD 1990 SC 1.
183 Ibid.
184 Ibid., at p. 22.
185 Ibid., at p. 27.
186 PLD 1990 SC 28.
187 Ibid., at p. 39.
188 This liberal interpretation of Islamic law has to be contrasted with Zullah s application of section 491 of the Code of Criminal Procedure 1898, discussed further above.
189 Below, Chapter IX.
SOURCEBOOK: The Role of Islam in the Legal System of Pakistan-Martin Lau 2005-THE ASSERTION OF ISLAMIC LAW
