Islamisation Of Law In Pakistan

HUDOOD LAWS ISLAMISATION OF LAW IN PAKISTAN By Dr. Nasim Hasan Shah, (Retd.) Chief Justice of Pakistan & President SAARC LAW (Lecture delivered at the National Law School of India University, Bangalore on 8th December. 1994) 1. The main reason why the Muslims of undivided India demanded Pakistan was that they wished to have a State where they could live according to their own cultural values, traditions and Laws. It was basically on this account that the Muslims of the Sub‑continent rallied round the cause of Pakistan and accorded it such enthusiastic support that Mr. Jinnah was impelled to say: "Our religion, our culture and our Islamic ideals are our driving force to achieve our independence." This goal of independence was ultimately achieved on 14th August, 1947 and a new sovereign State appeared on the map of the world: Pakistan ‑ the homeland of Islam, a country whose people yearned to live and to be governed under the regime of Islamic laws. 2. However, achieving Pakistan was one thing but introducing Islamic Law for its governance therein was quite another. Many difficult and complex questions immediately arose which required a satisfactory answer before the process of Islamisation of Pakistan could be initiated in any significant way: What is the true intent of the laws of Islam on questions such as Riba, Hudood, rights of women, etc.? Is it possible to administer a State based on Islamic Laws in the 20th Century? Would not the introduction of Islamic Laws, which some considered to be medieval, harsh and brutal, constitute a barrier to all progress and modernity? 3. Accordingly, to introduce Islamic Laws in the polity very small steps were taken in the beginning and only modest measures like the West Punjab Muslim Personal Laws (Shariat Application) Act, 1948, etc., directed mainly to curtail the operation of Customary Laws, were introduced. 4. However, many scholars of Islam did not agree with this cautious approach and pleaded for speedier action. In their speeches and addresses they argued that Islamic Law was sufficiently dynamic and elastic to tackle the problems of the modern age and was quite capable of dealing adequately with them. (One such address was delivered by Maulana Abul Ala Maududi at the University Law College, Lahore on 6th January, 1948, on the question of the Constitution and Law in Islam, when the author was studying there). 5. Most of these doubts and misgivings were, however, removed on 7th March, 1949 when Mr. Liaquat Ali Khan, the then Prime Minister of Pakistan, rose to move the Objectives Resolution in the Constituent Assembly of Pakistan. In this Resolution the ideals and objectives of the new State were clearly spelled out and it was clarified that the Constitution of Pakistan would be based on the principles of Islam and the Muslims therein shall be enabled to order their lives in accordance with the laws of Islam. 6. On 7th March, 1949, Mr. Liaquat Ali Khan, the then Prime Minister of Pakistan, moved the Objectives Resolution, in the Constituent Assembly wherein he removed all doubts as to the ideals and objectives of the new State and pledged that its Constitution would be based on the principles of Islam. He said inter alia: "Pakistan was founded because Muslims of this sub‑continent wanted to build up their lives in accordance with the teachings and traditions of Islam, because they wanted to demonstrate to the world that Islam provides a panacea to the many diseases which have crept into the life of humanity today." Mr. Liaquat Ali Khan (while moving the Resolution in the Constituent Assembly of March 7, 1949). 6. In this Resolution it was inter alia observed: "Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust; This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan; Wherein the State shall exercise its powers and authority through the chosen representatives of the people; Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah; Wherein adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures; Wherein adequate provisions shall be made to safeguard the legitimate interest of minorities and backward and depressed classes; Wherein the independence of the Judiciary shall be fully secured; So, that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity." 7. The first Constitution of Pakistan framed by the Constituent Assembly, after considerable delay, came into force on 23rd March, 1956 and the Objectives Resolution formed the preamble thereto. 8. In this Constitution a chapter was included entitled "Islamic Provisions". Under these provisions all existing laws were to be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah (referred to as Injunctions of Islam) and they further laid down that no law shall be enacted in future which is repugnant to such injunctions. 9. They further provided for the setting up of an Advisory Council of Islamic Ideology to make recommendations as to the measures that were required for bringing existing laws into conformity with the Injunctions of Islam and to recommend also the stages by which such measures should be brought into effect. 10. However, despite these provisions not much progress was made to bring the laws in the country into conformity with the Injunctions of Islam during the first 30 years of the creation of Pakistan. Thus, although the first Constitution was adopted in March, 1956 by the Constituent Assembly of Pakistan nothing much was actually done in this respect during the period in which this Constitution remained in force namely up to 7th October, 1958. Again in the Constitution of 1962 a provision for the creation of an Advisory Council of Islamic Ideology to examine all laws then in force with a view to bringing them into conformity with the teachings and requirements of Islam was made. But nothing much could be achieved. One reason was that by Article 6(1)' thereof the responsibility for deciding whether a proposed law was violative of or was not in accordance with the said principles was placed upon the Legislature concerned. Consequently neither the High Courts nor the Supreme Court had any responsibility in the matter of determining whether any law did in fact violate or was otherwise not in conformity with the Holy Quran and Sunnah. Accordingly this provision was more in the nature of a manifesto for the law‑makers rather than a binding obligation enforceable by Courts of Law. Similarly, even though the Constitution of 1973 did again make provisions for bringing all existing laws in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah but here too the implementation of this objective was made the responsibility of the Legislature (vide Article 227) and no power was conferred for its enforcement on the superior judiciary. 11. The Islamisation process actually received a fillip when General Muhammad Zia‑ul‑Haq took over in July, 1977 the administration of the country. Soon after assuming office, he made a statement that Courts will be empowered to strike down all laws of the country that are repugnant to the Holy Quran and Sunnah and declare them as null and void. 12. To achieve this objective, on 2nd December, 1978, a "Superior Courts Shariat Benches Order" was promulgated which was to take effect on 12th Rabi‑ul‑Awwal 1399 A.H./10th February, 1979. This date is very important in the present context as on this very date the Hudood Laws, which I will refer to a bit later were also enforced. 13. In pursuance of the "Superior Courts Shariat Benches Order", five Shariat Benches were constituted, one in each High Court (Lahore, Peshawar, Karachi and Quetta) anti one in the Supreme Court (Appellate Shariat Bench) at Rawalpindi /Islamabad. These Shariat Benches were empowered to strike down all existing and future laws, with the exception of the Constitution, Muslim Personal Law; any law relating to the procedure of the Court or Tribunal or any fiscal law relating to the collection of taxes and fees on banking or insurance practice and procedure until the expiration of 3 years from the Constitution Amendment (Order), 1979 (this period was later extended to 10 years), that are repugnant to Islam. The Shariat Benches were empowered, in cases where they held that an existing or future law was un‑Islamic to declare to what extent it was repugnant to the Injunctions of Islam and how best it could be reshaped in order to make it consistent with the relevant injunctions of the Holy Quran and Sunnah, which orders the Government was bound to implement. 14. Later, on 27th May, 1980 the four Shariat Benches of the High Court were replaced by establishing a Federal Shariat Court at the Capital of Pakistan, Islamabad. This was to consist of 5 Judges and three traditional Ulema, well‑versed in Islamic Law. 15. In March, 1982 the powers of the Federal Shariat Court were enhanced so as to become authorised suo motu to take up examination of any law over which it has jurisdiction to recommend amendments therein, in accordance with Injunctions of the Holy Quran. The conferment of such a power of judicial review, with a view to Islamising the existing laws, has no parallel in judicial history. No such power was conferred on Courts during the Muslim Rule when Islamic Fiqh was the governing law. The essence of Shari'ah laws was that they were prepared by jurists of high calibre having deep knowledge of Shari'ah and their efforts were confined mainly to setting for; h legal alternatives in given situations which were in conformity with the holy Quran and the Sunnah of the Holy Prophet (p.b.u.h.) and when any situation arose in a dispute involving some such questions their Fatwa was adopted and the decision of the case based thereon. Their Fatwas were accepted by the rulers and the governed alike and their declarations of the law were enforced by the Courts without interference by the rulers. But the jurisdiction conferred here was altogether different. The Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court in Pakistan were conferred the power do declare any law presently in force as ineffective m case it is found to violate an Injunction of the Quran or the Sunnah. This power was exercisable both where a matter was brought by a party before the Federal Shariat Court or was taken up by it suo motu. This indeed was a most awesome ant: far‑reaching power, without any parallel in the history of the Islamic world and also a very potent instrument for accomplishing the process of Islamisation of laws within the shortest possible period. This power was, in fact, availed of fully both by the Federal Shariat Court and the Shariat. Appellate Bench of the Supreme Court for bringing about the Islamisation of existing laws. Indeed as a result of the decisions of these Courts and the consequential steps taken to implement them, a silent revolution has come about in the legal field. Reference to some of the more important decisions in this respect will be made a little later. In the meanwhile I may advert to the Hudood Laws promulgated at the same time as the Superior Courts Shariat Benches Order was promulgated: HUDOOD LAWS 16. On 12th of Rabi‑ul‑Awwal 1399 A.H. (10th February, 1979) the President of Pakistan promulgated a Presidential Order and 3 Ordinances, amending the Pakistan Penal Code relating to certain offences affecting property of the people and moral and social order of the society, so as to bring it in conformity with the Holy Quran and the Sunnah. These Ordinances and Order were the following: (i) Prohibition (Enforcement of Hadd) Order, 1979 Whereby the existing provisions in the Penal Code pertaining to prohibition of intoxicants including alcoholic liquor were amended and these offences classified into two categories namely offence liable to Hadd as laid down in Fiqah, but where the standard of proof, as provided for Hadd, was not available [or the offence, say of being drunk and disorderly was committed by a non‑Muslim] it became an offence liable to Ta'zir. (ii) Offences Against Property (Enforcement of Hudood) Ordinance 1979 The main offences covered by this Ordinance were theft (Sarqa) and robbery/dacoity (Haraabah). Here too Hadd is imposable only if the proof of the offence as laid down in the Fiqah is not forthcoming otherwise the punishment of theft will be liable to Ta'zir as already provided‑in the Pakistan Penal Code. (iii) The Offence of Zina (Enforcement of Hudood) Ordinance 1979 This Ordinance deals with the offences of fornication, adultery, rape unnatural offence and certain other allied offences and Hadd or Ta'zir is imposable on the same principles, as mentioned above. (iv) Offence of Qazf (Enforcement of Hadd) Ordinance 1979 Qazf i.e. false imputation of Zina. This piece of legislation also deals with lian i.e. the accusation of adultery made; by a husband against his wife. 17. I do not propose to go into further details of these statutes as they can be the subject‑matter of a full lecture by themselves. Suffice it to say that for crimes which have far‑reaching effects on society, the right of an individual according to Islam is subservient to the right of society or the State. The Hadd punishments have been provided to ensure preservation of the values that Islam upholds for the dignity of human society. Furthermore, Islamic punishments also imply the spiritual purification of the human and an expiation for the world hereafter, which is absent in any other legal system. Council of Islamic Ideology 18. A body called the Islamic Ideology was established even before the preceding important measures, that have been referred to above were taken. This body was charged with the duty of examining the laws enacted during the British rule and even after the creation of Pakistan, to see whether any provisions repugnant to the Injunctions of Islam existed therein. Accordingly, a large number of laws in force in Pakistan were examined and the Council made recommendations to amend several laws which contained provisions repugnant to the Injunctions of Islam. It is on the basis of one such recommendation that the existing Evidence Act of 1872 was repealed in 1984 by the Qanoon‑e Shahadat (10 of 1984) to make the Law of Evidence entirely consistent with the Injunctions of Islam. 19. But the greatest impact on the legal system has been brought about by the decisions rendered by the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court. Some of these may briefly be referred to hereunder:. (a) Restrictions imposed by Customary Laws‑‑Invalid An important decision in this connection, which has affected a very large section of the population in the Punjab is the declaration that the Customary Law in the Punjab which imposed restrictions on the rights of disposal of ancestral agricultural land is un‑Islamic. Under the Customary Law of the Punjab the power of land‑owners to dispose of ancestral properties was restricted as distinguished from self‑acquired properties which they could dispose of without restrictions. The Court declared that Islam does not recognize any such distinction between ancestral and non‑ancestral property and the distinction created in this connection by Customary Law‑was abhorrent to the Injunctions of Islam and could not, therefore, be upheld. (Federation of Pakistan v. Muhammad Ishaque PLD 1983 SC 273). (b) No retirement without show‑cause notice Another important question, which came up before the Shariat Courts, was whether a civil servant who had completed 25 years of service qualifying for pension could be retired, in public interest, without issuance of show‑cause notice, as provided for in the Civil Servants Act of 1973. It was held by the majority of the Shariat Appellate Bench of the Supreme Court that the provisions of the Civil Servants Act, 1973, which enabled the Government to retire civil servants after completing 25 years' service qualifying for pension without issuance of show‑cause notice was unfair and against the injunctions of Islam as it ran counter to the concept of complete justice in Islam. It was pointed out that in the Quran and Sunnah great emphasis has been laid on doing undiluted justice and that Adl, Qist and' Ihsan are the essential components of total and complete justice in Islam, according to which not only equal treatment between man and man is required but protection is also afforded against unfair treatment. (Pakistan and others v. Public at Large PLD 1987 SC 304). (c) Punjab and N.W.P.F. Pre‑emption Acts inconsistent with Islamic Injunctions A large number of provisions of Punjab Pre‑emption Act (1 of 1913) and the North‑West Frontier Province Pre‑emption Act (XIV of 1960) have. also been found by the Shariat Appellate Bench of the Supreme Court to be against the Injunctions of Islam as these provisions were based on the Customary Rules which were not consistent with the Islamic Injunctions. Thus, in a field where a great deal of litigation is conducted both the Punjab and N: W.F.P., Islamic Principles has now become the governing rule. (Government of N.‑W.P.F. v. Said Kamal Shah PLD 1986 SC 360) (d) Decision of Court Martial are appealable I now come to a decision which is of great importance to members of the defence forces. The question involved was whether the provisions of section 133 of the Army Act (XXXI of 1952), section 140 of the Pakistan Navy Ordinance (XXXV of 1961) and section 162 the Pakistan Air Force Act (VI of 1953) which debarred persons sentenced by Court Martial from preferring appeals against decisions rendered were not contrary to the Injunctions of Islam? The Supreme Court observed that the bar to filing an appeal against the sentences passed by the Court Martial was not only against the concept of complete justice in Islam but also suffered from an inconsistency. It was noted that the authorities had conferred the right of appeal in Hudood cases and went on to observe that if discipline of the Forces was not affected by conferment of this right in such cases hardly any justification existed in the plea that this would be affected by conferment of right of appeal against conviction for other criminal offences. Accordingly, the provisions of section 133 of the Pakistan Army Act, section 162 of the Pakistan Air Force Act and section 140 of the Pakistan Navy Ordinance denying to an aggrieved person the right of appeal was found to be repugnant to the Injunctions of Islam and it was ordered that the necessary consequential amendments. be carried out in these provisions to confer the right of appeal to such persons against the judgments of the Court Martial in cases other than those relating to the offence covered by Hudood laws. (Pakistan through Secretary, Ministry of Defence v. The General Public PLD 1998 SC 8). (e) Freedom of the Press Another decision, which has advanced the cause of the liberty of press and publication is the judgment rendered in the case of Federation of Pakistan and others v. Public at Large and others (PLD 1988 SC 202). Herein the, Shariat Appellate Bench declared the provisions of the West Pakistan Press and Publications Ordinance, 1963 to be against the Injunctions of the Quran and Sunnah. In this case, while declaring the provisions of this Ordinance to be un‑Islamic, it was observed that Islam favours every practical activity and holds in great esteem persons engaged in every kind of work their view with disfavour all those who burden others with their maintenance, because in an Islamic polity every man should strive to maintain himself by the product of his own effort and labour. Hence no undue and unreasonable interference or impediment should be placed on his desire to run a printing press or start a newspaper or journal. Accordingly the impediments existing in the Ordinance of 1963 in this regard were found to be un‑Islamic and declared to be of no legal effect. (f) Doctrine of Caveat Emptor Un‑Islamic The Shariat Appellate Bench has also ruled in Federation of Pakistan v. Public at Large (1988 SCMR 2041) that the doctrine of caveat emptor (Mushtry Hoshar Bash) is not valid in Islam because in Islam the seller is under an obligation to himself disclose to the buyer the defects that exist in his goods or in his property even without being questioned specifically in regard thereto by him: (g) Murder becomes compoundable Perhaps the judgment having the greatest general impact relating to the administration of criminal justice was the judgment delivered in the case of Federation of Pakistan through Secretary Ministry of Law and another v. Gul Hasan Khan (PLD 1989 Supreme Court 633) wherein the Shariat Appellate Bench of the Supreme Court while deciding different appeals against a consolidated judgment of the Federal Shariat Court, held that: "The Court, for reasons separately recorded, has unanimously decided that‑‑ (1) section 299 to 338 of the Pakistan Penal Code, 1860 which deal with offences against human body are repugnant to the Injunctions of Islam as they‑‑ (a) do not provide for the Qisas in cases of Qatl‑al‑amd (deliberate murder) and Jurooh‑al‑amd (deliberate causing hurt) as is prescribed in the Holy Quran and Sunnah; (b) do not provide for Diyat in cases of Shibh‑ul‑amd and Khata of both Qatl (murder) and Jurh (hurt) as prescribe in the Holy Quran and Sunnah; (c) do not provide for compromise between the parties on agreed compensation when they make Sulh (compromise) in case of Qatl and Jurh; (d) do not provide that the offender may be pardoned by the victim in cases of Jurh (hurt), and by the heirs of the victim in cases of Qatl (murder) whereby the Court can only award him a sentence of imprisonment by way of Ta'zir which may not extend to imprisonment for life; (e) do not exempt a non‑pubert and an insane offender from the sentence of death in case of murder; and (f) do not define the different kinds of Oatl an Jurh (murder and hurt) in accordance with their respective punishment prescribed in the Holy Quran and Sunnah. (2) Section 109 of Pakistan Penal Code, 1860 is repugnant to the Injunctions of Islam in so far as it makes an bettor in case of murder and other offences against human body liable to the same punishment as is prescribed for the murder or for such (fences regardless of the various degrees of abetment. (3) Section 54 of Pakistan Penal Code and sections 401, 402, 402‑A and 402‑B of the Code of Criminal Procedure are repugnant to the Injunctions of Islam in so far as they empower the Central Government or a Provincial Government to commute the sentence of death in case of Qalt‑e‑amd or Jurh‑ul‑amd or in any other offence violating the Huqooq‑ul‑Ibad. (4) Section 345 of the Code of Criminal Procedure, 1898 is repugnant to the Injunctions of Islam in so far it does not include some of the offences against human body in the table of compoundable offences. (5) Section 381 of the Code of Criminal Procedure, 1898 is repugnant to the Injunctions of Islam in so far as it does not provide that the heirs of the deceased in a case of murder may pardon the offender or enter into a compromise with him even at the last moment before execution of sentence, upon which execution cannot take place. (6) No declaration in respect of section 133 of the Evidence Act is called for as it already stands repealed by the Qanun‑e‑Shahadat, 1984. (7) Sections 337 to 339‑A of the Code of Criminal Procedure are declared to be repugnant to the Injunctions of Islam in so far as they permit tender of pardon to an offender without reference to and without permission of the victim wherever this is required under the Injunctions of Islam in case of Jurh and of the heirs of the victim in cases of Qatl. (8) Accordingly, it is held that this decision shall take effect from 23rd of March, 1990 whereby the provisions referred to above, to the extent they have been held to be repugnant to the Injunctions of Islam, shall cease to have effect." In the wake of that decision of the Shariat Appellate Bench of the Supreme Court of Pakistan the President of Pakistan was pleased to promulgate Criminal Law (Amendment) Ordinance, 1990 (Ordinance IV of 1990) and Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance VII of 1990) whereby the provisions of the Code of Criminal Procedure and the Pakistan Penal Code declared by the Shariat Appellate Bench of the Supreme Court of Pakistan to be repugnant to the Injunctions of Islam were substituted by other provisions in conformity with the Islamic Injunctions. Popularly known as the law of Qisas and Diyat, that law is now in force in Pakistan and the same provides for compound ability of all cases of offences against human body (including murder and hurt), specifies various classes and categories of murder and hurt and prescribes different punishments for the same, and also provides for monetary compensation to be given to the victim or his heirs in accordance with the Islamic criminal law. The effect of this decision alongwith the laws relating to the enforcement of Hudood promulgated earlier have resulted in rendering the Laws of Pakistan in relation to punishment of offences quite consistent with the Injunctions of Islam. (h) (Prescription of maximum ceiling of land owner. holding for an individual owner‑‑‑is un‑Islamic) This is another land mark ruling of the Shariat Appellate Bench of the Supreme Court and was handed over on 10‑8‑1989. It has held the provisions of the Land `Reforms Regulation of 1972 and the Land Reforms of 1977 whereby the maximum holding which a land‑owner could own and provided for the vesting of all land in excess of the aforesaid ceiling in the Government were un‑Islamic and struck down and these restrictions found against the Injunctions of Islam. (Qazalbash Wakf v. Chief Land Commissioner, Punjab PLD 1990 SC 199). (i) Riba‑‑‑(Interest mid Mark tip: Un‑Islamic) The provisions of several statutes which provided for payment of interest (Riba) have been formed to be invalid by the Federal Shariat Court. Such provisions existed in the following statutes: (i) Interests Act (XXXII of 1839). (ii) Government Savings Bank Act (V of 1873). (iii) Negotiable Instruments Act (XXXVI of 1881). (iv) Land Acquisition Act (I of 1894). (v) Civil Procedure Code (V of 1908). (vi) Co‑operative Societies Act (VII of 1925). (vii) Insurance Act (IV of 1938). (viii) State Bank of Pakistan Act (XXXIII of 1956). Provisions therein relating to Purchase of Bills and other commercial instruments like, Debentures Bonds etc on basis of interest. (ix) W.P. Money Lenders' Ordinance (XXIV of 1960). (x") Agricultural Development Bank Rules, 1961. (xi) Banking Companies Ordinance (LVII of 1962). (xii) Banking Companies Rules, 1963. (xiii) Banks (Nationalisation) Payment of Compensation Rules, 1974. (xiv) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979). That provided for payment of interest found repugnant to the injunctions of Islam: It was also found that the mark up system, introduced in sections 79 and 80 of the Negotiable Instruments Act, 1881, being similar to Riba, as it permitted an excess on the principal amount, was also repugnant to and was violative of the injunctions of Islam. The Court ordered that the word "Interest" wherever it occurred in these enactments shall be deleted by 30th June, 1992. The operation of this decision has, however, been suspended by the Shariat Appellate Bench of the Supreme Court, where the appeal against it, is still pending (Mahmoodur Rehfan Faisal v. Secretary, Ministry of Law etc. PLD 1992FSC 1).