The Role of Islam in the Legal System of Pakistan

✍ Scribed by Martin Lau

• Publisher: Martinus Nijhoff; Brill
• Year: 2006
• Tongue: English
• Leaves: 258
• Series: London-Leiden Series on Law, Administration and Development, 9
• Category: Library

✦ Synopsis

The role of the judiciary in the Islamisation of Pakistan’s legal system has not received much attention by legal scholars. This book aims to fill this gap. Starting in 1947, it examines the way Pakistani judges have dealt with the controversial issue of Islam in the past 50 years. The book’s focus on reported case-law offers a new perspective on the Islamisation of Pakistan’s legal system in which Islam emerges as more than just a challenge to Western conceptions of human rights.
The first part examines the emergence of Islamic arguments in the period up to 1977 when General Zia ul Haq embarked on an ambitious project to turn Pakistan into a truly Islamic state. In these early years of Pakistan judges increasingly turned to Islam as a source of law to preserve judicial independence and to protect the country’s faltering democracy. The second part examines in detail the features and effects of Zia’s Islamisation programme especially the workings of the newly created Federal Shariat Court. The third part reviews the legal developments in the post-Zia period when the judicial gates of Islamization which were first wide opened, have gradually been closed by a series of landmark decisions.
What emerges from this analysis is an image of Islam as a source of law which is rich, complex and varied. Depending on the judge and the court, Islam was applied to varying effects ranging from liberal to extremely conservative attitudes. However, they share a common feature, namely that the role of Islam in the legal system of Pakistan is to a large degree determined by its higher judiciary.

✦ Table of Contents

Introduction
Chapter 1: The Role of Islam in the Legal System of Pakistan from 1947 to 1977
Structure of Islamisation
Suppression of Islamisation
Islam and Martial Law I
Islam and Martial Law II
Chapter 2: The Assertion of Islamic Law
Repugnance to Islam
Islam as Residual Law
Filling the Gaps
Chapter 3: Article 2-A and the Objectives Resolution
Article 2-A after Hakim Khan and Kaneez Fatima
Article 2-A and the Federal Shariat Court
Chapter 4: Constitutional Crisis, Democracy and Islam
Dismissal of the Junejo Government
Dismissal of the Bhutto Government
Dismissal of the Sharif Government
Emergence of a Basic Structure Doctrine
Judicial Disarray
Proclamation of Emergency in 1998
Coup d'état of 12 October 1999
Enforcement of Shari'ah Act 1991
Chapter 5: Islam and Fundamental Rights
The Objectives Resolution and Fundamental Rights
Islam and Public Interest Litigation
The Expansion of Fundamental Rights
The Restriction of Fundamental Rights on the Basis of Islam
Chapter 6: The Creation of Shariat Courts
The Shariat Benches
The Federal Shariat Court
Chapter 7: The Islamisation of Laws in Practice I
The Decisions of the Shariat Benches
Criminal Law
Muslim Personal Law
The Right to Property
Chapter 8: Islamisation of Law in Practice II
Binding Precedence and the Policy of Islamisation
The Jurisdictional Dimension of Islamisation
Customs and Usage
Muslim Personal Law
Fiscal Laws and Tax
Revisional Jurisdiction
Territorial Jurisdiction
Other Constitutional Exclusions of Jurisdictions over Specific Laws
Chapter 9: Human Rights, Natural Justice and the Shariat Courts
The Suo Moto Jurisdiction
Fundamental Rights and Islamic Law: The Right to Equality
Chapter 10: The Effect of Repugnance
Land Reforms and the Shariat Courts
Criminal Laws
The Federal Shariat Court in Decline
Chapter 11: The Relationship between Shariat Courts and the High Courts
The Federal Shariat Court and Muslim Family Law
The Hudood Ordinances and the High Courts
Conclusion
Bibliography
Table of Cases
Table of Statutes
Index