In the “Islamization of Prison Laws” judgment[1] of 2009, the Federal Shariat Court of Pakistan[2] (FSC) expands its original jurisdiction by broadly construing the term “injunctions of Islam.”[3] It construes the term to both include general Islamic principles and “the letter and the spirit” of said principles. This latter construction also gives the FSC wide interpretive discretion.
In this judgment, the FSC was required to determine whether certain aspects of the Prison Rules of 1978[4], The Prisons Act of 1894[5], and the Code of Procedure of 1898[6] were “repugnant to the injunctions of Islam” and in violation of the Pakistani Constitution.[7] The petitions were filed by individuals complaining about, among other things: the unequal treatment of prisoners based on social class, the placement of women in the custody of male wardens, and various inequities in criminal procedure of hearing.[8]
The FSC is jurisdictionally limited to reviewing only laws that are potentially repugnant to Islam, that is, on constitutional grounds. Before it can proceed to the merits of the case, it engages in a three-part repugnancy test to determine whether the challenged laws fit within its jurisdiction:[9]
- Step 1: Determine whether the stated injunction of Islam covers the impugned provision of law or both are related.[10]
- Step 2: Determine whether the provision of law being challenged and the injunction of Islam can be harmonized.
- Step 3: Determine whether the impugned provision of law can be given effect without violating “the letter or spirit” of the injunction of Islam.
This three-step test is similar to the one employed by the Supreme Constitutional Court in Egypt and suggests an interesting cross-pollination of judicial review mechanisms guiding Article II repugnancy clause interpretation in Muslim majority countries.[11] In Pakistan, however, there is a presumption of validity and a preference for harmonization over nullification[12]. Furthermore, the FSC emphasizes that there can be no repeal of the laws by implication.[13] Rather, it interprets Article 203D(2) of the Constitution to clearly state the reasons for holding a law repugnant to the injunctions of Islam and the extent to which the law is so repugnant.[14] That being the case, if a law provision blatantly violates a clear injunction of Islam, the FSC has held that it must be struck down.
Because the FSC’s jurisdiction hinges on whether the laws in question are “repugnant” to the injunctions of Islam, the Court dedicated a considerable portion of the jurisdiction analysis is dedicated to defining the term “repugnancy” first.[15] This narrow focus on the exact language of the jurisdictional mandate granted by the Constitution is analogous to the court’s approach in the “Judgment on the Women’s Protection Act of 2006,”[16] in which the scope of the court’s appellate jurisdiction depended upon how it defined the term(s) “hadd/hudud.”
In that process, the FSC conducts a survey of the plain meaning of “repugnancy,” drawing upon several English and Urdu dictionaries, an Indian court case, and an American court case.[17] The Court states that “[t]he word repugnancy according to law Dictionary English Urdu published recently by National Language Authority Pakistan (based upon the famous Black’s Law Dictionary) means: Tanaqaz, Zid, Adum Mutabqat”—all Urdu words for “extremely unpleasant or offensive.”[18]
The court then abruptly concludes that the fact that an “impugned provision of law would be repugnant to the [i]njunction of Islam only if both of them relate to the same subject matter is not very relevant to Article 203D….”[19] The Court reasons that Islamic injunctions predate man-made laws and are subject to multiple interpretations. Therefore, man-made laws must be brought into conformity with the Islamic injunctions and not vice versa.
The Court named this scheme a “Theory of Conformity.”[20] That theory presupposes “that the impugned law and the [i]njunction of Islam [need] not necessarily relate to the same subject”[21].
If the Court’s logic seems strained, it is. However, I argue that this reasoning is calculated to serve a specific purpose: expansion of the court’s own jurisdiction. In order to accomplish that end, the court had to broaden the meaning of “injunction” to include broad principles of Islam. It constructed the Theory of Conformity, which requires all laws to be harmonized with the injunctions of Islam,[22] as a vehicle to expand the meaning of “injunction.”[23]
In practical terms, the injunctions of Islam must be interpreted quite broadly if the goal of conformity is to be reached. Thus, the court grants itself free reign to apply general Islamic principles to very specific provisions of the law in order to bring the latter in conformity with the former. For example, in addressing a petition alleging that the classification of prisoners into categories based on social class is repugnant, the court deploys numerous Qurʾānic āyāt and ḥadīth extolling the general principle of equality between the sexes, races, and ethnicities.[24] However, it ultimately dismisses the petition on the grounds that while “Islam negates discrimination, [it upholds] reasonable classification.”[25] It doesn’t explain why the prison classification system constitutes a reasonable classification and never parses the difference between the reasonable classification and discrimination.
Another way in which the court expands its jurisdiction is by contending that both the letter and the spirit of the Islamic injunction need to be considered in the repugnancy analysis. The Court purposefully leaves the meaning of “letter and spirit” vague. This move has the same practical effect as expanding the meaning of “injunctions of Islam” because it allows the court to construe the Islamic injunction in question more broadly.
In addition to expanding its jurisdiction, the emphasis on interpreting the spirit of the injunction also widens the FSC’s discretion. Instead of limiting itself to a textualist reading of the “letter” of the Qurʾān and ḥadīth, the Court granted itself discretion to determine the “spirit”[26] of these texts and to undertake a more purposivist reading as well.
In my view, the jurisdictional language in the constitution is vague enough so as to not make the court’s new approach unconstitutional,[27] but the potential for abuse of discretion is nonetheless great. Even though FSC decisions can be appealed to the Shariat bench of the Supreme Court, it is unclear the extent to which that bench gives deference to the FSC’s interpretation of an Islamic injunction.
The focus on interpreting the spirit of the injunction also permits the court to overcome a technical difficulty in this case. Several of the consolidated petitions brought to the court fail to mention verses of the Qurʾān or ḥadīth that are supposedly violated.[28] A strict adherence to Step 1 of the repugnancy test would require the FSC to dismiss those petitions that do not clearly state the law and Islamic injunction at odds. However, rather than lose jurisdiction, the FSC substitutes its own reading of the spirit of an Islamic injunction that may have been violated by the prison laws in question and proceeds to entertain the petitions.
In this case, we see the FSC expanding its jurisdiction by broadening the definition of “injunctions of Islam.” By broadly construing this term, the Court gives itself review power over cases that would traditionally fall within the jurisdiction of the High Courts.[29] This expansion of jurisdiction is analogous to the move it makes in the 2010 Protection of Women Act judgment and suggests a pattern of broad interpretation of its constitutional mandate.
[1] Dir. Muhammad Aslam Khaki vs. Federation of Pakistan through Ministry of Justice and Parliamentary Affairs, Islamabad, PLD 2010 FSC 191, 191. Available at: http://www.federalshariatcourt.gov.pk/Leading Judgements/S.P.No.61-I-92.pdf.
[2] The FSC has original jurisdiction to hear cases in which it is claimed that a “law or provision of law is repugnant to the injunctions of Islam,” Article 203D(1), and it has appellate jurisdiction over “any case decided by any criminal court under any law relating to the enforcement of Hudood, Article 203DD(1). Its decisions are binding on the provincial High Courts and all lower courts, but may be reviewed by the Shariat bench of the Supreme Court. The jurisdiction-granting Article 203D defines “Injunctions of Islam” as those conveyed in the “Quran and Sunnah,” but in this judgment the Court construes “Quran and Sunnah” in the broadest way possible to include both specific injunctions and general principles.
[3] This is the jurisdiction-granting term contained in Article 203D(1) of the Pakistani Constitution, which reads: The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH), hereinafter referred to as the Injunctions of Islam. Pak. Const. art. 203-D(1), sec. VII.
[4] Prison Rules [Pakistan], 1978.
[5] The Prisons Act [Pakistan], Punjab Act No. III, 1900.
[6] Code of Criminal Procedure [Pakistan], Act No. V, 1 July 1898.
[7] Constitution of the Islamic Republic of Pakistan, Article 203D.
[8] Khaki vs. Federation of Pakistan, PLD 2010 FSC at 7-16.
[9] Id. at 23-24
[10] Although the court does not explicitly say so, the burden seems to be on the petitioner to state both the injunction of Islam that is being violated and the repugnant law itself. This allocation of the burden can be inferred from the fact that the FSC dismisses several petitions because the petitioners do not state the particular injunction of Islam violated, see, e.g., Id. at 34, 124, 136, 137.
[11] See also Intisar A. Rabb, “The Least Religious Branch? The New Islamic Constitutionalism after the Arab Spring” UCLA J. of Int’l L. & Foreign Aff. 17 (2013): 75-132; Clark B. Lombardi and Nathan J. Brown, Islam in Egypt’s New Constitution, Foreign Policy (Dec. 13, 2012).
[12] This preference for harmonization can be compared to the canon of constitutional avoidance in American constitutional law, which dictates that a court should refuse to rule on a constitutional issue if the case can be resolved on a non-constitutional basis. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). See also Andrew Nolan, The Doctrine of Constitutional Avoidance: A Legal Overview, Congressional Research Service (Sept. 2, 2014).
[13] This construction is analogous to the clear statement rule in American law, whereby courts are instructed to not interpret a statute in a way that will bring a result that was not intended by the statute. The rule insists that a particular result can be achieved only if the text says so in certain terms.
[14] Khaki vs. Federation of Pakistan, PLD 2010 FSC at 28. See also Constitution of the Islamic Republic of Pakistan, Article 203D(2)(a) and (b).
[15] The Constitution defines “injunctions of Islam” as encompassing the dictates “laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH),” Article 203D, and the FSC does not provide an analysis of the term. However, the FSC does implicitly broaden the scope of “injunctions of Islam” later in its analysis, when it concludes that these injunctions must be construed broadly and encompass both the letter and the spirit of the law. Pak. Const. art. 203-D(1), sec. VII.
[16] Mian Abdur Razzaq Aamir vs. Federal Government of Islamic Republic of Pakistan, PLD 2011 FSC 1,1. See also Commentary 1, “Pakistan’s Federal Shariat Court and the Protection of Women Act 2006: Expansion of Jurisdiction, Expansion of Hudud.”
[17] Khaki vs. Federation of Pakistan, PLD 2010 FSC at 26.
[18] Id. at 25. The English definition is derived from the MacMillan English Dictionary.
[19] Id. at 27.
[20] Constitution of the Islamic Republic of Pakistan, Article 227.
[21] Khaki vs. Federation of Pakistan, PLD 2010 FSC at 27.
[22] Constitution of the Islamic Republic of Pakistan, Article 227.
[23] Khaki vs. Federation of Pakistan, PLD 2010 FSC at 26-8.
[24] Id. at 60-116.
[25] Id. at 64.
[26] Generally, court’s reasoning and analysis is very sparse. It does not define what the “spirit” of the “Quran and Sunnah” entails, which leads one to speculate if it purposefully did so in order to grant itself the widest degree of latitude in interpretation.
[27] Article 227: […] All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions (emphasis added). Article 203D: […] The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH), hereinafter referred to as the Injunctions of Islam (emphasis added). Pak. Const. art. 227, sec. VII.
[28] Khaki vs. Federation of Pakistan, PLD 2010 FSC at 7-8, 23.
[29] Mian Abdur Razzaq Aamir vs. Federal Government of Islamic Republic of Pakistan, PLD 2011 FSC 1,1. See also Commentary 1, “Pakistan’s Federal Shariat Court and the Protection of Women Act 2006: Expansion of Jurisdiction, Expansion of Hudud.”