Commentary: The Principle of Harmonious Interpretation and the Expansion of Federal Shariat Court Jurisdiction in Pakistan

By Noor Zafar

This commentary explores the Pakistani Supreme Court’s use of the principle of “harmonious interpretation” in order to expand the Federal Shariat Court’s jurisdiction.


In this post, I will examine a landmark case, Abdul Waheed v. Asma Jehangir, that was brought before the Pakistani Supreme Court and decided in 2004. The Court was asked to decide the substantive issue of whether a Muslim girl who has reached the age of puberty needs the consent of a male guardian (walī) in order to legally marry. The Court, affirming that the consent of a walī is not required, renders judgment on jurisdictional grounds and holds that precedent from the FSC is binding upon the High Courts. In so holding, the Supreme Court further expands the FSC’s jurisdiction in order to uphold the principle of “harmonious interpretation.”

The case comes on appeal to the Supreme Court as consolidating petitions filed by the walīs of two women who had each eloped without consent.[1] In the first case, the Lahore High Court (LHC) ruled the marriage invalid, while in the second case it ruled the marriage valid.[2] The essence of the dispute boils down to a jurisdictional issue of whether judgments by the Federal Shariat Court are binding on the LHC. A long line of FSC precedents indicate that it has consistently held that a sui juris[3] Muslim woman can contract marriage of her own accord.[4] Petitioners argue that, while this may be true, the LHC is competent to make such a determination itself and is not bound by the rulings of the FSC.[5]

In order to support their position, petitioners presented three arguments based on the text of Article 203GG[6] of the Constitution. First, they contend that in the precedents cited, the FSC was exercising appellate jurisdiction conferred by section 20(1) of the Hudood Ordinance and not Chapter 3-A of the Constitution[7]. Therefore, the language of Article 203GG does not apply and the decisions are not binding upon the LHC.

The Supreme Court rejected this argument by pointing out that all statutory jurisdiction granted to the FSC ultimately stems from Chapter 3-A of the Constitution. Therefore, it concludes, Article 203GG’s provisos apply.[8]

The Court then articulated the principle of “harmonious interpretation” which seems to be the focal point of its decision. This principle states that the Court “will lean in favor of harmonious interpretation of the statutes/various provisions and [will] certainly avoid an interpretation which has the potential of [producing] conflicting judgments or pitching one Constitutional Court against another Constitutional Court.”[9] Harmonious interpretation favors assigning the FSC jurisdiction over the High Courts. This arrangement would create a clear hierarchy of binding precedent relating to certain matters of Islamic law and would mitigate the potential for conflicting judgments and overlapping jurisdiction.

Petitioners next argued that the precedential judgments rendered by the FSC were not “decisions” within the meaning of Article 203GG.[10] The Supreme Court rejected this argument. It acknowledged that the terms “judgment,” “decision,” “order,” and “sentence” have not been defined in the Constitution, but insisted that their plain meaning, as provided in Black’s Law Dictionary, renders them synonymous.[11]

Finally, petitioners argued what seems to be their strongest argument against FSC appellate jurisdiction. They stated that the previous judgments are not binding because they decided issues of Muslim Personal Law, which is explicitly excluded in Article 203B(c).[12] That section defines “law” for the purposes of FSC jurisdiction.[13] The Supreme Court, however, relies upon the principle of finality to dispose of the petitioner’s argument. The precedential FSC cases cited, all of which were decided between 1981-1985, could have been appealed to the Shariat Appellate Bench of the Supreme Court. According to the Court, the fact that they were never appealed indicates that they have attained finality and are now binding precedent that cannot be disturbed.[14]

The Supreme Court nonetheless proceeded to settle the question of what constitutes “Muslim Personal Law” (MPL). It relies upon a 1981 case,[15] Federation of Pakistan v. Mst. Farishta, in which the Shariat Appellate Bench ruled that, in order to qualify as MPL under Article 203B(c), a law must be both (i) the statutory law of Muslims and (ii) the personal law of a particular sect.[16] If a personal status law fails to meet these two criteria, the FSC has “exclusive power and jurisdiction” to examine it.[17] In the case before it, the Court rules that the two criteria for MPL are not met, and therefore FSC precedent is binding.

The Supreme Court’s interpretation of “Muslim Personal Law” is yet another instance of jurisdictional expansion for the FSC. However, this time the expansion is sanctioned by the Supreme Court and not undertaken by the FSC itself. The two broad sources of exclusive constitutional jurisdiction for the FSC are (i) original jurisdiction to examine laws contended to be repugnant to the Injunctions of Islam[18] (see my second commentary), and (ii) revisional/appellate jurisdiction to examine criminal appeals implicating Hudood laws[19] (see my first commentary).

Muslim Personal Law is explicitly excluded from FSC jurisdiction,[20] but the Supreme Court both narrows and obfuscates the definition of MPL to the point that almost nothing would qualify. First, MPL must be found in a statute. The relevant statute in this case is the Muslim Family Laws Ordinance[21] of 1961, and it makes no mention of the requirements for a walī. Second, MPL must be the law of a “particular sect,” but nowhere in the judgment is “sect” ever defined. This absence of a definition creates confusion as to whether “sect” refers to legal (i.e., madhab) or theological (i.e., Shī’ī, Sunnī, etc) lines. Furthermore, there is no indication as to why the Court defines MPL as statutory law specific to a certain sect.

Ultimately, it seems like the Supreme Court’s expansion of FSC jurisdiction derives from its strong desire (oft-repeated in the judgment) to maintain “harmonious interpretation” so as to not disrupt the delicate jurisdictional balance between the various courts operating in the Pakistani judicial system.[22] Indeed, the Court uses strong language to this effect. It states that “[t]he Federal Shariat Court is a Constitutional Court and it is at least undesirable and inappropriate, if not illegal, that another Constitutional Court (like High Court) should hold the judgments as without jurisdiction.”[23] In other words, the Supreme Court announces that it wishes to avoid conflicting judgments emanating from the FSC and five High Courts. The interests of uniformity and notice dictate that the FSC be granted the authority to bind lower courts on certain issues implicating Islamic law, even if this authority transcends constitutional bounds.

 

[1] Abdul Waheed v. Asma Jenhangir, PLD 2004 SC 219, 226-27. The first petition charged a violation of the Hudood Ordinance of 1979 by the male. It is unclear on what basis the second petition was adjudicated in the lower courts.

[2] Id. Although not entirely clear in the case, it seems like this discrepancy stems from the fact that different judges presided over each case.

[3] The Court uses this term of art frequently throughout its opinion in reference to a woman who has the capacity to manage her own affairs.

[4] PLD 2004 SC 219 at 228. The Court’s opinion does not state whether the cited FSC precedents were explicitly drawing from Ḥanafī jurisprudence, which uniquely allows a woman to marry without a walī and is the most widely-practiced Sunnī school of law in Pakistan.

[5] Id.

[6] 203GG. Subject to Articles 203D and 203F, any decision of the Court in the exercise of its jurisdiction under this Chapter [Chapter 3-A, which establishes the FSC] shall be binding on a High Court and on all Courts subordinate to a High Court.

[7] PLD 2004 SC 219 at 228 at 230-31.

[8] Id. at 231.

[9] Id. Both the FSC and the High Courts (of which there are five—one in each Province) are considered “Constitutional Courts.”

[10] Id. at 231-32.

[11] Id. at 232.

[12] 203B. (c) “law” includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any Court or tribunal or, until the expiration of ten years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure.

[13] PLD 2004 SC 219 at 228 at 233.

[14] Id. at 233.

[15] Federation of Pakistan v. Mst. Farishta, PLD 1981 SC 120.

[16] PLD 2004 SC 219 at 228 at 234.

[17] Id.

[18] Constitution of Pakistan, 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.

[19] Constitution of Pakistan, Article 203DD. The Court may call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

[20] Article 203B supra note 12.

[21] Muslim Family Law Ordinance, 1961.

[22] The principle of “harmonious interpretation” seems to be a hybrid of the “whole act rule” and the canon of “constitutional avoidance” found in U.S. constitutional law. The whole act rule states that each term or provision in a statute should be read as a consistent and integrated whole. Anthony Vitarelli, Constitutional Avoidance Step Zero, 119 Yale L.J. 837, 837 (2010). The canon of constitutional avoidance instructs that, when construing ambiguous statutes, judges should favor interpretations that do not require the court to address a constitutional question. 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). By applying the principle of harmonious interpretation, the Pakistani Supreme Court interprets the constitutional language of Article 203B (c) to exclude MPL. This move expands the FSC’s jurisdiction but also brings it in harmony with that of the High Courts because it permanently removes MPL cases from the High Courts’ review. At the same time, such a narrow reading of Article 203B (c) allows the Court to avoid addressing the much tougher question of what to do in the case of a jurisdictional overlap.

[23] PLD 2004 SC 219 at 228 at 233.