Despite assigning a significant role to Islam, the Pakistani constitutional model does not propose a theocratic order. Rather, the theocratic tendencies resulting from the substantial role of Islam in the legal system are checked by a curious synthesis of Islamic constitutionalism and liberal constitutionalism. Instead of assigning the interpretative authority of Islamic legal texts to a particular state institution, as is the case in the Islamic Republic of Iran and the Kingdom of Saudi Arabia, the Pakistani Constitution distributes this authority amongst the legislature as the representative of the people, the judges of the Federal Shariat Court (FSC) and the Shariat Appellate Bench of the Supreme Court (SAB) as impartial arbiters, and the Council of Islamic Ideology, representing ‘ulamā’ belonging to various sects, as an advisory body. This distribution forecloses the possibility of the monopoly of one institution on the interpretation of Islam, and functions as a system of checks and balances to safeguard the constitutional model, without compromising its Islamic identity.
This unique constitutional model of Pakistan took its roots from the first Constitution adopted in 1956 that declared Pakistan as an “Islamic Republic” in which the sovereignty belonging to Allāh was to be exercised by the people through their elected representatives. The 1956 Constitution vested the parliament with the authority to test laws against Islamic injunctions with the assistance of an advisory council of ‘ulamā’. The framers of the constitution rejected the proposal to vest the authority to exercise “Islamic judicial review” with the Supreme Court. This model also continued under the 1962 constitution. Even the current Constitution, adopted in 1973, originally instituted the Council of Islamic Ideology only as an advisory body comprised of ‘ulamā’ to ensure the conformity of laws to the injunctions of Islam.
Until 1979, the Islamic repugnancy clause had remained non-justiciable and the Council of Islamic Ideology could only advise the parliament on the conformity of state laws with Islam. However, the dictatorial regime of General Zia ul-Haq established the Shariat Benches at the four provincial high courts to Islamize laws in 1979. A year later, the FSC replaced the Shariat Benches to centralize the process of Islamization of laws. Despite relying upon Islamization of laws for legitimacy, the Zia ul-Haq regime carefully crafted the jurisdiction of the FSC to exclude the review of constitutional provisions for their conformity with the injunctions of Islam (aḥkām e Islām) as laid down in the Qur’ān and Sunnah.[1] Judges of the superior courts of Pakistan rationalized this limitation on FSC’s jurisdiction on the basis that since the FSC was created by the Constitution, it cannot declare the Constitution invalid.[2] Relying upon this argument, the judges refused to assign themselves a supra-constitutional role, as exercised by the Iranian Guardian Council. It is true that the Council of Islamic Ideology, comprising of ‘ulamā’, has the authority to review the provisions of the Constitution for their conformity with Islamic injunctions, but the recommendations of the Council are non-binding upon the legislature, unlike the judgments of the FSC.
Pakistan’s experience of incorporating Islam in its constitutional set up illustrates the flexibility of Islamic constitutionalism.[3] Islam neither prescribes nor proscribes a particular constitutional model for the political organization of the Muslim community. Islamic constitutionalism is based on the concepts of consultation (shūrā), consent (bayʿa), and public interest (maṣlaḥa), which are fluid enough to accommodate a wide variety of governmental models. Therefore, it is unsurprising to find Islamic justifications for such diverse constitutional models as the theo-monarchy in Saudi Arabia based on the doctrine of siyāsa sharʿīa (Islamic governance) and the theo-democracy in Iran supported by the theory of wilāyat e faqīh (mandate of the jurist). Similarly, other Muslim countries have accommodated various governmental models including constitutional monarchies (Jordan), military dictatorships (Egypt), consociational democracies (Lebanon), authoritarian presidential systems (Central Asia), as well as parliamentary (Malaysia) and presidential democracies (Indonesia, Nigeria).[4]
What distinguishes Pakistan’s legal system from other Muslim-majority countries is the existence of a separate court, the FSC, to exercise Islamic judicial review. Since 1980, the FSC has examined hundreds of state laws, many of them promulgated during the British colonial period. In doing so, the FSC declared a number of state laws repugnant to the injunctions of Islam. In the next post, I evaluate the impact of Islamic judicial review on the legal system of Pakistan.
Notes:
[1] The FSC is vested with original jurisdiction to review any law, with certain exceptions, to assess its conformity with the injunctions of Islam as laid down in the Qur’ān and Sunnah, appellate jurisdiction over criminal appeals arising from the Hudood Ordinances 1979, and review jurisdiction over its own decisions. The FSC was precluded from reviewing the Constitution, Muslim Personal Law, and any law relating to the procedure of any court. The FSC could not review any fiscal law or any law relating to the levy of taxes, fees, banking, or insurance practice and procedures for ten years starting from 1980, as per the Constitution (Amendment) Order of 1980.
[2] BZ Kaikaus v. President of Pakistan, PLD 1980 SC 160.
[3] Jeffrey A. Redding, “Constitutionalizing Islam: Theory and Pakistan,” Virginia Journal of International Law 44 (2003–2004): 759; Matthew J. Nelson, “Islamic Law in an Islamic State: What Role for Parliament?,” in Constitution Writing, Religion, and Democracy, eds. Asli Ü. Bâli and Hanna Lerner (Cambridge: Cambridge University Press, 2017), 235–64.
[4] Rainer Grote and Tilmann Röder, eds., Constitutionalism in Islamic Countries: Between Upheaval and Continuity (Oxford: Oxford University Press, 2012), 15–16.