Islamic Judicial Review in Practice (3): Sharia and State Law

By Zubair Abbasi

The enthusiasm of the Shariat Benches to judicially Islamize laws is best reflected in the judgment of the Shariat Bench of the Peshawar High Court in Mst. Farishta v Federation of Pakistan.[1] In this judgment, the Shariat Bench reviewed the Muslim Family Laws Ordinance 1961 (MFLO). Pakistan’s first military ruler, Ayub Khan promulgated the MFLO to reform Islamic family law. The MFLO introduced several reforms to protect the rights of women and children by requiring registration of marriage and divorce, imposing restrictions on polygamy, and providing the right of inheritance to orphaned grandchildren in the estate of their grandfather. A majority of ʿulamāʾ opposed the MFLO for violating Islamic legal rules. So fierce was the opposition of ʿulamāʾ against the MFLO that Ayub Khan protected it against judicial review under the 1962 Constitution. This protection against judicial review for the MFLO was also included in the 1973 Constitution. After the military coup of Zia ul-Haq, ʿulamāʾ were optimistic that the MFLO would be repealed. To their dismay, however, not only did Zia ul-Haq’s regime fail to repeal the MFLO or any of its provisions, but Muslim personal law was also excluded from the jurisdiction of the Shariat Benches. This meant that the Shariat Benches would not be able to review the MFLO. Nevertheless the Shariat Benches reviewed the MFLO and declared some of its provisions as repugnant. The extension of the jurisdiction of the Shariat Benches over Muslim personal law is one of the remarkable features of Islamic judicial review because it shows the ability of the judges of the Shariat Benches to expand their authority over the areas of law that were specifically excluded from their jurisdiction under the Constitution.

In the Farishta case, the Shariat Bench had to cross the double barrier posed to its jurisdiction. First, Article 8(3)b of the Constitution excluded the MFLO from judicial review; and second, Article 203-B of the Constitution specified that Muslim personal law does not include in the definition of “law” that the Shariat Benches were authorized to review. The Bench crossed the first barrier by holding that the Shariat Benches were established through the insertion of Chapter 3-A into the Constitution through a supra-constitutional provision authorized under the Laws (Continuance in Force) Order 1977 and Article 203-A of this chapter gave it overriding effect over other articles by providing that “this Chapter shall have effect notwithstanding anything contained in the Constitution.”

Crossing the second barrier, however, required an ingenious approach. To examine the MFLO, Chief Justice Abdul Hakeem Khan differentiated two types of Muslim personal law: codified and uncodified. He regarded “Muslim Personal Law” as “Shariat” which is distinguishable from statutory law.[2] He based his argument on the usage of the term “Muslim Personal Law” along with the expression “Shariat” in parenthesis in the titles of several statutes such as the Muslim Personal Law (Shariat) Application Act 1937 and the West Pakistan Muslim Personal Law (Shariat) Application Act 1962. He acknowledged that these statutes made “an inroad” into the Muslim Personal Law, but rejected the view that “a legislation, though it might be affecting the Muslim Personal Law in its fundamental points, would become a part and parcel of Muslim Personal Law, that is to say, Shariat”.[3] Based on this analysis, Chief Justice Khan held:

If the Shariat Benches are to reopen established propositions of Shariat, then they will be opening the Pandora’s box. Instead of implementing the will of the law-giver that Shariat should be applied, they will be frustrating that intention and anxiety [sic]. We are of the considered view that all that the expression “Muslim Personal Law” does convey is that the said law as known to Shariat and not legislative enactments which overrule that law in so far as the subject to which that law was applicable. A thing not known to Shariat cannot be brought into the Shariat by legislation, even though it has got the force of law.[4]

In this case, the petitioner challenged section 4 of the MFLO which provided orphaned grandchildren the right of inheritance. This right is not provided under classical Islamic law of inheritance and seems unjust for depriving vulnerable orphaned grandchildren from the inheritance which might have come to them through their parents had the latter been alive. Chief Justice Khan raised the question that whether this section became part of sharī‘a by its enactment through the legislature. To elaborate this point, he reasoned that if this is the case, then if adoption of children (not recognized under sharī‘a) is validated through a statute, it will become impossible to question its validity with reference to the injunctions of Islam. He cautioned about the risks associated with accepting the proposition that a statute becomes part of Muslim Personal Law (Shariat) and is excluded from the jurisdiction of the Shariat Benches which are established to test existing laws on the benchmark of injunctions of Islam. In light of this discussion, Justice Khan concluded that a legal rule will not become part and parcel of Muslim Personal Law (Shariat) merely because “it has been added to it by legislation.”[5] Therefore, he reviewed the MFLO and declared its section 4 repugnant to the injunctions of Islam.

The judgment in the Farishta case is important for at least four reasons. First, it exhibits the enthusiasm of the judiciary to Islamize statutory laws by widely construing its jurisdiction. Second, it draws a clear distinction between divine law (sharī‘a) and state law (statutes). Justice Khan emphasized the divine nature of sharī‘a and distinguished it from the statutory law, which may claim to be inspired by sharī‘a but does not become part of sharī‘a merely because of its codification by the state. Third, the judgment declared uncodified divine sharī‘a as the standard to review the validity of statutory law. Finally, and most importantly, the judges of the Shariat Bench claimed this review authority for themselves despite the fact that they are not trained in religious sciences as are ʿulamāʾ.

In appeal, the SAB reversed the judgment of the Shariat Bench in the Farishta case despite partially agreeing with the reasoning in the judgment. Justice Karam Elahee Chauhan observed that the phrase “Muslim Personal Law” has two meanings depending on the context in which it is used: (i) religious or divine law of Muslims that governs matters of their religious faith; and (ii) special statutory laws which apply only to Muslims.[6] He explained that Islamic law is divine because it derives its authority from the Qur’ān and Sunnah, and in the process of Islamization of laws, this Divine Law or Muslim Personal Law is the touchstone against which other laws are to be tested. Therefore, the “touchstone” itself has been excluded from being reviewed. This is exactly what Chief Justice Khan of the Shariat Bench, had held in his judgment. Justice Chauhan, however, drew an opposite conclusion from this characterization of Muslim Personal Law. For him, it was logical to exclude from the jurisdiction of the FSC the “touchstone” because it was already evident that the divine law, for its being a touchstone was already not testable by the Shariat Benches/FSC. Therefore, the only conclusion that could be drawn from the language of Article 203-B of the Constitution is that it means Muslim Personal Law in the second sense, that is, “such codified and legislated law which is applied to Muslim residents of Pakistan as or with the denomination ‘Muslim’ which governs their person as such and as distinct from general law of the land which applies to everyone.”[7]

In 1994, however, the SAB added further nuance to the definition of “Muslim Personal Law” by holding that the MFLO does not fall within the definition of “Muslim Personal Law” because it applies to all Muslims irrespective of their sectarian affiliation, while the objective of Article 203-D of the Constitution is to exclude “Muslim Personal Law” from Islamic judicial review to avoid sectarian conflict.[8] After this judgment, the FSC reviewed the MFLO in 2000 and declared its two sections repugnant: (i) section 4 related to the inheritance right of orphaned grandchildren; and (ii) section 7(3)(5) which provided that a divorce will not become effective until the expiration of 90 days when the notice of divorce is delivered to the Chairman or the end of pregnancy.[9] This judgment has not become effective because an appeal against it has been pending before the SAB for the past two decades.

The expansion in the jurisdiction of the FSC and the SAB through innovative, though legally questionable means,[10] was in line with the general trend of an assertive judiciary that emerged during the demise of Zia ul-Haq’s regime. During the post Zia ul-Haq period, the FSC and SAB have tried to arrogate to themselves an authority that is more expansive than the one envisaged in the Constitution.[11]


[1] PLD 1980 Peshawar 47.

[2] Ibid, para 51.

[3] Ibid.

[4] Ibid, paras. 51­–52.

[5] Ibid.

[6] Federation of Pakistan v. Mst Farishta, PLD 1981 SC 120, 122.

[7] Ibid, para. 8.

[8] Dr. Mahmood-ur-Rehman Faisal v. Government of Pakistan, PLD 1994 SC 607. The SAB justified this change based on the Explanation added to article 227(1) of the Constitution, which provides: “In the application of this clause to the personal law of any Muslim sect, the expression ‘Qur’an and Sunnah’ shall mean the Qur’an and Sunnah as interpreted by that sect.”

[9] Allah Rakha v. Federation of Pakistan, PLD 2000 FSC 1.

[10] Justice Siddiqui referred to Article 227 of the Constitution which is included in Part IX of the Constitution. This part relates to the Council of Islamic Ideology, which is an advisory body. Therefore, the reliance on this article for the interpretation of the definition of MPL included in Part VII of the Constitution, which deals with the judicature, is problematic from the perspective of the general rules of interpretation of statutes.

[11] In Muhammad Saeedullah Khan v. Secretary, Govt of NWFP Excise and Taxation Department, PLD 2009 FSC 33, the FSC held that it is not bound by the “Injunctions of Islam” as expounded by the Council of Islamic Ideology. In Mian Abdur Razzaq Aamir v. Federal Government of Islamic Republic of Pakistan, PLD 2011 FSC 1, while examining the Protection of Women Act 2006, the FSC claimed an expansive jurisdiction over a number of offences that were not initially included in its appellate jurisdiction.

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