Ever since Pakistan’s creation as an independent state in 1947, Islam has continued to permeate its constitutional and legal system. From the confines of the personal law of Muslims at the time of independence, Islam has become the grundnorm of Pakistan’s constitutional system.[1] Curiously, the gradual elevation of Islam in the formal legal system of Pakistan has coincided with the rise of human rights in constitutional texts and judicial precedents. The joint progression of Islam and human rights in the legal system of Pakistan may surprise a number of authors who associate human rights with secularism and are suspicious about the coexistence of Islam and human rights in the legal systems of contemporary Muslim states.[2]
Indeed, the rise of “Islamic human rights jurisprudence” in the judgments of the Shariat Courts of Pakistan in 1980s and 1990s “surprised” legal commentators.[3] These courts articulated the principles of natural justice such as due process and human liberties in the language of Islamic legal principles such as ʿadl (justice), qisṭ (fairness), and iḥsān (equity). My research on the constitutional and legal role of Islam in Pakistan suggests that the correlation between Islam and human rights dates back to the time when Pakistan was established as an independent state in 1947 and has persisted ever since.
At the time of independence, Pakistan adopted the Government of India Act 1935 as an interim Constitution. Since the British Parliament had passed the Act, it was unlikely to assign a constitutional role to Islam in the political order in which Muslims were a minority. But more surprisingly, the Act did not contain any fundamental rights of citizens either. Therefore, Pakistan’s first Constitution promulgated in 1956 adopted a variety of fundamental rights. The Constitution made these rights justiciable and declared that the laws, existing or future, which contradict fundamental rights were void. The Constitution also declared that the laws repugnant to Islamic injunctions would be void but this provision was not justiciable; rather, an advisory Commission was established to make “recommendations” for taking measures to bring “existing laws into conformity with the Injunctions of Islam.”[4] This Constitution firmly established fundamental rights and granted Islam a symbolic role in the political system. The Constitution, however, did not last long. In October 1958, the army commander, Ayub Khan, abrogated the Constitution and imposed martial law.
Pakistan’s second Constitution adopted in 1962 illustrates that Islam and fundamental rights are closely connected. This Constitution did not assign a symbolic role to Islam in the legal system unlike the 1956 Constitution. The 1962 Constitution renamed the country as the “Republic of Pakistan” instead of the “Islamic Republic of Pakistan” and tuned down the “Islamic repugnancy clause” by replacing the specific expression “injunctions of Islam” with a more broad and ambiguous expression “teachings and requirements of Islam.”[5] This marginalization of the role of Islam in the 1962 Constitution coincided with a weaker position of fundamental rights. The Constitution enshrined fundamental rights but did not make them justiciable. Fundamental rights were made justiciable when the Constitution was amended to give symbolic value to Islam, by renaming the country as the “Islamic Republic of Pakistan.”[6]
A similar relationship between human rights and Islam is evident in Pakistan’s third Constitution adopted in 1973 and in its subsequent amendments.[7] The 1973 Constitution restored certain provisions of the 1956 Constitution that related to fundamental rights. It declared the laws inconsistent with fundamental rights to be void and made such rights enforceable through courts. At the same time, the Constitution also declared Islam as the “state religion” and provided that “all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah… and no law shall be enacted which is repugnant to such Injunctions.”[8] This provision is not justiciable and the Council of Islamic Ideology is established to “advise” the legislature on “any question referred to the Council as to whether a proposed law is or is not repugnant to the Injunctions of Islam.”[9]
During the martial law rule of Zia ul-Haq, the 1973 Constitution was suspended along with the fundamental rights enshrined in it. The Zia ul-Haq regime justified the suppression of fundamental rights by enhancing the legal role of Islam through Islamic judicial review. To his dismay, however, the judges of the Shariat Courts exercised the powers of Islamic judicial review to endorse fundamental rights and basic freedoms of citizens by supplanting these rights and freedoms with Islamic legal principles derived from the Qur’ān and Sunnah. Through the endorsement of fundamental rights with reference to Islamic legal principles, the judges of the Shariat Courts realized the potential of Islamic constitutionalism to constrain the executive authority. It is this potential of Islamic legal principles that inspired the judges of the Shariat Courts to enthusiastically embrace Islamic judicial review even when the military regime of Zia ul-Haq actually intended to maintain the status quo through judicial Islamization of laws.
The correlation between Islam and human rights and their mutually reinforcing role in the legal system of Pakistan may confound a number of readers for whom Islamization of laws is closely associated with the Hudood Ordinances and blasphemy laws which adversely affect women, children, and minorities. An evaluation of the judgments of the Shariat Court shows that the judges softened the rigors of “Islamized” state-enforced laws. In doing so, they frequently relied upon Islamic legal principles.[10] In this way, rather than pitting Islam against secularist Western human rights, the judges of the Shariat Courts mitigated political manipulation of Islam with humanitarian and liberal principles of Islam.[11]
The confluence of human rights and Islam in Pakistan’s legal system is a result of its unique colonial and post-colonial contexts. In the historical context of South Asia, human rights and Islam reinforced each other in their mutual stance against colonial rule which denied fundamental rights and freedoms to indigenous people. The British drafters of the Government of India Act 1935, which served as a model for the interim Constitution, had refused to include a Bill of Rights as is included in the American Constitution, which had inspired the nationalist leaders during the independence movement to demand fundamental rights.[12] After independence, while the majority population of Muslims expected a constitutional role for Islam, a significant minority, especially in East Pakistan, demanded constitutional guarantees for their rights. In fact, the Hindu members of the legislature had asked to include a reference to the United Nations Declaration of Human Rights in the Objectives Resolution of the Constitution.[13] The 1956 Constitution adopted both Islam and fundamental rights to reflect the expectations of the Muslim majority and the demands of the Hindu minority.
Once established under the 1956 Constitution and made justiciable through courts, the effectiveness of fundamental rights as a check on executive authority and as a means to protect the rights of citizens became evident. The marginalization of human rights under the 1962 Constitution led to the formation of an unlikely alliance between Islamists and secularists who forced the military dictator, Ayub Khan, to amend the Constitution to restore the status of fundamental rights as well as Islam. When the Constitution was eventually amended, both Islam and human rights found their place in the constitutional text. The 1973 Constitution was adopted in the aftermath of the secession of East Pakistan which became Bangladesh. This Constitution was inspired by the political ideology of Islamic Socialism of the ruling Pakistan People’s Party. This Constitution promised to eliminate all forms of exploitation and prohibited slavery, forced labor, and child labor while assigning a prominent role to Islam as the state religion.
The above historical snapshot shows that the fate of human rights and Islam has been intertwined in the constitutional history of Pakistan and it continues to be so. By harmoniously construing the various provisions of the Constitution,[14] the judges of superior courts have relied upon Islam and human rights to promote public interest litigation,[15] ensure the independence of the judiciary,[16] restrain executive authority to prosecute alleged offenders of terrorism through speedy trials,[17] protect rape victims from character assassination,[18] promote the rights of disable persons,[19] and save the environment by protecting endangered migratory birds.[20]
Notes:
[1] The constitutional and legal role of Islam has been articulated through the preamble of the Constitution, the Objectives Resolution passed in 1949. It became an operative part of the Constitution through the 8th Constitutional Amendment in 1985.
[2] For details see A.E. Mayer, Islam and Human Rights: Tradition and Politics (Routledge 2018); M.A. Baderin, International Human Rights and Islamic Law (Oxford: Oxford University Press, 2003) and N.A. Shah, Women, the Koran and International Human Rights Law: The Experience of Pakistan (Leiden: Martinus Nijhoff Publishers, 2006).
[3] I use the expression “Shariat Courts” for the Shariat Benches, the Federal Shariat Court and the Shariat Appellate Bench, Supreme Court. Martin Lau, The Role of Islam In the Legal System of Pakistan (Leiden: Martinus Nijhoff 2006), 210.
[4] The Constitution of Islamic Republic of Pakistan 1956, article 198(3).
[5] The Constitution of Republic of Pakistan 1962, articles 6 and 204.
[6] Constitution (First Amendment) Act 1963. The Supreme Court did not wait long to enforce fundamental rights. In 1964, the Court declared the law that banned the activities of Jamaat-e-Islami as unconstitutional on the basis of a violation of the fundamental right to “freedom of association.” Abul Ala Maudoodi v. Government of West Pakistan, PLD 1964 SC 673.
[7] Pakistan also had an interim Constitution that was adopted in April 1972. It was primarily based on the previous two constitutions of 1956 and 1962.
[8] The Constitution of the Islamic Republic of Pakistan 1973, art. 227.
[9] Ibid, art. 230.
[10] In 1981, the FSC declared the punishment of stoning (rajm) for adultery (zinā) as un-Islamic. Hazoor Bakhsh v. Federation of Pakistan, PLD 1981 FSC 145. The Zia regime reconstituted the bench of the FSC to reverse this judgment. Federation of Pakistan v. Hazoor Bakhsh, PLD 1983 FSC 255. The FSC clarified that blasphemy is not a wrong of strict liability, in which neither wrongful intent (mens rea) nor culpable negligence is required for liability even when it proposed that death sentence is the only punishment for blasphemy and the alternative punishment of life imprisonment is un-Islamic. Muhammad Ismail Qureshi v. Pakistan, PLD 1991 FSC 10. The Shariat Courts established the principles that a woman can never be guilty of consensual sex (zinā) if she complains of rape at any stage, no matter how belatedly; and that mere pregnancy is not sufficient to convict a woman for consensual sex, especially if she claims that the pregnancy was a result of rape. Moeen H. Cheema, “Cases and Controversies: Pregnancy as Proof of Guilt under Pakistan’s Hudood Laws,” Brooklyn Journal of International Law 32, no. 1 (2006): 121. The FSC held that pregnancy alone is not sufficient proof of rape or consensual sex. Juma Gul v. The State 1997 PCrLJ 1291; Mst. Zafran Bibi v. The State, PLD 2002 FSC 1; Noor Zaman v. The State 1998 PCrLJ 476; Mst. Sakina v. The State, PLD 1981 FSC 320; Iqbal Hussain v. The State, PLD 1981 FSC 329.
[11] An evaluation of case law shows that in most cases judges have invoked Islamic legal principles either to reinforce fundamental rights or to expand them. In very few cases, judges referred to Islam to limit fundamental rights. One such case relates to the disqualification of the ousted prime minister Nawaz Sharif to head his political party. Zulfiqar Ahmed Bhutta v. Federation of Pakistan, PLD 2018 SC 370.
[12] Hamid Khan, Constitutional and Political History of Pakistan (3rd edn, Oxford: Oxford University Press, 2017), 97–98.
[13] Ibid, 59.
[14] In Hakim Khan v. Government of Pakistan, PLD 1992 SC 595) the Supreme Court ruled that Islamic provisions of the Constitution do not supersede other constitutional provisions. In Zaheeruddin v. State 1993 SCMR 1718, the Court held that the Injunctions of Islam may supersede fundamental rights. In a subsequent judgment in Qazi Hussain Ahmed v. General Pervez Musharraf, PLD 2002 SC 853, the Court held that all constitutional provisions “should be read together and harmonious construction should be placed on such provisions so that no provision is rendered nugatory.”
[15] Darshan Masih v. The State, PLD 1990 SC 513 (The Supreme Court enforced the rights of laborers by outlawing bonded labor.)
[16] Govt of Sindh v. Sharaf Faridi, PLD 1994 SC 105 (The Supreme Court ordered the government to separate the judiciary from the executive based on Article 2A of the Constitution, which requires full independence of judiciary to ensure access to the fundamental right to justice.)
[17] Mehram Ali v. Federation of Pakistan, PLD 1998 SC 1445 (The Supreme Court held that the admissibility of a confession made before a police officer violates fundamental rights as well as Islamic law.)
[18] The law of evidence under Article 151(4) of the Qanun-e-shahadat Order 1984 provided a right to a male defendant in cases of rape to impeach the character of the alleged victim. The Federal Shariat Court declared this law void on the basis that it violates the principle of gender equality as enshrined in Article 25(2) of the Constitution and provided in the Qur’ān. Capt. (retd.) Mukhtar Ahmad Shaikh v. Government of Pakistan, PLD 2009 FSC 65.
[19] Muhammad Yousaf v. Chairman, Federal Public Service Commission, PLD 2017 Lahore 406 (The Court declared the Rules of Competitive Examination 2014 as unconstitutional because they did not accommodate persons with disabilities in foreign and public administration services.)
[20] Province of Sindh v. Lal Khan Chandio 2016 SCMR 48 (The Court referred to the “environmental teachings of Islam” and the “fundamental right to life and to live with dignity … in a world that has an abundance of all species not only for the duration of our lives but available for our progeny too.”)