Structural Reforms in Pakistan's Legal System
Structural reforms in Pakistan’s legal system are both complex and confusing. In 1978, “Shariat Appellate Benches” were grafted to Pakistan’s four High Courts. Their jurisdiction included hearing appeals against Hudood law convictions (see below) and they were granted original jurisdiction to hear “Shariat petitions.” In 1980, such benches were disbanded and the “Federal Shariat Court” (FSC) was established. But its birth was occasioned by a long, painful, and disjointed labor. Between 1980 and 1985, provisions relating to the operation of the FSC were modified 28 times, through the mechanism of 12 separate presidential ordinances,5 and were incorporated into the Constitution in 14 subsections covering 11 pages of text.6 When the dust settled, the FSC emerged as a body consisting of no more than eight judges, appointed by the president, and selected for the most part from judges of the high courts. The FSC’s jurisdiction included:
- appellate jurisdiction in cases against conviction or acquittal from district courts in zina and qazf cases;
- limited appellate jurisdiction in cases against conviction or acquittal from district courts in property and prohibition cases;
- limited suo motu jurisdiction to declare laws and practices un-Islamic and hence void;
- original jurisdiction to hear “Shariat petitions”;
- revisional jurisdiction in criminal cases bearing on the Hudood laws decided by any court including itself.
It is very important to note, however, that Article 203-B of the Constitution excludes from the FSC’s jurisdiction the “Constitution, Muslim personal law, any law relating to the procedure of any court or tribunal, or... any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure."7
The decisions of the FSC are subject to appeal before the “Shariat Appellate Bench” of the Supreme Court. The latter bench consists of three regular Supreme Court judges and two ad hoc judges drawn either from the FSC or from among ulema6
For the purposes of this chapter four additional points concerning criminal law procedure in Pakistan must be stressed. First, original jurisdiction for most major crimes in Pakistan lies with the district courts. In particular, district courts possess original jurisdiction relevant to the enforcement of the Zina, Qazf, and Property Ordinances. District courts also have appellate jurisdiction to hear appeal against the remaining Hudood Ordinance — Prohibition. Second, district judges possess discretionary authority to try individual cases either under Shari'ah or civil law. For example, if a case of theft comes before a district judge he can professional training, cultural and ideological orientations, experience, and personal predilections dispose them to this end. Therefore, most of the jurists entrusted with interpreting Islamic legal reforms have not been zealous advocates of such reforms. Obviously, this fact was not lost on President Zia who effectively controlled the appointment of judges at all levels during his tenure. That is, it was the government’s actual, if not official, policy to staff Shari'ah-related judicial institutions with individuals primarily conversant with, and oriented toward the British civil law tradition. This factor helps to explain the slow pace of Islamic legal reform in Pakistan.
Advocates of a more rapid and thorough implementation of the Islamic legal reforms have focused their efforts on extending the jurisdiction of the FSC. The 9th Amendment Bill introduced in 1986 calls for the deletion of Article 203-B of the Constitution (quoted above). That is, it calls for the extension of FSC jurisdiction to include constitutional, Muslim personal, and fiscal laws. Similarly, the so-called “Shari'ah bills” call for the Shari'ah to be made the supreme law of the land and for the FSC to be final arbiter of the interpretation of the Shari'ah.
Perhaps as a response to such views Zia dissolved the National Assembly headed by Prime Minister Muhammad Khan Junejo on 29 May 1988. One of the reasons Zia gave for the dismissal of the government was the slow pace of Islamization, and the inability or unwillingness of Junejo to work for the passage of any Shari'ah bill. Indeed, two weeks later on 15 June Zia promulgated his own Shari'ah bill — the Enforcement of Shari'ah Ordinance, 1988. But Zia’s ordinance fell far short of the expectations of advocates for the rapid implementation of Islamization. Section 4(3) of the ordinance amended Article 203-B of the Constitution but assigned the jurisdiction to “examine and decide the question whether or not any law relating to Muslim personal law, any fiscal law, or any law relating to the levy of taxes and fees or banking or insurance practice and procedure or any provision of such law is repugnant to the Shari'ah” with the High Courts! From the perspective of those advocating rapid implementation of the Islamic program this was akin to placing a fox in charge of the chickens. Accordingly, Zia’s ordinance won few converts. It was bitterly and equally opposed by those who viewed the passage of any Shari'ah bill as retrogressive; and by those who viewed Zia’s particular bill as aimed at stalling the Islamization process.
In any case, the ordinance never became law. Pakistan’s Constitution mandates that a presidential ordinance stands repealed if it is not passed by the National Assembly within four months of its promulgation. Zia’s untimely death in August effectively eliminated any significant political support for the bill, although President Ghulam Ishaq Khan promulgated a “revised” Enforcement of Shari'ah Ordinance (identical to Zia’s) on 15 October. The latter ordinance was presented to the newly-constituted National Assembly in December. The assembly allowed the ordinance to expire with no legal effect. Therefore, Zia’s Shari'ah Ordinance, like its predecessors, the so-called 9th Amendment and the various Shari'ah bills, remains confined in a politico-legislative coma; the patient remains alive but the prognosis is not good.
Source: Islamization of Laws and Economy: Case Studies on Pakistan, Charles Kennedy. Republished with permission.