An Introduction to Islamic Law (35 page)

It is common knowledge – for anyone familiar with the modern Arab legal profession – that this profession as a rule considers the Shari
a’s discourse as culturally remote, juristically complex and a judicially obscure system of rules. For those members who have little sympathy for the Islamists, Shari
a’s system of rules is downright primeval, ultraconservative and anti-modern. Nevertheless, the Islamists pushing the SCC to adopt a more sensitive position toward a “genuine” Shari
a have insisted – and rightly so – that deriving such inordinately broad principles not only leads the court to indulge in utilitarian reasoning about law and society, but also lodges it in an arbitrary world where judges who know next to nothing about the religious and legal texts will be able to pronounce on God’s law. Indeed, a close analysis of some of the cases that the SCC has decided shows this much. Thus far, in the Egyptian experiment at least, a definition of Shari
a that can garner popular and majoritarian legitimacy continues to be elusive
.

Another country witnessing a significant push toward Islamization of laws, Pakistan emerged from the ruins of
British India with a distinct Islamic identity, articulated by the anti-colonial nationalists as justification for their
independence. It was emphasized that its reason for coming into existence was neither geographical nor ethnic, but rather religious. God was declared in the March 1949
Objectives Resolution as the sole sovereign of the Universe, a sovereign whose authority was “delegated to the State of Pakistan.” This assertion, from the very dawn of independence, betrayed the tension between the sovereignty of God and that of the state, for the legal history of Pakistan has been characterized by a potent tension implicit in the claims of “delegated” sovereignty. The political ruling elite, including
Muhammad Ali Jinnah, was
modernist and
Westernizing, promoting the political, administrative and bureaucratic interests of what, in every way, was a
nation-state. Yet, the Objectives Resolution, while insisting on purely Western concepts of governance, promised that “Muslims shall be enabled to order their lives . . . according to the teachings and requirements of Islam as set out in the Holy Quran and the sunna.”
¹

The 1949 Objectives
Resolution was regarded as
a Preamble to the Constitution, which was not to be promulgated until 1956. In the interim, the
ulama maintained an organized and sustained pressure on the government toward implementing the promises made in the Resolution. One of the specific proposals on which they insisted was that the government should review Pakistani legislation with a view to expunging any law that stood in contravention of the Shari
a. The prevalent idea appears to have been that the Shari
a is constituted of the traditional set of rules adopted by the historical schools, not the sort of general principles later advocated by the
Egyptian SCC. When the Constitution was finally promulgated in 1956, Article 198 stipulated that “no law shall be enacted that is repugnant to the Injunctions of Islam as laid down in the Holy Quran and the Sunna.”
²
However, the potential effects of this Article were restricted by clauses 2 and 3. In their aggregate, these two clauses required that a temporary advisory committee submit a proposal to the
National Assembly seeking to rectify any law contrary to the Shari
a, but they effectively precluded the courts from hearing any cases that bore on Article 198.

The 1958 crisis that led to the abolition of the Constitution prevented the appointment of any committee and thus the National Assembly
never carried out the provisions of Article 198. By the end of that year,
Ayyub Khan had seized power and embarked on implementing a policy of modernization
. One such far-reaching legislation was the
Muslim Family Laws Ordinance of 1961, a law that was at the time typical in the Middle East but that ran against the wishes of a relatively strong Pakistani
ulama constituency. One indicator of the legal tensions in Pakistan was the
inheritance problem, which we have already discussed in regard to the
children of a predeceased son. The
1961 Ordinance, acknowledging the principle of representation, decreed that the child of a predeceased child had the right to inherit what his or her parent would have inherited had he or she been alive. The next year saw the enactment of a new Constitution that was modernist in tenor, omitting not only any mention of Pakistan as an “Islamic Republic” (as in the 1956 Constitution) but also the entirety of the
repugnancy clause. However, public discontent and pressure forced
Ayyub Khan to restore both provisions, although these alterations remained superficial and were no more than a form of appeasement
.

The repugnancy provision was in effect left dormant, and the law of Pakistan continued to preserve, until the late 1970s, its
Anglo-Muhammadan form, whereby the courts continued to apply the law according to the common law
case method. The civil war of 1971, the political changes occurring as a result and the new 1973 Constitution brought no change, although the repugnancy clause was included, again to no effect, in this Constitution
.

But the Middle East and the Islamic world had changed by the 1970s. As mentioned earlier, the 1967 Arab defeat had caused a major self-reassessment, accompanied by a rediscovery of Islam as a political force. A gradual yet potent increase in Islamic consciousness spilled over beyond the Arab world, augmenting the local and nation-specific problems of each country. The
1979 Iranian Revolution was not the spark that ignited this consciousness, but was rather a powerful symptom of the currents sweeping the region, as well as the Islamic world at large, since 1967. The 1970s may well be called the decade of Islamic incubation. In 1979,
Zia al-Haqq seized power and it was clear that his growing religious constituency could no longer be ignored or silenced through legislative lip service. As in
Sadat’s Egypt, the political legitimacy of the regime rested squarely on satisfying this constituency. Zia al-Haqq immediately made it clear that his regime would pursue a program of Islamization, and he followed up on his promise by enacting a number of Islamic laws which closely followed traditional Shari
a rules.

Receiving by this point no concrete constitutional status, the
Objectives Resolution of 1949 was formally incorporated as the
Preamble to the Constitution, and the statutory language pertaining to
repugnancy issues was strengthened. Furthermore, each
High Court was supposed to have a
Shariat Bench, but this was streamlined into a single
Federal Shariat Court (FSC) in 1980. The latter was to decide on which laws contravened the Shari
a, and once a law was found by it to be repugnant, it would cease to have any effect. Yet, the FSC’s power was constrained by structural and other limitations. First, appeals to the Supreme Court could reverse the FSC’s decisions. Second, the FSC could not adjudicate the full range of the law: the Constitution, fiscal law, procedural law and law of personal status were entirely excluded from its jurisdictional purview. Third, in its early period, the five judges who staffed the FSC all came from the national courts, which is to say that none of them was a member of the ulama class. It was not surprising then that the FSC’s decisions were not always consistent with the Shariat ordinances promulgated by General Zia, nor were they in conformity with the traditional Shari
a rules.

In due course, however, the FSC’s bench began to be populated by members of the
ulama class, and General Zia renewed his commitment to Islam as part of his bargain for political legitimacy
. The price of the bargain was the
1988 Enforcement of Shariat Ordinance which decreed that the Shari
a was the “supreme source of the law in Pakistan and the Grundnorm for guidance of policy-making by the state.” But the earlier substantive exclusions from the purview of this court as well as appeals of its decisions to the
Supreme Court remained in place, showing, at the end of the day, where true legal power lay.

The aforementioned exclusions were challenged in 1981 by the
Peshawar Shariat Bench, which interpreted the exclusions as bearing on the Shari
a itself, not the state’s legislative pronouncements on
personal status. Accordingly, it ruled that the
inheritance rights prescribed by section 4 of the
1961 Muslim Family Law
Ordinance were repugnant to Shari
a and that the
orphaned grandchild was not entitled to his or her parent’s share had the parent been alive. The decision was appealed by the Government, and the higher court overturned it on jurisdictional grounds, stating that the Peshawar Bench was not empowered to make such a determination, and that this matter fell to the competence of the legislature alone (including its advisory
Council of Islamic Ideology)
.