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Islam and Christian–Muslim Relations
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Pakistan Federal Shariat Court's
Collective Ijtihād on Gender Equality,
Women's Rights and the Right to Family
Life
Ihsan Yilmaza
a Faculty of Economics and Administrative Sciences, Fatih
University, Istanbul, Turkey
Published online: 21 Feb 2014.
To cite this article: Ihsan Yilmaz (2014) Pakistan Federal Shariat Court's Collective Ijtihād on
Gender Equality, Women's Rights and the Right to Family Life, Islam and Christian–Muslim Relations,
25:2, 181-192, DOI: 10.1080/09596410.2014.883200
To link to this article: http://dx.doi.org/10.1080/09596410.2014.883200
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Pakistan Federal Shariat Court’s Collective Ijtihādon Gender Equality,
Women’s Rights and the Right to Family Life
Ihsan Yilmaz*
Faculty of Economics and Administrative Sciences, Fatih University, Istanbul, Turkey
This article argues on the basis of recent case law that the judges of the Pakistan Federal Shariat
Court (FSC) have asserted their right to ijtihādand have indeed engaged in collective ijtihād.
While in some areas, such as freedom of religion, Islamic law has been interpreted rigidly in a
non-human-rights-friendly fashion in Pakistan, in some other areas, the flexibility and
pluralism of Islamic law has been used to improve gender equality, women’s rights and the
right to family life. By using its constitutional powers, with its collective ijtihād, the FSC
has been tackling the traditionally illiberal interpretation and application of Muslim laws in
these areas. Regardless of the methodology and process of this ijtihādic endeavor, the
output shows that the FSC has been either modifying the traditional ijtihāds or coming up
with totally new ijtihāds to answer contemporary questions faced by Islamic law. The
findings of the article once again challenge the views of scholars such as Schacht, Coulson
and Chehata, who have argued that, by the fourth/tenth century, the essentials of Islamic
legal doctrine were already fully formulated and that the doctrine remained fixed.
Keywords: Pakistan; women’s rights; gender equality; Islamic law; Muslim family law;
ijtihād; Federal Shariat Court
Introduction
This article endeavors to show that the judges of the Pakistan Federal Shariat Court (FSC) have
asserted their right to ijtihādand have indeed resorted to ijtihādon several occasions in cases
related to women, family law and the right to family life, and that these ijtihāds were pro-
women’s rights, gender sensitive and in favor of human and family rights. As noted by several
observers, while the superior courts in Pakistan fall short of advancing a truly progressive
human rights agenda in line with Western standards, they have nevertheless served as a bastion
of relative cosmopolitanism (Hirschl 2009, 150; see also Ali 2000;idem2006; Lau 2010).
Similarly, even though Islamic law is still being rigidly interpreted in some areas, such as
freedom of religion (see Hirschl 2009, 150; ICG 2008; Lau 2010, 422; Siddique and Hayat
2008),
1
the FSC’s collective ijtihādactivity on women, gender equality and the right to family
life is paving the way for eliminating the effects of at least some illiberal Muslim laws.
The Arabic word ijtihādliterally means “striving, exerting,”in an effort to find the right path
(Pearl and Menski 1998, 14). In the jurisprudential sense, it is a mental and scholarly effort to
make deductions in matters of law in cases on which there is not already an explicit text or
injunction (nas
.s
.,h
.ukm) or a rule already determined by a consensus (ijmāʿ) of Muslim scholars.
In other words, ijtihādis “the maximum effort expended by the jurist to master and apply the
principles and rules of us
.ūl al-fiqh (legal theory) for the purpose of discovering God’s law”
(Hallaq 1984, 3). Even though it has been described as the most important source of law after
the Qur’an and Sunna,
2
it is not strictly a source of law but a method that paves the way for a
continuous process of legal development (Pearl and Menski 1998, 14). Western Orientalists
© 2014 University of Birmingham
*Email: iyilmaz@fatih.edu.tr
Islam and Christian–Muslim Relations, 2014
Vol. 25, No. 2, 181–192, http://dx.doi.org/10.1080/09596410.2014.883200
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(Anderson 1976,7;Coulson1964, 81; Gibb 1947,13,1962,104;Schacht1964,
3
69–71) and some
Muslim scholars (Chehata 1969, 67; idem 1971,17–27; Khadduri 1966, 41) have argued that from
about 340/950, or the mid-fourth/end of the tenth century, ijtihādactivity had exhausted itself and
since then the gate to ijtihādhas been closed, resulting in the end of independent legal reasoning,
which was replaced by pure imitation (taqlīd). Nevertheless, several modern-day scholars have
rejected this argument and, on the basis of historical cases, have shown that ijtihādactivity
actively continued (Gerber 1999,2,8,72,117;Hallaq1984,3–41; idem 1999,143–161; Johansen
1988). For instance, Hallaq (1984, 10) does not only show that “[j]urists who were capable of
ijtihad existed at nearly all times,”but also that “ijtihādwas used in developing positive law after
the formation of schools.”In a similar vein, Johansen (1988) also demonstrates that changes in
legal doctrine not only occurred but also extended into questions of public law.
4
Since the emergence of modern nation-states, Muslims in several countries have tried to
define “Islam”as the ideology of the state. The rulers of Pakistan have also wanted to develop
a dominant Islamic cultural nationalism ideology (Shaikh 2008, 593) based on Islam to
provide legitimacy and justification for the creation and existence of Pakistan and to hold
together the various ethnic groups by forming a national identity (Christie 2010, 208).
Nonetheless, the lack of clarity or unity over what role Islam should play in the country’s
politics has resulted in a sort “schizophrenia,”which prevents a coherent national identity from
emerging (Christie 2010, 208).
5
The first Pakistani Constitution was promulgated in 1956 and, under the Constitution,
Pakistan was declared an “Islamic Republic”wherein the Islamic principles of freedom,
equality, tolerance and social justice should be fully observed by the state (Khan 2011, 109).
The Constitution included a provision known as the repugnancy clause. Article 198 of the
Constitution affirmed that “no law shall be enacted which is repugnant to the injunctions of
Islam as laid down in the Holy Qur’an and the Sunnah”and that all existing laws “shall be
brought into conformity with such injunction.”The repugnancy provision has been retained
and strengthened in subsequent constitutions and amendments.
Constitutional provisions, secular civil and criminal law, customary practices and international
human rights laws operate in Pakistan alongside the laws derived from Islamic sources (Ali 2006,
11; Lau 2010, 425; Shah 2006). The Pakistani legal system is based on both English common law
and Islamic law, and Pakistani law is still more or less an Anglo-Indian law, even though Islamic law
(Shariʿa) has also become a source of law. While Anglo-Indian law is more influential in
commercial law, Islamic law is more influential in personal status law (and, more recently,
criminal and tax law to some extent) (Munir 2008, 452). While the Qur’an and Sunna remain
the principal foundations of the Shariʿa, the formulation of a legally binding code from primarily
ethical and religious sources has not been an uncontested matter (Rehman 2007, 123).
The amendments to the Constitution and new clauses in the Penal Code were justified as steps
towards implementing Islamic law (Islamization). Nevertheless, several observers have noted that
this was a sort of politically motivated use of Islam to attract electoral support by relying on
traditionalist social norms rather than religious ones (Menski 2006, 373). Without any
consensus on Islamic law, and in the absence of newer and scientific interpretive studies, the
Islamization of laws functioned as a useful instrument to appeal to the uneducated grassroots,
yet it created splits in the country, paving the way for maximalist demands and
counterproductive expectations (Malik 2005, 21; for details, see Mehdi 1994).
Shariʿa in Pakistani Muslim law
In the Pakistani Constitution, the protection of substantive rights and the normative limits on
constitutional power appear to be founded on Islam (Backer 2009, 154). Shariʿa is employed
182 I. Yilmaz
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as a source of law to Islamize jurisprudence, to guide the interpretation of legislation, and to fill
gaps in the framework of statutory laws (Yefet 2011, 569).
6
The Objectives Resolution was made an integral and operative part of the Constitution by
inserting it as Article 2-A in 1985 (Munir 2008, 452–453). In theory, this means that
legislation must be in full compliance with the principles of Shariʿa. The Supreme Court of
Pakistan has, however, objected to this interpretation (Hirschl 2009, 148). It developed its
“harmonization doctrine,”declaring that no specific provision of the Constitution is above any
or all other provisions and “the Constitution as a whole must be interpreted in a harmonious
fashion so that specific provisions are read as an integral part of the entire Constitution, not as
standing above it”(Hirschl 2009, 148). In other words, Article 2A was not a “meta”or “super”
article but was equal in status to the other articles of the Constitution.
7
Any inconsistency
between constitutional provisions had to be harmonized if at all possible,
8
and if reconciliation
efforts failed, “the provision which contains lesser rights must yield in favour of a provision
which provides higher rights.”
9
With this intervention, lower courts were prevented from
invalidating constitutional provisions on the grounds of any perceived repugnancy to Islamic law.
On February 10, 1979, President Zia ul-Haq promulgated four ordinances, collectively
referred to as the “Hudood Ordinances,”which called for revisions in Pakistan’s criminal law
system. The ZināOrdinance established criminal penalties for sex-related crimes (adultery,
rape, kidnapping, enticement, attempted rape, sodomy, prostitution, conspiracy to engage in
prostitution, and deceitful marriage). The Qadhf Ordinance established criminal penalties for
the wrongful imputation of zinā. The Prohibition Ordinance established criminal penalties for
the possession of alcohol and prohibited drugs, and the Property Ordinance established
penalties for theft (Kennedy 1990, 70; see also Kennedy 1991).
10
In 1978, President Zia ul-Haq established the Shariat Benches at the provincial High Courts,
and in 1980 the Federal Shariat Court, as well as the Shariat Appellate Bench at the Supreme
Court; each of these would be responsible for ensuring the appropriate implementation of
Shariʿa law (Hirschl 2009, 148).
In 1990, Prime Minister Nawaz Sharif’s coalition partners demanded the imposition of Shariʿa
laws in every sphere of life. He offered his own version of the law –the Shariat Bill –to pre-empt
their pressure. A diluted version of the Shariat Bill was enacted by the National Assembly on May
16, 1991 (Enforcement of Shariat Act of 1991).
11
Its Article 3(1) states that “the Injunctions of
Islam as laid down in the Qurʿan and Sunnah, shall be the supreme law of Pakistan.”This act
reinforced the Objectives Resolution and the other Islamic clauses in the 1973 Constitution.
The government would undertake to overhaul the judicial system to convert Pakistan into an
Islamic state (Malik 2005, 21). However, the Act had an exclusion clause, maintaining:
“Notwithstanding anything contained in this Act, the rights of women as guaranteed by the
Constitution shall not be affected.”In the final analysis, the Act raised more questions than it
answered (Jafar 2005, 50; Kennedy 1992, 787). In 1998, the government proposed a
constitutional amendment to the parliament to make the Qurʿan and Sunna the supreme law of
Pakistan. This was passed by the National Assembly but, before the Senate voted on it, it was
suspended by General Perwez Musharraf, who staged a coup and seized power in 1999
(Baderin 2009, 31).
Working mechanism and collective ijtihādaction of the Federal Shariat Court
The FSC is a constitutional organ of the state.
12
It has exclusive jurisdiction to determine, upon
petition by any citizen or the federal or provincial governments or on its own motion (suo moto),
whether or not a law conforms to the injunctions of Islam.
13
In 1992, the Supreme Court ruled that
Islam and Christian–Muslim Relations 183
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no other court apart from the FSC has the power to invalidate laws on the basis of Islam (Lau
2010, 401).
14
The enactment of law is the responsibility of Parliament and necessary amendments proposed
by the FSC are the responsibility of the executive.
15
If the government fails to amend the
impugned law within a specified period, the impugned law or its provision to the extent to
which it is held to be repugnant by the FSC ceases to have effect on the day on which the
decision of the FSC takes effect (FSC 2009, 3). In this way, the status of FSC judgments does
not remain that of only a fatwā(juristic opinion), but they become orders that have binding
force (FSC 2009, 3).
The FSC has original and appellate jurisdiction. The Court has exclusive jurisdiction to hear
appeals from the decision of criminal courts under any law relating to the enforcement of Hudood
laws. The extent of the FSC’s jurisdiction in matters relating to Hudood under Article 203-DD is
exclusive and pervades the entire spectrum of orders passed or decisions given by any criminal
court under any law relating to the enforcement of Hudood (FSC 2010, 70). No legislative
instrument can control, regulate or amend this jurisdiction, which was mandated in Chapter 3A
of Part VII of the Constitution of Pakistan (FSC 2010, 70). The FSC’s powers are restricted by
Articles 203B-C, which exclude the Constitution, procedural law, Islamic personal status law
and the Muslim Family Laws Ordinance (MFLO) from its judicial review.
16
The FSC
comprises eight Muslim judges, including the Chief Justice, who are to be appointed by the
President. Four of the judges must be qualified to be High Court judges, while three are
ʿulamāʾ. The FSC’s decisions are appealable to the Shariat Appellate Bench of the Supreme
Court. The Shariat Appellate Bench consists of three regular Supreme Court justices and two
ad hoc judges drawn either from the FSC or from among the ʿulamāʾ(Kennedy 1990, 65). In
other words, as Lau (2010, 411) notes, the ʿulamāʾare numerically in the minority in both
courts, and legally qualified judges are in the majority.
The FSC highlights the necessity of resorting to ijtihād,
17
and it does not institutionalize taqlīd
(imitation).
18
As stated in a recent FSC verdict, the expression “Injunctions of Islam,”which is
employed in the Constitution, has not been defined nor its scope determined, and so, if any
law is deemed repugnant to the Qur’an and Sunna, it is left open for the FSC to identify and
construe it according to its power under Article 203-D (2) of the Constitution (FSC 2008, 6).
19
In an earlier landmark case, the FSC had also held that:
The expression “Injunctions of Islam”is a comprehensive one which will include all injunctions of
Islam of every school of thought and sect etc; but Article 203-D of the Constitution has restricted
its meaning and application and confined it to only two sources for which no Muslim can have
any valid objection. These sources …are (A) The Holy Qur’an and (B) The Sunnah of the Holy
Prophet.
20
Nevertheless, the Court also noted that the number of qur’anic verses that are related to legal
issues is limited, and there are no more than 2000 Hadiths that deal with legal issues,
21
while
the legal cases or issues faced by Muslims are unlimited.
22
In Muhammad Riaz v. Federal Government of Pakistan,
23
the following ijtihādmethodology
was decided for future guidance in the working of the FSC:
(1) To locate in the first instance the relevant verse or verses in the Qur’an regarding the
question in issue;
(2) To find out the relevant Hadiths;
(3) To discover the intent of the Qur’anic verse with the help of the Hadiths;
(4) To ascertain the opinions of views adopted by all jurists of renown on the issue at hand
and to examine their reasoning in order to determine their harmony with the contemporary
needs, or if possible to modulate them to the demand of the age; and
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(5) To discover and apply as a last resort any other option which should no doubt be in
harmony with the Qur’an and Sunnah.
24
It is clear that this is an ijtihādactivity. In this case, the FSC also stated that the judges should
not strictly adhere to the literal meaning of the verse but should take into account the spirit of the
Qur’an, by considering the Qur’an in its entirety. The court also underlined that the verse should
be re-interpreted in accordance with the understanding current at the time of the case in question,
taking into account the general message and guidelines of the Qur’an. In resorting to ijtihād, the
FSC is not required to confine itself to a particular school of law (Munir 2008, 457). Section 2 of
the Shariat Enforcement Act 1991 states that, when interpreting and explaining the Shariʿa,
recognized principles of interpretation and explanation of the Qur’an and Sunna should be
followed and the opinions of recognized Muslim jurists belonging to prevalent Islamic schools
of jurisprudence may be taken into consideration.
25
The FSC also declared that it does not see
itself as bound by one interpretation.
26
The FSC also states that: “Qur’an and Hadith shall have to be interpreted in the light of the
evolution of human society and its demands at a particular stage of time …such process should
not defeat the intent and purpose for which Holy Qur’an stands.”
27
At the same time, the FSC is
also in close contact with the public sphere. As a former chief justice of the FSC states:
while exercising its suo moto jurisdiction the Court’s policy is to take into confidence and to associate
in its working the lawyers, the ʿulamāʾ, the social reformers, the intellectuals and other member of the
public [sic]. With this purpose in view, the laws selected for exercise of jurisdiction are notified in the
press. (Khan n.d., 12)
To sum up, the FSC claims a right to ijtihādand this is not ijtihādin the classical sense of the term,
since ijtihādwas traditionally exercised by independent and civilian and individual ʿālims
(ʿulamāʾ) and the state would pick and choose any one of them. In the case of the FSC,
ijtihāds are products not of individual scholars but of a group of both ʿulamāʾand “secular”
judges who are members of a state organ. This ijtihādactivity could be called “collective ijtihād.”
Collective ijtihāds on gender equality, women’s rights and the right to family life
Scholars have observed that, since the late 1990s, legislators, judges, the Supreme Court, the FSC
and the Council of Islamic Ideology have reached a common understanding as to the pace and the
direction of Islamization: without exception, all efforts in this regard have aimed at making
existing Islamic laws more gender-sensitive by reducing their negative impact on the position
of women, and at producing interpretations of Islam that are in harmony with constitutionally
guaranteed fundamental rights and international human rights standards
28
(Ali 2006, 12; Lau
2010, 413; Lombardi 2010, 687). Research on Hudood case law also shows that the courts
have employed a gender-sensitive interpretative strategy, using a combination of constitutional
rights, Islamic law and international human rights for positive discrimination concerning
women and thus for advancing women’s rights (Ali 2006, 11; for detail, see Ali 2000). The
courts have insisted that Article 25 of the Constitution requires neither nominal nor formal
equality, but genuine and substantial equality for women, and on some occasions the courts
have only maintained differences on the basis of gender when they work favorably to protect
women (Yefet 2011, 565).
29
In addition, the present article highlights that a similar approach
has now been employed by the FSC with regard to the right to family life.
The FSC has declared that the requirement for marriage to be registered is in accordance with
the injunctions of Islam
30
since it clarifies an individual’s marital status and prevents the denial of
women’s and children’s legal rights.
31
Thus, the FSC has upheld the constitutionality of the
Islam and Christian–Muslim Relations 185
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registration requirement, and directed the legislature to provide substantial penalties as an
effective deterrent against non-registration.
32
In disputes between fathers and daughters regarding the consent of the former for the validity
of the nikah (Islamic marriage solemnization, contract) of the latter, the FSC has ruled in favor of
the daughter (Munir 2009, 282). In Muhammad Imtiaz v. The State,
33
Arif Hussain and Azra
Parven v. The State,
34
Muhammad Ramzan v. The State,
35
the FSC ruled that parental consent
was not necessary for nikah to be valid.
In order to improve the situation of women, the FSC has directly referred to the Qur’an and
Sunna to produce pro-women judgments (for detail, see now Serajuddin 2011,110–187). The
FSC’s intervention with the MFLO to protect women is a case in point. The FSC was
concerned about the misuse of MFLO Section 7 by husbands who deliberately left their ex-
wives in legal limbo.
36
Under the MFLO, the husband has to submit written notice of the
t
.alāqto the state and a copy to the wife, but many husbands do not submit this document and,
if the former wife remarries, they deny the divorce and accuse the former wife of zinā(Munir
2011, 22). The police had arrested many women because of these false accusations without an
arrest warrant and such women were imprisoned for an average of one to two years. The FSC
noted that leaving women in this state of suspended animation was cruel and so could not be
warranted by Islam.
37
The FSC had previously helped remarried women by recognizing
divorces even when documentation was lacking in order to save them from the charge of
adultery.
38
But in 2000, in order to protect these wrongly accused women, the FSC declared
the notification requirement under the MFLO to be un-Islamic and thus unconstitutional.
39
The
FSC underlined that as “the protector of rights of all human beings”and as “the first religion
which has conferred all possible rights that could be bestowed upon a woman,”
40
Islam neither
requires nor approves of such obstacles to women’s marital freedom.
41
The FSC has also become more vigilant in dealing with the abuse of the Hudood laws by
disgruntled parents, resentful former spouses, political rivals and the police (Cheema and
Mustafa 2009, 37) and has even stated that a woman can never be guilty of zināif she
complains of rape at any stage.
42
In a gender equality case, the petitioner challenged the appointment of women as judges,
saying that woman is subservient to man and the Prophet did not appoint a woman judge. The
FSC looked at a number of conflicting juristic opinions on the matter, analyzed several
qur’anic verses and underlined that Islam placed woman and man on the same footing in
economic independence, property rights and legal process, citing qur’anic verses and Hadiths
to make its point on gender equality. The Court concluded that man is the supporter, caretaker,
provider and protector of the family, which is about obligation to maintain, but that does not
make woman inferior to man. The Court also noted that Islamic injunctions to men and
women are similar and their rewards and punishments are equal. It also underlined that, if
there were any defect in women’s intelligence, they would not have been consulted by the
Prophet and his Companions. In concluding, the FSC held that there was no explicit injunction
in the Qur’an or Sunna against the appointment of women to the judiciary, so it is not
prohibited in Islam, and dismissed the petition.
43
In response to a similar petition filed in 2010
based on the Grand Mufti of Saudi Arabia’sfatwāthat a woman could not become head of
state or a judge, the FSC first referred directly to Q 2.228 (“The women have rights similar to
those [of men] over them in kindness”) and then referred to the Constitution and stated that
the court had already decided on the issue in the above-mentioned Ansar Burney case, and
dismissed the petition.
44
In another gender equality case,
45
the petitioner challenged sub-article 4 of Article 151 of
Qanun-e-Shahadat Order, 1984, under Article 203-D (1) of the Constitution of the Islamic
Republic of Pakistan as being repugnant to the injunctions of Islam. The petitioner held that
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the sub-article gave the right to a man to bring evidence to discredit a woman but denied that right
to a woman to discredit a man. The FSC held that:
Article 151 (4) of Qanun-e-Shahadat Order, 1984 is discriminatory on the basis of sex and violates
Article 25 (2) of the Constitution as it purports to impeach the credit of a woman, and above all it
negates the concept of “gender equality”as enshrined in the Holy Qur’an as under:- “He it is who
created you from a single being and therefrom did make his mate”(7:189). “They are raiment for
you and you are raiment for them”(2:187). “And the women have rights similar to those (of men)
over them in kindness”(2:228). “Indeed we created men out of the essence of clay (23:12), verily
we create man in the best of moulds”(95:4). Resultantly in exercise of the powers under clause (3)
(a) of Article 203-D of the Constitution of Islamic Republic of Pakistan the Court declared sub-
Article (4) of Article 151of Qanun-e-Shahadat Order, 1984 as repugnant to the Qur’an and Sunnah
and accordingly directed the President of Pakistan to take appropriate steps for repeal of sub-
Article (4) of Article 151 of Qanun-e-Shahadat Order within a period of six months hereof, failing
which the said provision of law shall cease to have effect whatsoever.
46
In a recent suo moto case, the FSC reviewed legislation (Section 10 of the Citizenship Act 1951)
that expressly denied citizenship to a foreign husband of a Pakistani woman.
47
The decision
underlines the FSC’s focus on gender equality:
The last sermon of Holy Prophet is the first Charter of Human Rights wherein all human beings are
equal. Mankind is one. Allah says in Holy Qur’an that “He created man and woman from a single
being (7:189)”and for HIM “whose doeth good work, whether male or female and he (or she) is a
believer, such will enter paradise. (4:124)”…We are of the view that section 10 of the Citizenship
Act is discriminatory, negates gender equality and is in violation of Articles 2-A and 25 of the
Constitution of Islamic Republic of Pakistan and also against international commitments of
Pakistan and most importantly is repugnant to Holy Qur’an and Sunnah.
48
The FSC asked the government to amend the law within a period of six months, “ensuring
appropriate procedure for grant of Pakistani Nationality to a foreign husband married to a
Pakistani woman.”
49
In a very recent landmark case related to the right to family life, in response to a petition
asking “[p]risoners undergoing long term sentences be released on parole for two months
every year for the performance of conjugal rights and looking after family affairs,”
50
the FSC
worked on the questions of “what facilities and conveniences must be provided to the
prisoners and their families”and “whether a prisoner should be allowed to perform conjugal
rights in the prison.”The FSC referred in its verdict to 350 verses of the Qur’an and 64
judgments of higher courts (FSC 2009, 57).
51
The FSC stated that the Qur’an had placed
extraordinary emphasis on the maintenance and protection of family life and “Prolonged
absence of the bread winner and lack of contact with members of his family can give rise to
varied forms of social evils.”
52
The FSC further underlined that
[t])he Constitution expects that adequate State-sponsored measures shall be adopted in order to enable
backward and deprived classes and sections of society to order their lives in accordance with Islamic
tenets and it is only then that they should be expected to become responsible citizens.
53
The Court also stated that the “spouse and children of the accused have a legitimate claim upon
the latter. The family union of the condemned prisoners and lifers can be arranged in the family
quarters within the prison walls.”
54
Thus, the FSC decided in this case that “[f]acilities be
provided to married prisoners to perform conjugal rights within and without the prison
precincts depending upon the nature and type of convict/prisoner and/or his capacity to
provide satisfactory sureties for his return.”
55
The judgment stated that it was the human and
Islamic right of every prisoner to have access to such facilities. The FSC ordered the
authorities to examine the prison system and see what improvements needed to be made. The
judgment asked the state to introduce a conjugal-oriented parole scheme in appropriate cases
and initiate family reunion on auspicious occasions within the prison precincts for the
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preservation of family life.
56
This case is also a remarkable example of filling the gaps in the
secular laws with Shariʿa-sanctioned human-rights-friendly law.
Concluding remarks
Despite serious problems with regard to human rights in Pakistan, the FSC’s attitude towards the
right to family life, gender equality and women’s rights is a work in progress toward a more
human-rights-friendly Pakistani law. The courts have been confronted with traditionally
illiberal Muslim laws relating to these issues, but case law suggests that Islamic law can also
be interpreted in a more “liberal”way. At least in the areas of family law, gender equality,
women’s rights and the right to family life, judges are moving beyond the strict application of
statute law towards a more equality-focused interpretation of Muslim law and jurisprudence. In
the process, judges have been resorting to ijtihādand sometimes their ijtihāds challenge those
of the Parliament, i.e. legislation based on Islamic law.
Regardless of the methodology of this ijtihādic process, the results show that the FSC has
been either modifying traditional ijtihāds or coming up with totally new ijtihāds to answer
contemporary questions put to the Islamic law. How the FSC re-interprets and employs
classical qur’anic and/or Islamic jurisprudential concepts such as ʿadl,mas
.lah
.a,ih
.sān,istih
.sān
and maqās
.id al-Sharīʿa, and how this usage differs from the traditional applications, deserve
separate, more detailed research that does not fall within the ambit of this paper.
It must be noted that this collective ijtihādactivity of the FSC is a modern legal construction
for several reasons. First, the FSC’sijtihādis not classical ijtihād, since ijtihādwas traditionally
exercised by independent and civilian and individual ʿālims(ʿulamāʾ). In the case of the FSC,
ijtihāds are products not of individual scholars but of a group of both ʿulamāʾand “secular”
judges (collective ijtihādor ijtihād jamāʿī). Second, these mujtahids are state employees.
Third, the Shariʿa did not assign ijtihādic authority to the qād
.ī(judge) (Hallaq 2009, 88).
However, the FSC is both an official institution and also a court. Fourth, the FSC actively
interacts with stakeholders and others in the public sphere and receives feedback. Fifth, they
work within the parameters of a nation-state constitution.
A recent study on Pakistan, democracy and Shariʿa concluded that Islam and the democratic ethos
are neither compatible nor incompatible in any permanent or specific sense; they work more or lessin
relation to the historically and culturally embedded choices of Muslims and their variegated
approaches to Shariʿa (Nelson 2011). The FSC is a remarkable case in point. Furthermore, our
analysis of Pakistani Muslim law also suggests that there is not a pure, neatly defined, monolithic
and homogenous Islamic law. For this reason, it is appropriate to label this law not as “Islamic
law”but as “Muslim law,”underlining its human-made and social construct dimension.
Pakistani Muslim case law also shows that, contrary to general opinion, Muslim law has
retained its vitality and has continued to evolve and change. Mujtahid judges define, interpret
and apply Muslim law in a women’s-rights-friendly, gender-sensitive and pro-right-to-family-
life way. This finding challenges once again the views of scholars who have argued that the
essentials of Islamic legal doctrine were already fully formulated by the fourth/tenth century
and that, with the exception of some minor points, have remained fixed.
Notes
1. The blasphemy law, which indirectlycosts lives, is a case in point (see for its negative consequences Gregory
2012;ICG2008, 7). The FSC increased the punishment for blasphemy to the death sentence in 1996. The
Shariat Appellate Bench of the Supreme Court dismissed an appeal against this judgment in 2009. The
Ahmadis issue also needs to be highlighted in this regard. Experts note that the infusion of Islam into
188 I. Yilmaz
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human rightsjurisprudence has generally been beneficial with this major exception. In a case concerning the
constitutional validity of the criminal law that made itan offence for members of the Ahmadiyya to “pose”as
Muslims, the Supreme Court declared that the constitutionally guaranteed right to freedom of religion could
be restricted in order to protect Islam (Lau 2010, 402; for detail, see Rashid 2011). In 1974, Pakistan’s first
elected prime minister, Zulfikar Ali Bhutto, introduced a constitutional amendment declaring that the
Ahmadiyya are non-Muslims (Hirschl 2009,148;Lau2010, 396). In 1984, General Zia ul-Haq further
institutionalized the segregation of Ahmadis with amendments to the Criminal Code (Lau 2010,399).
The Supreme Court dismissed a constitutional petition against these amendments, as did the FSC (ICG
2008, 8). Judges have been generally hesitant to acquit Ahmadis, fearing reprisals from religious radicals
(ICG 2008, 9). In several rulings, the Supreme Court of Pakistan sided with the Islamist face of the
Constitution (Hirschl 2009, 149). As an example, see especially Zaheeruddin v. State, PLD 1993 SC
1718. In this case, the reference to Islam led to a restriction of freedom of religion. The court referred to
the injunctions of Islam to approve laws that treated the Ahmadi religious minority as criminals (see in
detail Lau 2006,112–119). For problems regarding ethnic minority rights, see, for instance, Ali (1999).
The criminalization of apostasy is another impediment to the realization of human rights in every field in
the Western sense of the term. The FSC has repeatedly noted that apostasy is an offense covered by
Hodood (see, for instance, FSC 2010, 75 [judgment on December 22, 2010]). Finally, the FSC’s
statement that “[i]n an Islamic society sins are crimes and not separate entities”(FSC 2010,78[judgment
on December 22, 2010]) could potentially have negative implications with regard to human rights.
2. The Prophet’s way as recorded in Hadith (his sayings, deeds and approvals).
3. Schacht (1964, 70) also paradoxically states that “whatever the theory might say on ijtihad and taklid,
the activity of later scholars, after the closing of the door of ijtihad, was no less creative of later scholars
than that of their predecessors.”
4. Johansen (1988) studies the relationship between land tax and rent and traces the evolution of the legal
doctrine of the H
.anafīschool of law on this question from the second/eighth through the tenth/sixteenth
centuries in the Mamluk and Ottoman periods.
5. The Pakistani identity is contested between the praetorian military, Islamic ideology, secularism and
various tribal, ethnic and provincial affiliations (Christie 2010, 211). It must be noted that the
position adopted by the state vis-à-vis the multiethnic composition of Pakistan was flawed in its
conceptualization of a monolithic Muslim identity for its citizens, since it disregarded and excluded
diverse ethnic, linguistic and cultural identities (Ali 1999, 169–170).
6. See, for instance, Muhammad Bashir v. State, PLD 1982 SC 139, at 142–143; Gulzaran v. Amir Bakhsh,
PLD 1997 Kar. 309, at 310.
7. Hakim Khan v. Government of Pakistan, PLD 1992 SC 595, at 617.
8. Ibid.; see also Shrin Munir v. Government of Punjab, PLD 1990 SC 295, at 312. See for a more recent
case repeating the same verdict, Constitution Petition 15/2002 Qazi Hussain Ahmed, Ameer Jamaat-e-
Islami Pakistan v. General Pervez Musharraf, Chief Executive & Another (April 21, 2002).
9. Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan, PLD 1998 SC 1263, at 1315. See for a
more recent decision confirming this, Constitution Petition 23/1999 and 21/2004 Ch. Muhammad
Siddique et al. v. Government of Pakistan (November 5, 2004).
10. These ordinances made it exceptionally difficult to prove an allegation of rape and failure to do so placed
the woman at risk of prosecution for extramarital sex or for accusing an innocent man of adultery. This
law resulted in a large increase in the number of women in prisons, especially poor and uneducated
women (Critelli 2010, 142). For a critical analysis of this top-down moral regulation attempt by the
state by means of law see Toor (2007). For a critical defense of the Hudood laws by a former judge
of the FSC and the Supreme Court of Pakistan (Shariah Appellate Bench), see Usmani (2006); see
also Cheema and Mustafa (2009) to that effect. The Women Protection Act 2006 removed the teeth,
if not the entire text, of the zinālaws and consensual sex remains technically criminalized but
practically impossible to prosecute (Shaheed 2010, 861). For detailed critical analyses of the Act, see
Shah (2010) and Weiss (2012).
11. This tension is only normal in the Pakistani context as the success of policies has essentially been judged
not on social or economic results but “on whether they bolstered a sense of national Islamic identity”
(Christie 2010, 208).
12. It was set up in 1980 with Constitution (Amendment) Order, 1980, President`s Order 1 of 1980, PLD
1980 Central Statues 89.
13. Article 203D of the Constitution. See a Supreme Court judgment confirming this: Kaneez Fatima v. Wali
Muhammad, PLD 1993 SC 901. As Yefet (2011, 563–564) notes, the FSC is unprecedented in Muslim
history, since there had never been a court that was authorized to examine almost an entire legal system
Islam and Christian–Muslim Relations 189
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on the basis of Qur’an and Sunna. Some lawyers and activists in Pakistan have been arguing that the
FSC’s existence impedes access to justice by perpetuating a parallel legal system (ICG 2008, 13).
However, this discussion does not fall within the ambit of this paper.
14. Hakim Khan v. Government of Pakistan PLD 1992 SC 595 and Kaneez Fatima v. Wali Muhammad,
PLD 1993 SC 909.
15. A relevant constitutional organ of the state is the Islamic Ideology Council, which works in tandem with
the FSC. As Lau (2010, 412) underlines “[w]henever the FSC declared a law to be in conflict with the
injunctions of Islam, the Council assumed the task of drafting an Islamic alternative, which in turn could
be used by the legislature.”
16. The FSC’s jurisdiction was further eroded by a new enactment –the Protection of Women Act, 2006 (see
in detail Mehdi 2010), which removed some Hudood offences from the Hudood Ordinances and put
them in the Pakistan Penal Code (Munir 2008, 461). As a result of this Act, rape and fornication are
no longer treated as Hudood crimes, but are governed by the Pakistan Penal Code, thus removing
them from the jurisdiction of the FSC. On December 22, 2010, the FSC declared sections 11, 25, 28,
and 29 of this Act to be in violation of Article 203DD of the Constitution (FSC December 22, 2010,
Shariat Petition 1/I of 2010, Shariat Petition 1/I of 2007, Shariat Petition 3/I of 2007, at 154–155).
17. Suo Moto No. 1/K of 2006, Pakistan Citizenship Act 1951, Re: Gender Equality, at 12–13.
18. FSC December 22, 2010, at 124.
19. Suo Moto No. 1/K of 2006, Pakistan Citizenship Act 1951, Re: Gender Equality. The case was decided
on December 12, 2007.
20. Hazoor Bakhsh v. Federation of Pakistan PLD 1983 FSC 255, at 330.
21. Suo Moto No. 1/K of 2006, Pakistan Citizenship Act 1951, Re: Gender Equality, at 13.
22. Ibid., at 12–13.
23. PLD 1980 FSC 1, at 15.
24. Ibid.
25. Section 2 of the Shariat Enforcement Act, 1991 (Act X of 1991).
26. FSC December 22, 2010, at 126.
27. Muhammad Riaz v. Federal Government of Pakistan, PLD 1980 FSC 1, at 47.
28. Such as the United Nations Charter, Universal Declaration of Human Rights, the UN Convention on the
Elimination of All Forms of Discrimination Against Women, and the Cairo Declaration on Human
Rights in Islam. See also Weaver (2007) on this.
29. Fazal Jan v. Roshan Din, PLD 1990 SC 661.
30. Allah Rakha v. Federation of Pakistan, PLD 2000 FSC 1, at 48–51.
31. Ibid., at 50.
32. Ibid., at 51.
33. PLD 1981 FSC 308.
34. PLD 1982 FSC 42.
35. PLD 1984 FSC 93.
36. Allah Rakka v. Federation of Pakistan, PLD 2000 FSC 1, at 61–62.
37. Ibid., at 61.
38. Noor Khan v. Haq Nawaz, PLD 1982 FSC 265.
39. Allah Rakha v. Federation of Pakistan, PLD 2000 FSC 1, at 61–62.
40. Ibid., at 61.
41. Ibid., at 62.
42. Safia Bibi v. State, PLD 1985 FSC 120.
43. Ansar Burney v. Federation of Pakistan, PLD1983 FSC 73.
44. Shariat Petition No. 1-L of 2010, October 7, 2010.
45. Mukhtar Ahmed Shaikh v. Government of Pakistan, PLD 2009 FSC P-65.
46. Ibid.
47. Suo Moto No. 1/K of 2006, Pakistan Citizenship Act 1951, Re: Gender Equality, at 23 and 24.
48. Ibid., at 16.
49. Ibid., at 29.
50. Faisalabad Shariat Miscellaneous Application No. 21/I of 1995 linked with Shariat Petitions and
Miscellaneous Applications Decided on August 28, 2009: Muhammad Aslam Khaki and others
v. The State and others, PLD 2010 FSC 191.
51. Ibid.
52. Judgment on August 28, 2009: Shariat Petition No. 61/I of 1992, Shariat Petition No. 62/I of 1992,
Shariat Petition No. 12/I of 1999, Shariat Petition No. 4/I of 2004, at 122.
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53. Ibid., at 123.
54. Muhammad Aslam Khaki and others v. The State and others, PLD 2010 FSC 191, at 287.
55. Ibid., at 287–288.
56. Ibid.
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