Beyond Beliefs - Deconstructing The Dominant Narratives of The Islamization of

Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of
Pakistan's Law
Author(s): MOEEN H. CHEEMA
Source: The American Journal of Comparative Law , FALL 2012, Vol. 60, No. 4 (FALL
2012), pp. 875-917
Published by: Oxford University Press
Stable URL: https://www.jstor.org/stable/41721691
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MOEEN H. CHEEMA*
Beyond Beliefs: Deconstructing the Dominant

Narratives of the Islamization of Pakistan's Lawt
The discourse on the "Islamization" of laws in the legal systems of

post-colonial Muslim states is dominated by two conflicting narra-
tives. The dominant Western narrative views the Islamization of laws
as the re-incarnation of narrow and archaic laws embodied in dis-
criminatory statutes . In contrast, the dominant narrative of political
Islam deems it as the cure-all for a range of social, political and eco-
nomic ills afflicting that particular Muslim state. This Paper presents
a deeper insight into the Islamization of Pakistan's law. Pakistan has
three decades of experience with incorporating sharťa law into its
Common Law system, an experience which has been characterized by
a constant struggle between the dominant Western and Islamist nar-
ratives. Pakistan's experience helps us deconstruct the narratives and
discourses surrounding Islamization and understand that the project
of incorporating Islamic laws in a modern Muslim society must be
based upon indigenous demands and undertaken in accordance with
* About this Paper - This Paper was presented at the Harvard-Stanford Junior
Faculty Forum at Stanford Law School, Oct. 7-9, 2010. Different parts have been
presented earlier at several workshops and conferences, including the workshop on
"Islamic Law in the Courts: Judicial Interpretation of Sharťa in Modern Muslim
States" at the University of Washington School of Law, Seattle, June 5-6, 2009;
"Countering Militancy in Pakistan: Domestic, Regional and International Dimen-
sions'' Conference at the Centre for Muslim States and Societies, University of
Western Australia, Perth, Australia, Aug. 3-4, 2009; International Conference on "To-
ward Revisiting The Debate On Shariah : Prospects And Challenges For Pakistan" at
the Iqbal International Institute of Research and Dialogue, International Islamic
University, Islamabad, Pakistan, Nov. 23-24, 2009; and the Northern Association of
Postcolonial Studies (NAPS) Postcolonialism & Islam Conference, University of Sun-
derland, Sunderland, UK, Apr. 16-17, 2010.
About the author - Associate Lecturer, College of Law, Australian National Uni-
versity (ANU). Qualifications: PhD Candidate (ANU); LLM (Harvard); LLB (London).
The author has researched and written extensively on Pakistan's Islamized criminal
laws and the position of Islamic discourse in Pakistan's legal system.
Acknowledgements - I am grateful to the editors of the AJCL and to Faiza
Cheema for patient and thorough editing of successive drafts. I am also thankful for
the funding and opportunity provided by the Iqbal International Institute of Research
and Dialogue, International Islamic University, Islamabad to conduct research in Pa-
kistan as an Iqbal Fellow in April and May, 2010.
Dedicated to my grandfather Ch. Sardar Ahmad Zia (1925-2007), who named me
after Khawaja Moeen-ud-Din Chishti, the sufi saint of Ajmer, and introduced me to
the rich and diverse intellectual milieus of Islamic thought.
t DOI http://dx.doi.org/10.5131/AJCL.2012.0008
875

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876 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 60
the organically evolving norms of recognition, interpretation, modifi-

cation and enforcement in that society. Furthermore, substantive law
cannot be understood or enforced outside of a legal system, its legal
culturéis) and professional discourse(s), and of the broader socio-polit-
ical dialectics that give context and relevance to it. Therefore, we need
to shift focus to the systemic problems deeply ingrained in Pakistan's
legal system that allow law and legal processes to be used to prolong
disputes and cause harassment. Islamic legality can, in fact, play a
significant role in breaking down the resistance that vested interests
may offer to such a restructuring of the legal system along more egali-
tarian lines.
I. Introduction
Two conflicting narratives dominate the discourse on the "Is-

lamization" of laws in the legal systems of post-colonial Muslim
states.1 The dominant Western narrative views the Islamization of
laws as essentially problematic and retrogressive. It sees Islamiza-
tion as the re-incarnation of narrow and archaic laws embodied in
discriminatory statutes and adjudicated by orthodox ulema (religious
scholars) in religious courts. Causal links are therefore frequently
found between the Islamization of laws and the advancement of radi-
calization and militancy in Muslim societies.2 In contrast, the
dominant narrative of political Islam presents Islamization of laws as
the one reform that, if undertaken wisely, would inevitably transform
existing social, political and economic structures of that particular
Muslim state to yield a truly Islamic society. This counter-narrative
views the existing legal structures of Muslim states as essentially
alien to the indigenous intellectual milieu and as an impediment to
the creation of a genuinely Islamic polity.
Despite the fiercely oppositional nature of these two narratives,
there is, surprisingly, considerable common ground. First, both nar-
ratives appear to be based on similar definitions of Islamic law.
1. In the Pakistani context, Islamization refers to the process of reviewing the

country's laws (of mostly colonial origin) to make them conform to the legal "Inunc-
tions of the Qur'an and Sunnah .* The Federal Shariat Court (FSC) has been granted
the authority to conduct the judicial review of legislation to ensure compliance with
the Inunctions of Islam. See Pak. Const, art. 203D, cl. 1.
2. For example, the opposition to the adoption of Ntzam-e-Adl (a measure de-
signed to enforce Shari'a law) in Swat clearly displayed such grounding. See, e.g.,
Pakistan Blasted for Creating Taliban Safe Haven with Islamic Law Deal, Fox News,
Feb. 17, 2009, available at http://www.foxnews.eom/story/0, 2933, 494446, 00.html; Pa-
kistan Passes Swat Sharia Deal, BBC, Apr. 13, 2009, available at http://news.bbc.co.
uk/2/hi/south_asia/7996560.stm; and Zulfiqar Ali & Laura King, Pakistani Officials
Allow Sharia in Volatile Region, Los Angeles Times, Feb. 17, 2009, available at http:/
/articles.latimes.com/2009/feb/17/world/fg-pakistan-pactl7. Contrast from, Syed
Shoaib Hasan, Swat Taleban find Sharia a challenge, BBC, Mar. 24, 2009, available
at http://news.bbc.co.Uk/2/hi/south_asia/7959100.stm.

111.68.97.183 on Mon, 09 Nov 2020 07:35:20 UTC
2012] ISLAMIZATION OF PAKISTAN'S LAW 877
Islamic or shari'a law is seen as a near-complete code of laws dating
back to the classical period of Islam which could be adopted instantly,
for better or for worse, within the legal system of a modern Muslim
state.3 The disagreement between the two narratives is thus about
the perceived merits or value of the content of the shari'a law code
and not over its nature. Second, both these narratives accord a cen-
trality to Islamic law and view it as largely autonomous from the
social and political environment within which it is to be adopted. The
relationship between law and society is conceived to be unidirec-
tional, so that the Islamization of laws can have a significant impact
on society, but not the other way round. Again, the disagreement is
over the desirability of the social impact of Islamic laws rather than
the nature of Islamic law itself.
This Paper attempts to present a deeper insight into this process.
Pakistan has three decades of experience with incorporating shari'a
law into its Common Law system, an experience which has been
characterized by a constant struggle between the dominant Western
and Islamist currents. Providing nuanced insight into this complex
process will help to debunk the myths underlying the two dominant
narratives. The paper will demonstrate that the Islamization of laws
is a complex and purposive enterprise involving multiple institu-
tional players engaged in defining layers of overlapping (at times
conflicting) meanings, ideologies and agendas, an enterprise simulta-
neously deontological and teleological, formalistic and pragmatic. As
such, the processes of creating, adopting, and enforcing Islamic laws
are fundamentally similar to those in any society. Islamic law is
neither autonomous vis-a-vis the socio-political structures nor capa-
ble of achieving far-reaching social change by dictate.
Part II of this Paper outlines a brief history of the Islamization of
laws in Pakistan. Part III, which forms the core, seeks to develop a
more detailed picture, going beyond the cliché accounts focusing on
some discriminatory statutes sind the miscarriage of justice perpe-
trated by the enforcement of these laws. Part IV presents a
deconstruction of the dominant narratives, furthering the argument
that Islamization is a complex, multidimensional process whose intri-
cacies elude both the Western and Islamist narratives. The
deconstructive project attempted here will show the profound impli-
cations for any attempt to incorporate Islamic legal norms in post-
colonial Muslim states generally.
3. For a synopsis of the distinction between sharia'a and fiqh, see Moeen
Cheema & Abdul Rahman Mustafa, From the Hudood Ordinances to the Protection of
Women Act: Islamic Critiques of the Hudood Laws of Pakistan, 8 UCLA J. Islamic &
Near E. L. 1, 7-9 (2009).

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II. Brief History of the Islamization of Laws in Pakistan

A. Zia Era Islamization, 1977-1988
The Islamization of laws has been a prominent feature of the po-
litical discourse since Pakistan's independence in 1947. The founders
of the country and its first rulers were men acculturated in British
political traditions and espoused liberal democratic values. The crea-
tion of a separate nation state for the Muslims of India, however,
gave considerable space to the argument that Pakistan was meant to
be a theocratic state.4 The rule of Islamic laws was seen by some as
one of the reasons the Muslims of South Asia created a separate
state.5 Islamization of laws remained on the proverbial back-burner,
however, for the first three decades of the country's independence.6
Pakistan's first foray into constitution-making was the Objectives
Resolution of 1949, which recognized its ultimate sovereignty as be-
ing vested in Allah Almighty. Only delegated and limited sovereignty
was seen as vested in the state as a "sacred trust."7 The Objectives
Resolution was adopted as the preamble to all three constitutions of
Pakistan - promulgated in 1956, 1962 and 1973 - which also in-
cluded specific Islamization measures.8 These provisions were by and
large weak and ineffective.9 As noted, "despite these provisions not
much progress was made to bring the laws in the country into con-
formity with the Injunctions of Islam during the first thirty years of
the creation of Pakistan," partly because "the responsibility for decid-
ing whether a proposed law was violative of or was not in accordance
with the said principles was placed upon the Legislature."10
Islamization of laws acquired a central position in Pakistan's po-
litical discourse with the enactment of a number of controversial
constitutional amendments and legislative measures by the military
regime of General Zia ul Haq (1979-1988). Having displaced the
4. For a brief account of the events leading to the partition of the Indian Subcon-
tinent in 1947, see Lawrence Ziring, Pakistan in the Twentieth Century: A
Political History 1-53 (1997).
5. See Maulana Abul A'la Maudoodi, The Islamic Law and Constitution 10
(Khurshid Ahmad trans., 4th ed., 1969) and Nasim Hasan Shah, Islamisation of Law
in Pakistan , 47 PLD 1995 Journal 37 (1995).
6. For an overview of the Islamization of constitutional and criminal laws during
the Zia era, see Rashida Patel, Islamization of Laws in Pakistan? 17-61 (1986).
7. Fazlur Rahman read this provision as essentially an adoption of Maududi s
stance that Islam (or Islamic law) imposes restrictions on the capacity of Muslim soci-
eties to legislate. See Fazlur Rahman, Islam and the Constitutional Problem of
Pakistan , 32 Studia Islamica 275, 277 (1970).
8. For an overview of the Islamic provisions, see Rubya Mehdi, The Islamiza-
tion of the Law in Pakistan 82-84, 90-93 and 97-102 (1994). In the case of the 1962
Constitution, the "Islamic Provisions" were an after-thought, adopted in 1964 through
an amendment. See Rahman, supra note 7, at 286.
9. On the point that the Objectives Resolution was deliberately vague, see
Tayyab Mahmud, Freedom of Religion & Religious Minorities in Pakistan: A Study of
Judicial Practice , 19 Fordham Int'l L.J. 40, 63 (1995).
10. See Shah, supra note 5.

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elected government of Zulfiqar Ali Bhutto in 1977, General Zia was
desperately in search of some basis for popular support and legiti-
macy. During Bhutto's rule Islamization had been one of the key
demands of the leading opposition parties. An alliance between these
opposition parties and General Zia, with Islamization as the core of
the manifesto, was thus a natural development. Pakistan's involve-
ment in the Afghan war also provided a new impetus to state-
sponsored Islamization, given the military's need to cultivate a pro-
jihad climate to facilitate popular support for the Afghan mujahideen
(guerrilla fighters). The free flow of Saudi money and Arab volunteers
into Pakistan in aid of the Afghan jihad also brought with it pa-
tronage of a particular shade of orthodoxy. 11
The centerpiece of Zia's Islamization program was the Hudood
criminal laws.12 These laws were designed to graft Islamic criminal
provisions onto Pakistan's corpus juris. For three decades now the
Hudood laws have been the controversial face of Islamization. These
laws incorporated statutory provisions that blatantly discriminated
against women and religious minorities. Hudood cases often involved
the abuse of Hudood laws to prosecute women and men who had
dared defy conservative norms of gender interaction.13 Such discrimi-
nation and the specter of floggings, stoning and amputations
administered in public reaped considerable notoriety in international
media and instigated protests by local human and women's rights or-
ganizations.14 In case after case, year in year out, miscarriages of
justice caught the attention of the media and the public.
By far the most far-reaching change brought by the Zia regime
was the establishment of separate religious courts at the appellate
level - the Federal Shariat Court and the Shariat Appellate Bench of
the Supreme Court. This engendered considerable controversy and
11. See generally Seyyed Vali Reza Nasr, The Rise of Sunni Militancy in Pakistan:
The Changing Role oflslamism and. the Ulama in Society and Politics, 34:1 Modern
Asian Studies 139 (2000). The spread of Wahabbism-driven orthodoxy continued un-
til the course had to be reversed post September 11, 2001. See generally Zahid
Hussain, Frontline Pakistan (2008).
12. See generally Charles H. Kennedy, Islamization and Legal Reform in Paki-
stan, 1979-1989, 63 Pac. Aff. 62 (1990) and Mehdi. suDra note 8. at 25-26.
13. See Cheema & Mustafa, supra note 3, at 14-18. Also, see generally Asma
Jahangir & Hina Jilani, The Hudood Ordinances: A Divine Sanction? (1990);
Anita M. Weiss, Women's Position in Pakistan: Sociocultural Effects of Islamization,
25 Asian Surv. 863 (1985); Shahla Zia, Violence Against Women & Their Quest
For Justice (2002); The Comm'n of Inquiry for Women, Report of the Comm'n of
Inquiry for Women (Aug. 1997) [hereinafter CIW Report]; Nat'l Comm'n on the Sta-
tus of women, Report on Hudood Ordinances 1979 (2003) [hereinafter NCSW
Report]; Shahnaz Rouse, Sovereignty and Citizenship in Pakistan, in Appropriating
Gender 53-70 (Patricia Jeffery & Amrita Basu ed., 1998); Farida Shaheed, Woman,
State and Power: The Dynamics of Variation and Convergence Across East and West,
in Engendering the Nation-State: Vol. 1, 53-78 (N. Hussain et al. eds., 1997); and
Sadia Toor, The State, Fundamentalism and Civil Society, in Engendering the Na-
tion-State: Vol. 1, 111-46 (N. Hussain et al. eds., 1997).
14. See Jahangir & Jilani, supra note 13, at 34-45.

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was met with strong criticism on constitutional grounds.15 The ap-

pointment of ulema (religious scholars) to the Shariat courts and the
granting of far-reaching powers of judicial review on the grounds of
repugnancy to the injunctions of Islam struck fear in the critics of
Islamization.16 The nature of the Shariat courts' powers of judicial
review was so significant that it was thought to have "no parallel in
judicial history."17 It raised the haunting specter of an orthodox and
anti-democratic Islamist judiciary.
Despite the sustained rhetoric of Islamization, the promulgation
of the Hudood laws and the creation of the Shariat courts, there is
considerable evidence that the Zia regime lacked a serious intent to
Islamize Pakistan's laws and deliberately pursued the project in a
slow and limited fashion.18 The Federal Shariat Court was created
with notable restrictions on its jurisdiction and a number of "Islamic
moderates" were appointed so that the classically-trained ulema in-
variably remained in the minority.19 Even the Hudood laws, it
appears, were intended to exist solely on the books. It was not antici-
pated that these laws would in reality have much practical
relevance.20 Furthermore, apart from the grafting of visible criminal
law measures, such as the Hudood laws, the regime lacked a clear
vision and true commitment to establish an Islamic legal system.21
Furthermore, the military regime completely underestimated the
strength of the internal logics of the Pakistani legal system which
could not be simply subjected to military-style discipline, command
and control. Zia's inability to fully control the courts and reign in the
dynamic shifts unleashed by the incorporation of Islamic law became
evident all too quickly.22 A major setback to the regime's efforts at
controlling the Islamization process occurred in the very first case
decided by the Federal Shariat Court - the Hazoor Bakhsh case. In a
challenge to the controversial Hudood laws, the Federal Shariat
15. First, the creation of the FSC and the SAB entailed constitutional amend-
ments made by way of the self-assumed powers by General Zia. See Ann Elizabeth
Mayer, Islam and the State, 12 Cardozo L. Rev. 1015, 1042-47 (1991). Second, the
creation of the Shariat courts appeared to undermine further the independence of
Pakistan's judiciary which had received several serious blows to its credibility under
General Zia's rule. See Hamid Khan, Constitutional and Political History of Pa-
kistan 353, 355 (2009).
16. In addition to acting as the appellate court in Hudood cases, the FSC had the
power to review any and all Pakistani laws to determine whether they were repug-
nant to the injunctions of Islam. Pak. Const, art. 203D, cl. 1.
17. Shah, supra note 5, 41-42.
18. See generally Kennedy, supra note 12.
19. See id. at 66.
20. See, e.g., Mehdi, supra note 8.
21. See Seyyed Vali Reza Nasr, Islamic Opposition to the Islamic State: The
Jamaat-i Islami, 1977-88, 25:2 International Journal of Middle East Studies
261, 267 (1993).
22. See Martin Lau, The Role of Islam in the Legal System of Pakistan 126
(2006).

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Court decided, by a majority, that the punishment of rajm (stoning to
death) for zina (adultery or fornication) was un-Islamic.23 This deci-
sion embarrassed the military regime which had trumpeted the
Islamic credentials of the Hudood laws in the face of stiff opposition
from human and women's rights activists. The regime amended the
Constitution once again and granted the Federal Shariat Court the
power to review its own decisions and filed a review petition before
the Federal Shariat Court. Prior to the hearing, the government re-
moved the three judges who had formed the majority in the first
Hazoor Bakhsh decision. While the reconfigured Federal Shariat
Court made a complete about-turn and unanimously held rajm (ston-
ing to death) to be the valid punishment for zina (adultery), the
strain of exercising control on the judiciary had become evident.24
This was not to be the last embarrassment or setback the regime
would suffer at the hands of its own creation.
It would be incorrect, however, to claim that the Shariat courts
mounted a serious challenge to Zia's Islamization program. These
courts continued to accord a certain degree of respect and deference
to the architect of Islamization and demonstrated considerable alle-
giance to the basic structures of the program throughout the 1980s.
Nonetheless, the policy conundrums caused by the hasty and ill-con-
sidered implantation of Islamized laws, the multifarious and
exponentially increasing miscarriages of justice, the pressure that
the vocal and visible opponents brought to bear and the demands of
the internal rationality of Islamic legal discourse compelled the
Shariat courts to chart an increasingly independent course, particu-
larly in the later years of the Zia regime. In time, the Islamization
agenda acquired a life of its own, reaching its zenith only after Zia's
death and the re-emergence of democratic governance in 1988. The
Shariat courts ushered in a period of "judicial activism" in which a
spate of landmark decisions dramatically altered Pakistan's legal
landscape.25
B. The Place of Islam in Pakistan's Legal System, 1989 - 2008

As the Shariat courts dramatically expanded their powers and
the substantive reach of Islamization in the early 1990s, Pakistan's
non-Shariat appellate courts also began to stake a claim over the ter-
rain of judicial power. The High Courts had been involved in a
jurisdictional battle with the Shariat courts by claimants seeking to
counter the operation of Islamized laws. For most of the petitioners, a
procedural challenge through the "Writ" jurisdiction of the High
Courts was preferable to a substantive judgment on the merits by the
23. See Jahangir & Jilani. supra note 13. at 29-30.

24. See Khan, supra note 15, at 355.
25. For a summary of some of the leading cases, see generally Shah, supra note 5.

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Shariat courts.26 The Writ jurisdiction of the High Courts challenged

the enforcement of Hudood laws on procedural grounds: for example,
bail had been improperly refused or a police investigation had been
conducted inadequately.27 The specific advantages of the Writ juris-
diction were the speed with which the matter was resolved (in
months rather than years) as well as the likelihood of a hearing
before a sympathetic judge opposed to the strict application of the
Hudood laws.28 In some instances, the High Courts ruled directly
upon the manner of application of the Hudood laws to render their
enforcement less prone to abuse.29 The resultant forum-shopping ex-
erted considerable pressure on the Shariat courts to dispel widely
held notions about their orthodoxy, rigid fidelity to the Hudood laws,
and lack of concern for procedural violations.
In addition to the procedural-jurisdictional struggles, the sub-
stance of Islamized laws also became a domain of conflict between the
Shariat courts and the High Courts. Emboldened by the undist-
inguished judicial methodology of the Shariat courts, the High Courts
and the Supreme Court themselves began to use Islamic-law-inspired
arguments in several areas. A survey of the appellate decisions of the
High Courts and the Supreme Court in areas such as constitutional
law, administrative law, criminal procedure, civil procedure, family
law, taxation, contracts, torts, environmental law, etc., reveals an in-
creased use of Islamic legal principles throughout the 1990s. At the
same time, the Shariat courts began to recede from the legal land-
scape, particularly in the second half of the 1990s.
Concurrent with this jurisdictional and doctrinal tussle between
Pakistan's courts, the country's political landscape was ravaged by
one crisis after another. From 1988 to 1999, Pakistan experienced
four elected civilian governments, with alternating periods of rule by
the traditionally right-leaning Pakistan Muslim League (PML) led by
26. Articles 184(3) and 199 of the Constitution of the Islamic Republic of Paki-
stan, 1973, vest judicial review power in the Supreme Court and the High Courts,
mostly based upon the prerogative writs of certiorari, mandamus, prohibition and
habeas corpus. See Pak. Const, art. 199 and 184(3).
27. See, e.g., Riaz Elahi v. State, 1989 P.Cr.L.J. 1588; Ameeran Bibi v. Super-
intendant of Police, Bahawalnagar, 1989 P.Cr.L.J. 2012; Miandad Ghanghro v.
S.H.O., P.S. Kandhra, 1989 P.Cr.L.J. 1945; Noor Muhammad v. S.H.O., 1992 M.L.D.
2481; State v. S.S.P. Islamabad, P.L.D. 1993 Lah. 112; Mushtaq Rqj v. Magistrate 1st
Class, 1994 P.Cr.L.J. 497; and Naseer Khatoon v. S.H.O. Police Station City, Mi-
anwali, 1994 P.Cr.L.J. 1111.
28. The writ of Habeas Corpus was also invoked in exceptional circumstances to
counter criminal charges brought under the Hudood laws. See, e.g., Muhammad
Bashir v. State, 1989 P.Cr.L.J. 459 and Amer Habib v. Senior Superintendant of Po-
lice, 1995 C.L.C. 29.
29. See Riaz v. Station House Officer, Police Station, Jhang City, P.L.D. 1998
Lah. 35; Noor Muhammad v. S.H.O. Police Station Klurkot, District Bhakkar, 2000
Y.L.R. 85; Abdul Majeed v. Superintendant of Police, P.L.J. 1998 Lah. 1158; and Nas-
reen v. Station House Officer, Police Station Batala Colony, Faisalabad, 2001
P.Cr.L.J. 685.

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Mian Nawaz Sharif and the left-leaning Pakistan Peoples' Party
(PPP) headed by the late Benazir Bhutto. While the PPP was ideolog-
ically committed to loosening Zia-era Islamization, its governments
(from 1988-1990 and 1993-1996) failed to bring any changes to the
Hudood laws.30 In a similar vein, while the PML was ideologically
and vocally supportive of greater Islamization, the Shariat Act of
1990 passed by the first Nawaz Sharif led Parliament (1990-1993)
was weak and merely rhetorical in its support for further
Islamization.31
From 1990 to 1996, both the PPP and PML governments were
reluctant to enact the Qisas & Diyat Act, a statute designed to imple-
ment Islamic laws governing injuries to a person and homicides.
While the PPP governments' reluctance to promote the Islamization
of criminal law is understandable, the hesitation of the PML govern-
ment showed a lack of genuine commitment to Islamization,
reminiscent of the Zia era. The gap between rhetoric and action in-
creased during the second tenure of Nawaz Sharif as Prime Minister
(1997-1999). The PML government proposed a constitutional amend-
ment that would have greatly increased the Prime Minister's powers
to Islamize the law, but the focus, no doubt, was on power rather
than Islamization.32 The proposed amendment failed to win support
in the upper house of Parliament.
With the arrival of General Pervez Musharraf on Pakistan's po-
litical scene through a military coup in October 1999, the prospects
for further Islamization turned bleak. In an effort to remedy his mili-
tary regime's status as an international pariah, General Musharraf
sought to portray the image of a liberal enlightened military dictator
to assuage the concerns of the international community regarding
Pakistan's increasing radicalization. After the terrorist attacks on
September 11, 2001 in the United States, the Musharraf regime
found itself the focus of renewed American interest which dictated a
reversal of course in the support of the Taleban in Afghanistan. The
state, under the direct command of General-President Musharraf,
adopted the agenda of "Enlightened Moderation," a strategy to
achieve an Islamic "renaissance" so that Muslims may "shun mili-
30. The only exception was the amendment to the Whipping Ordinance. See Abo-
lition of the Punishment of Whipping Act, 1996 (VII of 1996) and Abdul Razzaque v.
State, 2003 P.Cr.L.J. 1256. In fact, during her second term as Prime Minister,
Benazir Bhutto displayed a certain degree of public religiosity that ran counter to the
PPFs liberal outlook and ideological opposition to a stronger role of Islam in public
life. For a brief account of the Islamic references in the PPP manifesto, see Jamal
Malik, Colonialization of Islam 299 (1996).
31. See Mohammad Waseem, Pakistan's Lingering Crisis of Dyarchy, 32:7 Asian
Surv. 617, 627 (1992).
32. Id. at 630.

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tancy and extremism and adopt the path of socioeconomic uplift."33

The tactics used to achieve this strategy included the patronage/pro-
motion of a "modernist" Islamic discourse, mostly by way of the
newly-independent private electronic media outlets.
Most significantly, the military regime succeeded in passing sev-
eral important pieces of legislation that minimized the controversies
surrounding the Islamization measures of the Zia era. Initially, these
legislative interventions consisted of procedural remedies and safe-
guards in an effort to obviate the most glaring miscarriages of justice
while studiously avoiding the substantive controversies rooted in the
conflicting paradigms of Islamic law and Western human rights.34
For two decades the debate on the Hudood laws had been polarized,
resulting in entrenched camps, one calling for the outright repeal of
the Hudood laws, the other holding on to their unwavering defense.36
In the first serious attempt to neutralize the adverse effects of the
Hudood laws, a 2005 statute imposed the rule that only a senior po-
lice officer could investigate a case against a female accused of
adultery and that her arrest was subject to the court's permission.36
A similar restriction was imposed on the investigation of the offense
of blasphemy.37 This paved the way for the Protection of Women Act
of 2006, which brought about significant changes to the prosecution
of adultery and rape cases.38
The controversies arising from the Islamization of laws dimin-
ished after these de-Islamization statutes. Most of the common
miscarriages of justice that plagued the enforcement of Hudood laws
in the 1980s and 1990s no longer occurred because of procedural bar-
riers enacted by the Musharraf era statutes. Nonetheless, most of the
Islamized laws remain on the statute books with little change in their
substance and with no hope, at least in the short run, for a satisfac-
tory resolution of the core doctrinal disputes. Some Islamized laws
continue to remain a problem, not only in theory but also in practice.
The blasphemy laws and the discriminatory provisions imperil the
citizenship and the status of religious minorities in Pakistan, espe-
33. See Pervez Musharraf, A Plea for Enlightened Moderation , Washington Post,
June 1, 2004, available at http://www.washingtonpost.com/wp-dyn/articles/A5081-
2004May3 1 .html.
34. The process of statutory de-Islamization began in 2004 when the problem of
lenient punishments for "honor killings" was tackled, at least in theory, through man-
dating minimum penalties. See Criminal Law (Amendment) Act, 2004 (Act I of 2005),
reprinted in 57 P.L.D. 2005 Federal Statutes 77 (2005).
35. See, e.g., Moeen Cheema, Cases and Controversies : Pregnancy as Proof of Guilt
under Pakistan's Hudood Laws , 32 Brook. J. Int'l. L. 121, 149-53 (2006).
36. Section 13 of Criminal Law (Amendment) Act, 2004 (Act I of 2005), reprinted
in 57 P.L.D. 2005 Federal Statutes 77 (2005). See Cheema, supra note 35, at 157.
37. Id.
38. Protection of Women (Criminal Laws Amendment) Act, 2006. See Cheema &
Mustafa, supra note 3, at 38-44.

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cially Ahmadis or Qadianis, and continue to result in glaring
miscarriage of justice as well as vigilante violence.39
III. A Deeper Insight into Pakistan's Islamization

This brief history of the Islamization of laws in Pakistan alerts
us not only to the multiple political, social, and cultural movements
that have exerted external pressure on the Islamization processes
but also to the complexity and multidimensionality of the legal sys-
tem that has shaped them from within. The following section
identifies the institutional, doctrinal and practical influences, in par-
ticular, the role of the regular trial and appellate courts. These courts
have played as significant a role in guiding the evolution of the Islam-
ized laws as have the Shariat courts.
A. The Shariat Courts and the Hudood Ordinances

Until their amendment in 2006, the Hudood laws continued to be
the source of grave injustice and controversy, which created a nega-
tive perception of Islamization around the world.40 The Shariat
Courts were considered the guardians of the Hudood laws and their
role was seen as instrumental in perpetuating the wrongs resulting
from the enforcement of these laws. While there is much truth to this
assertion, some of the blame is misplaced: the Shariat courts' at-
tempts to mitigate the harshness of the Hudood laws has been largely
ignored.41
The Hudood laws introduced Islamic criminal provisions and
punishments for sexual offenses, theft, highway robbery, and con-
sumption of alcohol through the promulgation in 1979 of four
presidential ordinances under the military regime of General Zia.
These ordinances imposed punishments by rajm (stoning to death),
amputation of limbs and whipping in public. Of all of the Hudood
laws the Zina Ordinance has had the greatest impact by far and has
also been the most controversial.42 The Zina Ordinance created two
kinds of sexual crimes: zina (consensual extra-marital sexual inter-
course - adultery or fornication) and zina-bil-jabr (rape). While zina-
39. For recent examples of vigilante violence committed in defense of blasphemy

laws, see Aryn Baker, In Pakistan, Justifying Murder for Those Who Blaspheme , Time
Mar. 21, 2011, available at http://www.time.c0m/time/magazine/article/0, 9171,
2058155, OO.html#ixzzlL77ZU8Ee.
40. See generally Cheema & Mustafa, supra note 3.
41. A comprehensive and nuanced review of the role and jurisprudence of the
Shariat courts was not undertaken until de-Islamization was well under way. See
generally Lau (2006), supra note 22. This is somewhat perplexing given that the
Shariat courts have played a central role in adjudicating controversies emanating
from the Islamization of laws.
42. See Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979),
reprinted in 31 P.L.D. 1979 Central Statutes 51 (1979) [hereinafter Offence of Zina
Ordinance].

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bil-jabr was essentially a reclassification of rape, previously part of

the Pakistan Penal Code (PPC), the zina offenses of consensual sex-
ual intercourse were new to Pakistan's criminal laws. Both these
crimes were further classified into hadd sind tazir offenses. Under
classical Islamic doctrine, hadd offenses require higher standards of
proof and have fixed mandatory sentences which cannot be waived or
remitted by the state or its judges. The prosecution and punishment
of tazir offenses, however, is discretionary. The Zina Ordinance es-
tablished four distinct offenses: (1) zina liable to hadd; (2) zina liable
to tazir; (3) zina-bil-jabr liable to hadd; and (4) zina-bil-jabr liable to
tazir.43 All these offenses could be brought before the Sessions
Courts, the highest rung of the lower trial judiciary. Appeals on the
merits in tazir cases came before the Federal Shariat Court. Hadd
convictions could not be executed without first being reviewed and
certified by the Federal Shariat Court.
Zina was defined as consensual sexual intercourse between a
man and a woman and was subject to a hadd punishment if the ac-
and zina-bil-jabr offenses:

43. The following table summarizes the key features of the classification of zina
Zina liable to Hadd Zina-bil-jabr liable to Hadd

Definition: willful sexual intercourse Definition: Sexual intercourse with a
between a man and a woman not man / woman to whom the accused is
validly married to each other. not validly married:
Evidentiary Requirements: ■ against the will;
■ Confession before the trial court, ■ without consent;
or 4 Muslim adult male ■ consent under duress; or
witnesses of penetration. ■ consent under deception of
■ If accused is non-Muslim, identity and valid marriage,
witnesses may be non-Muslim. Evidentiary Requirements: same as for
Punishment: Zina liable to Hadd .
■ For Adultery- rajm (stoning to Punishment:
death) ■ For Adultery - rajm (stoning to
■ For Fornication: 100 lashes death)
■ For Fornication: 100 lashes and
any other punishment, including
death, that the court deems fit.
Zina liable to Tazir Zina-bil-jabr liable to Tazir

Hadd. to Hadd
Definition: Same as Zina liable to Definition: Same as Zina-bil-jabr liable
Evidentiary Requirements: Proof of Evidentiary Requirements; Proof of

Zina liable to Hadd not available, i.e., Zina-bil-jabr liable to Hadd not
normal criminal evidence (proof beyond available, i.e., normal criminal
reasonable doubt). evidence.
Punishment; Punishment;
■ up to 10 years imprisonment and ■ 4-25 years imprisonment;
fine; ■ For offense committed by two or
■ or minor accused - 5 years and/ more persons: mandatory death
or fine. penalty for each; ■ For minor accused - 5 years and/
or fine.
For a comparison with the pre-Hudood and post-reform laws, see Appendix to
Cheema & Mustafa, supra note 3.

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cused confessed before the trial court or four adult Muslim males
provided eyewitness testimony of penetration.44 The hadd punish-
ment for zina depended upon the marital status of the accused - the
punishment for an accused who was or had ever been married was
stoning to death ( rajm ) while the penalty for an accused who was not
married was 100 lashes.45 Zina carried a prison sentence of up to ten
years as a tazir offense, if the proof required for the hadd offense was
not available, but the crime was proven through ordinary evidence.46
The evidentiary standards required for the hadd and tazir offenses of
zina-bil-jabr were the same as for zina.47 The hadd penalty for zina-
bil-jabr was stoning to death in case of am accused who was or had
ever been married. The hadd penalty for an unmarried accused was
whipping, or any other penalty, including capital punishment, that
the court considered appropriate.48 The tazir penalty for zina-bil-jabr
was a prison term ranging from a minimum of four to a maximum of
twenty-five years.49
Clearly, the Zina Ordinance incorporated blatantly discrimina-
tory standards for evaluating evidence. Such discrimination was
largely symbolic, however, and had practically no effect in terms of
the prosecution and sentencing in cases under the ordinance. For ex-
ample, the requirement of four adult Muslim male witnesses was
never met in any hadd case of either zina or zina-bil-jabr.50 In the
case of zina, that was indeed a relief. In cases of zina-bil-jabr, it
would have been a problem if the prosecution of rape cases required
four witnesses in all instances. This was not the situation with the
tazir offense of zina-bil-jabr which carried serious penalties. The
judgments were based on ordinary evidence, including in many cases
the sole testimony of the victim and circumstantial evidence.
In addition to such symbolic and de jure discrimination, the en-
forcement of the Zina Ordinance created other problems which led to
miscarriages of justice. For example, both zina and zina-bil-jabr of-
fenses were made cognizable and non-bailable, which meant that
once a complaint was lodged, the police had the authority to investi-
gate the offense and arrest the accused.51 Those accused of offenses
under the Zina Ordinance were entitled to bail only at the court's
44. Offence of Zina Ordinance, § 8.

45. Offence of Zina Ordinance. §§ 5(2)(a) and Chi.
46. Offence of Zina Ordinance. § 10(2).
47. Offence of Zina Ordinance, § 8.
48. Offence of Zina Ordinance. § 6(3)(b).
49. Offence of Zina Ordinance, § 10(3).
50. See Cheema, supra note 35, at 151.
51. The Criminal Procedure Code, 1898 defines a cognizable offense as one that
may be investigated by the local police, and depending on the result an arrest may be
made without a warrant or the prior approval of a Magistrate. A non-bailable offense
is one in which the accused is entitled to bail as a matter of right, but bail may be
granted only if there are reasonable grounds to believe that the accused did not com-
mit the offense.

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discretion. The Ordinance became an effective tool of harassment as

allegations of zina were used indiscriminately to exact revenge or to
redress the perceived loss of "honor" by the families or former spouses
of women who contracted marriage in contravention of established
social and cultural norms.52 Malicious and false prosecutions to har-
ass the opponents in property or other disputes in rural areas were
common in Pakistan, and the Ordinance made it easy to demean, em-
barrass and weaken the position of adversaries.53 The police played a
particularly mischievous role throughout the life of the ordinance in
its original form and complaints of police abuse were widespread. Po-
lice officials used the Hudood laws as a pretext to stop and search
young couples in order to extract bribes.54 Allegations of physical
abuse and rape during police custody were also pervasive.55
The trial courts bolstered their credibility by claiming a high per-
centage of convictions in zina cases. There were numerous instances
in which the trial courts convicted the accused of zina liable to tazir
on the basis of purely circumstantial evidence, such as a man and a
woman being seen as they entered or exited together from a private
dwelling or a hotel room. Another especially egregious consequence of
the criminalization of consensual sexual relations was the potential
of converting rape complaints into adultery charges.56 This fre-
quently happened when a woman had alleged rape but sufficient
evidence was not available. Evidence indicating a lack of resistance
(such as absence of bruises),57 evidence of "loose moral character" of
52. For examples of prosecutions initiated by the accused women's families, see
Mureed Hussain v. State, 2006 PCrLJ 600; Ishfaq Hussain v. State, 2005 PCrCLJ
701; Gulnaz Bibi v. Muhammad Younas 2003 MLD 1608 Lahore; Hayat Bibi v. State
2004 Y L R Lahore 410; and Qamar-ud-Din v. S.H.O., Police Station, Saddar Kasur,
1987 S.C.M.R. 2102. For examples of prosecutions brought by former spouses, see
Maqbool Ahmad v. State, 2006 PCrLJ 344; Muhammad Arshad v. State PLD 1981
FSC 323, Riaz Elahi v. State, 1989 P.Cr.L.J. 1588, Noor Muhammad v. S.H.O., 1992
M.L.D. 2481; Shoukat Ah v. State 2004 Y L R FSC 619 and Nighat Abbas v. Muham-
mad Yousaf 2004 PCrLJ 620.
53. See, e.g., Abdul Qayum v. State 1991 PCrLJ 568.
54. See, e.g., Amjad Farooq v. State, 2007 PCrLJ 238; Babar v. State, 2006 PCrLJ
387; Muhammad Ramzan v. State 1992 PCrLJ 1058, Maqsood Shah v. State 1996
MLD 498, Shabbir Hussain v. Muhammad Younus 1998 MLD 705, Kamran Khan v.
State 2002 PCrLJ 820, and Muhammad Yousaf v. State 2004 PCrLJ 897.
55. See The Comm'n of Inquiry for Women, Report of the Comm*n of Inquiry
for Women (Aug. 1997); Ameeran Bibi v. Superintendant of Police, Bahawalnagar,
1989 P.Cr.L.J. 2012.
56. See Cheema & Mustafa, supra note 3, at 16-17.
57. See generally Julie Dror Chadbourne, Never Wear Your Shoes After Midnight :
Legal Trends Under the Pakistan Zina Ordinance , 17 Wis. IisrťL L.J. 179 (1999). Ex-
amples of such cases include Zakir Hussain v. State, 2006 PCrLJ 619 and Ghulam
Mustafa v. State, 2006 PCrLJ 464. The latter case is one amongst several where the
lack of evidence of resistance was used to convert a rape conviction to one of zina for
the male defendant. Hie female was not charged with any offense. The appellate
courts used the conversion to mitigate the male's punishment without convicting the
female co-accused. See , e.g., Bashir Ahmed v. Fayyaz Ahmed, 2007 SCMR 445; Amir
Muhammad v. State, 2007 SCMR 452; Nayyar Abbas v. State, 2006 PCrLJ 1; Hameed

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the complainant (by character witness testimony or by a medical ex-
aminer's report that found her to have engaged in "habitual" sexual
activity, without being married),58 discrepancies in the evidence pro-
vided by the rape victim or merely a delay in reporting the assault
(especially in cases where the woman had become pregnant)59 were
used by police and trial courts to convert rape charges into adultery
charges. This placed a woman who reported a rape in a precarious
situation. If she could not present sufficient evidence of having been
raped, she might end up being convicted of zina herself. Critics ar-
gued that this aspect of the Zina Ordinance dramatically reduced the
likelihood of complaints and prosecutions in a country where rape
was already hugely under-reported due to social pressures and fear of
the consequences for the victim's reputation and dignity.
Two aspects of the text and structure of the Zina Ordinance were
particularly problematic. First, the relative ease with which the of-
fense of zina liable to tazir could be successfully prosecuted often
invited abuse. Second, the co-mingling of rape and zina, and the ap-
plication of similar principles to both, opened the door to converting
rape into zina charges. This generated human rights concerns from
outside, as well as from inside, the Islamic milieu.60 The human and
women's rights camps demanded the outright repeal of the Zina Ordi-
nance and the restoration of the pre-Hudood laws. The Islamist
critics of the Zina Ordinance stressed that under classical Islamic
law, zina and rape were two distinct offenses and that therefore, the
Quťanic zina provisions applied to consensual sexual intercourse
only.61 They argued that the requirement of four eyewitnesses did
not apply to rape, and that a complainant of rape could never be
guilty of zina. It was also argued that the tazir offense of zina was
against the spirit of the Hudood laws. The very high evidentiary stan-
dards, such as the requirement of four witnesses, indicated that the
real purpose of the law was to prevent the public display of indecency.
Islamist critics urged that zina liable to tazir be abolished62 to rem-
edy the most egregious abuses of the Zina Ordinance.
Several petitions were therefore filed with the Shariat Courts de-
manding an examination of the human rights arguments and Islamic
Masih y. State, 2005 PCrLJ 359; Tanvir Ahmed v. State, 1996 SCMR 1549; Muham-
mad Arshad v. State, 1995 SCMR 1137.
58. See , e.g., Saeed Ahmad v. State, 2006 PCrLJ 1311; Juma Gul v. State, 1997
PCrLJ 1291; Muhammad Sharif v. State, 1993 PCrLJ 1692; Amir Muhammad v.
State, 1987 SCMR 1167; Muhammad Sabir v. Abdul Qayyum, 1986 SCMR 125.
59. For a detailed discussion of the problem of pregnancy as proof of guilt, see
generally Cheema, supra note 35. For recent cases, see Kamal Din v. State, 2007
PCrLJ 1408; Jamila Jan v. State, 2006 PCrLJ 674.
60. See , e.g., Asifa Qureshi, Her Honor: An Islamic Critique of the Rape Laws of
Pakistan from a Woman-Sensitive Perspective , 18 Mich. J. Int'l L. 287 (1997).
61. Id. at 303-05.
62. See Cheema & Mustafa, supra note 3.

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objections to the Zina Ordinance.63 The Shariat courts, however, re-

fused to entertain these challenges to the constitutionality and
Islamic credentials of the ordinance. Nonetheless, the Shariat courts
consistently overturned the questionable decisions of the trial courts.
This created the nightmarish situation where most of the defendants
in zina cases were ultimately acquitted after suffering for up to two
years through the investigation and trial process.64 For most, the
worst harm was already done and the final acquittal by the Shariat
courts was an insignificant consolation.
The Shariat courts attempted to block the abuse of the Zina Ordi-
nance by minimizing the chances of successful prosecution of the zina
liable to tazir offense. For instance, the Shariat courts stipulated that
a woman had the right to choose her own husband even if her parents
disapproved. In several instances this became an issue in Hudood
cases. It arose in two entirely different contexts: (a) where a woman
had been accused of adultery and had pleaded a nikah (marriage
under Islamic rites) as a defense, the court had to determine the va-
lidity of her marriage if contracted against her parents' wishes (who
were usually also the complainants); and (b) where a man had been
charged with abduction and rape and had pleaded in his defense that
a valid nikah had been solemnized between him and the alleged vic-
tim. After some initial confusion, the Shariat courts chose an
approach that included applicable policy considerations. In zina lia-
ble to tazir cases the court held that the couple's claim would be
taken as sufficient proof of a valid marriage even if the woman's par-
ents had not consented.65 In contrast, in rape cases where the victim
denied the formalization of marriage or claimed that she had been
coerced into one, the Shariat courts insisted on a bona fide marriage,
often disregarding a formally valid nikahnama (marriage deed),
which required the parents' consent.66
The Shariat courts likewise undermined the basis on which for-
mer husbands accused women of adultery when they contracted a
subsequent marriage. Many such cases were brought by former
spouses who claimed that a divorce had not been properly formalized
under the family law statute (the Muslim Family Law Ordinance).
The Shariat courts held that a failure to meet the requirements of a
valid divorce under the Muslim Family Law Ordinance did not result
in the commission of zina if the woman remarried. They also under-
63. See, e.g., Begum Rashida Patel v. Federation of Pakistan, P.L.D. 1989 FSC 95.
64. See Cheema & Mustafa, supra note 3, at 18. See also Charles Kennedy, Is-
lamisation in Pakistan: Implementation of the Hudood Ordinances, 28:3 Asian Surv.
307, 309-10 (1988).
65. See , e.g., Muhammad Imtiaz v. State, P.L.D. 1981 F.S.C. 308.
66. As early as 1984, the Shariat Appellate Bench directed all courts trying cases
of abduction and rape to "examine as to why (in the circumstances of each case) effort
is made to solemnize a marriage in secrecy." Muhammad Azam v. Muhammad Iqbal,
P.L.D. 1984 S.C. 95.

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cut the legality of police harassment by consistently demanding high
evidentiary standards in cases of zina liable to tazir.67 On the other
hand, these courts consistently imposed serious penalties for zina-bil-
jabr liable to tazir using the normal criminal standard of proof be-
yond reasonable doubt, which in many cases was met by the sole
testimony of the victim or by circumstantial evidence.68 In addition,
they challenged the conversion of zina-bil-jabr into zina in the vast
majority of cases,69 as shown in an analysis of pregnancy cases.70
Yet, despite the decisions of the Shariat courts, the trial courts
continued to record a high conviction rate in zina liable to tazir cases
and they also supported the conversion of rape into zina charges. The
trial courts' failure to be informed by the jurisprudence of the Shariat
courts is perplexing indeed, given the distinctly superior position of
the latter in the hierarchy of Pakistan's Common Law courts. One
should remember that the Shariat courts were constitutionally en-
trusted with the power to declare any law invalid for repugnancy to
the injunctions of Islam. Further, the Shariat courts claimed and ex-
ercised the power to interpret and even amend statutes. Their
decisions were binding not only for the trial courts but also the pro-
vincial High Courts. Hence, even if initially the Shariat courts, being
new judicial institutions, were unable to stamp their authority upon
the lower judiciary, one might have expected that the trial courts' de-
cisions would in time begin to reflect the directions of the Shariat
courts. While it is hard to determine the reasons for the dissonance
between the Shariat courts and the trial courts, certain contributory
factors can be identified. To begin with, there was no robust profes-
sional legal and academic discourse that would promote the
understanding of judicial precedent; such a discourse did not emerge
in part because of the polarization of the debates surrounding Is-
lamization and the resulting hostility, or at least indifference, felt by
a majority of legal professionals towards the Shariat courts. In addi-
tion, most Pakistani jurists remained disengaged from the practices
67. See, e.g., Muhammad Saleem Arshad v. State, 2007 PCrLJ 50; Siraja v. State,
2007 PCrLJ 227; Roshan Bibi v. State, 2007 PCrLJ 1792; Shaukat Ali v. State, PLD
2006 SC 81; Muhammed Aslam v. Shakeel Liaqat, 2006 SCMR 348; Áamir Mushtaq
v. State, 2006 PCrLJ 415; Muhammad Shafique v. State, 2006 PCrLJ 893; Nabeel
Tahir v. State, 1997 SCMR 399.
68. For examples, see Amanullah v. State, 2007 PCrLJ 517; Jehangir v. State,
2007 PCrLJ 1730; Muhammad Ashraf v. State, 2006 PCrLJ 132; Sarjad Ali v. State,
2006 PCrLJ 349; Riaz Ahmad v. State, 2006 PCrLJ 694; Ali Hussain v. State, 2006
PCrLJ 931. For cases where the sole testimony of the victim was sufficient, see
Mushtaq Ahmed v. State, 2007 SCMR 473; Muhammad Aslam v. State, PLD 2006 SC
465; Muhammed Naeem v. State, 2005 SCMR 284; Muharram v. State, 2004 SCMR
195; Abdul Rauf v. State, 1999 SCMR 2253; Ghafoor v. State, 2005 PCrLJ 93; Ibrar
Hussain v. State, 2005 PCrLJ 729; Abdul Ghaffar v. State, 2005 PCrLJ 887.
69. See, e.g., Shahzad v. State, 2002 SCMR 1009; Sharman v. State, 2002 PCrLJ
831; Tasleema v. State, 1996 MLD 162; Waten Khela v. State, 1995 SCMR 1501.
70. See Cheema, supra note 35, at 154-55.

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and the decisions of the Shariat courts because they lacked a basic
knowledge and understanding of Islamic law.
More importantly, perhaps, Pakistan's lower judiciary has his-
torically been bound by statutory law more than by appellate court
judgments. The bulk of Pakistan's laws are codified to such an extent
that it is almost inaccurate to describe Pakistan as a true Common
Law system. Ultimately the Shariat courts deserve some blame for
their failure to compel the lower courts to follow the principles the
Shariat courts applied, which could have prevented many instances
of miscarriage of justice, especially if suitable amendments to the
Zina Ordinance had been effected. As the debate became progres-
sively polarized, the Shariat courts felt hesitant to call the Islamic
credentials of the Hudood laws into question out of concern that such
action might jeopardize the entire Islamization project. To give an
example, as early as 1983, the Federal Shariat Court unambiguously
stated that "[i]f an unmarried woman delivering a child pleads that
the birth was the result of commission of the offence of rape on her,
she cannot be punished" for zina.71 But the problems persisted. The
trial courts kept converting rape charges into adultery and the
Shariat courts kept decrying the practice. The issue was satisfacto-
rily resolved only in 2006 when a statutory amendment categorically
stated that no case in which an allegation of rape is made shall at any
stage be converted into zina.72 Other amendments made in 2006 re-
duced the plight of those accused of zina liable to tazir (now termed
fornication) by making it impossible for the police to arrest without
prior approval from the trial court.73 The Shariat courts could have
pushed for such amendments long before the 2006 Act was passed.
£. Qisas & Diyat Laws and the Privatization of Criminal Justice

The disconnect between the principles of Islamic law and statu-
tory law, as well as the dissonance between the Shariat courts and
71. Safia Bibi v. State, 37 P.L.D. 1985 F.S.C. 120 (1983), at 124. Emphasis added.
72. §12Â of the PWÁ inserted §5A in the Zina Ordinance. Similarly, in a 1997 case
the Federal Shariat Court noted that section 8 of the Qazf Ordinance prevented a case
of qazf (wrongful accusation of adultery) from being initiated unless the accused
brought a formal complaint. The court observed that "such a bar is not in accordance
to (sic) the teachings of Islam" and hence "it would be proper if the legislation (sic)
amends the said provision of law to give suo moto powers to the competent courts to
start proceedings" of qazf. See Zarina Bibi v. State, 1997 PCrLJ 313, at 320. However,
note that the court did not strike down the relevant provision nor did it pursue such a
legislative change. It was only through amendments made by the 2006 Act that the
court's recommendation was heeded, which rendered it very perilous to bring a com-
plaint of adultery. The accusers were now required to bring two eyewitnesses
testifying to the consensual sexual intercourse; failing that, they faced the risk of
being convicted of making a wrongful accusation of adultery. See §7 of the FWA in-
serted §496C in the Pakistan Penal Code [Pak. Pen. Code, § 496C (I860)]. §496C of
PPC [Pak. Pen. Code, § 496C (I860)].
73. §8 of the Protection of Women (Criminal Laws Amendment) Act, 2006 [herein-
after PWA] inserted §§203A and 203C in the Code of Criminal Procedure.

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the trial courts, have been equally evident in another area of Islam-
ized law. The introduction of the problematic Qisas & Diyat laws was
by far the most far-reaching substantive change in Pakistan's crimi-
nal law, much more significant than the Hudood Ordinances in terms
of the practical import. According to their critics, these laws have ad-
ded yet another layer of coerciveness to Pakistan's inhumane
criminal justice system by enhancing the scope for capital punish-
ment and introducing cruel sind unusual physical punishments.
Further, the critics allege that these laws have resulted in large-scale
privatization of criminal justice which exacerbates the inequity of
enforcement.
The Qisas & Diyat Ordinance, first promulgated in 1990, substi-
tuted the penal code provisions covering offenses of murder, culpable
homicide and injury to a person. Principles of qisas (strict retribution
or lex talionis) and diyat (payment of monetary compensation for
death or injury) now applied to the entire range of offenses covered by
the Ordinance. In cases of murder the Ordinance appeared to make
capital punishment mandatory, if the victim's heirs insisted on it.
Likewise, in the most serious cases of bodily harm involving loss or
impairment of a limb, the Ordinance provided for the penalty of in-
flicting the same kind of injury upon the offender that he/she had
caused to the victim: limb for limb in a literal sense. The principle of
qisas is doctrinally similar to that operative in hadd crimes in that
the state and its judges have no discretion as to the severity of
sentences. The counterbalancing principle of diyat allows the victims
or their heirs to pardon the offenders in cases of homicide and bodily
harm, and to accept monetary compensation instead. As such, the
Qisas & Diyat laws appeared to transfer decision-making from the
prosecutors and judges to the victims or their heirs.
The Qisas & Diyat laws were not promulgated at the initiative of
the legislature. Instead, these laws were framed in 1990 when the
Shariat Appellate Bench of the Supreme Court decided the Gul Has-
san case. The Pakistan Penal Code's (PPC) provisions for homicide
and injury to a person were found to be repugnant to the injunctions
of Islam.74 Eleven appeals had been pending before the court since
1980. A draft ordinance proposing the introduction of Qisas & Diyat
laws had been presented before the hand-picked parliament of the
Zia era as far back as June 1981.75 No progress had been made with
the Islamization of the relevant penal code provisions until the
Shariat Appellate Bench compelled such a change in the aftermath of
its Gul Hassan decision.76 This is prima facie evidence that the Zia
74. Federation of Pakistan v. Gul Hasan Khan, P.L.D. 1989 S.C. 633.
75. See Mehdi, supra note 8, at 151; and Patel, supra note 6, at 146-47.
76. See Mehdi, supra note 8, at 151-52, where it is noted that several contempt
proceedings were filed against the government for failing to implement the directions
of the FSC with regard to Qisas & Diyat laws.

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regime had intended the Islamization of laws to be of symbolic signif-

icance only and not to be meaningful or far-reaching.77
What happened in the aftermath of the Shariat Appellate Bench
decision is intriguing. The Shariat Appellate Bench had not only de-
clared several provisions (in fact an entire chapter)78 of the PPC to be
null and void for repugnancy to the injunctions of Islam, but had also
elaborated in considerable detail the principles on which the new
laws ought to be based. The Bench anticipated that the government
would be reluctant to implement the changes and declared that in
such a scenario, "Common Islamic Law" would fill the resultant gap
in Pakistan's criminal law. As it turned out, the Shariat Appellate
Bench had made an uncannily accurate assessment of the political
climate of Pakistan. Successive parliaments failed (or refused) to
pass an Act until the end of 1995. During the interim period, a Qisas
& Diyat Ordinance drafted in accordance with the Shariat Appellate
Bench's directions governed the field.79 The Shariat courts thus
staked an unprecedented claim to judicial power. The Shariat Appel-
late Bench of the Supreme Court pronounced that the authority to
declare laws invalid for repugnancy to the injunctions of Islam
granted by the Constitution necessarily included the attendant power
to direct what laws should replace the voided provisions.80
The Qisas & Diyat laws now replaced the chapter of the penal
code governing homicide and injury to a person. The principles of
qisas and diyat aplied to the entire range of offenses contained in the
invalidated chapter. The classification of homicide and injury to a
person was dramatically altered as was the foundational theory of
criminal liability.81 Prior to the Qisas & Diyat laws, the relevant pro-
visions of the Pakistan Penal Code (PPC) classified homicide as
murder and culpable homicide as "not amounting to murder."82 A
homicide was murder if it was committed with the intent to cause
death or serious injury and was punishable by death or life imprison-
ment.83 The offense was considered culpable homicide "not
amounting to murder" if it fell within one of the stated exceptions -
such as grave and sudden provocation, a sudden fight or self defense,
for instance - and was punishable by imprisonment for up to ten
years and a fine.84 Negligent homicide carried the penalty of impris-
77. See Tahir Wasti, The Application of Islamic Criminal Law in Pakistan
105-10 (2009).
78. Pak. Pen. Code ch. 16 (1860).
79. See Federation of Pakistan and another v. N.W.F.P. Government and others,
P.L.D. 1990 S.C. 1172.
80. Ia. The court cited with approval the judgment of Ajmal Mian J. in the SAB s
decision in Suo Moto Shariat Review Petition No.l-R of 1989, P.L.D. 1990 S.C. 865.
81. For example, see Maqbool Ahmed v. State, 1992 S.C.M.R. 2279.
82. Pak. Pen. Code, §300 (1860), prior to 1990.
83. Pak. Pen. Code, §302 (1860), prior to 1990.
84. Pak. Pen. Code, §300, Exceptions and §304 (1860), prior to 1990.

111.68.97.183 on Mon, 09 Nov 2020 07:35:20 UTC
onment for up to two years and a fine.85 The classification of offenses
and penalties depended upon the mens rea. The Qisas & Diyat laws
substituted that classification with the Islamic categories of qatl
(homicide) as follows:
a. Qatl-i-Amd liable to Qisas (Section 302(a) of P.P.C.): This

was the most serious category of murder. Similar to hadd
offences of zina and zina-bil-jabr, it required a heightened
standard of proof: either a voluntary confession before the
trial court or the testimony of two eyewitnesses who met
a strict Islamic test of probity.86 In such a case, the legal
heirs of the victim had the choice of exercising qisas, capi-
tal punishment as retribution, or they could spare the
offender's life and opt for monetary compensation.87 If the
heirs chose to exercise their right of qisas, the state had
no authority to deliver a pardon or remit the sentence.
However, if any one of the heirs chose to pardon the cul-
prit, the death penalty as qisas could not be enforced. A
judge could, however, sentence him to imprisonment for
up to twenty-five years as tazir after granting of a pardon
by the victim's heir(s).88
b. Qatl-i-Amd liable to Tazir (Section 302(b) of P.P.C.): If
proof of Qatl-i-Amd liable to qisas was not available but
other evidence proved criminality beyond a reasonable
doubt, then the accused would be convicted of qatl-i-amd
liable to tazir. The punishment for this offense was
mandatory death or life imprisonment. This category of
murder was also made "compoundable," i.e., pardonable,
but only if all of the victim's heirs voluntarily agreed to
forgive the perpetrator pursuant to a compromise or set-
tlement.89 The trial judge, however, retained the
discretion to either certify the settlement, thereby acquit-
ting the accused, or to reject the compromise and hand
down a sentence of death or life imprisonment under sec-
tion 302(b).
c. Qatl-i-Amd where Qisas is not applicable (Section 302(c)
of P.P.C.): Section 302(c) stated that the offender may be
punished by imprisonment of up to twenty-five years
where "according to Injunctions of Islam the punishment
of qisas is not applicable." From 1990 to 1995, the supe-
85. Pak. Pen. Code, §304-A (1860), prior to 1990.

86. Pak. Pen. Code, §304 (1860). See also Gulbar v. State, P.L.D. 2002 Pesh. 65.
87. Pak. Pen. Code, §§309-10 (1860). See, e.g., Muhammad Jabbar v. State, 2000
P.Cr.L.J. 1688.
88. Pak. PEN. Code, §311 (1860).
89. See, e.g., Hussam Bux v. State, P.L.D. 2003 Kar. 127, and Muhammad Aslam
v. Shaukat Ali, 1997 S.C.M.R. 1307.

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rior courts of Pakistan struggled to define this category of

murder until eventually determining that this provision
applied in cases that fell within the exceptions that previ-
ously rendered offenses into culpable homicides not
amounting to murder - exceptions which had explicitly
been omitted in the Qisas & Diyat laws. This included
cases falling under the exception of grave and sudden
provocation, which covered most honor killings.90
The Islamic categories of qatl (homicide) that were introduced were

unduly complicated and appeared to leave too much maneuvering
room for lawyers and judges. On the one hand, in cases of the most
serious category of murder (qatl-i-amd liable to qisas) in which the
legal heirs of the victim insisted on capital punishment, the state had
no authority to reduce the sentence and capital punishment was
mandatory. This raised the concern that executions would increase in
Pakistan.91 On the other hand, murders (qatl-i-amd) of all kinds were
made compoundable or pardonable and the accused would be acquit-
ted if pardoned by the victims' heirs in return for monetary
compensation. While not problematic per se, this would invariably be
an unsatisfactory outcome in situations where the offender was in a
more powerful negotiating position vis a vis the heirs of the victim on
account of wealth or influence within the rural social hierarchy. Also
in cases of intra-family murder, especially honor killings, the families
were likely to prefer compromise to prosecution. In a case of honor
killing, an accused could simply confess before the court thereby
making his case fall under the category of qatl-i-amd liable to qisas.
Thereafter, any one of his family members could pardon him and en-
sure a quick acquittal.92 Under such rules, the critics argued, the
Islamized law of homicide would punish either too harshly or too
leniently.
The scheme of personal injury offenses, referred to as "hurt" of-
fenses in the PPC, was also completely transformed.93 An elaborate
classification of hurt offenses based upon the body part injured and
the extent of the injury was substituted by objective elements of the
offense. As a result, the nature and extent of the injury became the
predominant factors in determining culpability, rather than the de-
90. See Ali Muhammad, P.L.D. 1996 S.C. 284.

91. On capital punishment in Pakistan, see Slow March to the Gallows: Death
Penalty in Pakistan, Report of the Human Rights Ciommission of Pakistan (Jan.
2007).
92. See Moeen H. Cheema, Judicial Patronage of "Honor Killings " in Pakistan:
The Supreme Court's Persistent Adherence to the Doctrine of Grave and Sudden Provo-
cation , 14 Buff. Hum. Rts. L. Rev. 51, 60 (2008).
93. Pak. PEN. Code, §§332-337X (1860).

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fendanťs mens rea or other subjective elements.94 In certain cases
the Islamized provisions appeared to require judges to determine
94. Following is the classification of the more serious types of hurt offenses and
the penalties and/or compensation:
TYPE OF INJURY DEFINITION PUNISHMENT
Itlaf-i-udw Amputation of limb Qisas / Compensation and
Itlaf i-salahiyyat-i-udw Permanent impairment of Qisas / Compensation and

organ, loss of use up to 10 years'
Shajjah-i-khafifah Face injury: without Compensation and up to 2

exposing bone years' imprisonment as
Shajjah-i-mudihah Face injury: exposing any Qisas / Compensation (5%

bone without dislocating it of diyat) and up to 5 years'
Shajjah'i-hashimah Face injury: fracturing the Compensation (10% of

bone without dislocating it diyat) and up to 10 years'
Shajjah-i-munaqjllah Face injury: fracturing the Compensation (15% of

bone and dislocating it diyat) and up to 10 years'
Shajjah-i-ammah Head injury: causing Compensation (1/3 of

fracture of the skull so diyat) and up to 10 years'
that the wound touches imprisonment as tazir
the membrane of the brain
Shajjah-i-damighah Head injury: causing Compensation (50% of

fracture of the skull and diyat) and up to 14 years'
the wound ruptures the imprisonment as tazir
Jurh Jaifah Bodily injury: injury Compensation (1/3 of

extends to the body cavity diyat) and up to 10 years'
Jurh Ghayr-jaifah: Bodily injury: skin is Compensation and up to 1

Damiyah ruptured and bleeding year's imprisonment as
Jurh Ghayr-jaifah : Bodily injury: cutting or Compensation and up to 3

Badi'ah incising the flesh without years' imprisonment as
Jurh Ghayr-jaifah : Bodily injury: lacerating Compensation and up to 3

Mutalahimah the flesh years' imprisonment as
Jurh Ghayr-jaifah: Bodily injury: exposing the Compensation and up to 5
Mudihah bone years' imprisonment as
Jurh Ghayr-jaifah : Bodily injury: causing Compensation and up to 5
Hashimah fracture of a bone without years' imprisonment as
Jurh Ghayr-jaifah : Bodily injury: fracturing Compensation and up to 5

Munaqqillah and dislocating the bone years' imprisonment as

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that the accused be punished with a commensurate injury, for exam-

ple the amputation of a limb.95 Hurt offenses were also made
compoundable, i.e., pardonable by the victim in return for monetary
compensation. This created the dilemma for the state of either in-
flicting brutal physical punishments on behalf of those victims who
insisted on qisas or letting the culprit walk away after payment of a
compensation.
In reality, the Qisas & Diyat laws operated somewhat differently
from what the critics of Islamization feared. Punitiveness and brutal-
ization did not happen. For instance, the feared increase of capital
punishment did not occur, because such cases constituted a very
small minority. The qisas offense of qatl required a heightened stan-
dard of proof- a confession or the testimony of two eyewitnesses -
which is usually not available in cases that present a strong de-
fense.96 Most murder cases were classified as tazir offenses of qatl-i-
amd and required the regular criminal standard of proof beyond rea-
sonable doubt based upon circumstantial and forensic evidence. In
qatl-i-amd liable to tazir cases the usual sentence was life imprison-
ment, and the death penalty applied only to the most heinous
murders.97 Executions did not increase and in fact, a recent decision
of the Shariat courts shifted the balance in favor of life imprisonment
rather than capital punishment in most murder cases.98 Likewise, in
cases of injury where qisas penalties could apply, judges found all
kinds of justifications to avoid inflicting state administered mutila-
tions.99 There were some instances of qisas penalties, raising
concerns about cruel and unusual punishment and "brutalization by
law,"100 but these were invariably reversed on appeal.101
95. The punishment of Qisas was applicable to three crimes only. See Pak. Pen.
Code, §§333, 334, 335, 336, 337(1), (2Kb), (3Xii) and 337A(ii) (1860). The method for
the execution of qisas for injury is stated in §§337P(1).
96. Pak. Pen. Code, §304 (1860). The witnesses must meet the requirements of
tazkiyah-al-shuhud (Islamic test of probity). See, e.g, Gulbar v. State, P.L.D. 2002
Pesh 65, and Iftikhar Ali v. State 1998 P.Cr.L.J. 2022.
97. Contrast from Joan Fitzpatrick & Alice Miller, International Standards on the
Death Penalty: Shifting Discourse, 19 Brook. J. Int'l L. 273, 358-60 (1993) where it is
contended that the prevalence of capital punishment in Pakistan is due in part to the
rising influence of Islamic fundamentalism.
98. See Israr Ali v. State, 2007 S.C.M.R. 525.
99. See, e.g., Saif Ullah v. State, 2003 S.C.M.R. 496; Arshad v. State, 2005
P.Cr.L.J. 975; Amjad Hussain v. State, P.L.D. 2001 Lah 56; and Jan Alam v.
Muntazir, 2003 P.Cr.L.J.
100. See, e.g, I.A. Rehman, Brutalised by law, Dawn, Jan. 07, 2010, available at
http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/
columnists/14-i-a-rehman-brutalised-by-law-7 10-zj .
101. See, e.g., In re: Suo Moto Constitutional Petition (No. 9 of 1991), 1994
S.C.M.R. 1028, where the Supreme Court held that public executions were in viola-
tion of the human right to dignity and freedom from torture under Islamic law as
well.

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Compoundability became the predominant practice under the
Qisas & Diyat laws.102 The overwhelming majority of defendants ob-
tained acquittals after reaching settlements with the victims or their
heirs. Only indigent offenders seemed to suffer imprisonment due to
their inability to pay compensation. Compoundability in qatl cases
emerged as a major problem in cases of intra-family honor killings
and in murders committed in rural settings where the offenders had
the advantage of wealth and privilege in settlement negotiations. It
must be noted that in such cases the judges retained the discretion to
convict the offender even after a settlement or compromise had been
reached.103 This is due to the simultaneous existence of two sets of
rights in classical Islamic legal doctrine, as reflected in the structure
of the Qisas & Diyat laws: on the one hand, the rights of the victim
and the victim's family to retribution, and on the other hand the right
of the state to maintain law and order using discretionary tazir pun-
ishment.104 The judges have failed to duly exercise their discretion to
hand down tazir punishment and have abdicated the responsibility to
determine adequate sentences.105 They have also failed to supervise
the compromise negotiation process sufficiently to ensure that any
settlement is reached without duress.106 The trial judges usually re-
ceive considerable information concerning the negotiating positions
of the parties, such as knowledge of their social status, wealth, his-
tory of enmities, and contacts with influential people within the area.
The judges also have a sense of the role played by the police and local
government officials during the investigation and trial phases. Infor-
mation can be gathered by directing independent inquiries through
commissions staffed by police, local government officials from outside
the particular locality, even court officials. Based on these resources
the trial courts could effectively determine whether settlements were
reached without duress. Such investigations, however, were rarely
pursued and independent judgment rarely exercised.
A similar state of affairs has prevailed in injury cases under the
Qisas & Diyat laws. Just as in qatl cases, under-punishment in injury
cases has been rampant in the enforcement of Qisas & Diyat laws.
Here again, Pakistani judges neglected their responsibility to deter
crime when they did not exercise their discretion to use tazir punish-
ments. This has transformed the "crim-torts" envisaged in the Qisas
& Diyat laws (where both criminal penalties and monetary compen-
102. Although the Supreme Court stated obiter in a bail petition in Haji Maa Din v.
State, 1998 S.C.M.R. 1528, that the court should consider severed factors when
awarding tazir penalty, the trial courts continued to hand down prison sentences in
only a handful of cases. See, e.g., in Shawar Gul v. State, 2006 P.Cr.L.J. 284.
103. See, e.g., Hussain Bux v. State, P.L.D. 2003 Kar 127.
104. See Pak. Pen. Code, §311 (1860). For ein example, see Abdul Ghafoor v. State,
2000 PCrLJ 1841.
105. See Wasti, supra note 77, at 193-200.
106. Id.

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sation may be determined in a single proceeding rather than in

separate civil and criminal proceedings) into mere torts and has re-
sulted in the pervasive privatization of criminal justice.107
The trial judges do not bear the sole responsibility for this state
of aifairs. The non-Shariat appellate judiciary deserves a significant
portion of the blame. The regular appellate courts in Pakistan - the
High Courts and the Supreme Court - have the power to overturn ac-
quittals and convictions in criminal cases as well as to enhance or
reduce sentences.108 Not only have the appellate courts consistently
failed to ensure that discretionary tazir punishments are granted in
homicide and injury cases, they have also aggressively pushed an un-
derstanding of Islamic laws that favors compromise and forgiveness
of serious crimes over punishment.109 While this was arguably not a
problem in itself, compoundability of serious offenses of (honor kill-
ings or duress in pardon settlements) was an issue. Matters were
made worse when the courts routinely valued diyat (monetary com-
pensation) for the loss of a life at approximately U.S. $3,000, and
specified fractions of that sum for different categories of injuries. This
rendered a criminal justice system that was already heavily weighted
in favor of the rich and powerful even more inequitable.
C. Islamic Laws in "Secular" Courts
Islamic law has long ceased to be the sole preserve of the Shariat
courts. Although the constitutional amendments under the Zia re-
gime envisaged the Shariat courts as the only arbiters of Islamic
injunctions, the High Courts and the Supreme Court gradually began
to use a wide range of Islamic law arguments. By the 1990s these
appellate courts appeared to have displaced the Shariat courts eus the
primary forum of Islamization. Islamic law principles began to ap-
pear in their decisions even in matters not usually considered core
Islamic concerns. Most of the appellate courts' decisions employing
Islamic principles can be characterized as liberal or even progressive,
thus enhancing the protection of rights.110 Yet, in a minority of in-
stances these very courts were also responsible for the most egregious
curtailments of rights.
Even prior to General Zia's Islamization campaign, the regular
appellate courts had begun to use Islamic law as a kind of residual
regime or the embodiment of foundational legal principles in some
cases, thereby re-interpreting statutes and precedents or using Is-
107. For examples of compromise in serious cases of hurt, see Hussain Ali v. Khan
Ali, 2002 S.C.M.R. 923 and Khalid Mahmood v. State, 2005 Y.L.R. 794.
108. See, e.g., Muhammad Asghar v. Muhammad Riaz, 2001 Y.L.R. 715.
109. See Wasti, supra note 77, at 187-88.
110. For a recent example, see Pakistan Telecommunication Company Limited v.
Muhammad Zahid, 2009 P.L.C. (C.S.) 1001.

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lamie law to fill any gaps.111 The constitutional amendments ushered
in by General Zia provided concrete grounding to this tendency. In
1985 the Zia regime amended the Constitution of 1973 and made the
Objectives Resolution a substantive provision in the form of Article 2-
A.112 It may be recalled that the Objectives Resolution of 1949 repre-
sented a statement of fundamental constitutional principles by the
founders of the independent republic - which prominently included
Islam, but also democracy and social justice - and had formed the
preamble to the 1973 Constitution.113 Its incorporation as a substan-
tive and enforceable provision to the constitution caused alarm
amongst the critics of Islamization as they feared that it may be used
as a supra-constitutional provision (or Grundnorm in Kelsen's termi-
nology) by the Shariat courts to re-interpret the entire constitutional
framework in its light. Had this concern materialized, Islamic law
would become the de jure constitution of Pakistan.
Contrary to expectations, the Shariat courts largely stayed away
from this particular source of controversy. The provincial High
Courts, however, flirted dangerously with the possibilities inherent
in the incorporation of the Objectives Resolution and began to ques-
tion the validity of legislative measures, and at times even
constitutional provisions,114 for lack of conformity with Islamic law.
In several decisions between 1985 and 1992, the High Courts relied
on Article 2-A to test fiscal and family law statutory provisions,
which fell within the scope of subject matters that the Federal
Shariat Court had been barred from taking up for an initial period of
ten years.116 Such reliance on Article 2-A deeply divided the appel-
late courts and shook "the very Constitutional foundations of the
country."116 In back to back decisions in 1991 and 1992, the Supreme
Court finally resolved this controversy. First, in Hakim Khan v. Gov-
ernment of Pakistan, the court held that all constitutional provisions,
including Article 2-A, were at par and any conflict had to be resolved
by harmonizing the interpretation of constitutional provisions.117
Then in Mst Kaneez Fatima v. Wali Muhammad, the Supreme Court
decided that the regular appellate courts did not have the power to
review any legislation and declare it to be repugnant to the Injunc-
111. See Lau, supra note 22, at 35-39.

112. See Pak. Const, art. 2-A, inserted by Presidential Order No. 14 of 1985.
113. See text accompanying supra notes 7 and 8.
114. See , e.g., Aijaz Haroon v. Inman Durrani, P.L.D. 1989 Kar 304.
115. See , e.g., Bank of Oman Ltd. v. East Trading Co. Ltd., P.L.D. 1987 Kar 404;
Irshad H. Khan v. Parveen Ajaz, P.L.D. 1987 Kar 466; Mirza Qamar Raza v. Tahira
Begum, P.L.D. 1988 Kar 169; Shahbazud Din Chaudhry v. Services I.T. Ltd., P.L.D.
1989 Lah 1; Tyeb v. Alpha Insurance Co. Ltd., 1990 C.L.C. 428; Allah banda v. Khur-
shid Bibi, 1990 C.L.C. 1683; Muhammad Ashraf v. National Bank of Pakistan, 1991
C.L.C. 1018.
116. See Hakim Khan v. Government of Pakistan, P.L.D. 1991 SC 595 at 629,
quoted in Lau, supra note 22, at 48.
117. See Hakim Khan v. Government of Pakistan, P.L.D. 1991 SC 595.

111.68.97.183 on Mon, 09 Nov 2020 07:35:20 UTC
tions of Islam as the Shariat courts did.118 It was firmly established,

however, that the secular appellate courts could interpret statutes
and precedents and test the constitutionality of executive action ap-
plying standards that included Islamic legal principles.119
Islamization of criminal laws also provided the non-Shariat ap-
pellate courts with an opportunity for a sustained foray into Islamic
legality. For instance, Section 338-F of the Pakistan Penal Code
(PPC), brought in as part of the Qisas & Diyat laws, directed the
courts to be guided by the injunctions of Islam in the interpretation
and application of the provisions at hand, and "in respect of matters
ancillary or akin thereto."120 In deciding appeals and Writ petitions
pertaining to cases under the Qisas & Diyat laws, the High Courts
were thus called upon to decide "ancillary matters" such as granting
bail, obliging the police to investigate offenses, evaluation of evi-
dence, prison conditions, inability of indigent prisoners to pay diyat,
etc., in light of Islamic principles.121 Of course, these principles, cov-
ering a whole range of procedural matters, could not be confined to
homicide and injury to a person alone; instead, they were applicable
to all criminal trials.122 Thus the High Courts, and not the Shariat
courts, increasingly began to implement Islamic legal principles in
criminal procedure.123
From 1992 onward, the High Courts and the Supreme Court be-
gan to use Islamic-law-inspired arguments in virtually all areas. It
must be noted, however, that in most of the cases after 1992, Islamic
law considerations were used to bolster the moral foundation and the
legitimacy of the court's position rather than as core legal argu-
ments.124 It is easy to appreciate how the High Courts and the
118. See Mst Kaneez Fatima v. Wali Muhammad, P.L.D. 1993 SC 909.
119. See Sindh High Court Bar Association, Karachi v. The Islamic Republic of
Pakistan, P.L.D. 1991 Kar. 178; Dr. Hameed Ahmad Ayaz v. Government of Punjab,
P.L.D. 1997 Lah. 434; M.D. Tahir v. Federation of Pakistan, 1995 C.L.C. 1039.
120. See Pak. Pen. Code, §338-F (1860).
121. See , e.g., Niamat Ali v. State, P.L.D. 2001 Lah 105.
122. Seey e.g ., Jagan v. State, P.L.D. 1989 Kar 281.
123. See Amer Habib v. Senior Superintendant oí ronce, lyyo (J.-L.o. zy; and Kiaz
v. Station House Officer, Police Station, Jhang City, P.L.D. 1998 Lah. 35, on the Is-
lamic right to privacy.
124. See , e.g., Muhammad Shabbir Ahmad Khan v. Federation ot Pakistan, ť.L.u.
2001 S.C. 18 (customary law of inheritance inapplicable); Mrs. Anjum Irfan v. LDA,
P.L.D. 2002 Lah 555 (Islamic law arguments on environmental issues); M.D. Tahir v.
Provincial Government, 1995 C.L.C. 1730 (wildlife protection); Dr. Capt. Muhammad
Aslam Javed v. The Secretary, Government of Punjab Health Department, 1997
M.L.D. 498 (allotment of official residence); Hussain Bakhsh Khan v. Deputy Com-
missioner, D.G. Khan, 1999 C.L.C. 88 (liability for issuing false divorce deed); Qazi
Akhtar Ali v. Director of Agriculture, 2000 P.L.C. (C.S.) 784 (payment of back salary
tantamount to forced labor contrary to injunctions of Islam); Abu Bakr Haider Shah v.
Member (Colonies), Board of Revenue Punjab, 2004 C.L.C. 834 (appointment of Imam
Masjid); Habibullah v. The State, 2009 M.L.D. 1162 (right to appeal); Ch. Mubashar
Hussain v. Returning Officer, Kharian, District Gujrat, P.L.D. 2008 Lah. 134 (dis-
qualification from becoming a member of parliament on account of default on a bank

111.68.97.183 on Mon, 09 Nov 2020 07:35:20 UTC
Supreme Court gained the power to invoke Islamic law in certain
contexts; it is harder to explain why the courts began to brandish it in
such a robust fashion.
Several factors contributed to the secular courts' Islamic bent:
the perception that the regular appellate courts were moderate and
amenable to persuasion induced petitioners increasingly to raise Is-
lamic law arguments, thus forcing the courts to deal with a range of
issues through the lens of Islamic law and morality.125 In addition,
the Shariat courts themselves opened the door for a wider perme-
ation of Islamic law throughout Pakistan's legal system. The Federal
Shariat Court, which conducted a suo moto review of legislation in
1983 and 1984 and found only a handful of statutes to be repugnant
to Islam,126 sought to enhance its jurisdiction by interpreting the
term "injunctions of Islam" in an expansive fashion.127 The Federal
Shariat Court ruled that repugnancy to the injunctions of Islam did
not only cover the violation of direct and explicit rulings found in the
texts of the Qur'an and the Sunnah, but also the violation of broader
principles.
The Shariat courts' method seemed to be very similar to stan-
dard modes of constitutional interpretation. The only apparent
difference was that instead of the textual sources of ordinary judicial
reasoning, i.e., the constitution, legislation or precedent, they em-
ployed the sources of Common Islamic Law reasoning, i.e., the
Qur'an, the ahadith (sayings) of the Prophet, the narratives of his
actions, and the corpus of rulings of classical Islamic jurists. The par-
allels between the judicial reasoning of the ulema and the regular
judges on the Shariat courts were remarkable. Finally, regular High
Court and Supreme Court judges sat on the Shariat courts in fact
representimg the majority. This instilled a degree of confidence in the
Common Law judges that Islamic law, as it came to be shaped in the
Shariat courts, was not a hyper-specialized area that would require
expertise, or unique language, legal or analytical skills.
The secular appellate courts generally used Islamic legal princi-
ples as the over-arching public morality of the Islamic republic and
thus justified their expanding judicial review power in the 1990s.
These courts legitimized their progressive activism in public interest
litigation cases, human rights petitions challenging legislative enact-
ments, and Writ petitions challenging executive over-reach. Islamic
loan guarantee); and Anjuman Jamia Islamia, Jamia Masjid, Garden Block, New
Garden Town, Lahore v. Lahore Development Authority, 2005 M.L.D. 215 (payment
of purchase price of land on which a mosque had already been built).
125. See, e.g., Haq Nawaz v. State, 2001 S.C.M.R. 1135; Fayyaz Ahmed v. Lahore
Stock Exchange (Guarantee) Limited, 1996 C.L.C. 1469; M.D. Tahir v. Provincial
Government, 1995 C.L.C. 1730; and M.D. Tahir v. Federation of Pakistan, 1995
C.L.C. 1039.
126. See Lau, supra note 22, atl75-76.
127. Pakistan v. Public at Large, PLD 1986 SC 240.

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law thus emerged as the normative bedrock of rights and rule of law
discourses in Pakistan. However, the courts also decided a handful of
cases under the banner of Islamic law that validated and entrenched
cultural practices that were deeply misogynistic and discriminatory
towards religious minorities. For example, the Supreme Court's deci-
sion concerning minority rights, Zaheeruddin v. State, legitimated
discrimination against and persecution of the Ahmadi community in
Pakistan.128 In this case, the constitutionality of criminal provisions
that prohibited Ahmadis from adopting religious practices and titles
similar to those used by Muslims, was challenged on the ground that
these provisions violated the freedom of religion guaranteed under
the 1973 Constitution.129 The Supreme Court rejected the challenge
holding that the fundamental rights provisions of the Constitution
were to be interpreted in accordance with the principles of Islamic
law, which in this case resulted in a curtailment of the freedom of
religion.130
In other instances, Islamic law principles were used to reinforce
misogynous and patriarchal social practices and cultural norms. For
example, in a highly publicized and bitterly contested case, Hafiz Ab-
dul Waheed v. Asma Jehangir,131 the Lahore High Court held that
the consent of a wali (parent or guardian) was not a necessary pre-
condition for a valid marriage. Intriguingly, the court could have
simply relied on precedents of the Shariat courts.132 Instead, it
sought to derive over-arching principles of Islamic morality from the
religious texts, which mandate a separate but equal status for women
under Islamic law and morality.133 As such, the court reached the
correct decision but through reasoning reflecting judicial attitudes
that would undermine women's rights in other contexts.
The Lahore High Court's restrictive approach to the status of wo-
men in the above-mentioned case was not unique. In a case that was
fought all the way up to the Supreme Court, the acceptance of con-
servative morality as Islamic law granted child custody to the father
in preference to the mother in Seema Chaudhary v. Ahsan Ashraf
Sheikh. Both the Supreme Court and the High Court held that the
custody of the minor be granted to the father who had not remarried
after the divorce, while the mother did remarry and had another
child from her second marriage. This, according to both appellate
128. See Zaheeruddin v. State, 1993 S.C.M.R. 1718.

129. See Pak. Const, art. 20.
130. For discussion oi the case, see Jeltrey A. Heading, Constitutwnauzing islam:
Theory and Pakistan, 44 Va. J. Int*l L. 759, 793-96 (2004); Mahmud, supra note 9, at
45-51, and Lau, supra note 22, at 112-19.
131. Hanz Abdul Waheed v. Asma Jehangir, P.L.D. 1997 Lah 301.
132. See text accompanying supra note 65.
133. For a review oi the judgment, see Martin lau, Opening ťanaora s nox: i ne
Impact of the Saima Waheed, Case on the Legal Status Women in Pakistan, 3 Year-
book of Islamic and Middle Eastern Law 518 (1996).

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courts, was in accordance with Islamic law. Although the Supreme
Court claimed that the welfare of the minor was the predominant
consideration, the court's assessment of the child's interests was
clearly informed by its conservative understanding of Islamic law.134
Additional instances of such discrimination were found in nu-
merous appeals decided by the High Courts in so-called gang rape
cases which brought notoriety to Islamic law. While the provision
specifying the penalty for gang rape was contained in the Zina Ordi-
nance, it was not an original part of the ordinance and had been
inserted by amendment in 1996. Although the offense was classified
as a subcategory of rape, the Islamic nomenclature had no bearing on
the policy decision made by the legislature to specify mandatory capi-
tal punishment for all defendants who were found guilty of the
offense. For exactly a decade, appellate courts struggled with the
specter of sentencing multiple defendants to death, until an amend-
ment in 2006 rectified that situation. During this period the courts
implicitly set a higher evidentiary standard in an attempt to mitigate
the possibility of executing several defendants.135 The courts strained
to find one main defendant guilty of rape and to grant any possible
benefit of doubt to the co-defendants as a result of which they were
either acquitted or convicted of the lesser offense of abetment. In
seeking a reprieve for the co-defendants in gang rape cases, such as
that of Mukhtar Mai ,136 the courts often applied brazenly misogynist
standards of behavior and strict notions of appropriate cultural and
moral norms. Examples of such cultural constructs include assump-
tions as to the nature and extent of resistance the women did (or
ought to) offer and how they do (or ought to) behave in order to avoid
putting themselves at risk. Failure to satisfy these standards meant
that the women's testimony was not to be fully trusted - although
neither was the accused men's, since at least one of them was found
guilty of rape.
D. Islamic Rights and the Rule of Law

The dominant Western narrative consistently contends that Is-
lamization has undermined the cause of human rights protection in
Pakistan, with particular reference to discrimination against women
and religious minorities. The Hudood, Qisas & Diyat, and blasphemy
laws discriminated against both groups. Until recently, the Shariat
courts could claim credit for only a rare precedent which advanced.
the rights of women.137 Despite such an uninspiring record in indi-
134. Seema Chaudhary v. Ahsan Ashraf Sheikh, P.L.D. 2003 S.C. 877.
135. See, e.g., Robeena v. State, 2002 M.L.D. 1193.
136. Mukhtar Mai - history of a rape case, BBC News, June 28, 2005, available at
http://news.bbc.co.Uk/2/hi/south_asia/4620065.stm.
137. In an early challenge to the appointment of female judges, the FSC rejected
the petitioner's proposition holding that anyone, regardless of gender, who possesses

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vidual rights protection, the Shariat courts did develop a robust

public rights jurisprudence which paved the way for forward-looking
developments in constitutionalism and the Rule of Law.
It must be recalled that the Shariat courts were created by Gen-
eral Zia at a time when the fundamental rights provisions of the
Constitution and the related jurisdiction of the High Courts and the
Supreme Court were in abeyance. The Shariat courts began to fill the
vacuum even at that early stage and advanced a jurisprudence of Is-
lamic rights, the right to hold the government and public officials
accountable,138 the right of access to justice and an independent judi-
ciary,139 the right to equality,140 and the establishment of due
process rights. One remarkable example is the development of the
right to a fair hearing. In 1987 the Shariat Appellate Bench decided
several consolidated appeals filed by the Government of Pakistan
against a 1983 decision of the Federal Shariat Court, Pakistan v . Peo-
ple at Large. The Federal Shariat Court had held §13 of the Civil
Servants Act, 1973 to be "repugnant to the injunctions of Islam"141 on
the grounds that it did not meet certain due process requirements.142
This case involved the compulsory retirement of several senior bu-
reaucrats mandated by the military regime of General Zia in 1979.143
The Federal Shariat Court had held in 1983 that Islamic law princi-
ples required that the civil servants subject to compulsory retirement
be given notice and opportunity for a fair hearing, and directed that
the requisite knowledge of law and training can become a qazi in accordance with
Islamic law. Ansar Burney v. Federation of Pakistan, PLD 1983 FSC 73. More re-
cently, the FSC decided in In re: Suo Moto Case No.l/K of 2006 (Gender Equality),
P.L.D. 2008 F.S.C. 1, that the Citizenship Act, 1951 was discriminatory in so far as it
enabled a Pakistani man's foreign wife to obtain citizenship but did not extend this
rule to a Pakistani woman's foreign husband. The court decided that the denial of
citizenship "negates gender equality ... is in violation of Articles 2-A and 25 of the
Constitution . . . and also against international commitments of Pakistan."
138. See , e.g., Al-Jehad Trust v. Manzoor Ahmad Wattoo, PLD 1992 Lah 855; Al-
Jehad Trust v. Manzoor Ahmad Wattoo, PLD 1992 Lah 875; Pervaiz Elahi v. Province
of Punjab, PLD 1993 Lah 595; and Muhammad Muqeem lÓioso v. President of Paki-
stan, PLD 1994 SC 412. See Lau, supra note 22, at 100-02.
139. See, e.g., Pakistan, through Secretary, Ministry of Defence v. The General
Public, P.L.D. 1989 S.C. 6. See also Federation of Pakistan v. Public at Large, P.L.D.
1988 S.C. 202; Federation of Pakistan v. The General Public (unreported Shariat Ap-
peal No. 17 of 1984 decided on 17-01-1988); Sindh High Court Bar Association,
Karachi v. The Islamic Republic of Pakistan, P.L.D. 1991 Kar. 178; and Dr. Hameed
Ahmad Ayaz v. Government of Punjab, P.L.D. 1997 Lah. 434. See also Lau, supra
note 22, at 177-78.
140. See, e.g., Govt, of N.W.F.P. v. I.A. Sherwani, P.L.D. 1994 S.C. 72 and Lieut.
Muhammad Asjid Iqbal v. Federation of Pakistan, 2009 C.L.C. 1283.
141. In re: The Civil Servants Act (LXXI of 1973), PLD 1984 FSC 34.
142. Pakistan v. People at Large, P.L.D. 1987 S.C. 304.
143. §13(i) provided for the compulsory retirement of senior civil servants at the
discretion of the government. Likewise, §13(ii) empowered the government to remove
bureaucrats from service who had completed public service of twenty-five years or
more, without any grounds of misconduct.

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the impugned statutory provisions be repealed.144 The decision is re-
markable because it posed a challenge to the military regime's
control over the bureaucracy at the height of its power.
The decision was delivered at approximately the time when the
court had reviewed a number of statutes suo moto , questioning those
statutes that did not provide for a hearing prior to any disciplinary or
adverse action against a party.145 Thus, the Federal Shariat Court
had granted the status of Islamic law to the "principles of natural
justice" including the right to a fair hearing and the rule against
bias.146 The court also found various statutory provisions to be in vio-
lation of the Islamic principle of equality, holding that while
discrimination between similarly situated people or groups was not
forbidden per se, it was nonetheless subject to a test of "reasonable-
ness and intelligibility" such that a "classification must have a
reasonable relation to the object or the purpose sought to be
achieved."147
The Shariat Appellate Bench's 1987 decision in Pakistan v. Peo-
ple at Large was not unanimous; the bench was split with three
judges supporting the majority opinion and two dissenting. Interest-
ingly, the two ulema on the bench disagreed with each other. The
disagreement between the majority and minority was not only over
the interpretation of the textual sources of Islamic governance princi-
ples, but extended also to policy implications. The majority was in
favor of protecting the bureaucracy, to some extent at least, from the
pressures exerted (often unduly and for improper purposes) on the
senior bureaucrats by the politicians heading their departments. The
goal was to restore some of the bureaucracy's independence. The mi-
nority judges, on the other hand, were of the opinion that the
government ought to exercise greater control over the bureaucracy.
Most remarkably, while the legally-trained judges of the Shariat Ap-
pellate Bench seemed uncomfortable in dealing explicitly with the
policy concerns, the ulema felt free to discuss their policy arguments.
The case raised issues of judicial competence and in particular the
question whether the Shariat Appellate Bench (as opposed to the Su-
preme Court) actually ought to be the arbiter of disputes involving
administrative law and policy considerations.148
144. A similar conclusion was reached by the FSC in Muhammad Ramzan Qureshi
v. Federal Government, PLD 1986 FSC 200.
145. In re: Islamization of Laws, PLD 1985 FSC 193, at 210, 213, 214, and 220; In
re: Islamization of Laws, PLD 1985 FSC 193, at 261; and In re: Islamization of Laws,
PLD 1986 FSC 29, at 45-48.
146. In re: Islamization of Laws, PLD 1985 FSC 221, at 252-58.
147. See Muhammad Ramzan Qureshi v. Federal Government, PLD 1986 FSC 200,
at 228-31; and Abdul Majid Qureshi v. Islamic Republic of Pakistan, PLD 1989 FSC
31.
148. See Lau, supra note 22, at 187.

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Despite the doctrinal divisions in the 1987 case, the Shariat Ap-
pellate Bench quickly closed ranks. Less than a year later, the same
Shariat Appellate Bench decided that the chairman of a semi-autono-
mous public authority could not be removed without first being
granted a hearing.149 In another petition decided the same day, the
bench declared emphatically that the "requirement of a show-cause
notice, of the disclosure of the grounds on which action is proposed to
be taken and of an opportunity of hearing to the person concerned"
was firmly established by the 1987 decision.150 In this case, the prin-
ciple was extended to the removal of a staff member of a university
founded under statutory charter. Not only were due process require-
ments made applicable to public authorities of all kind, including
statutory bodies and public corporations, their reach was extended to
a whole range of governmental actions as well. In Province of Sind v.
Public at Large, the Shariat Appellate Bench extended the right to a
hearing to a co-operative society facing government action for failure
to perform its responsibilities. Justice Nasim Hasan Shah observed
that "this Court has now made it quite clear that any provision of law
whereunder someone can be harmed or condemned without affording
such person an opportunity of defence against the said action, is
against the Quranic Commands as supplemented and interpreted by
the Sunnah of the Holy Prophet."161 In Federal Government of Paki-
stan v. Government of Punjab, the Shariat Appellate Bench imposed
a limitation on the government's power to confiscate passports re-
quiring that a right to a hearing must be provided to the affected
citizens prior to confiscation.152 Justice Nasim Hasan Shah, then
chairman, affirmed that the Shariat courts have "held in a large
number of cases that according to the Injunctions of Islam before any
right of a person is affected adversely he must be given an opportu-
nity of showing cause against such an action."153
By 1995, the successive governments of Benazir Bhutto and
Nawaz Sharif sought to exercise complete control over the adminis-
trative structures through political appointments, transfers and
other actions, so that the autonomy and credibility of the bureaucracy
had significantly eroded. While reviewing a statutory provision simi-
lar to §13 of the Civil Servants Act, the Supreme Court (not the
Shariat Appellate Bench) declared:
This colonial heritage which had cast a dark shadow on our
jurisprudence has now vanished and a new concept has de-
149. See Pakistan v. Public at Large 1989 SCMR 1690.

150. See Federation of Pakistan v. The General Public 1995 SCMR 1593.
151. See Province of Sind v. Public at Large, PLD 1988 SC 138. Emphasis added.
152. See Federal Government of Pakistan v. Government of Punjab, PLD 1991 SC
505.
153. Id. Emphasis added.

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veloped which has introduced not only the principles of
natural justice but also such principles of justice and equity
which are enshrined in the Injunctions of Islam . . . the or-
ders, acts and actions of government functionaries, corporate
authorities and statutory bodies can be examined on the ba-
sis of well-recognized principles of Islamic common law and
Injunctions of Islam.154
That colonial heritage is the legacy of an executive-dominated state

structure. Now the principles of Islamic public law were called upon
to perform a dual function: first, they enabled dissident public offi-
cials to challenge punitive government actions designed to subvert
their independence, and second, much more significantly, the expan-
sion of Islamic due process rights enabled ordinary petitioners to
challenge an expanding array of governmental actions through the
High Courts' Writ jurisdiction.155
I have focused on the Shariat courts' decisions on the right to a
fair hearing because they demonstrate certain points made earlier in
the paper - how the Shariat courts developed due process rights at a
time when the military regime restricted the superior courts' rights
jurisprudence; how the methodology of the ulema judges compared
with that of the secular legally-trained judges; how policy considera-
tions concerning the evolving structures of the state and society
provided the context for the interpretations of Islamic legal princi-
ples; and how the non-Shariat appellate courts appropriated the due
process jurisprudence of the Shariat courts to dramatically extend
their powers of judicial review. This particular group of cases, how-
ever, is by no means the only aspect of the Shariat courts'
jurisprudence. In fact, the Shariat courts laid down the groundwork
for the most recent Rule of Law advancements in Pakistan by articu-
lating strong principles of accountability of the executive and
independence of the judiciary.156
With regard to the independence of the judiciary, for instance, in
a 1984 decision reviewing the Contempt of Court Act, the Federal
154. See Chairman, Pakistan Broadcasting Corporation v. Nasir Ahmad, 1995

SCMR 1593.
155. Subsequently, the Lahore High Court declared that when an investigation is
initiated against a company, the Commission is obligated to provide notice and an
opportunity for a hearing since the injunctions of Islam mandated the granting of due
process rights in any case of potential "liability with penal or quasi-penal conse-
quences and or deprivation of basic rights .* See Service Industries Textiles Limited,
Lahore v. Securities & Exchange Commission of Pakistan, 2000 M.L.D. 1880. Empha-
sis added.
156. See , e.g., In re: Islamization of Laws, P.L.D. 1985 F.S.C. 193; Federation of
Pakistan v. The Public at Large, P.L.D. 1991 S.C. 459; and Muhammad Muqeem
Khoso v. President of Pakistan, P.L.D. 1994 S.C. 412. Also, see Moeen Cheema, ' Lib-
eral ' Fundamentalism in Pakistan : Objecting to Islamic Arguments in NRO, Jurist,
Jan. 20, 2010, available at http://jurist.law.pitt.edu/forumy/2010/01/Hberal-fiindamen
talism-in-pakistan.php.

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Shariat Court highlighted the prestige and prominence bestowed on

judges in the Islamic legal tradition.157 In other cases the Shariat
courts granted the right to appeal executive decisions and upheld the
courts' jurisdiction.158 The Shariat Appellate Bench pronounced that
limitations imposed on fundamental rights were themselves "subor-
dinated to the most fundamental of all human rights in Islam, the
one which cannot at all be abridged by any limitation . . . namely,
[the] right to justice."159 It also declared court fees calculated on an
ad valorem basis un-Islamic, for it is the "duty of an Islamic state to
administer justice to its citizens irrespective of caste, creed or colour
free of any charge."160 In a most remarkable extension of Islamic due
process rights, the Federal Shariat Court held that the Islamic right
to a hearing mandated the existence of an independent judiciary and
the judicial review of administrative action.161 "It is thus a guarantee
of the rule of law . . . that . . . every person has the right to get his
dispute decided ... by a body which is not only not (sic) the executive
authority but is independent of it."162 In other words, review and ap-
peal processes within the executive are not sufficient and an
opportunity for a hearing before an independent and impartial court
or tribunal is a fundamental Islamic requirement. The Shariat courts
found even the statutes governing military court martials wanting,
because they did not provide for a review and appeals.163 In addition,
the Shariat courts ruled that martial law regulations were subject to
review for repugnancy to the injunctions of Islam and did not enjoy
any special status or protection.164
Hie accountability of the executive is another key feature of the
Shariat courts' jurisprudence. They have steadfastly held that the ex-
emption granted to members of parliament from appearing before
courts while parliament is in session, could effectively result in im-
munity from prosecution and therefore was repugnant to the
injunctions of Islam.165 The Shariat courts looked to Muslim history
to demonstrate that rulers, too, are subject to the law and answerable
157. In re: Islamization of Laws, PLD 1984 FSC 40.

158. See, e.g., In re: Islamization of Laws, PLD 1985 FSC 193, at 258, 263; Federa-
tion of Pakistan v. General Public, PLD 1988 SC 645.
159. Federation of Pakistan v. General Public, PLD 1988 SC 645, at 655.
160. See Mahmood-ur-Rahman Faisal v. Secretary, Ministry of Law, PLD 1992
FSC 195.
161. See Zafar Awan v. Islamic Republic of Pakistan, PLD 1989 FSC 84.
162. Id. at 88.
163. See Pakistan v. General Public, PLD 1989 SC 6.
164. See Nusrat Baig Mirza v. Government of Pakistan, PLD 1991 SC 509. These
decisions, though handed down towards the end of the Zia regime, are nonetheless
significant, given the tendency of Pakistan's military rulers to subject civilians to mil-
itary tribunals' jurisdiction during periods of martial law.
165. In re: Islamization of Laws, PLD 1985 FSC 193, at 199-200; In re: Members of
the National Assembly (Exemption from Preventive Detention and Personal Appear-
ance) Ordinance IX of 1963, PLD 1989 FSC 3; In re: Members of the National
Assembly (Exemption from Preventive Detention and Personal Appearance) Ordi-

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to the courts.166 Even the "head of state cannot claim any immunity
from prosecution or from appearance in a court during the tenure of
his office."167 The development of Islamic public rights, rooted in a
basic distrust of power, expanded the rights already provided in the
Constitution.168 As Martin Lau noted, "the Islamic right to equality
goes considerably further than the constitutionally guaranteed right
to equality in that it incorporates a presumption that those author-
ized to exercise discretion are unlikely to carry out their discretionary
powers fairly and equally."169
Even the Shariat courts' property rights jurisprudence, though
seemingly conservative, proved to be a double-edged sword. The
Shariat Appellate Bench's decision in Qazilbash Waqf is largely seen
as a conservative judgment that spelled the end of land reform in
Pakistan.170 Nonetheless, the insistence on fair compensation for
compulsory land acquisition countered the abuse of governmental
powers in a number of cases.171 For instance, the Shariat Appellate
Bench invalidated the ability of the executive to requisition private
property for use by bureaucrats as official residences.172 In another
case, the Shariat courts struck down provisions of the West Pakistan
Press and Publications Ordinance of 1963, which were designed to
maintain a strict control over the licensing of publications, on the
grounds of undue interference with the right of publication business
owners to earn a livelihood.173 The court also referred to the Islamic
right to freedom of expression stating that "propagating virtue and
righteousness is not only a right in Islam but also an obligation" and
that the ruler who "tries to deny this right to his people is openly at
war with God."174
The development of the High Courts' and the Supreme Court's
Public Interest Litigation (PIL) can also be traced back to the Shariat
courts.175 Islamic law principles were used to reinforce a range of
fundamental rights and socio-economic entitlements. For example,
while scrutinizing the Passports Act of 1974, for its failure to provide
nance IX of 1963, PLD 1989 FSC 8; Federation of Pakistan v. Public at Large, PLD
1991 SC 459; and In re : N.W.F.P. Provincial Assembly, PLD 1991 FSC 283.
166. In re: Islamization of Laws, PLD 1984 FSC 40, at 53.
167. In re: The Civil Servants Act (LXXI of 1973), PLD 1984 FSC 34, at 37.
168. See Lau, supra note 22, at 106-11.
169. Id. at 181.
170. See Qazilbash Waqf v. The Land Commissioner, Puni ab, PLD 1990 SC 99.
171. This Islamic principle was first stated in In re: Islamization of Laws, PLD
1985 FSC 193, at 238-246. Also, see Nazir Ali Shah v. Capital Development Authority,
PLD 1992 FSC 361 and In re: Land Acquisition Act (I of 1894), PLD 1992 FSC 398.
172. See Province of Punjab v. Amin Jan Naeem, PLD 1994 SC 141.
173. See Federation of Pakistan v. Public at Large, PLD 1988 SC 202.
174. Id. at 209.
175. See Lau, supra note 22, at 96-106. For a historical overview of the develop-
ment of public interest litigation in Pakistan, see generally Werner Menski, et al.,
Public Interest Litigation in Pakistan (2000).

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due process protection against the arbitrary confiscation of passports,

the Federal Shariat Court referred to the freedom of movement as a
fundamental right recognized in Islam.176 Confirming the basic
premises of rent control legislation, the Federal Shariat Court de-
clared obiter that the right to shelter, food, clothing, education and
health were recognized as "necessities" in Islam.177 As Werner Men-
ski has argued, public interest litigation enjoys a heightened degree
of conceptual strength because it is rooted in an Islamic milieu.178
IV. Deconstructing the Dominant Narratives of Islamization

Many problems have rightly been attributed to the process of Is-
lamization of Pakistan's laws, but at the same time, this process has
also entailed positive developments, not only to mitigate the nega-
tives associated with Islamization, but also novel and unfettered
progress towards constitutionalism and the Rule of Law. The nega-
tives generally associated with Islamization and the miscarriages of
justice perpetrated under the Hudood laws dominated the discourse
throughout the Zia era and for some time after. By the mid-1990s,
however, the dynamic began to shift. By the turn of this century Rule
of Law conceptions rooted in Islam had come to prominence because
of the consistent effort by the Shariat and the regular appellate
courts to expand their judicial review power. With the statutory de-
Islamization measures of the Musharraf era Islamization had seem-
ingly ceased to be an active force in shaping Pakistan's laws, except
for the lingering controversy over blasphemy laws. Yet, Islamic law
remained a potent force of public morality.
A deeper insight into Pakistan's experience exposes the short-
comings of the dominant narratives of Islamization. While the so-
called Islamist and Western narratives 'are fiercely opposed to one
another, they both rest on two key perceptions of Islamic law. First,
both see Islamic law as a body of substantive rules not unlike the
codes of modern Western states. Viewed through the mist of disconti-
nuity caused by colonial rule, Islamic legal practices of the classical
era are reduced to an ethereal body of laws. This may be described as
a "fantasy effect."179 In the dominant Western narrative Islamic law
is seen as archaic and regressive, and hence unsuitable for adoption
in the social and economic milieu of modern nation states. But this
view refers to specific laws only. The Islamists' claim regarding class-
ical Islamic law as a coherent body of legal doctrines, rules and
176. In re: Passports Act, 1974, PLD 1989 FSC 39, at 43. See also Federal Govern-
ment of Pakistan v. Government of the Puqjab, PLD 1991 SC 505, at 508.
177. In re: Islamization of Laws, PLD 1985 FSC 193, at 201-05.
178. See Werner Menski, Public Interest Litigation: A Strategy for the ¡future, in
Public Interest Litigation in Pakistan 109-11 (2000).
179. See generally Lama Abu-Odeh, The Politics of (Mis)recognition: Islamic Law
Pedagogy in American Academia, 52 Am. J. Comp. L. 789 (2004).

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principles discernible from an easily identifiable body of legal texts is
accepted without reservation. Both narratives thus occlude the com-
plexity and multi-dimensionality of the intervening legal systems
and still view classical Islamic law as the law of the jurists (fuquha )
and not also the law of the qazis, the muftis, the executive officials,
the litigants, and perhaps most significantly, of the silent non-liti-
gant majority whose fidelity to the law legitimized its norms as well
as the structures of adjudication and enforcement.180
The second, and related, failing common to both narratives is the
uni-directional conceptualization of law and society relations. Law is
seen as capable of engineering far-reaching social change, but there is
limited acknowledgement or understanding of the fact that law is it-
self a product of complicated social processes, not all of which are
dominated or even guided by the state. Thus the dominant Western
narrative views Islamization as particularly pernicious and believes
that the state's adoption of retrogressive substantive laws will irrepa-
rably shape the socio-political landscape in Muslim societies. The
dominant narrative of political Islam is invested in a similar belief
that the adoption of shari'a law will act as the cure-all for a wide
range of socio-political and economic ailments. This fundamental
commonality in both narratives arises because both perspectives see
Islamic legality through the prism of Western legal theory. The domi-
nant Western narrative of Islamization is deeply embedded in the
legal theory tradition that regards law as the purview of nation
states, to the exclusion of social and cultural processes that empower
non-state communities and institutions to define a vast array of so-
cial, political and economic regulations.181 Similarly, the dominant
Islamist narrative is intellectually debilitated by a colonial experi-
ence which has transformed indigenous modes of thinking about
Islamic legality along the same state-centric lines.182 Both narratives
are in denial of the fact that in many post-colonial societies the state
is often only one player among many vying for influence in key social,
political, cultural, and economic dynamics.183
What does the reconceptualization of Islamic law entail for the
Islamist project? The first lesson that Pakistan's Islamization may
teach us, is the inevitable failure of what we may call the "technist"
180. For an excellent example of scholarship that seeks to unveil the structure and
practices of the legal system during the classical period, see Chibli Mallat, From Is-
lamic to Middle Eastern Law: A Restatement of the Field (Part I), 51 Am. J. Comp. L.
699 (2003) and Chibli Mallat, From Islamic to Middle Eastern Law: A Restatement of
the Field (Part II), 52 Am. J. Comp. L. 209 (2004).
181. See Brian Z. Tamanaha, A General Jurisprudence of Law and Society 175
(2001) on legal centralism."
182. See generally Scott Alan Kugle, Framed, Blamed and Renamed: The Recasting
of Islamic Jurisprudence in Colonial South Asia , 35 Modern Asian Studies 257
(2001).
183. See Tamanaha, supra note 181, at 113-20.

111.68.97.183 on Mon, 09 Nov 2020 07:35:20 UTC
shari'a law project.184 In the popular understanding in much of the

Muslim world today there exists the idea of a complete code of shari'a
or Islamic laws, ready to be adopted if only there were sufficient polit-
ical will in the ruling elite. This is accompanied by the belief that
adopting this shari'a code would instantly resolve a range of social,
political and economic problems plaguing Muslim societies. Paki-
stan's experience with Islamization informs us, however, that instant
implementation of shari'a would fail to bring wholesale societal
change. One must realize that Islamizing the substantive law of a
post-colonial legal system is bound to create the institutional ten-
sions and doctrinal inconsistencies that Pakistan experienced, and
that it will lead to unanticipated consequences that will take great
effort to resolve.
The unsettling consequences of such Islamization are not likely
to be confined to the legal system. Since law is not just a professional-
institutional enterprise- or, to borrow from Marxist terminology, is
not just a part of the superstructure but also a part of the societal
base - during this process of piecemeal Islamization, new issues of
legitimacy, authority, political power, social hierarchy, and economic
resource allocation will arise. Neither the invisible hand of the mar-
ketplace of ideas nor the visible actions of courts and legislators can
guarantee that these broad changes will fit into a neat arrangement
or pre-ordained plan. New claimants to (political, social, and eco-
nomic) power will emerge armed with new (or renewed) discourses.
Some will be co-opted, always only partly, by the existing state struc-
tures, others will undermine it. New relations will be forged, among
citizens and communities, suid between the state and its people. All of
this will alter not only the substance of the law and the structures of
the legal system, but also the place law occupies in society. Will this
Islamized legal system be any more or less Islamic than the post-
colonial system within which the Islamization is undertaken?185 The
answer will be as complex and contested as the process itself.
184. Eric Winkel adopted the term "technist" - as distinguishable from fundamen-
talist, for {til Muslims are by definition those who believe in the fundamentals of
Islam, to describe the Khawaiji or extremist worldview that "believes fervently that
the historical decline of Muslims is due to a problem of technique: if only Muslims had
correctly applied such and such a technique, they would not be suffering . . . and if
only Muslims would apply another technique (e.g
in the Hudood Ordinances in Pakistan) we would be as successful" as the West. See
Eric Winkel, Islam and the Living Law: The Ibn Al-Arabi Approach 18 (1997).
185. Having undergone this process of Islamization, can Pakistan s legal system be
characterized as an "Islamic" legal system? This issue has indeed been seriously con-
tested in Pakistan. Most recently, when in 2008 the spiritual leader of the Taliban in
Swat, Sufi Muhammad, castigated Pakistan's Constitution, its laws and its courts for
being un-Islamic, he found himself at the extreme fringes of Pakistan's political spec-
trum. See Tariq Butt, Sufi Mohammed Alienates his Sympathisers, The News, Apr.
24, 2009, available at http://www.thenews.com.pk/daily_detail.asp?id=173960. Credi-
ble counter-arguments were made that the particular brand of constitutionalism and
legality that Pakistan has developed through braving its troubles with Islamization is

111.68.97.183 on Mon, 09 Nov 2020 07:35:20 UTC
Pakistan's experience helps us understand that the project of the
Islamization of laws in a modern Muslim society must be based upon
indigenous demands and undertaken in accordance with the organi-
cally evolving norms of recognition, interpretation, modification, and
enforcement in that society. Substantive law cannot be understood or
enforced outside of a legal system, its legal culture(s), and profes-
sional discourse(s), and of the broader socio-political dialectics that
give context and relevance to it. Therefore, we need to adopt a "praxi-
ologicaP approach to Islamic law that does not occlude its inherently
"contingent and situated character."186 We need to use that approach
not only to study the present day law of Muslim societies, but also
that of the classical era.187 Only when we appreciate that Islamic law
was always the product of diverse, complex, and at times contested,
social practices can we resurrect indigenous modes of thinking about
Islamic law and legality. Only then may we succeed in bridging the
chasm between the theory and praxis of Islamic law that centuries of
colonial disconnect have created.
What does the reconceptualization of Islamic law in light of Paki-
stan's experience entail for the dominant Western narrative and its
underlying liberal ideology? The simplistic and uncompromising de-
mand, whether made implicitly or explicitly, that the corpus juris of
modern Muslim states be completely secularized will be untenable
once it is understood that the banner of Islamic law commands the
allegiance of vast segments of Muslim society.188 In many
postcolonial Muslim nations, the state's secularized law is largely
rooted in colonial legacy and has a distinctly coercive and elitist na-
ture. In contrast, in many instances the demands for Islamization are
in fact demands for indigenization of legal processes and for gaining
autonomy from the central state in addressing socio-economic issues.
Rendering support to the state's desired but as yet non-existent he-
gemony over the processes of law formation is thus essentially
in every sense Islamic. See Ikram Sehgal, Clear and Present Danger from the Taliban,
The News, Feb. 18, 2010, available at http://www.thenews.com.pk/editorial_detail.
asp?id=174937.
186. See generally Baudoin Dupret, What is Islamic Law?: A Praxiological Answer
and an Egyptian Case Study, 24 Theory, Culture & Society 79 (2007). While I par-
tially disagree with Dupreťs formulation of the praxiological approach, to the extent
that it occasionally appears to render the text and theory of Islamic law completely
subservient to the actual practices associated with Islamic law, it is hard to deny the
validity of the assertion that the "study of Islamic law needs focusing much more on
living phenomena and actual practices." See id at 83.
187. While some insightful work of this kind has recently appeared, much of Is-
lamic law scholarship is still focused on substantive law and legal theory. Contrast
from Mallat (2003) and (2004), supra note 180. This work presents, even if in outline,
an intriguing portrait of a legal system in action: a legal system far more advanced
and sophisticated than the Weberian image of a qazi under the palm tree.
188. See Nancy J. Davis & Robert V. Robinson, The Egalitarian Face of Islamic
Orthodoxy: Support for Islamic Law and Economic Justice in Seven Muslim-Majority
Nations, 71 American Sociological Review 167 (2006).

111.68.97.183 on Mon, 09 Nov 2020 07:35:20 UTC
undemocratic until the state develops the structural capacity to ac-

commodate diverse religious, ethnic, class and regional interests.
At the same time, it must be recognized that there is much sub-
stance to the Western-liberal concern about the weakness of a state
and its law which must accommodate the legal pluralism of religious
and customary laws.189 Religious cum customary laws are often used
to legitimize and perpetuate inequitable social stratification and con-
tinued disadvantage of religious minorities, women, and those
belonging to the lowest socio-economic strata. In the liberal mode of
thinking that underlies the Western narrative of Islamization, the
central state provides some antidote to localized social coercion and
is, at worst, the lesser of two evils. The defect in this mode of thinking
is that the same local elites, which the central state is meant to dis-
empower, end up forming broader networks with the result that the
state has no choice but to co-opt them and to be in turn co-opted in
pursuit of its more pressing needs. Thus, in the long run the state
might actually strengthen the domineering local networks rather
than undermine them. As such, simply excising Islamic law will not
solve deeply rooted cultural and social problems. In fact, as the Pakis-
tani situation demonstrates, Islamic legality can play a potent role
not only in weakening the local networks of power and privilege but
also in subjecting the state apparatus to meaningful restraint.
Conclusion
Pakistan's experience with the Islamization of law has been

characterized by a duality. On the one hand, Islamization exacer-
bated the structural problems deeply embedded in Pakistan's post-
colonial legal system and provided the state as well as the powerful
social elites with new avenues of coercion and harassment. Islamiza-
tion also increased the internal dissonance between the different
parts of the legal system and added new stress to the judicial hierar-
chy by creating jurisdictional conflicts between appellate courts. On
the other hand, Islamization has introduced indigenous laws and,
much more significantly, indigenous modes of thinking about legal-
ity, and hence a basis for constitutionalism and due process in
Pakistan's legal milieu. It has provided the public morality on which
positive constitutional law may be grounded. It has furnished the su-
perior courts with the moorings to affect fundamental change in the
institutional balance of power within the post-colonial state such that
the Rule of Law and the accountability of the executive have become
increasingly more relevant.
189. See generally Brian Z. Tamanaha, The Rule of Law and Legal Pluralism in
Development , 3 Hague Journal on the Rule of Law 1 (2011).

111.68.97.183 on Mon, 09 Nov 2020 07:35:20 UTC
A deconstruction of the narratives and discourses surrounding
Islamization should now bring a shift in focus to the systemic
problems deeply ingrained in Pakistan's legal system. The attention
of activists, academics and legal professionals should now be redi-
rected to the long-standing problems within the legal system that
allow law and legal processes to be used to prolong disputes and
cause harassment. Islamic legality can, as it has in the past, play a
significant role in breaking down the resistance that vested interests
may offer to a belated restructuring of the legal system along more
egalitarian lines.
Finally, a detailed scrutiny of Pakistan's experience with the in-
corporation of Islamic laws in a modern, Western, Common Law
system highlights the futility of proceeding with the top-down en-
forcement of substantive Islamic law in modern Muslim states. A
genuine Islamization of law will require a thorough deliberative re-
form process: one in which the structures of the legal system, its
institutions, the policy and pragmatism underlying its processes need
to be thoroughly investigated and revised in accordance with the de-
mands of diverse social groups. It will necessitate a praxiological
approach to the study of the law of modern Muslim states as well as
to the legal systems of the classical era of Islamic law.

111.68.97.183 on Mon, 09 Nov 2020 07:35:20 UTC

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