CONCLUSION

The role of Islam in the legal system of Pakistan is marked by diversity, complexity
and uncertainty. As Chapters 3 to 6 showed, there is no doubt that Islam has become
an important factor in judicial decision-making. In the past three decades, Pakistan’s
superior courts have been willing to depart from the country’s colonial and occidental
legacy of inherited statutes and legal concepts in favour of an approach deemed by
judges to be more in line with indigenous, Islamic values. There is no single event
which triggered the adoption of Islam as an alternative to Western jurisprudence.
However, there is evidence that even in the 1950s and 1960s the existence of an
almost entirely secular legal system caused friction. In some cases, superior courts
castigated the lower judiciary for occasional departures into Islamic criminal law but
by the 1960s Islamic moral values had manifested themselves in some areas of law.
The most visible expression of this gradual acceptance of Islam can be seen in the
context of abduction cases, where by the late 1960s even the Supreme Court of Pakistan
was prepared to instil constitutionally guaranteed rights with Islamic values.
Chapters 2 and 3 showed that Islamic jurisprudence was embraced by judges, either
because their personal beliefs dictated such an approach or because Islamic values
could offer support for judicial explorations into hitherto untested areas of law. In the
case of the former, it is in particular Justice Afzal Zullah who can be regarded as the
most important contributor to the expanding role of Islam in the legal system. From
the mid-1970s, he pursued a determined judicial campaign to introduce into the
legal system Islamic values and law. Justice Zullah’s reliance on Islamic values was,
however, informed by an approach marked by liberalism and humanitarianism. As a
result, in most cases where Justice Zullah drew on Islamic law it was done to benefit
the weaker party, to advance equitable principles and to bring about a result which
was just and in harmony with the humanitarian aspects of Islam. Justice Zullah was
able to achieve these results by either interpreting statutes in the light of Islam or by
applying Islamic law in preference to English common law in areas of law not occupied
by statutes. Neither approach brought Justice Zullah in direct conflict with established
legal norms: there was nothing in Pakistan’s legal system which expressly barred a
judge from interpreting statutes in the light of Islam.
The resort to Islamic law in the area of constitutional law was, however, caused
primarily not by personal convictions but by legal expediency. It could be seen that
in cases of constitutional breakdowns, references to Islam could offer legal continuity

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and stability. However, it could also be seen that the application of Islamic law in
situations of constitutional breakdown, like for instance the imposition of martial
law, was haphazard and inconsistent. There are instances when Pakistan’s higher
judiciary found support in Islamic law in its formulation of a basic structure doctrine
but there are equally a number of instances where the existence of an immutable
basic norm was denied and with it also the recognition of a basic, Islamic structure
of Pakistan’s legal system. The inconsistency in the application of Islamic law
to constitutional breakdowns can be explained not so much by judicial attitudes
towards Islam, but by the political context which surrounded these cases. There is no
doubt that Pakistan’s superior courts faced significant challenges when faced with
military take-overs. The formulation of an Islamic basic structure doctrine is thus
confined to cases where judges knew that their decisions conformed with the political
reality.
The permeation of the legal system with Islamic values led in the late 1980s and
1990s to both crisis and triumph. The crisis was caused by the determined efforts of
significant sections of the higher judiciary to advance what they perceived to be a
very sluggish pace of Islamisation. Again, one individual judge can be identified as
the catalyst of this movement. Justice Tanzil-ur Rahman must be regarded as the one
judge who most determinedly refused to remain within the confines and boundaries
of Pakistan’s mixed legal system. He openly defied established legal norms by
declaring several statutes un-Islamic and by refusing to apply statutes which he deemed
to be repugnant to Islam. In the early 1990s, the situation had reached a point where
even within individual High Courts conflicting decisions emerged as a matter of
course. This crisis was addressed by the Supreme Court, which sided with those
judges who had refused to participate in the invalidation of statutes as un-Islamic.
The decision of the Supreme Court to stem the tide of judge-led efforts to make the
legal system more Islamic did not, however, diminish the role of Islam in other areas
of law. Islam’s main contribution to the legal system of Pakistan in the 1990s was its
incorporation into public interest litigation and its role in the advancement of
fundamental rights. This development must be regarded as a triumph, since it
constitutes a unique contribution to Islamic human rights jurisprudence. Pakistan’s
higher judiciary has confounded the perception that the relationship between human
rights and Islam is as of necessity best described as a ‘clash of civilisations’. Instead,
Pakistan’s superior courts have been able to use Islam to expand the scope of
fundamental rights and even to add rights like a fundamental right to justice to those
human rights expressly protected by the 1973 Constitution.
Even more surprising than the use of Islam to advance human rights by Pakistan’s
superior courts is the application of Islamic law by Pakistan’s shariat courts. The
second part of the book demonstrated that throughout the 1980s the Federal Shariat
Court and the Shariat Appellate Bench of the Supreme Court formulated an approach
to the Islamisation of laws which replicated to a large extent the existing fundamental
rights. Statutes which infringed the right to equality, the right to be heard or which
accorded the state excessive discretionary powers were declared repugnant to Islam.
However, the advancement of human rights on the basis of liberal interpretations of
Islam sits uneasily with those cases which relied on more orthodox interpretations of
Islam. The piecemeal invalidation of Pakistan’s land reforms, the destruction of the
right of pre-emption of tenants and the attacks on parts of the Muslim Family Laws

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