The Federal Shariat Court-An Obsolete Institution?

The Federal Shariat Court of Pakistan (established by the President’s Order No.1 of 1980 as incorporated in the Constitution of Pakistan, 1973 under chapter 3A) is a unique institution. The preamble to the Constitution  (in congruence with Islamic teachings) explicitly affirms that sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised on behalf of the people of Pakistan, within the limits prescribed by Allah, is a sacred trust which the court intends to uphold.

Judgments of FSC constitute a remarkable chapter in the history of Islamic law. They lead with the never ending process of interpreting islamic law and reinterpreting it as new problems emerge and the consistent stream of fresh legislation gives rise to new questions.

The Function of the Court

Article 227 makes it incumbent that all existing laws shall be brought in conformity with the injunctions of Islam (as laid down in the Holy Qur’an and the Sunnah of the Holy Prophet (peace be upon him)). Chapter 3-A which pertains to the functions and organization of Federal Shariat Court, empowers and entrusts the court with the responsibility to examine and decide the question which asks whether or not any law[1] or provision of law is repugnant to the injunctions of Islam and empowered by art.203D of the constitution the court is able to adjudicate on such matters. If a law is found to be in contravention, the Court is to notify the government specifying the reasons for its decision.

The court is capable of acting on its own motion or through a petition by a citizen or a government (federal or provincial). If a certain provision of law is declared to be so repugnant, the court then sets out the extent to which such law or provision of law is contrary, and specifies the day on which the decision shall take effect. Where any law is classified as such, the executive^[2] is required to take steps to amend the law and such law ceases to have effect from a date specified by the court.

The decisions of the court are binding on the High Courts as well as subordinate judiciary^[3]. The court appoints its own staff and frames its own rules of procedure.^[4]

Structure of the Court

The Federal Shariat Court (FSC) comprises  of eight Muslim Judges including the Chief Justice to be appointed by the President after decision is made by the Judicial Committee[5] which chooses from amongst then serving or retired judges of the Supreme Court or a High Court or from amongst persons possessing the qualifications of judges of a High Court. Of the Judges, four persons are qualified to be the Judges[6] of the High Courts, while three are Ulemas[7] .

By clause (9) of Article 203 E of the Constitutionof Pakistan, the court is empowered to review any decision given or order made by it.  Its decisions are subject to further judicial review by the Shariat Appellate Bench[8] of the Supreme Court.

While the headquarters of the court are situated in Islamabad (clause (6) of Article 203-C of the Constitution of Pakistan) it has four Bench registries in Lahore, Karachi, Peshawar and Quetta annexed to the buildings of the Provincial High Courts.

The Court has an original and an appellate jurisdiction. In its original jurisdiction, the Court may examine and decide the question of whether or not the relevant law is contrary to the principles of Islam^[9] . In its appellate jurisdiction, the Court has exclusive jurisdiction to hear appeals from the decision of any criminal courts under any law relating to enforcement of Hudood Law^[10].

Powers of the court

For the purposes of the performance of its functions, the court has the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of summoning and enforcing the attendance of any person and questioning him under oath, requiring the discovery and production of any document, receiving evidence on affidavits; and issuing commissions for the examination of witnesses or documents. The court also has the power of a High Court to punish its own contempt. A party to any proceedings before the court under clause (1) of Article 203D may be represented by a legal practitioner who is a Muslim and has been enrolled as an advocate of a High Court for a period of not less than five years or as an advocate of the Supreme Court or by a jurisconsult selected by the party from out of a panel of jurisconsults maintained by the court for this purpose. The court may invite any person in Pakistan or abroad whom the court considers to be well-versed in Islamic law to appear before it and render such assistance as may be required of him.

Legal Aid

No court fee is payable either on petitions or appeals to the FSC.

The rules of the court provide for free legal representation in cases where an appeal is filed from jail and the appellant is not in position to pay for the services of a lawyer irrespective of the quantum of his sentences. The Federal Shariat Court has made huge payments to Defence Counsel in 205 Jail Criminal appeals disposed of at Principal seat and Bench Registries of this court during the calendar year 2004.

The court ensures that opinions of the public are part of its work so cases being pursued suo moto have include public notices inviting opinion being published in leading newspapers.

Role in Federal Institutions

The court as an institution also participates in other Federal Institutions engendering law and policy making activities. The Law and Justice Commission of Pakistan is a Federal  institution, headed by the Chief Justice of Pakistan. It comprises of 12 other members including the Chief Justice of the Federal Shariat Court. The Chief Justice of the FSC is also a member of the National Judicial (Policy Making) Committee also headed by the Chief Justice of Pakistan.

By being part of these institutions the court directly contributes to the creation of new laws and policies.

Integrates Public view in its opinions

While exercising its suo moto jurisdiction, the Court’s policy is to take into confidence, and to associate in its working, the lawyers, the Ulema, the social reformers, the intellectuals and other members of the public. With this purpose in view public notices are published in leading Newspapers of the country inviting comments as well as representation from the citizens of Pakistan. This ensures that the view of the general public at large is also allowed to be part of the decisions of the court.

The Potential Of The Court

Zia Ul Haq’s  support of religious political parties and strict and coercive implementation of conventional Islamic interpretations, led him to be an active participant in the adjudications of the FSC.

An example of this is March 1981; where the court ruled in an adultery appeal that stoning people to death was `repugnant to the injunctions of Islam’, a decision that upset General Zia ul-Haq, and Islamic revivalists. Zia ul-Haq then replaced several members of the court, and the decision was reversed. This shows that this institute is political in its roots, it can be used as a tool encased in the mantle of religion and islamic interpretation by the people who wish to change the social dialogue in the country. They can manipulate and control the religious and legal dialogue in Pakistan on important issues because the court’s claims of legitimacy are grounded in Islam- The popular religion which holds great gravitas within the country.

Its Work So Far

The FSC court during the past years has examined 512 Federal Laws and 999 Provincial Laws Suo Moto on the touchstone of injunctions of Islam and has found 55 Federal Laws and 212 Provincial Laws to be in contravention.

The Enhancement of Hudood Laws

Among few important judgments of FSC are enhancement of the scope of Hudood laws through its judgment. The court ordered that “Irtdad (apostasy) Baghy (one who wages war against state) Qisas (right of retaliation in offences against human) and human trafficking are covered by the term Hudood for the purpose of Article 203DD of the constitution.

It also ruled on the employment of  In Vitro Fertilization (‘test tube babies’) as method for conception of children for married couples. This was declared to be lawful by the court. The court has however, still held on to its harsh stance against Surrogacy, declaring it to be unlawful and going further to legislate imprisonment and fines for those engaging the practice.

Problems the court faces

Problems of the court with efficacy

The enforceability of decisions of FSC however, is very rare. In 1982 the Federal Shariat Court ruled that there is no prohibition in the Qur’an or hadith about the judgeship of woman nor any restriction limiting the function of deciding disputes to men only. Ironically, it was not until 2013 that Ashraf Jehan became the first female justice of the Federal Shariat Court. This tells us that even within its own ambit the institution takes nearly three decades to reflect implementation of its own decision.

It is important to note here that it would be binding on the government to make legislation in light of the FSC judgment within 60 days after the passage of the judgment or it would automatically become law. Despite this, the court struggles with the enforceability of its decisions.

A good example of this would be the status of the Quadiani Muslims. This, as a recognized sect of Muslims within Pakistan has been a thoroughly debated topic. The court in 1984 (PETITIONS No.17/I of 1984 and No. 2/L of 1984, Dated October 28, 1984) declared that Martial law had to be enforced to succeed in the specification of the Quadiani sect as part of the non-muslim minority in the Constitution of Pakistan. This was followed by the Parliament by adding Quadianis to the definition of non-muslim groups in art.106 of the constitution of 1973. Despite this the judgment of the FSC and the ensuing constitutional change, little practical change has followed, as the adherents of the Quadiani sect still continue to identify themselves as muslims.

Facilitating “Adl” required by Islam

Islamic norms demand  prompt redress of grievances. In fact, the concept of ‘Adl in the Holy Qur’an and the Sunnah of the Holy Prophet (peace be upon him) demands that there should be no delay in the dispensation of justice. Even the popular legal maxim relevant to this is ‘justice delayed is justice denied’. The Judges of this Court exercise tact, wisdom, knowledge and authority to see that the hearing of cases may not be unreasonably delayed at the instance of any one.

To fulfill this Bench Registries of this court have bee set up in Lahore, Karachi, Peshawar and Quetta. This allows the services of the court to be disseminated over a larger geographical fora.

Despite this, the court can be seen to not be able to gain speed in reaching its decisions. Evidence can be taken from the MONTHLY STATEMENT OF CRIMINAL/SHARIAT CASES INSTITUTED AND DISPOSED OF FROM 01-07-2016 TO 31-07-2016 which showed that from 706 pendant cases on 1-07-2-16, there were 708 cases pending on 31-07-2016.

The FSC’s overreaches its jurisdiction

There have been various instances of the court has been seen to rule against laws and to declare them to be in contravention of constitutional provisions. An example of such an instance was the FSC declaring sec. 11 and sec.28 of the Women’s Protection Act 2006 were unconstitutional because they “annulled the overriding effect of the Hudood Ordinance-1979”. This is not part of the powers that the court holds as its job is only to rule on laws repugnant to Islamic injunctions. The constitutional compliance of any given law is under the adjudicative ambit of the High courts and the Supreme court sf Pakistan.

Majority of Religious scholars with little to no legal training

The FSC has a majority of religious scholars serving as judges. Since they lack legal training, the court has been credited with finding “technical flaws in every stoning and amputation appeal that it has ever heard”, preventing the execution of sentences  of amputating limbs and stoning t death. This means that metaphorically, Islam is confined within boundaries of FSC and the legal system as a whole does not reflect this. Also this highlights the need for legal education for those religious scholars which are an active part of this institution.

Lacks representation from Balochistan

It is worth concerning that there is no representation of Balochistan’s judges in the Federal Shariat Court. This shows that not only is the court constitutionally limited, but it is also a maltreated institution, which has democratic deficit and is also politicized in reality.

Conclusion

Following the discussion above this article  concludes as follows:

In pursuance of answer to the question whether FSC is an obsolete institution or not; the facts show that it is not theoretically an obsolete institution. The arguable loss of its significance comes from its very nature, which places it separate from the ordinary hierarchy of the legal system. However, this does not lead to the inference that it is completely redundant. FSC may be less effective, however it is true that it is not the sole institution suffering from defective enforceablity.

In pakistan, even the Supreme court cannot enforce many of its decisions but still exists as the highest echelon of justice within the country. The Federal Shariat Court’s role is vital in interpretation of laws in the light of Islamic principles. It is the most powerful institution which is trying to ensure inclusion of Islamic ideology within the legal system.

Undoubtedly, it was an initiative of a military regime, and was protected through controversial 8th amendment and has also given judgments which were directed by the executive authorities, but it is not the past which should be focused, but the future which demands a responsible, effective and pro-islamic institution like the FSC. In presence of the Supreme Court, its powers of review might be seen to mimic the work of the apex court, thereby making it appear useless.  However, with Islam being the dominant religion in the country and in view of the heightened sensitivities in recent times, the Federal Shariat Court is a necessary part of the Pakistani Legal System, and far from any practical redundance.

[1] Law includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any court or tribunal.

[2] President in the case of Federal law or the Governor in the case of a Provincial law

[3] Article 203 GG of the Constitution

[4]  the Federal Shariat Court (Procedure) Rules,1981- as per under Article 203J of the Constitution

[5] consisting the Chief Justice of Pakistan (Federal Shariat Court) and the Chief Justice of Pakistan ( contrary to Article 203C of the Constitution)

[6] The judges hold office for a period of 3 years, which may eventually be extended by the President

[7] scholars well-versed in Islamic Law

[8] consisting of 3 muslim judges of the Supreme Court and 2 Ulema, appointed by the President

[9] as laid down in the Holy Quran and Sunnah of the Holy Prophet

[10] The Offences Against Property (Enforcement of Hudood) Ordinance, 1979, laws pertaining to offences to intoxication, theft under The Prohibition (Enforcement of Hadd) Order, 1979, Zina (unlawful sexual intercourse) under The Offence of Zina (Enforcement of Hudood) Ordinance 1979. and Qazf (false imputation of Zina) under The Offence of Qazaf (Enforcement of Hadd) Ordinance, 1979