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Chapter 6 the Creation of Shariat Courts518 CHAPTER 6 THE CREATION OF SHARIAT COURTS518 Zia-ul-Haq used his unfettered powers as a military dictator to initiate a radical programme of Islamisation.519 As mentioned in the Introduction, the most visible and internationally noticed aspect of this programme was a set of Ordinances which introduced Islamic criminal law for a number of offences.520 The effect of these measures is considered controversial. On one side of the spectrum is Kennedy, who in two articles argued that the Hudood Ordinances did not have a detrimental effect on the legal status of women.521 This claim has been refuted by a number of academics and human rights activists.522 In 1988, Justice Javaid Iqbal, while serving as a Supreme Court judge, stated in an article that: Ironically, those provisions of the law which were designed to protect women, now provide the means for convicting them for Zina. As a result of this inconsistency in the law, eight out of every ten women in jails today are those charged with the offence of Zina and no legal aid is available to them.523 Irrespective of any particular quantitative evaluation of the new Islamic criminal laws, there can be no doubt that there has been and still is an intense and informed 518 The expression shariat courts denotes all those courts which are constitutionally empowered to declare laws repugnant to Islam. They comprise the shariat benches of the High Courts and their successors, i.e. the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court. 519 For a good overview of Zias reign, see Mushaid Hussain, The Zia Years, Lahore, 1990 and Ayesha Jalal, The State of Martial Law: The Origins of Pakistans Political Economy of Defence, Cambridge, 1990. 520 These were the Offences against Property (Enforcement of Hudood) Ordinance 1979; the Offence of Zina (Enforcement of Hudood) Ordinance 1979; the Offence of Qazf (Enforcement of Hadd) Ordinance 1979 and the Prohibition (Enforcement of Hadd) Order 1979. All four are referred to as the Hudood Ordinances. 521 See Charles H. Kennedy, Islamization in Pakistan; Implementation of the Hudood Ordinances, in: Asian Survey, XXVIII, 3 (1988), pp. 312313; and Charles H. Kennedy, Islamic legal reform and the legal status of women in Pakistan, Journal of Islamic Studies, II, 1 (1991), pp. 4555. 522 See especially Elisa Giunchi, The Enforcement of the Zina Ordinance by the Federal Shariat Court in the Period 19801990, and its Impact on Women, P.h.D. Dissertation, Cambridge, 1994; and Asma Jahangir, The Hudood Ordinance: A Divine Sanction?, Lahore, 1990. 523 Javaid Iqbal, Crimes against Women in Pakistan, in: PLD 1988 J 195. 121 The Role of Islam in the Legal System of Pakistan debate on the effect of the Hudood Ordinances on human rights in Pakistan.524 This debate has tended to overshadow other aspects of Zias Islamisation measures. This applies especially to the Federal Shariat Court: there is not a single academic article or monograph which has examined the judgments of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court under Article 203-D of the 1973 Constitution, i.e. the power to invalidate laws enumerated in Article 203-B if they are found to be repugnant to the injunctions of Islam, nor has there been any examination of the impact of these judgments on legal developments in Pakistan.525 However, as will be demonstrated in this section, the creation of the Federal Shariat Court radically transformed the legal system of Pakistan: for the first time in Pakistans legal history a court was enjoined to examine substantial parts of the legal system on the basis of Islam. The Federal Shariat Court also acted as a court of appeal for decisions involving the Hudood Ordinances. This area of the Federal Shariat Courts jurisdiction, though interesting, has not been examined in this book, since it involves the application of specific, codified Islamic law. Similar to Islamic family law, this area of law is distinct and confined to the application of purely criminal laws based on Islamic law. Though without any doubt relevant to those individuals affected by these laws, these cases do not reveal much about judicial attitudes towards the Islamisation, nor does an examination of the application of Islamic criminal law reveal much about the impact of Islamic law on the legal system. At most, the application of the Hudood Ordinances confirms that trial courts and the Federal Shariat Court did not have any hesitation in implementing these laws. On the basis of the findings of the previous chapters, this does not come as a surprise: as could be seen, parts of Pakistans judiciary had for a long time lamented the lack of Islamic criminal law, for instance in the context of proceedings under sections 488 and 491 of the Code of Criminal Procedure 1898. However, what remains to be explored is the impact of the judicial review of statutory laws on the basis of Islam on Pakistans legal system. How many laws were invalidated and for what reason? What exactly is the jurisdiction of the Federal Shariat Court? How did the Federal Shariat Court interact with the other superior courts? What was the relationship and interaction between the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court? The Shariat Benches An important part in the implementation of the Hudood Ordinances was the creation of separate courts enjoined with the task of interpreting and applying the new Islamic criminal laws. The first attempt to achieve this emerged in the form of the Shariat Benches of Superior Courts Order 1978. It sought to create shariat benches in all four High Courts. The setting-up of specialist benches solely concerned with one 524 The negative impact of the Hudood Ordinances on human rights of women has been noted, especially by human rights organisations. For an overview see Human Rights Watch, The Human Rights Watch Global Report on Womens Human Rights, New York, 1995, pp. 148154. 525 A selection of cases decided by the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court is discussed by Nasim Hasan Shah in Islamisation of Law in Pakistan, in: PLD 1995 J. 37. This appears to be the only mention in the available literature of non-Zina related decisions by the shariat courts. 122.
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