The legal system is based on English common law and
Islamic law. The former is more influential in commercial law while the
later is more influential in personal status (and more recently,
criminal and tax law to some extent).
After the partition of India in 1947, the legislation
relating to Muslim family law introduced in British India continued to
govern personal status. A seven-member Commission on Marriage and Family
Laws was established in 1955 with a remit to consider the personal
status laws applicable in the new state and determine the areas needing
reform. The Commission submitted its report in 1956, suggesting a number
of reforms, including, for example, the consideration of all triple
talaqs (except for the third of three) as single, revocable
repudiations. The report led to much debate, with many leading ulama
(including Maulana Abual Ala Maududi, leader of the Jamaat-i-Islami)
opposing its recommendations. The Muslim Family Laws Ordinance, 1961
adopted some of the provisions of the Report of the Marriage and Family
Laws Commission, aiming to reform divorce law and inheritance law
relating to orphaned grandchildren, introduce compulsory marriage
registration, place restrictions on the practice of polygamy, and reform
the law relating to dower and maintenance in marriage and divorce, as
well as to amend existing legislation with relation to marriage age.
Again, various sectors of the ulama regarded this as unjustified
interference or tampering with the classical law. When the first
Constitution of Pakistan was finally promulgated in 1956, it included a
provision that came to be referred to as the repugnancy clause. This
clause stated that no law repugnant to Islamic injunctions would be
enacted and that all existing laws would be considered in light of this
provision, in order to institute appropriate amendments. This repugnancy
provision has been retained and actually strengthened in the succeeding
Constitutions.
After a military take-over in 1999, the Constitution
was again suspended. During 2000, discussions continued about possible
amendments to the Constitution.
Schools of Fiqah
The predominant madhhab is the Hanafi, and there are
sizeable Jafari and Ismaili minorities. The legal status of the Ahmadis
is somewhat unclear. They self-identify as Sunni Muslims, but were
declared non-Muslims by the state. In 1974, then-Prime Minister Zulfiqar
Ali Bhutto finally conceded to a long-standing campaign waged by
conservative religious elements agitating for the official designation
of Ahmadis as non-Muslims. There have been Ahmadi initiatives to adopt a
modified version of the Muslim Family Laws Ordinance 1961 to be applied
to Ahmadi personal status cases. There are also Christians,
Zoroastrian, Hindu, Sikh and Jewish minorities in Pakistan.
Constitutional Status of Islamic Law
The third Constitution was adopted on 10th April
1973, suspended in 1977, and re-instituted in 1985; it has undergone
numerous amendments over time. It was suspended again in 1999 and
remained suspended at the time of writing.
Article 1 of the Constitution declares that Pakistan
shall be known as "the Islamic Republic of Pakistan" and Article 2
declares Islam the state religion. In 1985, the Objectives Resolution
contained in the preamble of the Constitution was made a substantive
provision by the insertion of Article 2A, thereby requiring all laws to
be brought into consonance with the Quran and sunnah. Chapter 3A
establishes the Federal Shariat Court and stipulates that the Court
shall take up the examination of any law or provision of law that may be
repugnant to the "injunctions of Islam, as laid down in the Holy Quran
and the Sunnah". If a law or provision is determined to be repugnant,
the Court is to provide notice to the federal or provincial government
specifying the reasons for the decision. The Court may also examine any
decisions relating to the application of the hudud penalties which have
been decided by any criminal court, and may suspend the sentence if
there is any question as to the correctness, legality or propriety of
any finding, sentence or order or the regularity of the proceedings. The
Supreme Court also has a Shariat Appellate Bench empowered to review
the decisions of the Federal Shariat Court and consisting of three
Muslim Supreme Court judges and up to two ulama. Part IX of the
Constitution is entitled Islamic Provisions and provides for the
Islamization of all existing laws, reiterating that no laws shall be
enacted which are repugnant to the injunctions of Islam. An explanation
appended to Part IX clarifies that, with respect to personal law, the
expression "Quran and Sunnah" means the laws of any sect as interpreted
by that sect.
The Islamic provisions also provide for the
creation of an Islamic Ideology Council of 8 to 20 members appointed by
the President. They must have "knowledge of the principles and
philosophy of Islam as enunciated in the Holy Quran and Sunnah, or
understanding of the economic, political, legal or administrative
problems of Pakistan." The Islamic Council is meant to represent various
schools of thought as far as that may be practical, and at least one
woman should be appointed. Its function is to make recommendations to
the Majlis-e-Shoora (Parliament) and the Provincial Assemblies "as to
the ways and means of enabling and encouraging the Muslims of Pakistan
to order their lives individually and collectively in all respects in
accordance with the principles and concepts of Islam as enunciated in
the Holy Quran and Sunnah." The Council also determines for the federal
and provincial governments whether or not proposed laws are repugnant,
and compiles for them in suitable form "such Injunctions of Islam as can
be given legislative effect.
Judicial System
The judiciary is composed of three levels of
federal courts, three divisions of lower courts, and a Supreme Judicial
Council. District courts in every district of each province, having both
civil and criminal jurisdiction though they deal mainly with civil
matters. High Court of each province has appellate jurisdiction over the
lower courts. Supreme Court has exclusive jurisdiction over disputes
between federal and among provincial governments, and appellate
jurisdiction over High Court decisions. Federal Shariat Court
established by Presidential Order in 1980. This Court has a remit to
examine any law that may be repugnant to the "injunctions of Islam, as
laid down in the Holy Quran and the Sunnah." If a law is found to be
repugnant, the Court is to provide notice to the level of government
concerned specifying the reasons for its decision. The Court also has
jurisdiction to examine any decisions of any criminal court relating to
the application of hudud penalties. The Supreme Court also has a Shariat
Appellate Bench empowered to review the decisions of the Federal
Shariat Court. The West Pakistan Family Courts Act, 1964 governs the
jurisdiction of Family Courts. These courts have exclusive jurisdiction
over matters relating to personal status. Appeals from the Family Courts
lie with the High Court only. The Family Courts have exclusive
jurisdiction over matters pertaining to the dissolution of marriage,
dower, maintenance, the restitution of conjugal rights, the custody of
children, and guardianship.
Relevant Legislation
- Guardians and Wards Act, 1890
- Child Marriage Restraint Act, 1929
- Dissolution of Muslim Marriages Act, 1939
- Muslim Family Laws Ordinance, 1961
- (West Pakistan) Muslim Personal Law (Shariat) Application Act, 1962
- (West Pakistan) Family Courts Act, 1964
- Offence of Zina (Enforcement of Hudood) Ordinance, 1979
- Law of Evidence (Qanun-e-Shahadat) Order, 1984
- Enforcement of Sharia Act, 1991
- Dowry and Bridal Gifts (Restriction) Act, 1976
- Prohibition (Enforcement of Hudood) Order, 1979
- Offence of Qazf (Enforcement of Hudood) Order, 1979
- Execution of Punishment of Whipping Ordinance, 1979 (many provisions of this Ordinance were repealed later on so as to limit the number of crimes to which it is applicable)
Notable Features
The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962
Repealed
the 1937 Muslim Personal Law (Shariat) Application Act as well as
provincial legislation on the application of Muslim personal law. The
new Act directs the application of Muslim personal law, notwithstanding
any custom or usage, to all questions of personal status and succession
where the parties are Muslims. One particular provision of the new
legislation states that, "the limited estates in respect of immovable
property held by Muslim females under the customary law are hereby
terminated"; this constitutes the opposite stance to customary land law
to the 1937 enactment, and so the new Act provides that it will not
apply retrospectively.
Marriage Age
18 for males and 16 for females; penal sanctions for contracting under-age marriages, though such unions remain valid.
Marriage Guardianship
Governed by classical Hanafi law, though
influence of custom is strong; in Abdul Waheed v. Asma Jehangir (PLD
1997 Lah 331), court confirmed that, under current law, adult Hanafi
Muslim woman can contract herself in marriage without wal’s consent as
essential requirement for validity of contract is the woman’s consent
and not the wali’s
Marriage Registration
The Muslim Family Laws Ordinance (MFLO), 1961
introduced reforms to various aspects of the classical law. The reforms
concern the registration of marriage and divorce, inheritance rights of
orphaned grandchildren, restrictions on polygamy, consideration of every
talaq (except the third of three) as single and revocable,
formalisation of reconciliation procedures in disputes relating to
maintenance or dissolution of marriage, and recovery of mahr, along with
specified penalties for non-compliance.
Penal sanctions for those in violation of
mandatory registration requirements for marriage; failure to register
does not invalidate the marriage. The MFLO introduced marriage
registration and provides for penalties of fines or imprisonment for
failure to register. However, a Muslim marriage is still legal if it is
contracted only according to the religious requisites.
Polygamy
The MFLO also instituted some limited reforms
in the law relating to polygamy, with the introduction of the
requirement that the husband must submit an application and pay a fee to
the local Union Council in order to obtain prior written permission for
contracting a polygamous marriage. The application must state the
reasons for the proposed marriage and indicate whether the applicant has
obtained the consent of the existing wife or wives. The chairman of the
Union Council forms an Arbitration Council with representatives of the
existing wife or wives and the applicant in order to determine the
necessity of the proposed marriage. The penalty for contracting a
polygamous marriage without prior permission is that the husband must
immediately pay the entire dower to the existing wife or wives as well
as being subject to a fine and/or imprisonment; any polygamous marriage
contracted without the Union Council’s approval cannot be registered
under the MFLO. Nevertheless, if a man does not seek the permission of
his existing wife or the Union Council, his subsequent marriage remains
valid. Furthermore, the difficulty in enforcing resort to the
application process to the Union Council, combined with the judiciary’s
reluctance to apply the penalties contained in the MFLO (as indicated by
the case law), tend to restrict the efficacy of the reform provisions.
This has led some observers to describe the provisions requiring the
permission of the Arbitration Council as a mere formality.
Constraints placed on polygamy by requirement
of application to the local Union Council for permission and
notification of existing wife/wives, backed up by penal sanctions for
contracting a polygamous marriage without prior permission; husband’s
contracting polygamous marriage in contravention of legal procedures is
sufficient grounds for first wife to obtain decree of dissolution.
Obedience / Maintenance
The chairman of the Union Council will also
constitute an Arbitration Council to determine the matter in cases where
a husband fails to maintain his wife or wives, or fails to maintain
co-wives equitably (at the application of one or more wife or wives, and
in addition to their seeking any other legal remedy). Any outstanding
dower or maintenance not paid in due time is recoverable as arrears of
land revenue. Also, where no details regarding the mode of payment of
mahr are recorded in the marriage contract, the entire sum of the dower
stipulated therein is presumed to be payable as prompt dower.
Talaq (Divorce)
Consideration of every talaq uttered in any
form whatsoever (except the third of three) as single and revocable;
formalisation of reconciliation and notification procedures, and
procedures for recovery of mahr and penalties for non-compliance; talaq
was generally rendered invalid by failure to notify in 1960s and 1970s,
but introduction of Zina Ordinance led to changes in judicial practice
so that failure to notify does not invalidate talaq.
Efforts were also made to reform the classical
law as it relates to the exercise of talaq. The MFLO requires that the
divorcing husband shall, as soon as possible after a talaq pronounced
"in any form whatsoever", give the chairman of the Union Council notice
in writing. The chairman is to supply a copy of the notice to the wife.
Non-compliance is punishable by imprisonment and/or a fine. Within
thirty days of receipt of the notice of repudiation, the chairman must
constitute an Arbitration Council in order to take steps to bring about a
reconciliation. Should that fail, a talaq that is not revoked, either
expressly or implicitly, takes effect after the expiry of ninety days
from the day on which the notice of repudiation was delivered to the
chairman. If the wife is pregnant at the time of the pronouncement of
talaq, the talaq does not take effect until ninety days have elapsed or
the end of the pregnancy, whichever is later. The classical law
regarding the requirement of an intervening marriage in order to remarry
a former husband who has repudiated the same woman three times is
retained. Failure to notify invalidated the talaq until the late 1970s
and early 1980s, but the introduction of the Zina Ordinance allowed
scope for abuse as repudiated wives were left open to charges of zina if
their husbands had not followed the MFLO’s notification procedure.
Thus, judicial practice has, since the early 1980s, recognised as valid
repudiations in contravention of the notification procedure. The rules
regarding notification and arbitration apply, mutatis mutandis and so
far as applicable, to delegated divorce (talaq al-tafwid), or to
marriage dissolved other than by talaq.
Judicial Divorce
Grounds on which women may seek divorce
include: desertion for four years, failure to maintain for two years or
husband’s contracting of a polygamous marriage in contravention of
established legal procedures, husband’s imprisonment for seven years,
husband’s failure to perform marital obligations for three years,
husband’s continued impotence from the time of the marriage, husband’s
insanity for two years or his serious illness, wife’s exercise of her
option of puberty if she was contracted into marriage by any guardian
before age of 16 and repudiates the marriage before the age of 18 (as
long as the marriage was not consummated), husband’s cruelty (including
physical or other mistreatment, unequal treatment of co-wives), and any
other ground recognized as valid for the dissolution of marriage under
Muslim law; judicial khula may also be granted without husband’s consent
if wife is willing to forgo her financial rights; leading case Khurshid
Bibi v. Md. Amin (PLD 1967 SC 97)
The Dissolution of Muslim Marriages Act, 1939
Continues
to govern divorce in Pakistan. The Act has been amended by the Muslim
Family Laws Ordinance 1961 to include the contracting of a polygamous
marriage in contravention of the MFLO in the grounds entitling a woman
to a decree for the dissolution of her marriage. Another amendment
raises the age at which a woman has to have been married by her father
or other guardian to exercise her option of puberty from 15 to 16; thus,
the option of puberty may be exercised if the girl was married before
the age of 16 if she repudiates the marriage before the age of 18 so
long as the marriage was not consummated. The "judicial khula" is a
significant feature of divorce law in Pakistan. It is welcomed by some
as giving women the right to divorce regardless of grounds, provided
that she is prepared to forgo her financial rights (i.e., repaying her
dower). It is criticized by others who point out that judges may rule
for a judicial khula in cases where women are clearly entitled to a
judicial divorce under the terms of the DMMA without losing their
financial rights. In Khurshid Bibi v. Mohd. Amin (PLD 1967 SC 97), the
question for the Supreme Court to determine was stated as follows: "(Is)
a wife, under the Muslim law, entitled, as of right, to claim khula,
despite the unwillingness of the husband to release her from the
matrimonial tie, if she satisfies the Court that there is no possibility
of their living together consistently with their conjugal duties and
obligations." The Supreme Court stated that the Muslim wife is indeed
entitled to khula as of right, if she satisfies the Court that she would
be forced into a hateful union if the option of khula was denied her by
her husband
Post-Divorce Maintenance / Financial Arrangements
Governed by classical law In terms of
maintenance during and after marriage, the classical law is applied. The
post-independence changes to the Indian Criminal Procedure Code that
allow a divorced wife who is unable to support herself to claim
maintenance from her former husband have not been reflected in the
Criminal Procedure Code of Pakistan. While the Indian Criminal Procedure
Code was extended so as to apply to divorce, no such reforms have been
made to section 488 of the Criminal Procedure Codes of either Pakistan
or Bangladesh
Child Custody
General rule is that divorced wife is entitled
to custody until 7 years for males (classical Hanafi position) and
puberty for females, subject to classical conditions, though there is
some flexibility as best interests of the ward are considered paramount
according to Guardians and Wards Act, 1890
Succession
Governed by classical law; reform introduced in
post-independence legislation allows for orphaned grandchildren through
sons and daughters to inherit the share their father / mother would
have been entitled to had they not predeceased the grandparents.
The Qanun-e-Shahadat (Law of Evidence) Order, 1984
Replaced
the Evidence Act 1872, though it essentially restates the original
legislation, but as it was intended to bring the law of evidence closer
to Islamic injunctions, there were changes which specifically impacted
upon women. The Order introduced changes to the law as it relates to the
presumption of legitimacy. The original Evidence Act did not provide
for a minimum period of gestation, and the maximum was 280 days. Now,
the minimum gestation period is set at six months and the maximum at two
years, bringing the provision into accordance with the majority
position in classical Hanafi fiqh. With regard to the changes introduced
relating to womens testimony, practice since the Orders issuance has
been for instruments pertaining to financial or future obligations to be
attested by two men, or one man and two women while courts may accept
or act on the testimony of one man or one woman in all other cases.
The Offence of Zina (Enforcement of Hudood) Ordinance, 1979
Introduced
the concepts of fornication and adultery into criminal law. The
Pakistani Penal Code had not afforded any recognition to fornication as a
crime, and adultery was only defined as an offence under section 497 if
a man had intercourse with the wife of another man without his
permission; the woman involved bore no criminal liability. The Zina
Ordinance provides for severe penalties for committing adultery or
fornication, and reiterates the classical distinction between married
and unmarried parties in determining punishments. Thus, the hadd
punishment for a married person convicted of zina is rajm, stoning to
death, a penalty that has not been carried out by the state, and the
hadd for an unmarried person found guilty of zina is one hundred lashes
in a public place. The Ordinance also makes a distinction between tazir
and hadd punishments for zina, as hadd punishments are generally more
severe and require a more rigorous standard of proof. If the accused
confesses to the crime, or if there are four pious adult Muslim male
eye-witnesses to the actual act of penetration, the hadd penalty may be
applied. Often the higher standard of evidentiary requirements is not
met, and if there are other complications as well (appeals, retractions
of confessions, etc.), the usual course has been to apply tazir
punishments, defined as imprisonment for up to ten years, thirty lashes,
and a fine.
The Enforcement of Sharia Act, 1991
Affirms
the supremacy of the sharia, (defined in the Act as the injunctions of
Islam as laid down in the Holy Quran and Sunnah) as the supreme law of
Pakistan. The Act states that all statute law is to be interpreted in
the light of sharia and that all Muslim citizens of Pakistan shall
observe the sharia and act accordingly. Section 20 of the Act states
that notwithstanding anything contained in this Act, the rights of women
as guaranteed by the Constitution shall not be affected.
Law / Case Reporting System
The
decisions of Pakistani courts are published in Pakistan Legal Decisions
(PLD), Civil Law Cases (CLC), Monthly Legal Digest (MLD) and a number
of other law reports.
International Conventions & Reports to Treaty Governing Bodies
Pakistan
signed the CRC in 1990, and ratified the Convention the same year. The
reservation made upon signature regarding the CRC being interpreted in
light of Islamic legal principles and values was withdrawn in 1997.
Pakistan acceded to the CEDAW in 1996, with a
general declaration to the effect that Pakistan’s accession to the
Convention is subject to the provisions of the national Constitution.
Court System
Court system of Pakistan is made up of many
courts differing in levels of legal superiority and separated by
jurisdiction. Some of the courts are federal in nature while others are
provincial.
Pakistan has three levels of federal courts,
three divisions of lower courts, and a Supreme Judicial Council.
District courts exist in every district of each province, with civil and
criminal jurisdiction. The High Court of each province has appellate
jurisdiction over the lower courts. The Supreme Court has exclusive
jurisdiction over disputes between and among provincial governments, and
appellate jurisdiction over High Court decisions.
The Federal Shariat Court was established by
Presidential Order in 1980. This Court has a remit to examine any law
that may be repugnant to the “injunctions of Islam, as laid down in the
Holy Quran and the Sunnah." If a law is found to be 'repugnant', the
Court is to provide notice to the level of government concerned
specifying the reasons for its decision. The Court also has jurisdiction
to examine any decisions of any criminal court relating to the
application of hudud penalties. The Supreme Court also has a Shariat
Appellate Bench empowered to review the decisions of the Federal Shariat
Court.
The West Pakistan Family Courts Act 1964
governs the jurisdiction of Family Courts. These courts have exclusive
jurisdiction over matters relating to personal status. Appeals from the
Family Courts lie with the High Court only.
- Anti Terrorism Court of Pakistan
- Jirga
- Pakistan Penal Code
- Blasphemy law in Pakistan
- Copyright protection in Pakistan
- Gay rights in Pakistan
- The Oath of Judges Order, 2000
A court is a public forum used by a power base
to adjudicate disputes and dispense civil, labour, administrative and
criminal justice under its laws. In common law and civil law states,
courts are the central means for dispute resolution, and it is generally
understood that all persons have an ability to bring their claims
before a court. Similarly, those accused of a crime have the right to
present their defense before a court.
Court facilities range from a simple farmhouse
for a village court in a rural community to huge buildings housing
dozens of courtrooms in large cities. A court is a kind of deliberative
assembly with special powers, called its jurisdiction, to decide certain
kinds of judicial questions or petitions put to it. It will typically
consist of one or more presiding officers, parties and their attorneys,
bailiffs, reporters, and perhaps a jury.
The term "court" is often used to refer to the
president of the court, also known as the "judge" or the "bench", or the
panel of such officials. For example, in the United States the term
"court" (in the case of U.S. federal courts) by law is used to describe
the judge himself or herself.
In the United States, the legal authority of a
court to take action is based on three major issues: (1) Personal
jurisdiction; (2) Subject matter jurisdiction; and (3) Venue
Jurisdiction
Jurisdiction, meaning "to speak the law" is the
power of a court over a person or claim. In the United States, a court
must have both personal jurisdiction and subject matter jurisdiction.
Each state establishes a court system for the territory under its
control. This system allocates work to courts or authorized individuals
by granting both civil and criminal jurisdiction (in the United States,
this is termed subject-matter jurisdiction). The grant of power to each
category of court or individual may stem from a provision of a written
constitution or from an enabling statute. In English law, jurisdiction
may be inherent, deriving from the common law origin of the particular
court.
Trial and Appellate Courts
Courts may be classified as trial courts
(sometimes termed "courts of first instance") and appellate courts. Some
trial courts may function with a judge and a jury: juries make findings
of fact under the direction of the judge who reaches conclusions of law
and, in combination, this represents the judgment of the court. In
other trial courts, decisions of both fact and law are made by the judge
or judges. Juries are less common in court systems outside the
Anglo-American common law tradition.
Civil Law Courts and Common Law Courts
The two major models for courts are the civil
law courts and the common law courts. Civil law courts are based upon
the judicial system in France, while the common law courts are based on
the judicial system in Britain. In most civil law jurisdictions, courts
function under an inquisitorial system. In the common law system, most
courts follow the adversarial system. Procedural law governs the rules
by which courts operate: civil procedure for private disputes (for
example); and criminal procedure for violation of the criminal law.
The Federal Shariat Court (FSC) of Pakistan
consists of 8 muslim judges including the Chief Justice. These Judges
are appointed by the President of Pakistan choosing from amongst the
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 8 judges, 3 are required to be Ulema who
are well versed in Islamic law. The judges hold office for a period of 3
years, which may eventually be extended by the President.
The FSC, on its own motion or through petition
by a citizen or a government (federal or provincial), has the power to
examine and determine as to whether or not a certain provision of law is
repugnant to the injunctions of Islam. Appeal against its decisions lie
to the Shariat Appellate Bench of the Supreme Court, consisting of 3
muslim judges of the Supreme Court and 2 Ulema, appointed by the
President. If a certain provision of law is declared to be repugnant to
the injunctions of Islam, the government is required to take necessary
steps to amend the law so as to bring it in conformity with the
injunctions of Islam.
The court also exercises revisional
jurisdiction over the criminal courts, deciding Hudood cases. The
decisions of the court are binding on the High Courts as well as
subordinate judiciary. The court appoints its own staff and frames its
own rules of procedure.
Eversince its establishment in 1980, the
Federal Shariat Court has been the subject of criticism and controversy
in the society. Created as an islamisation measure by the military
regime and subsequently protected under the controversial 8th Amendment,
its opponents question the very rationale and utility of this
institution. It is stated that this court merely duplicates the
functions of the existing superior courts and also operates as a check
on the sovereignty of Parliament. The composition of the court,
particularly the mode of appointment of its judges and the insecurity of
their tenure, is taken exception to, and it is alleged, that this court
does not fully meet the criterion prescribed for the independence of
the judiciary. That is to say, it is not immune to pressures and
influences from the Executive.
In the past, this court was used as a refuge
for the recalcitrant judges. And whereas some of its judgments,
particularly the ones which relying on the Islamic concept of equity,
justice and fair play, expanded and enlarged the scope and contents of
individual’s rights were commended, others that tend to restrict the
rights of women, are severely criticized and deplored. In brief there is
a need for a serious discussion on the status, utility and functions of
this Court.
