Constitutional Mandate Of The Federal Shariat Court

fsc

Constitutional Mandate Of The Federal Shariat Court

The Federal Shariat Court (FSC) was established under the Presidential Order No.1 of 1980, incorporated as Chapter 3A of the Constitution of the Islamic Republic of Pakistan, 1973. Under Article 203D of the Constitution, FSC functions to examine and decide questions on whether or not laws being enacted by the federal or provincial governments are ‘repugnant to the injunctions of Islam’.

The appellate forum against the judgment, final order or sentence of the FSC is the Supreme Court of Pakistan, as provided under Article 203F of the Constitution. The same Appellate Bench is defined as the “Shariat Appellate Bench”. Apart from the appellate powers vested in the Supreme Court, the jurisdiction of all the courts and tribunals are barred under Article 203G of the Constitution with respect to matters falling under the exclusive domain of FSC. It was held in Rehmat Ali v. Muhammad Younis, PLD 2014 SC 680 per Saqib Nisar J at para 3, “…as per the law i.e. proviso to Article 203-D of the Constitution of Pakistan, 1973, the judgment of FSC would not be given effect before the disposal of the appeal”.

The appointment of FSC judges is governed by Article 175A of the Constitution, which is the same provision for the appointment of judges of the Supreme Court and High Courts of Pakistan.

Recently, in the landmark case of District Bar Assn v. FoP, PLD 2015 SC 401, the majority view of the honourable Supreme Court of Pakistan upheld the doctrine of basic structure as a valid ground to strike down a constitutional amendment if it violates the scheme of the Constitution. In Pakistan, this is the first unequivocal pronouncement of the apex court where it has reserved its right to strike down a constitutional amendment. It is an independent power of the judiciary to interpret the Constitution. Since FSC is confined to the interpretation of the laws only and not the Constitution, it is within its exclusive domain to strike down laws that are against the principles of Islam.

Imagine a Pakistan, where the historic context and the very essence of the Two Nation Theory is suppressed by a group of people (majority party sitting in Parliament). Imagine a Pakistan, where the unfettered power to amend the Constitution allows a government with a simple majority to abolish the independence of judiciary. Imagine a Pakistan, where same sex marriages and sexual relations before marriage are legalised for Muslims to show to the West that we are progressive people.

Surely, our founders did not strive for a Pakistan where a parliament is so sovereign that it exercises arbitrary powers against our constitutional ideology. The Founder of Pakistan, Quaid-i-Azam Muhammad Ali Jinnah made the declaration that Pakistan would be a democratic country based on Islamic principles of social justice. Similar views were presented in a speech by Quaid-e-Azam on March 23, 1940 in Lahore: “Come forward as servants of Islam, organize the people economically, socially, educationally and politically and I am sure that you will be a power that will be accepted by everybody.” The ideology of Pakistan is also reflected in Liaquat Ali Khan’s speech on the ‘Objectives Resolution’ on 7th March 1949: “…Pakistan was founded because the Muslims of this subcontinent wanted to build up their lives in accordance with the teachings and traditions of Islam, because they wanted to demonstrate to the world that Islam provides a panacea to the many diseases which have crept into the life of humanity today.”

In this factual matrix, the role and importance of FSC has to be considered. There is a plethora of case law where the FSC examined the vires of laws. In Allah Rakha v. FoP, PLD 2000 FSC 1, section 4 of Muslim Family Laws Ordinance, 1961 was declared to be against the injunctions of Islam. The decision was affirmed by the Shariat Appellate Bench because it deprived grandchildren of their inheritance rights.

In Federal Government v. Provincial Governments, PLD 2009 FSC 1, section 223 of the Companies Ordinance, 1984 was struck down for being violative of the Islamic injunctions because it failed to protect the interests of the shareholders and public-at-large from underhand and unscrupulous dealings of the directors in the form of ‘short sale’ and ‘blank sale’ in the stock market. The same provision also lacked an adequate protection from the “clutches of vested interests of monopoly stock holders and gang mafia operating in stock markets”.

In Capt. (R) Mukhtiar Ahmed v. FoP, PLD 2014 FSC 23 at paras 12 & 14, section 3-A(2)&(c) of the Service Tribunals Act, 1973, giving preferential treatment to the chairman over two members of the same tribunal during the adjudication process was considered discriminatory and in violation of the principle of equality among human beings as enshrined in the Holy Quran and Sunnah.

In Dr. Muhammad Aslam Khakhi v. The State, PLD 2010 FSC 1, the fundamental rights of prisoners and convicts were reviewed and provisions of Prisoners’ Act 1900 (Ps’A)Pakistan Prison Rules, 1978 (PPR), Prisons Act, 1984 (PA) and Code of Criminal Procedure (CrPC) were struck down as they were considered to be offending the injunctions of Islam. In summary:

  • rule 84 of the PPR was violative of Islamic injunctions because it prevented the prisoners from using their incomes in any lawful pursuit, occupation and trade;
  • rules 147-9 of the PPR and section 29 of the Ps’A were declared repugnant for giving unfettered power to the government for transferring prisoners from one province to another without any notice, consent, speaking order and right of appeal;
  • rule 176(iii) PPR was declared violative of Islamic injunctions because it was inadequate to fulfill the dietary requirements of prisoners. The diet money of Rs. 3 per meal was enhanced to Rs. 50 per meal which was to be revised every 3 years;
  • portions of rules 329-364 of the PPR and section 30 of the PA were declared repugnant on the ground that the said provisions treated prisoners serving death sentence as condemned prisoners from the date of the pronouncement of the verdict of guilt by the trial court. Before the confirmation of death sentence by the High Court or FSC and during the pendency of the appeal, the detention of prisoners in death cell and keeping them under strict surveillance, were considered inhumane conditions which tantamount to a violation of their rights. The prisoners could only be confined to death cell once their death sentence became executable;
  • section 382 B of the CrPC was declared repugnant on the ground that the failure to deduct the period spent in prison before and during the trial from the quantum of sentence awarded was violative of Islamic injunctions;
  • portions of rules 583-4, 588-91 of the PPR were bad for not providing the right of appeal to the accused;
  • portion of rule 690 of the PPR was struck down which deprived the prisoners from “all books, papers, and printed or written matters and materials” as they also had a fundamental right of education. The government was not justified in denying the prisoners from writing and reading; and
  • rule 1078 of the PPR was violative of the injunctions of Islam as it disallowed persons dismissed from government service from employment in the Prison Department without the special sanction of government on account of arbitrariness. It was held that “there is no law to prohibit a previous convict from pursuing lawful economic enterprise in his private capacity”.

The family life of prisoners was also under discussion. FSC required the Home Department to formulate a policy for married prisoners “to avail a week’s parole every four months in the larger interest of maintenance of family life. The spouse and children of the accused have a legitimate claim upon the latter.” Such initiatives are capable of reducing the chances of prisoners engaging in illicit sexual activities. The young prisoners often become “potential targets of the sex hungry senior denizens of the barracks”.

The judgment also proposed some solutions to improve the standard of living of the prisoners through the establishment of a community centre for collective meals, prayers, workshops, seminars, cultural and recreational activities; separation of drug addicts with non-addicts; introduction of insurance based compensation for the labour put in by a prisoners; and establishment of a canteen in every prison house, etc.

In UBL v. Farooq Bros, PLD 2002 SC 800, the honourable Supreme Court, in Shariat review jurisdiction, allowed the review petition against the judgment of Shariat Appellate Bench reported as Dr. Aslam Khaki v. Syed Muhammad Hashim, PLD 2000 SC 225, which declared Riba (interest based system) as unlawful and remanded the case to FSC to be decided afresh. The proceedings are still pending.

These are some of the major decisions delivered by FSC and Shariat Appellate Bench. The verdicts of FSC are based on the interpretation of only the Holy Quran and Sunnah. As laid down in  Saleem Ahmad v. Govt of Pakistan, PLD 2014 FSC 43 at para 7, “… this Court cannot declare any law or provision of law, as repugnant to the injunctions of Islam, merely on the basis of views, verdicts and Fatawa issued by the honourable scholars whosoever they might be… unless there is a clear specific “nass” of the Holy Quran and Sunnah of the Holy Prophet (SAW), prohibiting or enjoining commission or omission of any particular act…”

FSC is, therefore, an adjudicatory body which functions to address the weaknesses of our laws and to counter the evils of the society through effective directions and solutions. As Muslims, we have better prospects of success by living our lives according to the Islamic code of life, which promotes peace and tolerance and condemns radicalistion and extremism.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Asfandyar Khan Tareen

The writer is a Barrister from Lincoln's Inn and heads Tareen Barristers Chambers in Lahore. He can be contacted at ayk@tareen.com.pk



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