Un-Islamic “Islamic Courts”
Since 1990 Jamat-ud-Dawa, a private religious organization which claims to render social welfare services besides running charitable schools and hospitals in Pakistan, has set up and is running Shariah courts in different cities by self-assuming the authority of doing so in order to dispense justice to the people who supposedly lost trust in courts established by law. The legal question that needs to be dealt here is whether according to Shariah a private religious organization can set up a “court” on its own to provide justice to the citizens of an Islamic state such as Pakistan.
At the very outset it must be appreciated that the whole superstructure of the Islamic law of constitution rests on two foundations: complete rule of law and representative government – as stated by one of the leading Pakistani jurists of Islam today, Dr. Syed Riaz-ul-Hassan Gilani in his famous work, The Reconstruction of Legal Thought in Islam at page 285.
By rule of law is meant the rule of Shariah – Quran and Sunnah of Prophet Muhammad being the two primary sources, followed by Ijma (consensus of jurists on a particular practice to be followed) and Ijtihad (intellectual exertion to form judgment on a particular legal issue), which includes Qiyas (analogical deduction of a legal rule), as secondary sources.
The representative government on the other hand, as I view it, also derives its authority from the Shariah which is responsible for enforcement of the same in letter and spirit. In support of such principle the Quran orders in Surah Al-Imran chapter 3, verse 159: “And consult them (believers) in affairs. Then, when you have taken a decision, put your trust in Allah. For Allah loves those who put their trust (in Him)”. The Quran further informs in Surah As-Shura chapter 42, verse 38: “They (believers) conduct their affairs by mutual consultation”. So the practice of mutual consultation started and became prevalent among the companions of the Prophet with the advent of such revelations and, as a method prescribed by the Quran it is still recognized by the name of Parliament (Majlis-e-Shoora) formed and regulated by the Constitution of Islamic Republic of Pakistan, 1973. The citizens of Pakistan (most of who are Muslims) choose their Muslim representatives by way and technique of elections after the end of every five-year term in order to uphold principles of Shariah which includes inter alia establishment of courts and tribunals throughout the country.
In light of what has been mentioned and discussed above it is quite evident that the Parliament (Majlis-e-Shoora) on a national level, and a Provincial Assembly on a provincial level today has the authority to establish and administer courts through framing rules and regulations of the same with the exception of Supreme Court, High Courts and Federal Shariat Court which are the creation of the Constitution itself (by virtue of Article 175(1) and 203-C of the Constitution). It is further clarified that no individual or private organization, as per the laws of Pakistan, has the authority to self-appoint a judge or to establish a court for the purposes of hearing disputes of citizens, especially when the entire superstructure of constitutional law is based on Shariah.
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