It is the Shariah of the courts, Your Honour

A question is being raised today in many quarters as to which Shariah, or whose Shariah, is to be implemented in Pakistan. There are so many sects, it is claimed, and now some people have picked up guns for the implementation of Shariah, but whose version is to be implemented? After all, there are so many different interpretations.

The simple answer to all these questions is that the constitution and the law of the land require that it be the Shariah of the courts.

Article 227(1) of the constitution requires two things. First, “all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah.” Second, “no law shall be enacted which is repugnant to such injunctions.” This means no new un-Islamic law shall be enacted. To meet the first objective the Council of Islamic Ideology (CII) has prepared its reports as required by the constitution. In addition to this, the Federal Shariat Court (FSC) is occasionally approached for striking down a law that appears to be repugnant to the injunctions of Islam.

For the second objective, Article 229 provides a mechanism through which a proposed law that appears to be against the injunctions of Islam can be referred to the CII for guidance. Parliament may, however, go ahead with the enactment of the law even before the answer of the CII is received, if the public interest so requires (Art 230(3)). The legislatures, federal or provincial, are not bound to refer new or proposed enactments to the CII – and they usually do not. Laws are almost always made by the legislatures, without consulting the CII. It is these laws, made independently of the CII that concern us here.

As no law can be enacted that is against the injunctions of Islam, the legislatures, in compliance with this direction of the constitution, enact laws that are Islamic. The presumption then is that all laws enacted by the legislature, whether or not the CII has been consulted, are Islamic. It follows that all laws made in Pakistan are Islamic. If we were to call these laws un-Islamic, it would amount to saying that the legislatures are violating the constitution and are enacting un-Islamic laws. This cannot be said of the legislatures of the Islamic Republic of Pakistan, therefore, the presumption holds. Consequently, all courts in the country must take judicial notice of the presumption that the laws made by the legislatures of Pakistan are Islamic.

A modified version of the presumption governs the earlier laws too – laws coming down to us from the days of the British. The CII and the FSC have examined almost all the existing laws and, except for a few issues like riba, almost all the existing laws have been found to be clean from the Islamic perspective. A few provisions that are still un-Islamic will be Islamised over time when the reports of the CII are implemented or when the FSC hands down a decision.

The remaining laws, and this is the bulk of the existing laws, may be presumed to be Islamic as far as the CII and the FSC are concerned, which means as far as the people of Pakistan are concerned. The courts must, therefore, take judicial notice of this presumption too and treat the existing laws as Islamic.

The two presumptions, one pertaining to all new enactments and the second to earlier law, when combined tell us that all the laws in the country stand Islamised. All new laws to be made in the future by our legislatures will also be Islamic. The process of Islamisation is then complete, and all our laws are now Islamic. This fact is of crucial significance for our courts. It remains, then, to explain what we mean when we say that the courts must take judicial notice of these presumptions and of this vital fact. To do so we will rely on Justice Cardozo of the US, who highlights for us the nature of the judicial process.

Justice Cardozo says, “Our first inquiry should, therefore, be: Where does the judge find the law which he embodies in his judgement? There are times when the source is obvious. The rule that fits the case may be supplied by the constitution or by statute. If that is so, the judge looks no farther. The correspondence ascertained, his duty is to obey. The constitution overrides a statute, but a statute, if consistent with the constitution, overrides the law of judges.

“In this sense, judge-made law is secondary and subordinate to the law that is made by legislators. It is true that codes and statutes do not render the judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are doubts and ambiguities to be cleared.” (The Nature of the Judicial Process)

The gaps, doubts and ambiguities that Cardozo refers to arise more often than the layperson may believe. The judge has to interpret each law and give it shape and meaning by removing all ambiguities, so that the problems faced by the people can be settled with justice and fairness.

The gaps, doubts and ambiguities referred to by Cardozo may increase when we presume that all statues are now Islamic. Does the law in our country provide us with some help in resolving these ambiguities? Indeed it does. The law that appears to govern this area, but is somehow not followed, is laid down in Section 4 of the Shariah Enforcement Act, 1991.

The section states the following: Laws to be interpreted in the light of Shari`ah: For the purpose of this Act, (a) while interpreting the statute-law, if more than one interpretation is possible, the one consistent with the Islamic principles and jurisprudence shall be adopted by the Court; and (b) where two or more interpretations are equally possible the interpretation which advances the Principles of Policy and Islamic provisions in the Constitution shall be adopted by the Court.”

The word in both sub-sections is “shall” and not “may”, which makes the directive mandatory. The words “For the purpose of this Act” obviously mean “for the enforcement of the Shariah as required by this Act and by the constitution”. Now, the issue as to what will be this prescribed form of interpretation in judicial parlance is a question that must be answered by the courts themselves. The responsibility rests on lawyers too, who must raise the issue of the prescribed form of interpretation laid down in this section before the courts.

If statute-law is interpreted in the light of the Shariah as required by this Act, the entire law in the country will acquire a flavour that is based on the Islamic form of justice and fairness, and this will take place in a matter of four or five years. The courts do refer to Shariah sometimes, but not in every case.

All statues must be interpreted in the light of the Shariah. This means all kinds of laws, for example, taxation laws, company law, contract law, torts and so on; every legal concept must be converted to its Islamic form. Converting legal concepts to the Islamic form means filling the gaps and removing the doubts and ambiguities in the light of the Shariah. Had this required form of interpretation commenced in 1991, we would not have faced the situation we are facing today where the Islamic character of the laws is being denied.

It may be added at the end that this is the only way that Shariah can be implemented in its true meaning. It will also mean a gradual and smooth transition to Shariah. Those insisting on its implementation today must insist on this form of implementation. Let the question about whose Shariah will be implemented be answered by the courts by saying that it is the constitutional form of Shariah that will be implemented and not that of a particular sect.

The writer is a former professor at the International Islamic University. Email: nyazee@yahoo.com