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Volume 2 Editor's Note

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Volume 2 Editor’s Note

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Articles

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ARTICLES

Wednesbury, Proportionality and Judicial Review
Author:
Hamaad Mustafa*
Challenging State-centric Discourses of Secularism in Pakistan and India
Author:
Abbas Ali Lotia
The Law of Khul’ in Islamic Law and the Legal System of Pakistan
Author:
Dr. Muhammad Munir

CASE NOTES

Compensation Payable by Convicted Rapists to Their Illegitimate Children
Author:
Orubah Sattar Ahmed
A Woman’s Right to Unilateral Divorce under Islamic Law
Author:
Salman Ijaz
Does Muslim Law Allow Husbands to Deny Paternity to Their Children?
Author:
Hiba Fatima Hassan
The Jurisprudence of the Codified Islamic Law: Determining the Nature of the Legal System in Pakistan
Author:
Kamran Adil
Saying not what the Constitution is … but what it should be: Comment on the Judgment on the 18th and 21st Amendments to the Constitution
Author:
Waqqas Mir

Volume 2 Editor’s Note

We are very excited to announce Volume 2 of the LLJ. As our readership may note, there is a notable change in the Journal’s format. While retaining the Articles section from last year’s volume, we substituted the Comments section for Case Notes on important decisions of the Superior Courts in recent years. Our hope is that the Journal would serve the dual purpose of inviting debate on important legal issues, as well as educating our readers on the technical facets of court decisions coming out of the Supreme Court of Pakistan, the High Courts, and the Federal Shariat Court. This Issue contains contributions by law students, academics and practicing lawyers.

In comparison to last year’s edition, we decided that a greater variety of subjects should be explicated in this Volume. There are three Articles, addressing available tests for Judicial Review, the discourse on Secularism and the semantics of Khul‘ under Islamic Law.

Hamaad Mustafa’s Article provides a comparative analysis of the Wednesbury reasonableness test and the proportionality test as yardsticks of Judicial Review of executive actions, and argues that the proportionality test provides an analytically clearer framework for channelling the court’s inquiry into executive actions in a more transparent and accurate manner, thus proving a more reliable test for the review.

Abbas Ali Lotia’s Article looks to reorient the debate on secularism by suggesting that the matter deserves scrutiny from a Foucauldian lens. His work looks at seminal texts on secularism from the fields of political science and anthropology to propose a new way of analysing secularism. This is done by focusing on a devolved conception of power which looks beyond legislative texts, and legal and political systems, to challenge how secularism has been understood in India and Pakistan.

In his Article, Dr Muhammad Munir sheds light on different jurisprudential stances taken by the Islamic Schools on the controversial law of Khul‘, and provides a comprehensive survey of the major points of contention. He also analyses the case law produced by the superior courts in Pakistan on this issue.

In addition to the Articles, there are six Case Notes which have been included in the LLJ this year. Each Note covers a recent court decision that has raised and answered interesting points of law.

Waqqas Mir’s Note on District Bar Association (Rawalpindi) v Federation of Pakistan discusses the ruling of the Supreme Court of Pakistan on the consolidated petitions challenging the 18th and 21st Amendments to the Constitution of the Islamic Republic of Pakistan 1973. He argues that the increase in judicial power with respect to constitutional amendments is actually weakening the democratic ideals the country vows to uphold.

Salman Ijaz’s Note on Saleem Ahmed v Government of Pakistan discusses the first instance of the Federal Shariat Court’s acknowledgment that the right to Khul‘ can be unilaterally exercised by a wife without the consent of her husband.

Hiba Fatima’s Note on Ghazala Tehsin Zohra v Mehr Ghulam Dastagir underlines the importance of the judgment from the perspective of the law on paternity and the corresponding duty of the father to provide maintenance to the child.

Kamran Adil’s Note on Zahid Rehman v The State discusses the ongoing ambiguity concerning the status of our legal system, which appears to be ‘in limbo’ between Common law and Islamic law. Through a discussion of this case, he attempts to make a broader point about the detrimental effects that this ambiguity has on the ability of judges to dispense justice uniformly.

Orubah Sattar Ahmed’s Note analyses Nadeem Masood v The State, which presents a new and bold interpretation of the Sections 544 and 545 of the CrPC as applicable in suits for compensation claimed on behalf of children born of rape.

No work is complete unless it acknowledges the efforts of the people who made it possible. We are immensely grateful to our Faculty Advisor, Dr Zubair Abbasi. We are equally grateful to Professors Marva Khan and Professor Khyzar Hussain for their invaluable insight and direction. We would like to acknowledge the support and encouragement of Dr Ali Qazilbash, and the Vice Chancellor, Dr Sohail Naqvi, who took personal interest in the publication of this Journal.

We are grateful to the outgoing and existing members of the LLJ Editorial Committee for their hard work in reviewing and editing several articles. We specially thank Maham Naweed, Abbas Ali Lotia, Muhammad Mustafa Mirza, Junaid Alam, Sara Mansoor Ansari, Hina Nadir Bandealy, Muhammad Zain Awan, Fatima Atta, Obaid Basit, Maria Khan, Naima Qamar, Muhammad Khursheed Siddiqi, Hiba Fatima, Shakoh Zulqurnain, Taha Abdus Samad and Rana Ali Yar Khan

  The LUMS Law Journal (LLJ) was initiated in 2013 at a time when Pakistan was experiencing its first democratic transition after a democratically elected government was completing its full term. At this juncture, constitutional debate was ripe owing to the elections and the 18th Constitutional Amendment. While these issues were and still are being debated, there is a dearth of legal scholarship on this subject. It is for this reason, amongst others, that Constitutional Law and Politics in Pakistan was chosen as the theme for the first issue of the LLJ.

The Journal was envisioned to contain two segments: Articles and Comments. Articles are substantive research pieces of 4,000 to 6,000 words, while Comments are discursive pieces of about 3,000 words. This issue contains Articles and Comments written by LUMS law students, academics and practicing lawyers. While the Comments relate to specific contemporary issues pertaining to the 1973 Constitution and the impact of the 18th Amendment, most of the Articles engage with a comparative constitutional analysis.

The first Article by Faryal Nazir provides an analysis of the emergency provisions provided under the 1973 Constitution, by discussing how they evolved from colonial times and simultaneously contrasts them with the emergency laws provided under the Constitution of India, 1949. The author explains how both countries have adopted the executive model of emergency powers from the colonial era, and suggests that they should shift towards a legislative model to circumscribe the discretionary powers of the executive.

In light of the growing religious tensions in Pakistan, the Article by Marva Khan provides a comparative analysis of the constitutional status of religious minorities in Pakistan and India, by outlining not only the discriminatory provisions in the respective constitutions of both nations, but also those which may be construed favourably. It is suggested that while there are three ways in which these issues may be addressed, that is, political compromise, constitutional guarantees, and international codes of conduct, the author emphasises the need to provide constitutional guarantees to ensure the protection of religious minorities.

The discussion on fundamental rights is furthered in the Article of Sara Jamil, who analyzes the elevation of education from a principle of policy to a fundamental right in Pakistan and India. The piece illustrates that even when education was not an enforceable right, courts in both jurisdictions interpreted it as a fundamental right. Thus judicial recognition of the right to education preceded its legislative enactment.

In light of the debates surrounding the Constitution and effects of its provisions, the Article by Saad Rasool sheds light on Pakistan’s legislators, who have the authority not only to amend the Constitution, but also to formulate statutes. This is done by analysing the qualifications and disqualifications for Parliamentarians set out in the 1973 Constitution, and how they have evolved over the years, laying emphasis on the 2013 General Elections held in Pakistan.

Saroop Ijaz’s Comment focuses on judicial appointments in Pakistan, and how the judiciary has exercised its dominance over this process. It is argued that although the 18th Constitutional Amendment sought to change this position by establishing a Judicial Commission and a Parliamentary Committee for judicial appointments, subsequent legislative and judicial developments have reverted the situation to as it was prior to the 18th Amendment.

Hina Hafeezullah’s Comment discusses how Pakistan, despite being a signatory to the Universal Declaration of Human Rights, only recently incorporated the right to fair trial in its constitution via the 18th Amendment. Despite this legal change, its application still falls short of what was initially envisioned under the Declaration. This is because the executive authorities blatantly violate this right and the police circumvent it through various procedures.

We would like to thank our Faculty Advisor, Professor Maryam S. Khan, for helping us initiate this venture and for her constant guidance and supervision during the editorial process. We would like to welcome on board Dr Zubair Abbasi and thank him for becoming a part of the project and for all the effort rendered by him for the publication of this issue.

We gratefully acknowledge the support from the head of Shaikh Ahmad Hassan School of Law, Dr Ali Qazilbash. We are also thankful to the Vice Chancellor, Dr Sohail Naqvi, for taking personal interest in the publication of this Journal. We strongly hope that this Journal will continue to publish regularly and provide a forum for healthy legal debates in Pakistan.

Editorial Board and Committee

Dr Khalid Masud
Member of Shariat Appellate Bench, Supreme Court of Pakistan

Dr Muhammad Munir
Director General Shari‘a Academy, International Islamic University Islamabad

Dr Shahbaz Ahmad Cheema
Assistant Professor, Law College, Punjab University Lahore

Dr Mathew Nelson
Reader, Department of Politics and International Relations, School of Oriental & African Studies, University of London

Jeff Redding
Associate Professor, School of Law, Saint Louis University

Dr Shoaib Ghias

JD and PhD in Jurisprudence and Social Policy, University of California, Berkeley

Editors

Salman Ijaz

Orubah Sattar Ahmed
Aleena Khan

Faculty Advisors
Dr Zubair Abbasi

Marva Khan

Khyzar Hussain

Wednesbury, Proportionality and Judicial Review

Wednesbury, Proportionality and Judicial Review

 

Hamaad Mustafa*

 

This article argues in favour of the proportionality test as the standard for the judicial review of executive actions in Pakistan. It begins by tracing out the origins of the prevailing Wednesbury unreasonableness test as well as the proportionality test, both in Pakistan and in common law jurisprudence generally. It then juxtaposes the two tests, and argues that both attempt a review of the calculus undertaken by the primary decision-maker tempered with the appropriate amount of deference given to him. However, the analytically clearer framework provided by the proportionality test means that it is able to channel this inquiry in a more transparent and accurate manner, and as such, provides a more reliable test for the review of executive actions.

 

Introduction

 

A fundamental requirement of justice is that an aggrieved person should be able to challenge state action before an independent court. The grounds on which such a challenge will be accepted must be clear – they must not unduly fetter the discretion of the democratically accountable decision-makers, while at the same time demarcating the four corners within which this discretion must operate. In delineating the scope of this discretion, two distinct standards of review have been used in common law jurisprudence – the Wednesbury unreasonableness test and the proportionality test. In the Dr Akhtar Hassan case in 2012, the Supreme Court of Pakistan reiterated Wednesbury unreasonableness as the sole standard for judicial review of executive or administrative action.1 At the same time, proportionality is not an alien concept for jurisprudence in Pakistan. In the DG Cement case, the Lahore High Court declared it as the standard for the review of legislation on the touchstone of constitutionality.2 The jurisprudence of the superior courts suggests, thus far, that proportionality and Wednesbury are to be treated as distinct tests, compartmentalised in their own respective areas and having no necessary overlap with each other. At the same time, close parallels may be drawn between how the judiciary has developed and used the two tests, and the content of the two tests as understood by the judiciary. This article argues that the proportionality and the

                                                   

* B.A Jurisprudence Oxford University. Presently an associate at Raja Mohammad Akram & Co.

  • [2012] SCMR 455.
  • [2013] PLD Lahore 693.

Wednesbury unreasonableness tests are different formulations of the same criteria, since both provide for a context-specific variable intensity review. It borrows from the debate prevailing in the United Kingdom – where both tests exist as possible standards for judicial review of administrative action – and argues that while both tests answer the same fundamental question, the proportionality inquiry provides a clearer mechanism through which the soundness of a decision may be judged. It also argues that the two tests should be merged, and that proportionality provides the best analytical framework for a unified test for the judicial review of legislation as well as administrative action.

 

Part I: The History and Content of Wednesbury

 

In Dr Akhtar Hassan Khan v Federation of Pakistan, the Supreme Court reiterated that the standard for judicial review of administrative action can be found in the Wednesbury unreasonableness test.[1] Justice Tassaduq Hussain Jillani outlined three grounds on which administrative action may be challenged. These include illegality, which means the decision-maker must understand the law that regulates his decisionmaking power and must give effect to it; irrationality, namely, Wednesbury unreasonableness; and procedural impropriety, which is governed by the rules of Natural Justice. A more elaborate articulation of the same principle can be found in the judgment of Iftikhar Muhammad Chaudhry, CJ, in Asaf Fasihuddin Khan Vardag v Government of Pakistan, where he states:

 

It has also been held by the Courts that in matters of judicial review the basic test is to see whether there is any infirmity in the decision making process. Since the power of judicial review is not an appeal from the decision, the Court cannot substitute its decision for that of the decision maker. The interference with the decision making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by mala fides.[2] (Emphasis supplied)

As Justice Tassaduq Jillani acknowledges, the irrationality principle mentioned above has its roots in the seminal United Kingdom Court of Appeal case of Associated Provincial Picture Houses Ltd v Wednesbury Corp, where Lord Greene MR termed an irrational decision to be one that is ‘so unreasonable that no reasonable authority could ever have come to it’.[3] While the Wednesbury case has had a profound and permanent impact on administrative law across the common law world, the formulation quoted above has been found to be unhelpful, and in the words of Lord Cooke, tautologous.[4] A gloss was provided by Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council where he formulated the test in terms of ‘conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt’.[5] He further elaborated on the meaning in CCSU v Minister for the Civil Service, stating, ‘[b]y ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’…. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’8

 

It is immediately noticeable that none of the formulations of the Wednesbury unreasonableness test state precisely which sort of decision is so outrageous that no reasonable decision maker could have made it. The test applies a circular logic, in that it allows the courts to interfere with decisions that are unreasonable, and then defines an unreasonable decision as one which no reasonable authority would take.

Lester and Jowell elaborate upon this critique when they argue that, ‘[t]he incantation of the word ‘unreasonable’ is not enough…. Intellectual honesty requires a further and better explanation as to why the act is unreasonable. The reluctance to articulate a principled justification naturally encourages suspicion that prejudice and policy considerations may be hiding underneath Wednesbury’s ample cloak.’[6] Criticisms like these have revealed the extent to which Wednesbury might be a distinctly unsuitable test for the judicial review of administrative action.[7]

 

Part II: The History and Content of Proportionality Test

 

The advent of the Human Rights Act 1998, which codified the provisions of the

European Convention on Human Rights (ECHR) into domestic law for the United Kingdom, brought with it the European test for judicial review of administrative actions – the proportionality test. Initially, the debate as to whether the proportionality test would lead to a different outcome than Wednesbury was confined largely within academia. This changed with the decision of the European Court of Human Rights (ECtHR) in Smith and Grady v UK.[8] The ECtHR unanimously found that the investigation into and subsequent discharge of personnel from the Royal Navy on the basis that they were homosexuals was a breach of their right to a private life under Article 8 of the European Convention on Human Rights. The case was significant because domestic courts within the United Kingdom had previously found there to be no breach of the principles of legality, including Wednesbury unreasonableness. The ECtHR, applying the European proportionality test, found a breach, thus highlighting the difference between the two tests. The revelation that the two tests can lead to a different outcome led to the United Kingdom having to resort to the proportionality test for all cases falling under the Human Rights Act 1998, lest it is held in non-compliance of its international obligations. The proportionality test hence became the standard for review of all cases involving human rights, while traditional Wednesbury standard persevered for non-human rights cases. A formulation for the proportionality test can be obtained from the Privy Council decision in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing, where it was held that:

 

In determining whether a limitation is arbitrary or excessive he said that the court would ask itself whether: (i) the legislative [or administrative] objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.[9] (Parenthesis supplied)

 

The test was endorsed by the House of Lords in Daly v SSHD;[10] while an important gloss of ‘striking a fair balance between rights of individual and interest of community’ was laid down by the House in Razgar[11] and underlined in Huang v Secretary of State for the Home Department.[12] Initially, the proportionality test was confined to cases that fell under the Human Rights Act 1998, but it slowly crept into other areas of law. Daly suggests the use of the proportionality test for human rights cases even outside the domain of the Human Rights Act 1998, and the Court of Appeal has also mentioned the strong case for combining the two tests in recent dicta.[13] At least two reasons, which will be further elaborated below, can be identified for this gradual spread of proportionality test in the English administrative law. Firstly, proportionality test provides a clearer and more transparent analytical framework than the opaque and circular Wednesbury unreasonableness test. Secondly, proportionality standard is an extremely versatile test, with the ability to vary the intensity of review depending on the context. This means that the proportionality test is able to effectively replace Wednesbury across a variety of contexts. It was perhaps this realisation that led Lord Cooke in R (Daly) v Secretary of State for the Home Department to state:

 

I think that the day will come when it will be more widely recognised that Wednesbury was an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd.[14]

The proportionality test was brought into Pakistani jurisprudence by Justice Mansoor Ali Shah in his celebrated judgment in the DG Cement v Federation of Pakistan, where he states:

 

Comparative international jurisprudence has moved on from the generic public interest argument to a more structured approach in assessing the impact of sub-constitutional limitation on the constitutional right by applying the principle of proportionality to balance and weigh the competing interests of an individual and the society, in order to maintain constitutional equilibrium….

Proportionality is a legal construction. It is a methodological tool. It is made up of four components; proper purpose, rational connection, necessary means, and a proper relation between the benefit gained by realizing the proper purpose and the harm caused to the constitutional right…[15]

DG Cement evaluated the extent to which a constitutional right can be limited via sub-constitutional legislation, as opposed to administrative action. Thus far, the test has not been extended to executive action in Pakistan, and remains limited to legislation, although the scope for such an expansion exists. Even if it is to be accepted that the proportionality test provides a more exacting standard of review than Wednesbury, there is little logic in applying a more deferential test for the judicial review of the actions of the executive as opposed to those of the legislature – especially considering that such action will often be taken under a statute. Indeed, the legislature is granted special deference by the judiciary, evidenced, for instance, by the maxim that mala fide cannot be attributed to it. The feasibility of an extension of proportionality test to the review of administrative actions must therefore be seriously considered.

Part III: The Relationship between Wednesbury and Proportionality

 

Having touched upon the history and content of the two tests, we may now move on to their relationship with one another. This was addressed by the House of Lords in Daly, where Lord Bingham, speaking of the proportionality test, states:

 

Clearly, these criteria [for the proportionality test] are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? … The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach.[16] (Parenthesis supplied)

 

Lord Bingham’s speech suggests that the proportionality and Wednesbury unreasonableness tests will provide the same answer in most cases, but not in all. Crucially, proportionality is seen as going further than traditional Wednesbury unreasonableness in a number of ways, with Lord Bingham outlining three of them. Firstly, the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, proportionality standard might be more appropriate for the protection of human rights.[17] To illustrate the third point, Lord Bingham cited R v Ministry of Defence, Ex p Smith, in which the United Kingdom Court of Appeal reluctantly felt compelled to accept a limitation on homosexuals in the army.[18] The challenge failed despite a very strict application of the Wednesbury unreasonableness test, but the European Court of Human Rights came to the opposite conclusion when it heard the appeal in Smith and Grady v United Kingdom, leading to suggestions that the proportionality test may be more suitable for the protection of Human Rights.[19]

 

This supposed greater intensity of the proportionality test is seen by numerous judges and academics as the reason why proportionality cannot replace Wednesbury as the test for review of administrative actions. It has even been suggested that Wednesbury should remain the test for cases that require greater judicial deference, while proportionality should be the standard used in cases where a more exacting review is required. For instance, Michael Taggart argues for a ‘rainbow of review’, in which a context-specific variable-intensity Wednesbury test is gradually replaced by a context specific variable-intensity proportionality test.[20] The ‘rainbow’, as it were, is formed by a merger of two spectrums. Movement along the first spectrum denotes an increase in the intensity with which the Wednesbury unreasonableness test is applied as the context changes. On one end of this spectrum, for cases presumably involving matters with which the courts have historically not intervened, an extremely strict version of the test may be suitable. This has been termed the super-Wednesbury test and an example of it can be found in Lord Bridge’s speech in R v Secretary of State, ex parte Hammersmith and Fulham LBC, where he states:

 

… statue confers powers on the Secretary of State which involve formulation and implementation of national economic policy, not open to challenge on grounds of irrationality short of extremes of bad faith, improper motive, or manifest absurdity because formulation of economic policy requires political judgment, which is not for courts.24

 

On the other end of this spectrum, when important human rights may be involved, the courts have applied what may be called the sub-Wednesbury approach. An illustration of this can be found in Sir Bingham MR’s speech in R v Ministry of Defence, ex parte Smith, when he states:

 

… [b]ut in judging whether the decision-maker has exceeded this margin of appreciation the
 human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.[21]

 

According to Taggart, the point at which the sub-Wednesbury test ends is the point at which proportionality review must begin, and from here on the proportionality review gets increasingly intrusive as the context changes towards more fundamental and absolute rights.[22]

 

Taggart’s rainbow suggests that deference is somehow hardwired into the Wednesbury unreasonableness test to the effect that it will always remain more deferential than proportionality. According to him, even the most lenient application of the Wednesbury test will prove to be more deferential than even the strictest application of proportionality. It is argued below that this is not the case. Even if proportionality test, prima facie, provides for greater scrutiny, this can be cut back depending on the context. In this manner, proportionality can be an appropriate test even for cases that require a great degree of judicial deference to the decision- maker. It will be argued below that when the nature of the proportionality inquiry is analysed, its versatility and suitability become evident. In particular, it will be shown that the variable intensity review under proportionality test can be just as sensitive to deference as Wednesbury.

 

Part IV: The Nature of the Proportionality Inquiry and its Suitability as theSole Standard for Review

 

When the content of the proportionality test, as outlined in De Freitas above, is analysed, it becomes evident that the test calls for a calculus to be made. The court must attach some weight to the legislative aim (which has given rise to the administrative action being challenged) on one hand and the right being infringed upon on the other. Then it must ascertain whether the action that has led to the infringement of the right is rationally connected to the aim set out, and lastly it must determine whether there was another possible way in which the same aim may have been achieved which was less intrusive. At the heart of the inquiry is balancing exercise between the rights of the individual and the rights of the community. The clarity of the framework provided by proportionality is seen as a great strength of the test. At the same time, the balancing  exercise has led some, including Lords Bridge and Roskill in R v Secretary of State for the Home Department Ex p. Brind, to argue that the proportionality inquiry distorts the distinction between appeal and review.[23] Their Lordships argued that proportionality requires the judge to attach weight to each side’s case, and ultimately determine which side has the heavier scale. By doing so, the judge is evaluating the merits of the decision, thereby acting as a primary decision-maker analogous to a judge sitting in appeal, as opposed to adopting the more deferential stance of a secondary decision-maker sitting in review. Their Lordships argue that such a position undermines the democratic legitimacy by giving an unelected judiciary too much control over democratically accountable bodies.

 

The above-mentioned argument is mistaken when it assumes that by attaching weight to each side, the judge is simply substituting his own judgment. In fact, the doctrine of deference plays as much a part in the proportionality test as it does in Wednesbury. To elaborate this point further, it may be useful to divide deference into institutional and constitutional deference. Institutional deference relates to the relative expertise of the court and the primary decision- maker over the subject matter of the decision. Since courts lack the specialised knowledge often possessed by primary decision-makers, they defer to the opinion of the decision-maker regarding crucial questions such as the likely success of a policy or its cost effectiveness. Such deference will play a part in determining the weight attached to the administrative aim being pursued. For instance, if the primary decision-maker feels that an increase in the number of school hours will lead to an overall increase in the level of education, the court is unlikely to replace this view with its own view on the merits and demerits of over-schooling. On a second level, constitutional deference relates to the constitutional role assigned to each body, and will determine the strictness with which the court will assess the overall balance of the scale. Where the subject matter of a decision is detached from the constitutional responsibility of the judiciary, the court may be expected to condone it even if it does not correspond to its own balancing exercise. Furthermore, the argument assumes that there will be one ‘correct’ decision, which the court will reach for itself and then enforce upon the primary decision-maker. In fact, administrative actions usually do not have one ‘correct’ decision, and the court’s job is to determine whether the decision taken falls within the range of reasonable decisions open to the decision-maker.

 

A second refutation to the above argument can be made by relying upon the Wednesbury unreasonableness test itself. Recent dicta of the United Kingdom Supreme Court in Kennedy v Charities Commission has confirmed that the Wednesbury test also involves consideration of weight and balance.[24] If the argument is to be accepted that the determination of weight and balance by itself inevitably leads to merits review, then the Wednesbury test is just as guilty as proportionality. The Supreme Court clarified that considerations of weight and balance depend upon the context of the case, which ultimately determines the intensity of review. Lords Mance elaborates upon the role of these factors in Wednesbury test, stating, ‘[t]here seems no reason why such factors should not be relevant in judicial review even outside the scope of the Convention and EU law

[where proportionality applies]’.[25] (Parenthesis added)

 

When the proportionality test is conceived of as a function of the competing consideration plus deference, it becomes clear that the intensity of review varies depending upon the level of deference. Hence, the test and the level of scrutiny depends upon context. Taggart’s suggestion that deference is somehow hardwired into the Wednesbury unreasonableness test in a manner that cannot be replicated by proportionality fails to withstand this analysis. Furthermore, particular examples of the proportionality test being applied in a deferential standard are not hard to find. For instance, in R v Minister of Agriculture, Fisheries and Food ex parte Fedesa, even though the court applied the proportionality test, it did so in a deferential manner, holding that ‘the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate’,[26] and that ‘the Council committed no manifest error in that respect’.[27] Such application of Wednesbury standard provides an analytically clearer framework for judicial review while not improperly infringing upon the domain of the democratically accountable decision-maker.

 

Conclusion

 

Proportionality test provides a more structured and transparent method through which reasonableness of administrative actions may be challenged. While it brings forward the competing considerations in a given case in a clearer manner, this does not make it an inherently more intrusive test than the present Wednesbury unreasonableness test. It can be seen from the above discussion that even the Wednesbury test ultimately scrutinises the cost benefit analysis that led to a decision, but does so in an opaque and circular manner, such as by terming an unreasonable decision as one which no reasonable decision-maker would make. Proportionality test provides a clear analytical framework to guide the inquiry. The degree of deference accorded to the primary decision-maker still plays an important role in proportionality standard, and will ensure that courts do not improperly infringe upon the domain of the executive. It may be argued that the very introduction of proportionality test will signal a change in judicial attitude towards a necessarily more rigorous inquiry. This need not be the case, since the higher judiciary can make it abundantly clear that proportionality test is being adopted as part of a contextspecific variable intensity review.

 

[1] (n 1).

[2] [2014] SCMR 676, para [46].

[3] [1948] 1 KB 223, 230.

[4] Regina v Chief Constable of Sussex ex p ITF [1999] 1 All ER 129.

[5] [1977] AC 1014, para [1064]. 8 [1985] AC 374, 410.

[6] Anthony Lester and Jeffrey Jowell, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ [1987] PL 368, 371.

[7] For further detail on criticisms see also, Andrew Le Sueur, ‘The Rise and Ruin of Unreasonableness?’ [2005] JR 32; Paul Craig, ‘Proportionality, Rationality and Review’ [2010] NZLR 265.

[8] [1999] 29 EHRR 493.

[9] [1999] 1 AC 69, 80 (Lord Clyde).

[10] [2001] 2 WLR 1622, para [27] (Lord Bingham).

[11] [2004] UKHL 27.

[12] [2007] UKHL 11.

[13] R (Association of British Civilian Internees (Far East Region)) v Secretary of State for Defence [2003] EWCA Civ 473 (Dyson LJ).

[14] [2001] UKHL 26, 49.

[15] DG Cement (n 2), para [21].

[16] [2001] 2 WLR 1622, para [27] (Lord Bingham).

[17] Ibid.

[18] [1996] QB 517, 554.

[19] [1999] 29 EHRR 493.

[20] Michael Taggart, ‘Proportionality, Deference, Wednesbury’ (2008) NZL Rev 423. 24 [1991] 1 AC 521, 597.

[21] [1996] QB 517, 554 (Sir Thomas Bingham MR).

[22] (n 23).

[23] [1991] 1 AC 696 (HL).

[24] [2014] UKSC 201, para [54] (Lord Mance).

[25] Ibid.

[26] [1990] ECR 1–4023, para [14].

[27] Ibid, para [16].

 

Challenging State-centric Discourses of Secularism in Pakistan and India

Challenging State-centric Discourses of Secularism in Pakistan and India

 

Abbas Ali Lotia*

 

Secularism has been the subject of selected scholarship within the fields of law, political science, anthropology and sociology. Much of the discourse on secularism has rested on a legal-centric or state-centric premise, based on the understanding that power relations within society are largely hierarchical. In light of Michel Foucault’s work on power relations, there is a need to revisit how secularism has been understood. This article looks at seminal work on secularism from the fields of political science and anthropology to see how secularism has been understood. It will use a devolved conception of power, one which looks beyond legislative texts and legal and political systems to challenge how secularism has been understood in India, which from a traditional lens is predominantly considered secular, and in Pakistan, a religious state.

 

Introduction

 

The secularism debate has become stale. Although a great deal of recent scholarship has focused on the idea of secularism, studies have generally taken a state-centric approach in understanding the subject. New understandings of power relations, as expounded upon by contemporary philosophers such as Michel Foucault, have opened the door for a radically different approach to understanding secularism. Although secularism has typically been understood as a relationship between the state or legal framework and religion, this article defines secularism as the presence of ‘secular’ values such as religious tolerance and equality, that is, independence of faith as opposed to the relationship between the law or the state with religion.

 

In light of Foucault’s work on power relations, this article argues that a statecentric understanding of secularism is not fully reflective of whether or not secularism actually exists within a society. Foucault has been highly influential in shaping post-modern discourse on power.1 His understanding of power has been revolutionary as it has led the discussion of power relations away from traditional models that see power as something that is used by its actors to coerce subjects. Instead, he talks about how power is distributed amongst people within society, and

                                                   

* B.A. LL.B (Hons) Lahore University of Management Sciences (LUMS).

1 Michel Foucault and Colin Gordon, Power/Knowledge (Pantheon Books 1980).

how studies of power are incomplete without a focus on its ‘real and institutional effects’.[1]

 

In his Second Lecture on Power and Knowledge, Foucault talks about how ‘in Western societies since the Medieval Times, it has been royal power that has provided the essential focus around which legal thought has been elaborated.’[2] Foucault argues that understanding power has also been carried forward to more modern government structures whereby ‘the king remains the central personage in the whole legal edifice of the West.’[3] In other words, Foucault believes people have largely viewed power relations as purely hierarchical – exercised by rulers onto the people.

 

Although Foucault admits that power distribution has resulted in a hierarchy, his understanding of power as distributed in a kind of network suggests that a purely hierarchical study will never reflect a comprehensive understanding of power relations within society. Therefore, in any analysis of power relations, including any study on secularism, we must recognise both the macro- and micro-level relations that exist within any given society.

 

If a traditional understanding of power relations is to be adopted, merely looking at the state and its attempts to control religion through law and executive actions would be sufficient to understand the presence or absence of secularism. This is what much of the contemporary scholarship has done with regards to secularism. However, if a Foucauldian understanding of power relations is to be adopted, microlevel exercises of power would need to be taken into account in determining whether a particular society is secular or not. Such a ground-level analysis would significantly complicate the discourse on secularism, and it would problematize state-centric understandings of the subject.

 

If power is viewed as something that is diffused, enacted and embodied rather than concentrated and possessed, then such a methodological shift in the discourse of secularism will necessarily result in a more wholesome understanding of how and whether secularism operates in any given society. It is through a Foucauldian lens that this article will challenge contemporary state-centric scholarship on secularism.

 

Part I of the article will look at how a majority of contemporary scholars have understood the idea of secularism. First, it will consider the work of Hussein Ali Agrama. Although he is a student of Talal Asad, who, as discussed later in the article, adopts a more Foucauldian understanding of power relations, Agrama uses a largely state-centric approach.[4] In his book, he conducts an ethnography of secularism in Egypt, focused on state judicial and quasi-judicial institutions. He looks at how the Egyptian legal system has shaped the ways in which secularism has played out within society, thereby arguing that Egyptian secularism is driven by the law.[5]

 

Moving onto an example of how secularism has been understood in the field of political sciences, this part will review the work of Rajeev Bhargava, a leading Indian political theorist, who points out differences in the ways secularism has played out in different jurisdictions, including France, India and the United States. These definitions may differ in form, but structurally, they are all completely statecentric. Although much of the existing literature on secularism has developed in various disciplines including political science and anthropology, it can be seen that there are certain consistent underpinnings which obscure ground-level power relations between individuals, who, at a micro-level, exercise power over one another.

 

Part II of the article will look at two examples of recent studies of secularism that place secularism beyond the state. These studies implicitly recognise the capillary nature of power, and view secularism at a micro-level. Instead of focusing on the state, and how it has implemented or regulated secularism, these studies actually show aspects of secularism that are not entirely dependent on states, formal legal institutions, and texts.

 

The first study is Talal Asad’s anthropology of secularism,[6] which was one of the early attempts to rethink the concept of secularism as something that goes beyond the law and the state. Talal Asad distinguished between the terms ‘secularism’ and ‘secular’ and recognised that secular modernity is governed by the political authority of the nation state, freedom of market exchange and the moral authority of the family.8 This study opened up a previously unexplored conceptual dimension of secularism by looking at the micro-level dynamics alongside the traditional approach of looking at the legal systems and state’s involvement in religious affairs.

 

The second study discussed is Saba Mahmood’s book Politics of Piety.[7] Mahmood, who is admittedly heavily inspired by Asad’s work, conducts an ethnographic study of the women’s mosque movement in Egypt and looks at how people are pushing non-secular agendas without appealing to the state in any way or form. Her work suggests that secularism and religiosity exist beyond and independently from the state and the law. In her study, Mahmood uses a Foucauldian understanding of ethics, which reflects in her micro-level study. Throughout her book, her emphasis is on non-state actors, who they are, and how they shape secularism, or non-secularism, in society.

 

Part III will look at specific examples of ground-level secularism in Pakistan, and ground level non-secularism in India. In doing so, it will not make broad claims about whether or not Pakistan is a secular country, or India a non-secular one. This part aims to problematize statements like, ‘Pakistan is a non-secular country’ or ‘India is a secular country’ that are generally based on state actions and legal foundations.

 

In the case of India, this part will look at non-state religious institutions and their ability to enforce decisions that are contrary to the existing laws of the land promulgated by the state. Its focus will be on the non-secular nature of non-state fatwas,[8] as well as other parallel justice systems that ground their legitimacy in religion. Although Indian secularism facilitates religious pluralism, non-state institutions appear to undermine the principles of secularism. It will use examples to illustrate the level of influence these parallel justice systems enjoy within society. Although recent court decisions have recognised their impact on secularism in India, traditional scholarship, as will be discussed, has largely overlooked it.

This part will then look at Pakistan, with a focus on the seemingly nonreligious application of the non-secular and controversial blasphemy law amendments that resulted from the Islamisation of criminal laws in Pakistan. It will look at several instances of how the law has been frequently used to resolve property disputes that emerged out of personal enmity, rather than to protect Islam or actually prosecute blasphemers. These examples will challenge commonly held understandings of whether Pakistan and India are secular.

 

Rather than comparing the existence or nature of secularism across jurisdictions, this article concludes that a Foucauldian understanding of secularism does significantly complicate the comparative project on secularism. Yet, it will show that a comparative project devoid of the micro-level power relations exercised by individuals and non-state groups in a legally secular or non-secular society will not be fully reflective of secularism as it exists on the ground.

 

Part I – Secularism and the State

 

A number of prominent philosophers, including John Locke, Max Weber, Emile Durkheim, Karl Marx and Friedrich Engels,[9] predicted that the role of religion in the public domain would diminish as societies proceeded to become more modern. The re-emergence of religion in the public sphere in the 1970s and 1980s across jurisdictions, however, prompted theorists to rethink their modernist assumptions about secularism. A vast range of literature from various disciplines, including political sciences, anthropology and sociology, emerged in an attempt to explain secularism from a post-modernist perspective.

 

This section of the article will look at two prominent studies on secularism that are largely state-centric, and contend that these studies ignore micro-level power relations that impact secularism on a ground level in every society. It will first look at Hussein Ali Agrama, who through an ethnography, suggests that secularism is made possible by the exercise of state power in social life and through the legal framework that governs a particular society.  It will then look at the work of Indian political theorist Rajeev Bhargava, who has done comparative work on secularism with the state as a constant underpinning in his definition of secularism across jurisdictions.

 

Hussein Ali Agrama, a disciple of Talal Asad, has conducted extensive research on the topic of secularism with regards to modern-day Egypt. In a recently published book Questioning Secularism: Islam, Sovereignty and The Rule of Law in Modern Egypt, Agrama is concerned with the ways in which secular power becomes the primary problem when studying the operation of Islamic law.

 

Agrama writes that secular power ‘enables state sovereign capacity’.[10] He goes on to say that, ‘It points to the possibility that secular power brings together two things typically thought to be opposed: a growing space of normative critique and contestation, and the increasing assertion of state sovereignty within social life.’[11]

 

From this, one can gauge that Agrama’s study is concerned with state authority, and how state authority is used to create space for a secular society.

Further evidence of Agrama’s study being largely state-centric is contained in the remaining parts of his book, where he conducts an ethnographic study of family courts and the Fatwa Council in Egypt–both state institutions. His interest in state institutions and constant reiteration that they determine the secularity of people appear to be seriously limited if one is to adopt a Foucauldian understanding of power relations. Agrama pays no regard to the exercise of capillary power by and on individual members of society.

 

One interesting conclusion Agrama reaches is with regards to the level of legitimacy of Fatwa Council decisions and secular personal courts. Although the former are meant to be non-binding in nature and the latter intended to be binding, Fatwa Council decisions are generally followed much more than personal court decisions. Agrama acknowledges that the specific historical context of both state institutions have meant that they have varying levels of authoritativeness.[12] However, he says that this particular history is the result of legal processes. Agrama writes:

 

In this sense, ‘vigilance and suspicion’ mutually enable the function and legitimacy of a liberal legal system. These are not ‘natural, default conditions, but are instead historically cultivated sensibilities whose cultivation depends integrally on modern legal processes.[13]

 

The general stance of Agrama’s book suggests that secularism within Egyptian society is necessarily dependent on the law, and on the involvement of the sovereign power of the state in the spiritual lives of citizens. Ultimately, Agrama’s primary concern with the state, its institutions and the law obscures the micro-level power relations within society that also facilitate or take away from secularism in a society.

He does take into account the way decisions of state institutions are perceived by members of society, but, as discussed, he adopts a very legal-centric viewpoint in suggesting that people react in particular ways to secular laws because of the legal processes themselves. From a Foucauldian perspective, while there is some truth in the idea that the state and the law can shape secularism, the micro-level power relations cannot be ignored in a broader study of secularism.

 

Agrama is just one of the countless scholars who have based their work on secularism on power models that have been challenged by Foucault. Rajeev Bhargava is another such academic.[14] His essay ‘Political Secularism: What Can Be Learned from India?’ talks about secularism as it has been conceived in different jurisdictions. This comparative study is interesting because despite Bhargava’s attempts to distinguish between the different secularisms that exist in different jurisdictions, the state is a consistent underpinning in his definition of secularism across jurisdictions. In his essay, Bhargava talks about how a state may be disconnected from religion at three levels, at the level of ends, at the level of institutions, and the level of law and public policy. His scholarship focuses on the third level of disconnect.[15]

 

Bhargava identifies two broad ways in which the state has disconnected itself from religion in Western legal systems. The first model he discusses is that of onesided exclusion. One-sided exclusion, as described by Bhargava, entails the state ‘excluding ‘religion from its own affairs but to have no limits on its own interventionist powers in the affairs of religion.’’[16] He talks about how this form of secularism is normally justified either by the desire for national homogeneity (as in the case of France)[17] or arguing that religion is false consciousness (as it was understood in many communist states). One-sided exclusion, according to Bhargava, allows the state the authority, under the pretext of maintaining secularism, to interfere in or hinder, suppress or even help religion.

 

The second model of Western secularism that Bhargava describes is that of mutual exclusion. He says that under such a model, the state enjoys an absolute disconnect from religion, as does religion from the state. Political institutions and religious institutions under mutual exclusion are to live as strangers. It is foundationally based upon a divide between the public and private sphere, where religion can be exercised freely in the private sphere (to ensure freedom of exercise of religion) but not in the public sphere (to ensure mutual exclusion or secularism).[18] Bhargava notes that the United States has implemented this model of secularism.[19]

 

Where Bhargava’s scholarship becomes particularly interesting is when he talks about the emergence of a third kind of secularism i.e. the Indian model of secularism. This model of secularism according to him is the best form of secularism for a modern multicultural society. This is something that has resonated in much of his scholarship on secularism.[20] Bhargava points out seven ways in which secularism in India differs from the Western countries. Briefly, these are that Indian secularism has a multi-value character; it concerns itself with inter-religious denomination as well as intra-religious domination; it is based upon the concept of principled distance: it distinguishes between depoliticisation and depublication; it is hostile towards some aspects of religion and accepting of other parts; it uses a highly contextual model of moral reasoning; and finally it is modern but different from traditional understandings of secularism.[21]

 

Whereas France depends on one-sided exclusion, and the United States on mutual exclusion, India uses principled distance to separate the state and religion. This method provides the state with a great degree of flexibility with regards to the inclusion or exclusion of religion.[22] Unlike the other forms of secularism that view public expression of religion as something that is negative, principled distance is not averse to the public exercise of religion, so long as it does not come into conflict with the values of Indian secularism themselves.

 

Bhargava’s argument highlighting the distinction between Indian and Western secularism is not fully reflective of secularism, if viewed from a Foucauldian perspective. Although he points out differences in form between these types of secularism, Western and Indian secularism as conceived by Bhargava are in fact structurally quite similar. They both use the state as the implementer of secularism, and view some kind of distinction between the state and religion as a determinative quality of secularism in a society. Bhargava’s primary focus on the state suggests that he views power as solely exercised by the state onto people.

 

Both Bhargava and Agrama, in very different ways and from within different disciplines, make the same methodological error. They view secularism as a strictly triadic relationship between the state, religion and people’s exercise of religion (or lack thereof). Their work is a general reflection of the majority of work on secularism both in the field of political science and anthropology. It is one that is considerably incomplete if one is to accept Foucault’s understanding of power structures and power relations within society. The next part will show how some authors have attempted to break away from this state-centric scholarship on secularism in recognition of the fact that power is much more dispersed than traditional power models would suggest.

 

Part II: Secularism and the Non-State

 

In recent times, there has been some effort to look beyond the state within the scholarship on secularism. This effort has been the result of work done by anthropologists who studied societies from a ground-up perspective rather than solely looking at the law and the state in order to place secularism in a particular society. This section will look at two anthropologists who have broken out of the traditional discourse. First, this part will look at Talal Asad and his landmark work on the anthropology of secularism.[23] It will then look at Saba Mahmood and her ethnography of Egyptian society.[24]

 

Talal Asad’s Formations of the Secular: Christianity, Islam, Modernity was one of the first anthropological studies of secularism.[25] The anthropological method, as understood by Asad, entails ‘the comparison of embedded concepts

(representations) between societies differently located in time or space.’[26] In this comparative analysis, Asad recognises that the origin of these concepts is not of primary concern, but what is relevant is ‘the forms of life that articulate them, the powers they release or disable.’[27] What is interesting about Talal Asad’s methodology is that in comparing secularism across cultures, it takes into account

‘the macrosociology and epistemology he believes undergirds modern society and modern systems of knowledge.’[28]

 

Adopting a macro sociological approach, Asad is able to point out the limitations of a legal-centric approach to understanding secularism. He argues ‘formal constitutions never give the whole story. On the one hand objects, sites, practices, words, representations––even the minds and bodies of worshippers–– cannot be confined within the exclusive space of what secularists name ‘religion.’ They have their own way of being.’[29] His recognition of the problems associated with a legal-centric notion of secularism is in line with Foucault’s theory of power relations. Asad further recognises that secularism goes beyond the state when he draws a distinction between ‘secular’ and ‘secularism’. He views secularism as a political doctrine that emerged in Europe. On the other hand, he views ‘the secular’ as something that predates secularism and something that ‘a variety of concept, practices, and sensibilities have come together to form.’[30]  In other words, Talal Asad suggests that a study of secularism, therefore, may be state-centric but it is not complete without understanding the secular, which necessitates looking beyond the state.

 

In Chapter 7 of his book, Asad applies this groundwork to understand the secular and secularism in Egypt. Asad talks about how, despite being part of the Ottoman Empire, sharia courts or codified sharia law that was applicable throughout the Empire was never effective there. During the British rule, religious law was only applied in cases of family law and trust law. The limitation of the place of religion in the law continued under Jamal Abdul Nasir. He examines why:

 

… the social and cultural changes taking place in the late nineteenth and early twentieth centuries… created some of the basic preconditions for secular modernity. These involved the legal constitution of fundamental social spaces in which governance could be secured through (1) the political authority of the nation-state, (2) the freedom of market exchange, and (3) the moral authority of the family. Central to this schema is the distinction between law (which the state embodied, produced, and administered) and morality (which is the concern ideally of the responsible person generated and sustained by the family), the two being mediated by the freedom of public exchange—a space that was restructured in Egypt by the penetration of European capital and the adoption of the European law of Contract, a space in which debates about Islamic reasoning and national progress, as well as about individual autonomy, could now take place publicly.[31]

 

From this quote, it can be seen that there is an underlying principle permeating from this chapter that the law and the state are essential in shaping social structures. However, by claiming that morality too played a role in the same, Asad is able to escape from a purely state-centric approach that the discourse on secularism has been plagued by. Although Asad’s macro sociological approach to the idea of secularism limits the extent to which micro-level power relations are discussed in his work, his revolutionary understanding of secularism, including the notion that it was not just the law that constitutes the secular and mention of the moral authority of the family, has served as the foundation of far more devolved scholarship, including that of Saba Mahmood.

 

Saba Mahmood has admittedly been heavily influenced by Talal Asad.[32] In her book, Politics of Piety: The Islamic Revival and the Feminist Subject, she engages in an ethnographic study of the Women’s Mosque Movement in Egypt. This is an Islamic revivalist movement led by women. It is a significant part of the more general and larger Da’wa Movement, which aims to increase the role of Islam in the lives of people, both in the public and private spheres.[33]

Mahmood carries a fairly devolved understanding of Egyptian secularism. Instead of looking at the law and the state, she touches upon morality and ethics – the second factor that Asad believes to make a space conducive to secularism.  She states her interest in ‘understanding how different modalities of moral-ethical action contribute to the construction of particular kinds of subjects, subjects whose political autonomy cannot be grasped without applying critical scrutiny to the precise form their embodied actions take.’[34]

 

She further complicates the ethnography of ethics that she wishes to undertake by rejecting the Kantian understanding of ethics, which she believes reflects a ‘general demotion of conduct, social demeanour, and etiquettes in our analyses of moral systems.’[35] Mahmood attempts to adopt a Foucauldian lens that, in her words, ‘allows us to think of ethics as always local and particular, pertaining to a specific set of procedures, techniques, and discourses through which highly specific ethicalmoral subjects come to be formed.’[36] This understanding of ethics serves as the basis of Mahmood’s work, and it results in her devolved understanding of the place of religion and the limited role of the state in ensuring that the society is secular in nature.

 

It is based on this foundation that she looks at the Islamic revivalist movement in Egypt. Her study looks at how Islamist movements such as Rashid Ride’s reformist movement and the Muslim Brotherhood have helped open the way for the discussion of religion. Interestingly, she notes that these religious non-profit organizations and participants in the Da’wa Movement have been able to shape aesthetical and ethical sensibilities, including the ways people dress, without even using the state for reform.[37]

 

Thus, instead of turning to the state to bestow secularism upon people, the women who carried out the Da’wa Movement attempted to create new structures for learning. This entailed mosque lessons that would serve to restore what was once the familial and social ethos in Egyptian society.  For instance, ‘participants of these revivalist movements have engaged in a wide range of activities, including establishing Islamic educational institutions, neighbourhood mosques, printing presses, and mostly effectively, social welfare organizations.’[38]This ethnographic study, therefore, goes to challenge the conventional notion coming out of the field of political science that the nation-state is responsible for bestowing Islamism or secularism upon people.

 

This lack of appeal to the state to change secular Egyptian legislation suggests that people do not see the state as responsible for secularism within Egypt. Instead, they have resorted to a ground-level movement, perhaps indicating that power is in fact capillary in nature and does not rest solely with the state. Mahmood’s attempt to focus on a study of secularism without any substantial reference to the state may not fit entirely within the Foucauldian model of power relations, since Foucault does recognise the existence of hierarchy within the power network of society. However, it does reflect a revolutionary way to think about secularism, and one that breaks away from the extremely limited state-centric discourses on the subject.

 

Talal Asad and Saba Mahmood, through their work, have opened up a new understanding of the concept of secularism. Scholarship, which, until recently, was almost entirely state-centric in nature, has now adopted a Foucauldian understanding of power in realizing that secularism exists beyond and independently from the state. This finding has problematized the idea of secularism considerably, and this has opened the doors for countries that, under traditional discourse, have been viewed as non-secular to come under contention for secularism. Based on this, the final part will examine whether India and Pakistan fall under a more Foucauldian definition of secularism, that is, one that is based on notion of devolved power relations.

 

PART III: A Secular Pakistan and Non-Secular India? Looking Beyond theState

 

A state-centric approach to secularism makes it fairly easy to identify which countries are secular and which are not. A look at the constitutions, legislations and general state actions would serve as adequate indication as to whether a state falls under a conventional understanding of secularism. Part I highlighted a number of prominent state-centric understandings of secularism. Rajeev Bhargava, for instance, throughout his work contends that ‘Indian secularism’ is superior to western secularism for it most effectively promotes tolerance in a modern multicultural society.[39]

 

Part III of the article will complicate such a position by showing instances of ground-level non-secularism in India. It will do so by looking at the influence that fatwas issued by non-state Muslim organizations command despite not being statesanctioned. In further problematizing secularism and adopting a Foucauldian model of power relations, this part will look at instances of secularism in Pakistan, a country that is globally considered as oppressive towards the non-Sunni minority.[40] In doing so, it will look at the highly controversial, non-secular blasphemy laws and show how these laws, at a micro-level, operate based on secular (or non-religious) agendas. The purpose of this section is to problematize a state-centric understanding of secularism from a Foucauldian perspective, rather than actually determining whether Pakistan is, in fact, non-secular or India secular.

 

Before problematizing the commonly held belief that India is a secular country, it is necessary to look at the legal basis that has resulted in such a belief. Secularism has been enshrined in the Constitution of India 1950. Between the time that India attained independence from the British up until 1976, India was formally not a secular state, that is, its supreme legal text the Constitution of India, did not contain any provision that described India as a secular state. However, in 1976, Prime Minister Indira Gandhi, during an emergency period, exercised executive powers and introduced an amendment to the Constitution.43

 

The Forty-Second Amendment to the Constitution of India was a broadranging amendment that significantly changed the Indian Constitution.44 One such alteration was the change in India’s description from a ‘sovereign democratic republic’ to a ‘sovereign, socialist secular democratic republic.’45 Despite this seemingly significant change in the description of the country, it is worth noting that a number of provisions in the Constitution of India have, since its initial promulgation, described the relationship between the state and various religious denominations as well as the religious freedom of individuals. For instance, Article 25 gives individuals the right to freely profess their religions.46 Article 26 of the Constitution gives rights to religious denominations to manage their own affairs.47

 

                                                   

  • Forty Second Amendment Act 1976 amending the Constitution of India 1950.
  • The text of the Constitution (Forty Second Amendment) Act 1976 can be seen here: <http://www.constitution. org/cons/india/tamnd42.html> accessed 11 October 2015.
  • Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

  • regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
  • providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

47 Freedom to manage religious affairs.—Subject to public order, morality and health, every

religious denomination or any section thereof shall have the right—

  • to establish and maintain institutions for religious and charitable purposes;
  • to manage its own affairs in matters of religion;
  • to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.

These provisions suggest that Indian secularism, as propounded by Bhargava, focuses on protecting the religious diversity that exists in India. As described in Part I, Bhargava describes the relationship between the state and religion in India as one of ‘principled distance’. In spite of Indian secularism attempting to cater to a pluralistic society, a more micro-level analysis of power relations within the Indian society suggests that these ideals, though present in the constitutional set up, are not effective at the ground level when one looks beyond state structures.

 

For instance, the influence of non-state legislative bodies in India points to a ground-level opposition to secularism, as it is often understood. Within certain Muslim communities, the role of religion in what are traditionally seen as state matters such as law-making and adjudication of disputes have not been reduced despite state clamp downs on parallel justice systems. One example of this is fatwas. The Darul Uloom Deoband organization is the leading issuer of fatwas in India. It has been around since 1866, soon after the collapse of the Mughal Empire, during a time when Muslims were facing immense persecution. Since then, it has issued thousands of fatwas on a wide range of matters.[41]

 

In Vishwa Lochan Madan v Union Of India & Ors,[42] the Supreme Court of India deprived fatwas of any formal legal status.[43] In this case, Madan, an Indian lawyer, filed a public interest litigation in which one relief sought was a declaration by the Court that fatwas issued by organizations were unconstitutional. He further asked the Court to declare all fatwas void ab initio and wholly non-est. The Court ultimately decided that while fatwas were not illegal, they were not constitutionally sanctioned and could not be the basis for derogating fundamental rights. Furthermore, they could not be legally enforced.[44]

 

The limitations of a state-centric analysis of secularism even come out from the discourse of the Indian Supreme Court itself in this case. Religion, as a part of culture, has a pervasive effect. It cannot wholly be controlled by coercion through the law, or be legislated upon by the state. Even though there is no legal obligation to obey a fatwa, even the judge noted that within Muslim communities, there is the general perception that ‘persons who are God fearing and believe that they are answerable to the Almighty and have to face the consequences of their doings/deeds, such are the persons, who submit to the Fatwaâ.’[45]

 

The religious obligation that Muslims may feel towards obeying fatwas is an additional power acting on them besides that of the state. People who live in Muslim communities are members of structured religious denominations. The fear of community retaliation, often in the form of vigilante justice or other forms of expression of power, such as banishment from community privileges, often gives fatwas considerable authority. This is because, as per Foucault’s analysis, power rests not just with the state but also with the jurist who issues a fatwa and the Muslims who agree with that fatwa. As a result, even though fatwas have no legal force and a person feels no religious obligation towards them, power dynamics within a society often gives them more force than even state law. This is something a state-centric approach to secularism would obscure.

 

One of the most contentious incidents of fatwa came in front of the Indian Supreme Court in the Madan Petition. In a petition challenging Shariah courts and fatwas in India, the petitioner, Vishwa Lochan Madaone, used the case of Imrana, a woman who was raped by her father-in-law. A local panchayat (village council) declared her marriage void. The Darul Uloom Deoband soon issued a fatwa declaring that she could no longer live with her husband, and further ordered her to start living with her father-in-law.53 Although the fatwa was not state-sanctioned, even before the Madan decision, she was forced to live with her rapist for several days due to the pressure of the community, before her siblings were finally able to get her out and report the case to the state institutions.[46]

 

Fatwas issued by organizations such as the Darul Uloom Deoband do not require state-sanction or any legal basis. They have been an integral part of the nonstate adjudication system for hundreds of years, well before India even attained independence from the British. Even though the state may have deprived fatwas of legal validity, power structures within society offer a certain level of legitimacy to these forums. Even if the subjects of fatwas do not agree with the terms, their legal nullity is not sufficient coercion to overcome the societal power relations that they are backed by. India, like any other society, has a well-established parallel justice system that exercises coercion through hegemonic social hierarchies.

 

Another example of this devolved power dynamic in the Indian society is the jirga system, an informal parallel justice system where community elders adjudicate and sentence persons who violate community norms. A local jirga, headed by a Hindu village elder, sentenced a Hindu woman to be gang raped for marrying a Muslim man. This sentencing was followed by the woman being gang raped for six hours.[47] This happened despite the fact that the Supreme Court of India had previously ruled that such parallel justice systems had no legal backing,56 illustrating that a legal-centric approach does not fully represent the secularity of a society.

 

The prevalence of fatwas or informal jirgas in Indian society should not be seen as a problem of law enforcement. Rather, it should be understood as a consequence of a system of power relations in society, whereby laws and adjudications made by organizations such as the Darul Uloom Deoband, have played an important role in non-state legislation among Muslim communities for hundreds of years. This problematizes a state-centric understanding of secularism. Merely framing this problem with regard to the state will obscure non-secular acts that organizations such as the Darul Uloom Deoband and other panchayats perform with power that is in fact capillary in nature and rests not just with them but also their followers.

 

India’s secular status has been challenged frequently, albeit, mostly on statelevel.[48] However, Pakistan’s non-secular status is seen as something that is incontestable. This may be because non-secularism finds itself ingrained in many of the laws of the country.

 

Religious overtones are no doubt part of the Pakistani legal framework. The

Constitution of Pakistan not only declares Islam as the state religion,[49] but laws repugnant to the teachings of Islam cannot be promulgated,[50] and if passed, they may be struck down.[51] However, this should not serve as any conclusive evidence that Pakistan is a non-secular country. If a more devolved understanding of power is adopted in light of Foucault’s work on the subject, this state-centric and legal-centric understanding of non-secularism in Pakistan may be significantly complicated. Before attempting to apply a Foucauldian understanding of power to see whether Pakistan is in fact a non-secular country, this article will go through the current Constitution of Pakistan to see just how non-secularism has been embedded into the supreme law of the land.

 

From a constitutional perspective, Pakistan is a non-secular country. Islam enjoys an elevated position within the constitutional framework. Constitutionally, then, Islam plays an important role in limiting state authority. A Foucauldian understanding of power, however, would see a conclusion based on these provisions to be superficial and not wholly reflective of the various levels of power relations that exist in every society. It is based on such an understanding that the label of nonsecularism frequently placed on Pakistan can be complicated. For instance, although the blasphemy laws in Pakistan appear to be non-secular, more often than not, they play out with regard to secular disputes, and on a ground level, have little to do with religion.

 

Amendments to Pakistan’s blasphemy laws, under Zia-ul-Haq’s Islamisation of the country’s legal framework, have made it an offence to defile the Qur’an and use derogatory remarks in respect of the Prophet Muhammad (SAW).[52] These amendments are contained in Sections 295-B and 295-C of the Pakistan Penal Code respectively. The text of these provisions clearly has Islamic character, especially considering that all but one sub-section of the blasphemy laws[53] protects only Islam from being the subject of blasphemy.

 

Although the state has introduced blasphemy laws that are non-secular in nature and create distinctions that favour the state religion as opposed to other denominations, these laws may play out in a manner that has little to do with religion. There have been several instances where the law has been used for non-religious purposes. For instance, in the famous case of Asia Bibi, a Christian woman was accused of committing blasphemy.[54] She denied these charges, claiming that she was falsely accused after an argument ensued when she drank water from the same well as Muslims.[55] A woman whose family had been in a long-running property damage dispute with Asia Bibi’s family brought a complaint to a local cleric that Asia Bibi committed blasphemy.65

 

This has not been the only instance where blasphemy laws have allegedly been used to settle personal disputes between two persons or families. Amnesty International published a report titled Pakistan: Use and Abuse of Blasphemy Laws in 1994 expressing its concern about how the blasphemy laws were being used to target individuals. It identified a number of motives for bringing forward blasphemy cases, the most frequent of which were economic or professional rivalries.[56] The report talks about the case of Anwar Masih, a Christian accused of committing blasphemy by a local Muslim shopkeeper.[57] It was common knowledge in Samundri, where this incident occurred, that Masih and the shopkeeper who had accused him had been arguing about a small debt.[58] Another shocking instance of the secular application of the Pakistani blasphemy laws is the case of Tahir Iqbal.[59] He was accused of defiling a copy of the holy Qur’an by a local Muslim cleric, who had a personal enmity against him. This was based on the fact that Iqbal was providing free education to local children, and that these children were increasingly opting to go to him, instead of going to the local madrassa[60] run by the cleric.[61] There are countless other examples of such non-religious uses of the blasphemy laws.

 

This article does not claim that these isolated instances mean that Pakistan is a secular state. Such a claim, by any stretch of the imagination, would be difficult to sustain considering the extent to which religion is embedded in both the private and public lives of people, and the extent to which it has influenced their daily lives, including the food they eat, the way they dress and speak. The aim is to merely demonstrate that analysing secularism from a more devolved perspective, can provide a fuller picture of the nature of a society as opposed to a superficial analysis of constitutional and other legal texts. A constitutional or state-centric view of secularism would obscure how these blasphemy laws, seemingly entirely nonsecular in nature, are in fact not being used for non-secular ends.

 

This part of the article has shown instances where looking at secularism from a solely legal or state-centric perspective is not fully reflective of the micro-level exertions of power in society. A superficial legal-centric approach would result in the seemingly obvious conclusion that Pakistan’s blasphemy laws are non-secular, while if looked at in terms of the way they play out, they may not be entirely religionbased. Likewise, although India’s constitutional set up appears to promote secularism and religious freedom and pluralism, on a ground level, its non-state legislative and judicial systems do not always play out in a secular manner.

 

Conclusion

 

The way secularism has been largely understood in academia is an apt reflection of how power relations have been seen by a majority of scholars. Foucault’s ground breaking work on complicating a purely hierarchical understanding of power relations into a more capillary network has opened up the door for rethinking secularism, from a state-centric approach to a more ground-level understanding. Talal Asad and Saba Mahmood have worked on bringing out the idea of non-state secularism. This work has helped problematize how we have generally conceived secularism.

 

This article used a Foucauldian understanding of power and built upon the approaches used by Talal Asad and Saba Mahmood to show an instance where India, a country that would under traditional discourse be considered secular, would from a non-state non-legal perspective appear to be non-secular in nature. Even more radically, this article looked at Pakistan, a notoriously non-secular country, and looked at one example of how it operated in a secular manner at a micro-level.

 

In distinguishing between micro and state-level secularism, this article hopes to complicate comparative work in the field of secularism. In looking beyond the law and adopting a Foucauldian understanding of secularism, theorists will need to look beyond the law and state structures to engage in comparative projects. Ultimately, a study on secularism that merely looked at the laws would be based on an incomplete understanding of power relations, and so it would not be fully reflective of what is happening in society at a more micro-level.

 

[1] Ibid, 97.

[2] Ibid, 94.

[3] Ibid.

[4] Hussein Ali Agrama, Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt (University of Chicago Press 2012).

[5] Ibid.

[6] Talal Asad, Formations of the Secular (Stanford University Press 2003). 8 Ibid, 236.

[7] Saba Mahmood, Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton University Press 2005).

[8] A fatwa is a non-advisory Islamic opinion given to an individual who poses questions by a muftī (Islamic jurist); and does not need to be connected with pending litigation. See Eugenia Kermeli and others, ‘Islamic Legal Interpretation: Muftis And Their Fatwas’ (2000) 15 Journal of Law and Religion 421.

[9] William Connolly, ‘Europe: A Minor Tradition’, Powers of the Secular Modern (1st edn, Stanford University Press 2015) 91.

[10] (n 5) 31.

[11] Ibid.

[12] Ibid, 119.

[13] Ibid, 127 (emphasis added).

[14] Rajeev Bhargava, ‘Political Secularism: What Can Be Learned From India’, in GB Levey and T Modood (eds) Secularism, Religion and Multicultural Citizenship (1st edn, Cambridge University Press 2015) 92-93.

[15] Ibid.

[16] Ibid, 92.

[17] The French Constitution does not lay out one-sided exclusion as the model of secularism to be adopted in France but Bhargava says that French legislation and case law suggests this is the model the state has chosen to adopt.

[18] Bhargava (n 16) 93.

[19] The First Amendment of the United States Constitution lays a platform for mutual exclusion of state and religion. It reads: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’

[20] Bruce J Berman, Rajeev Bhargava and André Laliberté, Secular States And Religious Diversity (UBC Press 2013).

[21] Bhargava (n 16), 101-103.

[22] Ibid, 104.

[23] Asad (n 7).

[24] Mahmood (n 9).

[25] David Scott and Charles Hirschkind, Powers of the Secular Modern: Talal Asad and His Interlocutors (Stanford University Press 2006) ix.

[26] Asad (n 7) 17.

[27] Ibid.

[28] Robert W. Hefner, ‘Review of Asad, Talal, “Formations of the Secular: Christianity, Islam, Modernity’ (2004) H-Gender-MidEast <https://networks.hnet.org/node/6386/reviews/ 6632/hefner-asad-formations-secular-christianity-islam-modernity> accessed 11 April 2015.

[29] Asad (n 7) 201.

[30] Ibid, 16.

[31] Ibid, 236.

[32] Saba Mahmood (n 9) xiii.

[33] Ibid, 2-3.

[34] Ibid, 24.

[35] Ibid, 26.

[36] Ibid, 27-28.

[37] Ibid, 77-79.

[38] Ibid, 58.

[39] Bhargava (n 16) 101.

[40] Ibid, 95.

[41] More information on this organization can be found on their website: <http://www.darululoom -deoband .com/english/> Accessed 11 October 2015.

[42] Vishwa Lochan Madan v Union Of India & Ors Writ Petition (Civil) No. 386 OF 2005 <http://indian kanoon.org/doc/22464727/>.

[43] Jeff A. Redding, ‘Secularism, The Rule Of Law, And ‘Shari’a Courts’: An Ethnographic

Examination Of A Constitutional Controversy’ (2013) 57 Louisiana University Law Journal <http://ssrn.com/abstract=2221619>.

[44] Ibid.

[45] Ibid. 53 Ibid.

[46] Sheela Reddy, ‘Imrana: Her Story’ (Outlook India, 2015) <http://www.outlookindia. com/article/Imrana-Her-Story/227975> accessed 16 December 2014.

[47] Kartikay Mehrotra, Andrew Macaskill and Pradipta Mukherjee, ‘Gang Rape Reveals Vigilante India In Rural Villages’ (Bloomberg, 2014) <http://www.bloomberg.com/news/2014-01-30/gangrape-reveals-vigilante-india-where-village-leaders-are-law.html> accessed 18 December 2014. 56Arumugam Servai v State of T .Nadu Criminal Appeal No. 958 of 2011 <http://indian kanoon.org/doc/1337458/> accessed 18 October 2015.

[48] India’s secular status has been challenged most vociferously by the right wing Hindu nationalist parties in India. They describe India as a pseudo-secular country because its form of secularism is primarily concerned with minority appeasement. Thomas Pantham, ‘Indian Secularism and Its Critics: Some Reflections’ (2009) 59 The Review of Politics 523.

[49] Article 2 of the Constitution of Pakistan reads: ‘Islam shall be the State religion of Pakistan.’

[50] Article 227(1) of the Constitution reads: ‘All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.’

[51] Article 203-D(3)(b) of the Constitution reads: ‘If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.’

[52] Section 295 of the Pakistan Penal Code 1860.

[53] Section 295-A of the Pakistan Penal Code protects against the deliberate hurting of feelings of ‘any class of citizens’ and is not just limited to Muslims.

[54] ‘Christian Woman Sentenced To Death In Blasphemy Case’ Dawn (12 November 2010) <http://www.dawn.com /news/580993/christian-woman-sentenced-to-death-in-blasphemy-case2> accessed 11 December 2014.

[55] Ibid. 65 Ibid.

[56] Amnesty International, ‘Pakistan: Use And Abuse Of The Blasphemy Laws’ (Amnesty International 1994) <http://berkleycenter.georgetown.edu/publications/pakistan-use-andabuse-of-blasphemy-laws> accessed 17 December 2015.

[57] Ibid, 10.

[58] Ibid.

[59] Ibid.

[60] A madrassa is a local religious educational institute.

[61] Ibid.

The Law of Khul’ in Islamic Law and the Legal System of Pakistan

The Law of Khul‘ in Islamic Law and the Legal System of Pakistan

 

Dr Muhammad Munir*

 

This article argues that according to the majority of Muslim jurists, a woman cannot obtain khul‘ without the consent of her husband. However, Imām Mālik and his disciples are of the opinion that the decision of arbitrators chosen by the state authority, court or the spouses for resolving dispute between the husband and wife can decide separation or union and such outcome is valid without specific delegation by the spouses and without their consent. The decisions of the Superior Courts in Pakistan are partially based on the Mālikī view and legislation has endorsed the position adopted by the Courts. It is argued that both the legislation as well as case law in Pakistan are based on the precedent set by the Prophet (peace be upon him). The Federal Shariat Court has also endorsed the existing Pakistani law on khul‘. The Recommendations of the Council of Islamic Ideology regarding khul‘ are partially in conformity with the Qur’ān and the Sunnah.

 

Introduction

 

Islamic law provides numerous remedies to a Muslim wife in cases where harm (ḍarar) to her has been established to the satisfaction of a judge. In the subcontinent, under section 2 of the Dissolution of Muslim Marriages Act 1939 (‘DMMA’), a Muslim woman can obtain a divorce in case of her husband’s disappearance for four years, her non-maintenance for two years, imprisonment of the husband for seven years or more, failure of the husband to perform his marital obligations for a period of three years, the husband’s impotence, his insanity, and her maltreatment by the husband.1 However, these grounds do not seem to have brought any positive change to the affected women in India, Pakistan, and Bangladesh. The primary reason for this is that grounds for divorce available under the DMMA are fault based. The complainant wife has to prove the offence. Matrimonial offences such as ill

                                                    

* PhD (Karachi University); LL.M (Stockholm University); LL.M & LL.B (Hons) International

Islamic University. Currently he is serving as Director General Shari‘a Academy, International Islamic University Islamabad.

1 There are two additional grounds available to a Muslim woman in Pakistan, i.e., that the husband has taken an additional wife in contravention of the Provisions of the Muslim Family Laws Ordinance 1961. This ground is also available to such a woman in Bangladesh but not in India.

Another ground available to women in Pakistan is li‘ān, when a husband accuses his wife of zinā (adultery) the marriage is terminated by the court through a special procedure.

treatment and cruelty by the husband or his family are hard to prove, because such offences take place within the privacy of homes and those accused of wrongdoing tend not to testify for the women. For these reasons, a no-fault based remedy was badly needed in the subcontinent and elsewhere in the Muslim world. Khul‘ seems to provide an answer, but the issues surrounding khul‘ in Islamic law are complicated, as shall be explained below. As far as the judiciary is concerned the Lahore High Court ruled for the first time in the Balqis Fatima case in 1959,[1] that khul‘ should be available to a woman as of right and without the consent of the husband. This position was endorsed by the Supreme Court in the Khurshid Bibi case of 1967.[2] In Egypt, Law No. 1 of 2000 did exactly the same as was done by the Superior Judiciary in Pakistan.

 

This article gives special attention to the opinions of Mālikī exegetes and jurists in their interpretation of verse 4:35 of the Qur’ān. It examines the Ḥabība’s episode[3] and asks whether it has precedential value. Furthermore, it evaluates the arguments of fuqahā’ of various schools of thought regarding the issue of (in)validity of khul‘ without the consent of the husband and examines the Islamic nature of legislation on khul‘ in Pakistan as well as in Egypt. In terms of methodology, the opinions of Muslim exegetes are discussed in Part I, followed by an analysis of the Ḥabība’s ḥadith in Part II. This is followed by an analysis of the opinions of Muslim jurists of various schools of thought and the reasons for their respective positions in Part III. Part IV evaluates selected decisions of high courts and the Supreme Court of Pakistan on khul‘ and asks whether these amount to judicial ijtihād. Part V discusses the Islamicity of section 10(4) of the West Pakistan Family Courts Act 1964 as amended in 2002. Part VI evaluates the views of the Council of Islamic Ideology (CII) and asks whether the CII has exceeded its mandate. Finally, Part VII provides a conclusion.

 

PART I: Khul‘ and the Qur’ān

 

Literally, the term khul‘ means ‘extracting oneself’.5 According to ‘Alāuddīn Mas‘ūd al-Kasānī, ‘[t]he khul‘ is lexically, ‘al-naz‘’ and ‘al-naz‘’ is to pull out/extract something from something.’6 Thus, ‘khala‘ha means that he has removed her from his marriage.’7In the technical sense, it is used for marital ‘extraction’,[4] and is the act of accepting compensation from the wife in exchange for her release from the marital tie. Ibn Ḥajr defines it as ‘[s]eparation of the husband from his wife for money consideration to be given to the husband.’[5] According to Ibn Rushd, ‘the terms khul‘, fidya, ṣulḥ and mubara’a refer to the same meaning, which is a transaction in which wife pays compensation for obtaining her divorce.’[6]

  • According to Ibn Manzur, the root of khul‘ is khal‘. The verbal noun khal‘ refers to the act of extraction, removal, detaching or tearing out. In its real sense, khal‘ is generally associated with things or object, such as garments. See, Ibn Manzūr Muḥammad b. Mukarram, Lisān al-‘Arab (Beirut: Dār Sadir 1955-56) 8:76-79. Jurjanī defines it as ‘dissolution of marriage through taking money [by the husband].’ See, ‘Ali b. Muḥammad al-Jurjanī, Kitāb al-T‘arīfat (Beirut: Dār alSurur n.d.) 45.
  • Kāsānī refers to two Qur’ānic verses, i.e., 7:43, 108, to explain the lexical meaning of khul‘. The meanings of these verses are: ‘We shall have removed all ill feeling from their hearts’, and ‘then he pulled out his hand.’ ‘Alauddīn Masu‘d al-Kāsānī, Badā’i‘ al-ṣanā’i‘ fī tartīb al-sharā‘i‘ (Muḥammad Yāsīn Darvīsh ed, Dār Ihyā’ al-Turāth al-‘Arabī, 2000) 3:227.
  • The controlling role of the husband is clear from the lexical and technical words used by Kāsānī.

 

While discussing khul‘, fuqahā’ and commentators of the Qur’ān refer to the Qur’ānic verse 2:229, which states:

 

Divorce can be pronounced twice: then, either honourable retention or kindly release should follow. (While dissolving the marriage tie) it is unlawful for you to take back anything of what you have given to your wives unless both fear that they may not be able to keep within the bounds set by Allah. Then, if they fear that they might not be able to keep within the bounds set by Allah, there is no blame upon them for what the wife might give away of her property to become released from the marriage tie.

 

The crucial question on which exegetes differ concerns who is being addressed in the verse through the use of the term ‘fa in khiftum’: Is it addressed to the Ḥukkām (state authority), which is represented by the courts, or is it addressed to both the partners? In other words, who will determine whether the two partners can or cannot live within the bounds set by God? Should the determination of that important point be the responsibility of a court, acting on behalf of the state, or should it be determined by the partners themselves? Moreover, what constitutes ‘khawf’ (fear), mentioned in the verse? According to Imām al-Shāfi‘ī, ‘when one of them cannot keep within the bounds set by God, so both [are considered] unable to keep within the bounds of God.’11According to Abū Bakr al-Jaṣṣāṣ, ‘illa un yakhāfā’ means ‘if both of them thought’.12 The fear that the ‘two may not be able to keep within the bounds set by God’, arises when either of them violates their marital duties13 and/or transgresses upon mutual rights, or the rights of one or both of the partners are denied. The Qur’ānic verse provides, ‘Women have the same rights against their men as men have against them.’14 ‘Ali b. Abī Ṭālib (May Allah be pleased with him) is reported to have said, ‘[There are three] phrases when uttered by the wife [to the

                                                   

obtains khul‘ after consummation of marriage, and ‘al-muftadiyatu’ is to redeem herself by paying some of her money, however, these terms are used interchangeably.’ Abū Bakr Muḥammad Ibn al-‘Arabī, Aḥkām al-Qur’ān (‘Emād Zakī al-Baroudī ed, Al-Tawfikia n.d.) 1: 251.

  • Muḥammad b. Idrees al-Shāfi‘ī, Kitāb al-Umm (Aḥmad Badruddīn Ḥasun ed, Dār Kotaiba, 2003) 11:178.
  • Abū Bakr Aḥmad al-Jaṣṣāṣ, Aḥkām al-Qur’ān, ed. Sidqi Muḥammad Jamīl (Dār al-fikr, 2001) 1:533. 13 Violating marital duties is called ‘nushūz’, and contrary to the popular belief, is also committed by men. Jaṣṣāṣ, Aḥkām al-Qur’ān, 1: 534; Manṣur b. Yūnus al-Buhūṭī, Kashshāf al-Qina‘ (‘Alam al-Kutub, 1983) 5:209; ‘Abdus Salām Saḥnūn, al-Mudawwana al-Kubrā (Dār al-Kutub al-‘Ilmiya, 1994) 2:241; Muḥammad Amīn Ibn ‘Abidīn, Radd al-Muḥtār (Dār al-Fikr, 1979) 3: 445.

14 Qur’ān 2:228.

man], it becomes legal for him to take ‘al-fidya’ (the compensation): When she tells him that I will not obey you, that I will not fulfil your promise on oath, and I will not purify myself after sexual intercourse with you.’[7] It is reported from ‘Abdullah b. ‘Abbās that ‘her omission to keep within the bounds set by God is [treated as] disdain for the husband and a bad nature on her part.’16 Jaṣṣāṣ has mentioned the full statement of Ibn ‘Abbās as:

 

Thus, if she says, “I swear by God [that] I will not fulfill your oath, and I will not agree to your request of sleeping with you in the bed, and I will not obey you. If she did this, it is allowed for him to take from her

al-fidya’ but he should not take more than what he gave her (i.e., the dower) and let her go [provided] she caused the harm.” Then, he [Ibn

‘Abbās]  recited, “but if they, of their accord, give up unto you aught thereof, then enjoy it with pleasure and good cheer,” (4:4) and it is said, that when there is no harm or cheating [in obtaining it], then it is pleasure and good cheer as God described it.[8]

 

Qurtubī mentions that according to ‘Attā b. Abī Rabāḥ, ‘Khul‘ and taking (compensation for the husband) become legal when the woman says to her husband: I hate you and do not like you or something similar.’[9]

 

Muḥammad Abū Zahra (d. 1974) argues that the situation in which both the partners cannot keep within the bounds set by God, arises in two ways: first, if the woman is nāshizah (violates her marital duties), disobedient, or coerced, such as the wife of Thābit b. Qays b. Shamas Al-Anṣārī (d. 11/632); second, when the man has a problem such that marital life with him is not possible anymore.[10]

Qurtubī argues that ‘the majority of jurists are of the opinion that the addressees in the words of the Exalted ‘wa in khiftum’ (And if you fear)[11] are the ḥukkām (state authorities). And the statement [of the Exalted] ‘if they both want to set things right’ [4:35] means the arbitrators according to [‘Abdullah] Ibn ‘Abbās, Mujāhid and others; that is, if the arbitrators wanted reconciliation, Allah will bring about reconciliation between the spouses.’[12]

 

The Tunisian scholar Muḥammad al-Ṭāhir b. ‘Ashur (1879-1973) argues that ‘if the spouses would be addressed [by ‘tum’], then the wording would be: ‘fa in khiftum āullātuqimu aw ullātuqima’ (if you feared that you cannot keep or you [two partners] cannot keep…’22 Abū Zahra argues that the addressees are either ‘the group of Muslims because they cooperate with each other, as they got discord between the spouses, or it is to the group of women and men’, and his preference is for the first meaning.23

 

Jurists differ in their opinions on the matter of whether khul‘ ought to be adjudicated or not; a topic which will be elaborated upon later when the various schools of thought come under discussion. In Pakistan, the Lahore High Court accepted the interpretation that the ‘you’ in the phrase ‘if you fear’ must be addressed to the state and the judicial officers of the state in the Balqis Fatima case. It clearly was not addressed to the two spouses, who are in this section referred to in the third person as ‘they’ and ‘them.’[13]

 

Exegetes from the Mālikī school of thought discuss khul‘ under verse 4:35 which reads, ‘If you fear a breach between the two, appoint an arbitrator from his people and an arbitrator from her people. If they both want to set things right, Allah will bring about reconciliation between them. Allah knows all, is well aware of everything.’ Qurtubī argues that ‘the arbitrators chosen by the state authority should see who is the cause of discord and once this is established they should dissolve the marriage through khul‘.’[14] He further asserts that one arbitrator should be from the man’s side and one from the woman’s side because they know their problems better. However, ‘if there is no one from the spouses’ people who could be appointed as arbitrators, so other suitable persons may be appointed by the state authority.’[15] He argues that the arbitrators should remind the spouses about their union, so that they agree to remain together as husband and wife. And if they refuse to live as husband and wife and ‘the arbitrators consider [sic] it appropriate to decree separation they may decree separation. And decree of separation by them [arbitrators] is binding for the spouses whether it [the decree] coincided with or was against the decree of the local court and whether the spouses delegated them [the arbitrators] the authority to do so or not.’[16]

 

Ibn ‘Ashur argues that verse 4:35 makes it obligatory to appoint arbitrators in case of a continuing dispute between the spouses which is denoted as ‘shiqāq’ (breach or discord). Apparently the appointing authority is the ruler and state authority, and not the spouses because the verb ‘ib‘athu’ (appoint) is not addressed to the spouses. If they are appointed by the spouses, then the word ‘al-ba‘th’ would have no meaning in the verse.[17] He asserts that ‘[w]hatever decree is issued by the arbitrators is binding whether it be separation or union or khul‘. And there is no say for the spouses in it because this is what arbitration is meant for.’29

 

In a nutshell, the Qur’ānic concept of khul‘ is: first, either of the partners may initiate it if he or she thinks that marital rights cannot be upheld in the marriage. Second, according to the preferred opinion of the majority of exegetes, the court has to determine the extent of discord, harm, aversion, coercion, etc. Third, and this is very crucial, the court must ascertain whether it can grant khul‘, especially when the discord or harm is attributed to the woman and she is ready to pay compensation to her husband without the husband’s consent, or is it conditional upon the consent of the husband? In other words, is khul‘ a consensual act or can the court put an end to the marriage by khul‘ without the husband’s consent? The answer is not clear from the wording of the Qur’ān in verse 2:229 and this is why exegetes had to resort to aḥādīth regarding khul‘. Fourth, Mālikī jurists also discuss khul‘ under the Qur’ānic verse 4:35 and conclude that khul‘ can be affected by the arbitrators and their decision shall be binding without the consent of the husband and the wife. Fifth, in case khul‘ is consensual (or even if it is not consensual or the consent of the husband is not required), then the court may put an end to the marriage and ask the wife to return the dower or what is agreed upon by both the partners as compensation for her freedom. Finally, there is no sin on the part of the spouses to receive such compensation. The apparent language of the verse 2:229 indicates that it is the wife who has to pay compensation to free herself, ‘fima’fdatbehi’ (what the wife may give up [to her husband]).30 To answer the remaining questions, we have to resort to aḥādīth of the Prophet (peace be upon him).

 

Part II: Khul‘ in ḥadīth literature

 

Many collections of ḥadīth have referred to the case of Ḥabība bint Sahl–wife of Thābit. The incident is described in four of the six authoritative compendia of the Prophetic reports. According to the report of Al-Bukhārī in his al-jāmi‘ al-ṣaḥīḥ (The Authentic Collection) section on khul‘:

 

It is reported from Ibn ‘Abbas that the wife of Thābit b. Qays came to the Prophet (peace be upon him), and said: “I see no fault with Thābit’s conduct or his religious demeanour, but I dislike ingratitude in Islam.” The Prophet (peace be upon him) said: “Will you return his garden to him?” “Yes”, she answered. The messenger of Allah said: (to Thābit): “Accept (iqbil) your garden and divorce her [ṭalliqha (once)].”31

 

In the second and third versions of the same incident, the Prophet (peace be upon him) is reported to have ordered Thābit (‘amarahu) to divorce her in return for his garden.32

 

In the first version in Al-Bukhārī, the words ‘iqbil’ (accept) and ‘ṭalliqhā’ (divorce her) are used in the imperative form by the Prophet, but in the second one the indirect speech is very clear that Thābit’s approval was not sought but the Prophet had ordered him.  According to the report of Imām Al-Nasā’ī:

 

Thābit b. Qays b. Shamas hit his wife and broke her limb and she was

Jamīla bint ‘Abdullah b. Uby. She complained to her brother who took her to the Prophet (peace be upon him) and the Prophet (peace be upon him) summoned Thābit and told him, “take (khudh) [from her] what

                                                    

is essential for khul‘. See, Oussama Arabi, ‘The Dawning of the Third Millennium on Shari‘a: Egypt’s Law no. 1 of 2000, or Women May Divorce at Will’ (2001) 16(1) Arab Law Quarterly 17-8. This interpretation seems to be against the Ḥabība’s episode described in the text above in which the consent of the husband Thābit b. Qays was not sought by the Prophet (peace be upon him).   31Muḥammad Ismā‘il al-Bukhārī, al-Jāmi‘ al-Ṣaḥīḥ (Ḥadīth 4971, People’s Edition n.d.). The ḥadīth is also available at <http://www.sunnipath.com/library/Hadith/H0002P0071.aspx> accessed 20 June 2011; also available at <http://hadith.alislam.com/Page.aspx?pageid=192& BookID=24&TOCID=2943> accessed 20 June 2011.

32 Ibid, ḥadīth no. 4972 and ḥadīth no. 4973 available at <http://www.sunnipath.com/library/ Hadith/H0002P0071.as px> accessed 20 June 2011). In these two narrations the reporter is,

‘Ikramah, who described her name as Jamīla but in all the versions in Al-Bukhārī she is simply Thābit’s wife.

you have given her and let her go (free) (khalli sabilaha). He said:

“Yes.”[18]

 

According to the collection of Abū Dāwūd, in which Ḥabība’s case is reported:

 

‘A’isha (the Prophet’s wife) relates that Ḥabība bint Sahl was married to Thābit b. Qays b. Shamas, who hit her and broke a limb of hers. She approached the Prophet (peace be upon him) after dawn, and he summoned Thābit and told him: “Take (khudh) some of her money and separate from her.” Thābit said: “Is this permissible, Prophet of God?” The Prophet said: “Yes.” Thābit: “I gave her two gardens as dower and they are her property.” The Prophet (peace be upon him) said: “Take them and separate from her (fariqha)”, which he did.[19]

 

Ibn Māja, in his collection of aḥādīth, narrates on the authority of Ibn ‘Abbās that this case is similar to Al-Bukhārī’s first version of the case, with the difference that the Prophet (peace be upon him) ‘has ordered Thābit to take only the garden and not more (than the garden).’[20]

 

According to the report of Aḥmad b. Ḥanbal:

 

Sahl b. Abī Hathma related that Ḥabība bint Sahl was married to Thābit

  1. Qays Al-Ansari, who was an ugly man. She said: “Messenger of Allah: O, by Allah, were I not to fear God, I would spit in his face whenever he touches me.” The Prophet (peace be upon him) said: “Would you give him back his garden?” She said: “Yes”, and she gave it back. Then the Prophet (peace be upon him) separated them (farraqa baynahumā).[21]

 

In the report of Ibn Māja, as well as Abū Dāwud, Thābit – the husband – does not play any decisive role (as assigned to him by the legists) as the Prophet never asked for his consent for the separation. The crux of the matter is that according to the above reports, which are different versions of the same incident, khul‘ is not consensual and the consent of the husband is not essential. As will be explained below, however, the majority of fuqahā’ of Ḥanafī, Shāfi‘ī, Ḥanbalī as well Shī‘a schools of thought purport that khul‘ cannot be granted by the court without the consent of the husband. The four compilers of aḥādīth collections who narrate Ḥabība’s episode ‘neither mention nor allude to her husband’s approval as a condition for her divorce; on the contrary, what they all have in common is the command aspect of the Prophet’s order to Thābit to take the compensation and separate from Ḥabība.’37 Despite this ‘imposed’ passivity on the part of Thābit, the majority jurists have unanimously assigned a decisive role to the husband in khul‘. According to Jaṣṣāṣ of the Ḥanafī school, the fact that both Thābit and Ḥabība were asked by the Prophet (peace be upon him) implies that khul‘ is consensual because the husband has been placed at the center point in this episode, otherwise the Prophet could have dismissed him completely and divorced Ḥabība entirely on his own.38

 

The conclusion that can be derived from this narrative is that the majority of legists differ from the ḥadīth, and to some extent from the Qur’ān, regarding khul‘, especially regarding the approval of the husband. There is no doubt that the Qur’ānic verse was further explained by the Ḥabība’s episode and that the Prophet’s ruling has precedential value. Oussama argues that Muslim legists seem to allow the

Qur’ānic implication of a consensual transaction to overrule the Prophetic ruling in the Ḥabība’s khul‘ separation case.39 However, Mālikī jurists differ from most Sunnī scholars on the issue of the consent of the husband. In addition, as explained above, there is no unanimity on the issue that the Qur’ānic verse 2:229 only allowed a consensual bargaining-based negotiated settlement as some exegetes have expressly mentioned that the word ‘tum’ (you) is addressed to the state authority. The Ḥabība incident stands on its own and has not been overruled by the Qur’ān. Moreover, one has to analyse the opinions of jurists regarding verse 4:35 to reach a clear conclusion.

                                                   

throughout their discussion regarding the khul’s incident, referred to her as Jamila and, in some cases, the Courts mentioned that Thābit b. Qays had two wives. In this work the name, Ḥabība, has been used while referring to Thābit’s wife.

  • Arabi, The Dawning of New Millennium, 17.
  • Jaṣṣāṣ, Aḥkām al-Qur’ān 1:539.
  • Arabi, The Dawning of New Millennium, 17.

It is this precedent that provided the basis for the new law of khul‘ in Pakistan, as well as in Egypt.[22]

 

Part III: Khul‘ in Fiqh Literature

 

Khul‘ in the Ḥanafī School

 

Ḥanafī jurists fully acknowledge the ḥadīth of Ḥabība but unanimously assign the husband a decisive and controlling role in the process of khul‘. Jassas points out that the fact that the Prophet had sought the opinions of both Ḥabība and Thābit, places the latter at the centre stage of the debate since the Prophet could have dismissed him completely and granted a divorce to Ḥabība himself.41 Ḥanafī jurists insist that the consent of the husband is necessary for the validity of khul‘. Abū Bakr al-

Sarakhsi argues that khul‘ ‘is a transaction that requires the consent of the [parties] like all other transactions.’[23] Kāsānī states that the basic element of khul‘ is ‘offer and acceptance because it is ṭalāq for compensation, thus, there cannot be any separation without acceptance.’[24] In other words, for Kāsānī, a court cannot force anyone to enter into contractual relations, and therefore, it cannot grant khul‘ without the husband’s consent. There is no disagreement among Ḥanafī jurists on this issue,[25]

all of whom consider khul‘ an irrevocable ṭalāq45 and agree that adjudication is not necessary for affecting it as it can be concluded outside the court.46 According to Abū Ḥanīfa, a man cannot retract his offer should he initiate khul‘, as he is governed by the rules of oaths; he has to wait for his wife to accept or reject his offer. She has to submit to the rules of compensation and is allowed to retract her offer before his response. Abū Ḥanīfa bases his reasoning on the principle that khul‘ is bay‘ (sale transaction) on the part of the wife, as she is buying back control over herself.47 If the discord emanates from the husband, ‘then it is not permissible for him to take any compensation in return for khul‘.’48 The apparent wording of the Qur’ān presumes that the woman pays compensation to free herself (fimaaftadat behi), so the discord is always assumed to be because of her. Kāsānī argues that:

 

If the matter is resolved by a stranger, then he is allowed to order [her to pay] the equivalent of the dower, and if he ordered [her to pay] more or less [than the amount of dower], then, in case of more [amount], it is not binding without the consent of the woman and in case it is less, then [it is not binding] without the consent of the husband.49

 

Thus, Kāsānī – referred to as the king of ‘ulamā’ (malak al-‘ulamā) within the Ḥanafī school of thought – considers the consent of the husband necessary even if the amount of compensation to be given to him is less than the amount of dower. In other words, the husband according to the Ḥanafī school of thought, seems to have the equivalent of a veto regarding ṭalāq and khul‘.

 

                                                    

ed, Dār Iḥyā’ al-Turāth al-‘Arabī 2003) 3:501; Ibn ‘Abidīn, Radd al-Muḥtār 3:439-41; Zayn al‘Abidīn Ibn Nujaym, al-Bahr al-Rā’iq (al-Matba‘a al-‘Ilmiyya, 1894) 8 4:77-78.

  • Al-Jaṣṣāṣ, Aḥkām al-Qur’ān 1:538; Al-Sarakhsī, Kitāb al-mabsūṭ 6:168; Kāsānī, Badā’i‘ 3:228. Kāsānī argues that khul‘is ‘a single irrevocable ṭalāq because it is divorce by using metaphorical words which is irrevocable in our school and because it is divorce for compensation (ṭalāqbi al‘iwad) and when the man accepted the compensation it is necessary that she should own herself as a result of paying compensation and she cannot redeem herself without irrevocable ṭalāq therefore it (khul‘) is irrevocable ṭalāq’. At 228.
  • Jaṣṣāṣ, Aḥkām al-Qur’ān 1:539; Al-Sarakhsī, Kitāb al-mabsūṭ 6:168-69; Kāsānī, Badā’i‘ 3:229. Kāsānī mentions that only al-Ḥasan and Ibn Sīrīn argue that khul‘ can be affected without the Sulṭān (state- authorized court).
  • Al-Zayla‘i, Tabyin 3:182; Kāsānī, Badā’i‘, 3:228.
  • Kāsānī, Badā’i‘, 3:235.
  • According to Margīnānī, ‘If the discord is because of her, we consider it disapproved that he takes from her more than he had given her.’ However, ‘If he takes back in excess (of what he gave her) it is valid for the purposes of adjudication. Likewise If he takes more when the discord is due to him.’ Margīnānī, Al-Hidāya, 2:30.

Khul‘ in the Mālikī School

 

The linguistic formulations of the Mālikī jurists on khul‘ are not easy to understand and need an in-depth analysis to reach a clear conclusion on whether the consent of the husband is necessary for khul‘. The confusion is mainly whether the Mālikīs consider the consent of the husband a legal necessity by implication or not. Imām Mālik has discussed the Qur’ānic verse 4:35, Ḥabība’s ruling, and two cases involving neglectful husbands, and his legal formulations suggest that he gives the two arbitrators the main role in the dissolution of marriage, either by ṭalāq or khul‘. In addition, he also presumes a negotiated settlement.[26] Certain points within the Mālikī school are clear and these are mentioned below.

 

In circumstances where it is difficult for a woman to live with her husband and she approaches the court, it must be clear that which one of the two is the cause of discord. When it is known to the court that the husband or the wife has caused the discord, the court shall attempt to bring about reconciliation. If this is not possible, then the court may dissolve the marriage.[27] The court shall order khul‘ if it finds that the husband was the cause of the discord. In this situation, the wife will be ordered to return the dower given to her by the husband. However, if it comes to the conclusion that the wife was the cause of the discord, it shall dissolve the marriage by divorce and shall order the husband to pay the dower if not yet paid. The court under the Mālikī school can issue a decree of ṭalāq or khul‘ without the consent of the husband and wife.[28]

 

If the court does not know which one of the two is to blame for the dispute, it has to appoint two arbitrators: one to represent each the husband and the wife. Mālikī jurists have elaborated on the role assigned to the arbitrators.[29] In general, they agree that the arbitrators may dissolve the marriage either by ṭalāq or khul‘ depending upon who is to blame for the dispute. Some Mālikī jurists have even stated that the court or the arbitrators can dissolve the marriage through ṭalāq or khul‘ without the consent of both the husband and the wife. This is evident from many classical Mālikī texts (mutūn), as well as commentaries on the main texts. While commenting on Qur’ānic verse 4:35, which reads ‘If you fear a breach between the two, appoint an arbitrator from his people and an arbitrator from her people. If they both want to set things right, Allah will bring about reconciliation between them. Allah knows all, is well aware of everything’, Ibn Juzī al-Kalbī al-Garnāti states:

 

Allah has mentioned what to do with a disobedient wife and how to deal with an obedient one, then he mentioned another situation, that is, when there is discord between the two which they cannot reconcile themselves and it is not known who caused it. So [in this situation the court] should appoint two Muslim arbitrators to investigate the matter between the two. And their decision has to be implemented whether it is the dissolution of marriage through ṭalāq or khul‘ without the consent of the husband.[30]

 

Ibn ‘Abdul Bar – another leading Mālikī jurist – has said something similar. He argues:

 

The spouses may appoint one arbitrator each without the intervention of the State authority. If the husband is the cause of discord they shall dissolve the marriage without anything. The arbitrators should not take anything from the wife [in this situation] with the condition that she is divorced [by the husband]. And it is said that it is allowed [to take something from the wife in this situation]; and if she was the cause of discord, they [the arbitrators] should take [money or compensation] from her as they think appropriate and it [the resultant separation] will be khul‘ and the two should be separated [their marriage be dissolved].[31]

 

Mālikī jurists have also explained the situation in which both the husband and the wife are equally blameworthy for the discord. According to ‘Abdarī, ‘the husband shall not be given anything if both the husband and the wife were equally guilty of discord.’[32]

 

Imām Mālik discusses three different versions of Ḥabība’s case and seems to introduce the husband’s consent in the third version, in which the Prophet (peace be upon him) invited Thābit and told him about his wife and about her willingness to return him the garden to which Thābit said: ‘This is to my liking; Yes.’ The Prophet said: ‘Then she gives it back.’[33] Unfortunately, Imām Mālik is not very specific about whether the consent of the husband is necessary for khul‘. Imām Mālik is more specific in the chapter on ‘Hakamayn’ (the two arbitrators), where he gives an interesting opinion. On the role of the two arbitrators, Mālik states,

 

If the arbitrators could bring in reconciliation [between the two], they should reconcile between the two [the husband and the wife]; then, it is lawful [for the two arbitrators] if the two [arbitrators] decided to dissolve the marriage between the two [the husband and the wife] without the [permission] of the state authority. And if the two [arbitrators] decided to take [compensation] from her [and give it to the husband] so that it becomes [separation by] khul‘, they [the arbitrators] can do that.[34]

 

Imām Mālik’s opinion gives the impression that the consent of the husband is not necessary for the validity of khul‘. Above, we have given more precise opinions of other Mālikī jurists to clarify this issue. Since Imām Mālik does not mention his opinion in precise words on whether the consent of the husband is necessary for khul‘, this made the issue confusing. However, the assertion of other Mālikī jurists clarifies the issue that the consent of the husband is not necessary in khul‘ and that it can be implemented without his consent.

 

According to ‘Abdul Wahāb Baghdādī:

 

In case of a dispute and eruption of a discord, if it is known that harm is caused by one of them it should be eliminated. However, if it is unknown which one of the two have caused the discord the State authority [court] shall send in two arbitrators one from the husband’s side and one from the wife’s side. The arbitrators should be jurists and fair and should investigate the matter and should do whatever they think is better for the husband and wife ranging from reconciliation to separation between the two regardless of the consent of the two [husband and wife] and whether the State authority [court] agrees or disagrees with their decision.[35]

 

Ibn Rushd has an interesting opinion regarding khul‘. He states that, ‘yet, the juristic reasoning is that fida (ransom) granted to a woman is something equivalent to what is possessed by the man; namely, (the right to) divorce. A man possesses repudiation when he pressurises a woman, while a woman possesses khul‘ when she wants to pressurise a man (her husband).’[36] It can be construed from this passage that Ibn Rushd treats khul‘ as a right possessed by a woman that is the equivalent of a man’s right to divorce and that khul‘ is not dependent upon the consent of the husband. This passage is not clear about Ibn Rushd’s opinion or the opinion of Mālikī school on the issue of consent of the husband. However, mentioning the crucial role of arbitrators, Ibn Rushd says:

 

They [the jurists] disputed the agreed decision of the arbiters to separate them [the husband and wife], whether it would require the consent of the husband. Mālik and his disciples said that their decision about separation and union is valid without specific delegation by the spouses and without their consent. Al-Shāfi‘ī, Abū Ḥanīfah and their disciples said that they have no right to separate them, except when the husband delegates such authority to them.61

 

Taqīuddīn al-Ḥilālī, a leading 20th century Mālikī scholar argues:

 

Jurists differ regarding the issue of arbitrators; are they appointed by the state authority so that their ruling is binding without the consent of the spouses or are they proxies for the spouses? There are two opinions regarding this issue: the majority of scholars prefer the first opinion [i.e. their ruling is binding without the consent of the spouses] because of the Qur’ānic verse, ‘appoint an arbitrator from his people and an arbitrator from her people’, so they are named as ‘hakamayn’

(arbitrators) and an arbitrator is allowed to rule without the consent of the disputant and this is the apparent meaning of the Qur’ānic verse [4:35].[37]

 

It is very clear from the above that Mālikī jurists have given a crucial role to arbitrators and they may decide to dissolve the marriage by khul‘ without the consent of the husband as well as the wife. In addition, Mālikī jurists consider khul‘ as ṭalāq.[38] As far as the amount of compensation is concerned, Ibn Rushd argues that according to Imām Mālik and a group of jurists, ‘it is permitted to a woman to secure freedom with more than what has come to her from the husband, by way of dower.’[39] Khul‘ in the Shāfi‘ī School

 

According to Imām al-Shāfi‘ī, khul‘ just like ṭalāq, can only be affected by the husband.[40] He argues that:

 

Where a man wants to separate from his wife and he intends divorce but does not intend a specific number, then the separation is a single irrevocable divorce (fa al-khul‘ ṭatliqatan la yamliku fihi al-ruju‘); this is so because it is a sale (bay‘) like other sales and it is not allowed for him to take possession of her money while continuing to possess her.[41]

 

Al-Shāfi‘ī has narrated two versions of Ḥabība’s incident: one from Imām Mālik and the other one from Ibn ‘Uyayna. In the second version, Ḥabība complains of some ‘harm’ done to her person, which probably implies that the harm was of a physical nature. The Prophet (peace be upon him) ordered her husband, Thābit, to ‘[t]ake what she is giving you (khudh minhā)’, which is repeated in both versions by alShāfi‘ī.[42] Imām al-Shāfi‘ī treats khul‘ as ṭalāq[43] and allows for it to be settled in or outside of a court ‘as the paying of compensation and ṭalāq are permissible in the court as well as outside it.’69

 

Khul‘ in the Ḥanbalī School

 

While discussing the Prophet’s ruling in the case of Ḥabība,[44] Ibn al-Qaiyam of the Ḥanbalī school of thought refers to the versions of Al-Bukhārī, Al-Nasā’ī, Abū Dāwūd, and Al-Dār Quṭnī, and derives various rules pertaining to khul‘. He argues that khul‘ is legal as stated in the Qur’ān in verse 2:229, and that the verse allows it with or without the permission of the sulṭān (state authority). The verse indicates that the resultant separation will be an irrevocable ṭalāq because God has named it ‘fidya (ransom) and if the (separation) would be revocable, as thought by some people, there would be no ransoming for the woman after paying him.’71 The Qur’ānic verse ‘fa lā junāhā ‘alīhīmā fīmā aftadat bihi’ (there shall be no sin upon either of them for what the wife may give up [to her husband] in order to free herself), ‘also indicates that taking more or less (than the amount of the dower) is allowed and that he can take more than what he gave her.’ Ibn al-Qaiyam produces a ruling given by ‘Uthmān b. ‘Affān (d. 35/656) in which a woman paid as her khul‘ settlement everything she owned and ‘Uthmān ordered the husband to take even her hair-band (‘Iqās),72 and that ‘Umar b. Al-Khaṭṭāb was reported by a man whose wife had violated her marital duties (nāshīza) and ‘Umar said (to him): ‘separate from her (ikhla‘ha) even if she gives (you) her earrings (qirat) [in compensation].’73 Ibn alQaiyam discusses details of the difference of opinions of jurists and mentions that taking more than the amount of dower is reprehensible (makrūh) according to Imām Aḥmad b. Ḥanbal.74 Ibn al-Qaiyam argues that ‘khul‘ is called fidya (ransom) because it involves the paying of the compensation (al-mu‘āwaḍa) and therefore it is consensual.’75

 

According to Muḥammad b. Ḥazam (d. 456A.H.), if a woman thinks that she cannot obey her husband and fulfill his demands, then ‘she may free herself if he agrees.’ However, ‘if he refuses (to divorce her), he cannot be forced (to do so).’76 He goes on to say that a woman cannot be forced to free herself. ‘[A]nd the consent of both (the husband and wife) is essential for its legality (i.e., khul‘). And if it (i.e., khul‘) was affected without these two conditions (i.e., compensation from the wife and the consent of the husband), then it is invalid.’77

 

                                                   

similar to a sale or a marriage contract, it does not require a judge, and also because it is a dissolution of contract by mutual consent (qaṭ‘ ‘aqd bi al tarāḍī).’ At 8:174.

71 Shamsuddīn Ibn al-Qaiyam al-Jawziyah, Zād al-Ma‘ād fī hadī e khayr al-‘Ibād (Aḥmad Alī Sulaymān ed, Mansūra, Dīr al-Ghad, 2009) 4:86. 72 Ibid, 4:87.

  • 75 Ibid.
  • Muḥammad b. Ḥazam, Al-Muḥallā (Aḥmad Muḥammad Shakīr ed, Dār al-Turāth n.d.) 10:235.

The Ahl al-Ḥadīth in Pakistan also allow khul‘ if the wife abhors the man and has a natural hatred for him. ‘Abdullah Roprī produces two versions of Ḥabība’s case and concludes that mere aversion or abhorrence is enough for a woman to obtain khul‘.[45] Although, Roprī does not explicitly mention whether the consent of the husband is necessary for khul‘, he advises that ‘in such a situation the wife has the option of dissolving her marriage (faskh e nikāḥ) through ‘Panchayat’, etc.’[46]

 

Khul‘ in the Shī‘aschool

 

According to Ḥillī of the Ithna ‘asharīa (twelver) Shī‘a school of thought, the specific words used for khul‘ are: when the husband says, ‘you are redeemed for so much (khala‘tuki ‘alā al-kazā).’[47] Khul‘ is also allowed if the husband used the word khul‘ only without mentioning the word ṭalāq. But according to another opinion, the word khul‘ must be followed by the word ṭalāq to be valid.[48] Khul‘ is defined by the editor of Ḥillī’s book as ‘[p]utting an end to marriage when the woman abhors her husband only in return for compensation from the woman.’82 This means that if she abhors him she has to make an offer, which may be accepted or rejected by the husband. This makes the consent of the husband mandatory. The preferred view is that separation through this way is irrevocable ṭalāq and not faskh. ‘If they agreed on khul‘, then the husband cannot retract but she can retract in paying fidya during her ‘iddat’ (waiting period) and he can retract if she offers to do it.’[49]

 

After discussing the opinions of the fuqahā’ belonging to the various schools of thought, the picture that emerges is as follows: 1) all of the schools of thought permit khul‘ and cite verse 2:229[50] and Ḥabība’s incident; 2) according to the Mālikī school, if the husband is the cause of the discord then he should not take or be given any compensation, but if the wife is the cause of the discord then she must pay compensation to the husband; 3) all the fuqahā’ agree that the resultant separation will be irrevocable, that is, a ṭalāq;[51] 4) the compensation to be paid may be the equivalent of, or more or less, than the amount of dower; 5) if they settled on more than what he gave her, it is morally reprehensible but legally binding; 6) the majority of schools disregard the ruling in Ḥabība’s case and require the consent of the husband for khul‘, however, the Mālikī jurists have reached a different conclusion based on verse 4:35 by allowing the arbitrators authority to put an end to marriage without the consent of the husband, even if the spouses have not delegated them the authority to do so; 7) the majority agree that khul‘ is consensual and the consent of both spouses is necessary, whereas the Mālikīs allow the arbitrators to dissolve the marriage by khul‘ without the consent of the husband or wife; 8) khul‘ can be settled between the partners with or without the intervention of state authority; 9) fuqahā’ of all Sunnī schools have referred to the Prophet’s ruling in the case of Ḥabība, in which in some narrations, the Prophet prohibited her from paying more than her dower but they (fuqahā’) consider paying more by the wife to be legally permissible.

 

The majority of jurists grant the husband an absolute right at the expense of his wife because of the notion of qawāma.[52] However, resort to a court in case of khul‘ seems unavoidable and the court must have a role to determine the issue of harm to the wife or hatred between the two parties in addition to determining the amount and extent of compensation. If a husband claims that they can live within the boundaries fixed by Allah but the wife says that they cannot, then whose claim should be accepted? It would require a third person to determine whether the wife cannot live with the husband and whether the level of hatred and aversion has reached the point of no return (irrevocable breakdown of marriage).

 

Part IV: Khul‘ and the Superior Courts in Pakistan: Interpreting Islamic Law

or Judicial Ijtihād?

 

The Traditional View

 

The earliest reported case on khul‘ in the subcontinent– now India, Pakistan, and Bangladesh, is that of Munshi Buzul-ul-Raheem case,[53] in which the Judicial Committee of the Privy Council ruled that khul‘ was not available without the consent of the husband under Islamic law. Unfortunately, this case is applicable in India even today where it has not been overruled, however, the situation in Pakistan and Bangladesh is different. Gangrade argues that in India, it is uncertain whether a wife can ask for khul‘ against the wishes of the husband.[54] In Umar Bibi v Mohammad Din,[55] a Divisional Bench of the Lahore High Court rejected appeals by two women who were seeking divorce on the basis of khul‘ against the consents of their husbands and on the basis of incompatibility of temperament as grounds for their divorces. This view was upheld by a full bench of the same Court in Sayeeda Khanam v Muhammad Sami[56] in 1952. The questions before the Court were: 1) whether incompatibility of temperament constitutes a ground for divorce under Islamic law; and 2) whether discord (shiqāq) constitutes a ground for divorce under Islamic law. The Court answered both the questions in the negative. The Court held that the crucial role of the Prophet (peace be upon him) in the Jamīla episode discussed above, was that even the Prophet (peace be upon him) did not take it upon himself to dissolve the marriage; he had only ordered the husband to do so and the Prophet’s role in this case was not that of a judge at all, but of a law-giver.91 As explained above, the Court merely endorsed the traditional view of the Ḥanafī jurists.

 

Part V: Judicial Ijtihād?: Islamic Law (Re)-Interpreted

 

In 1959, a Full Bench of the Lahore High Court revisited the established law of khul‘ in Islam. In Balqis Fatima v Najm-ul-Ikram Qureshi,[57] the main question before the

Court was ‘[whether] the wife [was] entitled to dissolution of marriage on restoration of what she has received from the husband in consideration of the marriage?’ The Court answered the question in the affirmative by giving a fresh interpretation to verse 2:229, and held:

 

This verse [2:229] admittedly permits the termination of a marriage by the wife passing consideration to the husband. The question for consideration is whether this termination can be affected only by agreement between the husband and wife or whether the wife can claim such termination even if the husband was not agreeable.[58]

 

Justice Kaikaus argued that the ‘you’ in the phrase ‘if you fear’ [khiftum] must be addressed to the state and the judicial officers of the state but it clearly was not addressed to the spouse. In his view, a reference to the judge could possibly arise in circumstances where the wife wanted a divorce but the husband had refused his assent. Thus, it was for the judge to determine whether the parties would keep within the limits of Allah if the marriage were to continue. There is no point in referring the matter to a judge and in requiring him to make a determination if, in the end, he is powerless to do anything should he be convinced that the spouses could not remain within the bounds set by God. The Court concluded that the reference to the judge under the verse can only mean that he is entitled to pass an order dissolving the marriage even though the husband is not ready to divorce.[59]

 

In its understanding of verse 2:229, the Court deviated from the interpretation of this verse by Muslim exegetes discussed above. In this case the judges themselves interpreted verse 2:229 by directly relying on the Qur’ān itself and aḥādīth of the Prophet (peace be upon him), and by ignoring the opinions of the classical and the medieval jurists. In addition, the Court considered khul‘ as ṭalāq (divorce) rather than fasakh (dissolution of marriage). Thus, in the Court’s view in khul‘, the wife has to redeem herself in return for some consideration and a Court can dissolve the same if it was convinced that the spouses would not be able to live within the bounds set by God, and that the consent of the husband for the validity of khul‘, in such cases, was not necessary. The Court also argued that in the Jamīla’s case discussed above the dissolution was directly ordered by the Prophet (peace be upon him) acting as a judge (rather than as a social or a political leader, as viewed by some authors), without commenting on the reasonableness of the attitude of the wife, and without seeking the consent of the husband.[60]

 

The Court relied upon the opinion of Maulānā Mawdūdī, who has deviated from the opinions of the majority of fuqahā’ and has explicitly given the opinion:

 

[A] Wife’s right to khul‘ is parallel to the man’s right of talāq. Like the latter the former too is unconditional. It is indeed a mockery of the Shariat that we regard khul‘ as something depending either on the consent of the husband or on the verdict of the qazi. The law of Islam is not responsible for the way Muslim women are being denied their right in this respect.[61]

 

The Supreme Court of Pakistan endorsed Balqis Fatima and rejected Sayeeda Khanam[62] when it decided the Khurshid Bibi case.[63] Commenting on verse 2:229, the Court gave its own interpretation while ignoring the opinions of the exegetes, and held:

 

[W]here the husband disputes the right of the wife to obtain separation by khula [khul‘], it is obvious that some third party will have to decide the matter and, consequently, the dispute will have to be adjudicated upon by the Qazi, with or without assistance of the Hakams. Any other interpretation of the Qur’ānic verse regarding khula [khul‘] would deprive it of all efficacy as a charter granted to the wife. It is significant that according to the Qur’ān she can “ransom herself” or “get her release” and it is plain that these words connote an independent right in her.[64]

 

However, the Supreme Court put some limits on the wife’s right to obtain khul‘. The Court opined, ‘[T]he Qur’ānic condition must be satisfied that it is no longer possible for the husband and the wife to live together in harmony and in conformity with their obligations.’[65] The Lahore High Court in Balqis Fatima case had already observed:

 

There is an important limitation on her right of khul‘. It is only if the judge apprehends that the limits of God will not be observed, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam, will not be possible that he will grant a dissolution. The wife cannot have a divorce for every passing impulse.[66]

 

Carroll argues that the ‘apprehension’ or ‘satisfaction’ of the judge is ‘essentially a subjective evaluation.’[67] It has to be supported by some material evidence. Justice Javed Iqbal of the Lahore High Court, tried to clarify the law for the lower courts, when he observed:

 

If the Judge Family Court arrives at the conclusion that no reconciliation was possible, that the wife was determined to get the marriage dissolved, and that not dissolving the marriage would amount to forcing or compelling her to live in a hateful union with the husband, then he must dissolve the marriage on the basis of khula [khul‘].[68]

 

The method used by the Courts in Pakistan to arrive at this new law of khul‘, which is not based on the formulations of the various schools of thought in Islam, should be discussed here. In Balqis Fatima,[69] the Full Bench of the Lahore High Court ruled that the court can adopt a course different from that laid down by the classical jurists. Further, the Court opined:

 

We are dealing with the interpretation of the Holy Qur’ān and on a question of interpretation we are not bound by the opinions of jurists. If we be [sic] clear as to what the meaning of a verse in the Qur’ān is, it will be our duty to give effect to that interpretation irrespective of what has been stated by the jurists…. Similar considerations apply to the interpretation of the traditions of the Prophet.[70]

 

The Supreme Court affirmed this principle in the Khurshid Bibi case, when it observed:

 

The opinions of Jurists and Commentators stand on no higher footing than that of reasoning of men falling in the category of secondary sources of Muslim law, and cannot, therefore, compare in weight or authority with, nor alter the Qur’ānic law or the Aḥādīth. If the opinions of the jurists conflict with the Qur’ān and the Sunnah, they are not binding on Courts, and it is our duty, as true Muslims, to obey the word of God and the Holy Prophet (ati-ullah-waati-ur-Rasool).[71]

 

In 2002, the legislature amended section 10(4) of the Family Courts Act 1964 to provide summary dissolution of marriage in cases of khul‘ by requiring that ‘the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and also restore the husband the Haq Mehr [dower] received by the wife in consideration of marriage at the time of marriage.’ The Islamicity of the above section, especially the new provision, was challenged in Saleem Ahmad v The Government of Pakistan[72] in the Federal Shariat Court. The Court observed:

 

With great regard and utmost respect for the scholarship, ‘Taqwa’ and deep insight of  the  eminent  Aimma Ezam and Ulema kiram this Court cannot declare any law or provision of law merely on the basis of views, verdicts and Fatawa issued by the honourable scholars whosoever they might be.[73]

 

The Court held that ‘[t]he impugned provision of law [i.e., S. 10(4)] was not found to be in conflict with any specific injunction contained in the Holy Qur’ān and Sunnah of the Holy Prophet (peace be upon him).’[74] The Court further observed:

 

The courts are there to dissolve [sic resolve] the disputes that arise between the parties. They can decide all type of matters including, admittedly, dissolution of marriage on certain grounds. One wonders why they are not authorized to decide the case of Khula [khul‘], if a husband does not at all agree to the divorce of his wife and all the reconciliatory efforts fail.[75]

 

After discussing the various arguments, verses of the Qur’ān, aḥādith, and opinions of jurisprudents, the Court came to the conclusion that ‘there is no specific verse or authentic Aḥadith that provides a bar to the exercise of jurisdiction by a competent Qazi to decree the case of Khula agitated before him by a wife after reconciliation fail.’[76] This was indeed a very bold decision and must be appreciated.

 

Under the above section, i.e., 10(4), obtaining khul‘ has become easier for women, but the problem is that khul‘ is availed as an alternative remedy. Usually, a complainant woman requests dissolution of her marriage on the basis of cruelty of her husband or in-laws or non-maintenance by her husband or any other remedy under the DMMA 1939, and requests khul‘ only as an alternative remedy. It is very unfortunate that in some cases, the judges only grant khul‘ and ignore all other remedies and order the wife to return her dower to the husband.[77] However, there are many cases in which the courts have corrected these aberrations and laid down the true exposition of the law of khul‘.[78]

 

The Superior Courts in Pakistan have not considered themselves bound by taqlīd and, by seemingly resorting to ijtihād,[79] have asserted three rights: first, their right to independent interpretation of the Qur’ān and Sunnah, where necessary; second, their right to differ from the doctrines of traditionally authoritative legal texts of the various schools of thought in Islam, especially the Ḥanafī;[80] and third, their right to not follow the decisions of the Privy Council in this regard.[81] It is generally thought that the Superior Courts in Pakistan seem to have exercised ijtihād rather than takhayur[82] or talfīq[83] and have mainly relied on the Qur’ān and the Sunnah and not on the opinions of jurisprudents. However, section 2 of the

Enforcement of Shari‛ah Act, 1991 seems to be have added another source that Courts may take into consideration. Section 2 of the Act states that ‘Shari‛ah’ means the injunctions of Islam as laid down in the Qur’ān and [the] Sunnah. The explanation provided for section 2 states that:

 

While interpreting and explaining the Shari‘ah the recognized principles of interpretation and explanation of the Holy Qur’ān and Sunnah shall be followed and the expositions and opinions of recognized jurists of Islam belonging to prevalent Islamic schools of jurisprudence may be taken into consideration.[84]

 

It is noteworthy that the words ‘may be taken into consideration’ in section 2, are recommendatory only and not mandatory. Moreover, it is unclear what is meant by the word ‘prevalent’; it apparently allows the judges to resort to takhayur or choosing the opinion of one school over that of the other(s), and not to strictly adhere to the interpretation of only one school of thought.

 

A closer look, however, reveals that in the case of khul‘, the Courts in Pakistan did not resort to ijtihād per se but rather applied the Sunnah of the Prophet (peace be upon him) in preference to the interpretations of Muslim jurists. In other words, the Courts deviated from the opinions of the majority of Muslim jurists only thinking that these opinions were not based on the Qur’ān and more specifically, the Sunnah of the Prophet. Since the topic of ijtihād and the modes of ijtihād are complex, any statement to the effect that the Pakistani Courts resorted to ijtihād regarding khul‘ would be a sweeping one.[85] Balqis Fatima and Khurshid Bibi are indeed very bold decisions, but these have deviated from the settled opinions of the majority of fuqahā’ of Ḥanafī, Shāfi‘ī and Ḥanbalī schools as well as the Shī‘a school of thought. Moreover, in both cases, the judges have given the opinions of some scholars to support the view that the consent of the husband is not required in khul‘, but the Courts needed to mention the vast literature within the Mālikī school to support its stance. This is why the ‘ulamā in Pakistan have managed to level a scathing attack on the precedent repeatedly upheld by the Superior Courts regarding khul‘.[86] It is worth noting that the Superior Courts in Pakistan have repeatedly granted khul‘ to women summarily, especially after the 2002 amendment in the Family Courts Act

1964.[87]

 

Part VI: Recommendations of the Council of Islamic Ideology: The Return of Traditional View

 

The Council of Islamic Ideology makes recommendations to the Parliament, Provincial Assemblies, the President, or any Governor, on whether a proposed law is repugnant to the injunctions of Islam.[88] The Council’s duties are only of an advisory and recommendatory nature. The Council has no independent power of enforcement. Articles 227-231 of the Constitution of Pakistan only established a process by which the Council may have advisory input on the ‘Islamic’ credentials of existing and proposed laws.[89] The Council made its recommendation regarding khul‘ to the Government of Pakistan, which is reproduced below:

 

Therefore, in our opinion, a law should be enacted at the level of the state that, after a woman’s written request for divorce, the husband must have an obligation to divorce her within 90 days. If the husband refuses to divorce her, the marriage shall stand dissolved after the passage of this time [90 days] except if the wife revokes her request. The husband should have no right to revoke after this. The wife must return assets and property given to her by the husband except dower and maintenance if demanded by the husband or else approach a court of law for the resolution of the conflict (of return of assets/valuables).[90]

 

There are several points to note. First, the Council’s Recommendation seems to be a deviation from the apparent words of verse 2:229 of the Qur’ān,[91] according to which the wife pays something to free herself. Second, the Recommendation also seems to deviate from the precedent laid down by the Prophet in the Ḥabība’s case, discussed above, in which she was asked by the Prophet to return her dower to her husband in return for her freedom from marriage. Third, the Recommendation is in accord with Islamic law, especially the Qur’ān and the Sunnah, in cases when the husband is the cause of discord. Finally, the Recommendation overlaps with section 10(4) of the West Pakistan Family Court Act 1964 as amended in 2002, which governs the existing law on khul‘. However, the view of the Council seems to change with the change of its Chairman. On 27 May 2015, Mawlana Muhammad Khan

Shirani, Chairman CII, opined that ‘courts should refrain from dissolving ‘nikāḥ’ (marriage contract) in the name of ‘khula’ or separation.’ He argued that ‘[k]hula is an agreement between two parties and it should not be granted until the husband agrees to it.’[92] Mawlana Shirani wishes to impose the views of the Ḥanafī school on Pakistani society, forgetting that the Council has to render advise according to the Qur’ān and the Sunnah of the Prophet (peace be upon him) only.

 

Conclusion

 

The main argument of the article may be reiterated here. The jamhoor (majority) of schools of thought argue that khul‘ is consensual between the husband and the wife. In their view, a judge cannot dissolve a marriage by khul‘ on the request of the wife without the consent of the husband. On the other hand, Mālikī jurists argue that the decree of the arbitrators is valid whether they order separation or union between the two, and it neither requires the consent of the husband nor of the wife. Mālikī jurists and exegetes focus on verse 4:35 of the Qur’ān rather than verse 2:229. The Superior Courts in Pakistan have been more sympathetic towards helpless women demanding khul‘ as compared to courts in India. The Federal Shariat Court has upheld section 10(4) of the Family Courts Act 1964 as not violative of the Injunctions of Islam. In addition, it ruled that it is not bound by the opinions of Muslim jurists. The Council of Islamic Ideology changed its views on the law of khul‘. The Council had a radical view in 2008-9 about khul‘ under Dr Khalid Mas‘ud, but it returned to the traditional view in 2015 under Mawlana Shirani. It is surprising that neither the Superior Courts, nor the Federal Shariat Court have dug deeper into the interpretation of verse 4:35 of the Qur’ān as understood by numerous Mālikī jurisprudents and exegetes who do not give the husband any controlling power in khul‘. The CII has ignored verse 4:35, along with the Ḥabība/Jamīla precedent as well as the views of Mālikī jurists.

 

 

The Law of Khul‘ in Islamic Law and the Legal System of Pakistan

 

 

 

[1] Mst. Balqis Fatima v Najm-ul-Iram Qureshi, PLD 1959 Lahore 566. For analysis of these and other cases on judicial khul‘ see Dr Muhammad Munir, ‘Judicial Law-Making: An Analysis of Case Law on Khul‘ in Pakistan’(2014) 1(1) Islamabad Law Review 7 <http://www.iiu.edu.pk/wpcontent/uploads/downloads/journals/ilr/volume1/ILRVOL11Full. pdf> accessed 12 September 2015.

[2] Mst. Khurshid Bibi v Muhammad Amin, PLD 1967 SC 97. For criticism of Khurshid Bibi, see

Doreen Hinchcliffe, ‘Divorce in Pakistan: Judicial Reform’ (1968) 2 Journal of Islamic and Comparative Law 19.

[3] Ḥabība bint Sahl was married to Thābit b. Qays b. Shamas. Other reports mention her name as Jamīla. Whatever her exact name she is reported to have obtained khul‘ from her husband. Details are given below.

[4] Badruddīn Maḥmud al-‘Aynī, al-Bināyh (Muḥammad ‘Umar ed, Dār al-Fikr, 1990) 5: 291.

[5] Aḥmad b. ‘Ali b. Ḥajr al-‘Asqalānī, Fataḥ al-Bārī (‘Abdul ‘Azīz b. Bāz & Muhībuddīn al-Khaṭīb ed, Dār al-Fikr n.d.) 9:396. Kamāl b. Al-Humām (d. 861) has defined khul‘ as ‘putting an end to marriage for compensation by using the word khul‘ (izalāt milk al-nikāḥ bi badalin bi lafz alkhul‘).’ Kamāluddin b. Al-Ḥumām, Sharḥ Fataḥ al-Qadīr (Ghālib Al-Mahdī ed, Dār al-kutub al‘Ilmiyah, 2003) 4:188. Jurjānī shortened Ibn al-Humām’s definition, when he stated ‘putting an end to (the ownership of) marriage contract (izalat milk al-nikāḥ).’ ‘Alī b. Muḥammad al-Jurjānī, Kitāb al-T‘arīfāt (Dār al-Surur n.d.) 45. Haskafī has attributed this definition, i.e., ‘izalat milk alnikāḥ’ to Ibn Nujaym. Muḥammad ‘Allāuddīn al-Haskafī, Al-durr al-mukhtār sharḥ Tanvīr alabṣār (Dār al-Fikr Press n.d.) 3:383. But Ibn Nujaym has himself attributed it to Kamāl b. AlHumām. Sirājuddīn Ibn Nujaym, Al-Nahar al-fā’iq (commentary on ‘Abdullah b. Aḥmad AlNasafī’s Kanz al-daqā’iq, Aḥmad ‘Izzu ‘Inayāt ed, Dār al-Kutub al-‘Ilmiya, 2002) 2:435. According to Al-Nasafī (d. 710 A.H.), ‘It is to separate from marriage (huwa al-fasl min al-nikāḥ).’ Ibn Nujaym adds to this by saying that although ‘Separation [in this definition] is absolute whether compensation was paid or not but it is necessary to use the word khul‘ [for this transaction].’ At 2:434.

[6] He then differentiates the term khul‘ in which she has to return all that the husband has spent on her, from ṣulḥ where she pays only partially, fidya where she pays more than she received, and mubara’a where she writes off her claim against the husband. Muḥammad b. Aḥmad Ibn Rushd, Bidāyat Al-Mujtahid (The Distinguished Jurist’s Primer, Imran A. K. Nyazee tr, Centre for Muslim Contribution to Civilization 1996) 2: 79. Ibn al-‘Arabī mentions that according to Imām

Mālik, ‘al-mubari’a is khul‘ before consummation of marriage, and ‘al-mukhli‘atu’ is when she

[7] Jaṣṣāṣ, Aḥkām al-Qur’ān, 1:534. 16 Ibid.

[8] Jaṣṣāṣ, Aḥkām al-Qur’ān, 1: 534.

[9] Muḥammad b. Aḥmad al-Qurṭubī, Al-Jāmi‘ li Aḥkām al-Qur’ān (Samir al-Bukhārī ed, Riyādh: Dār ‘Alam al-kutub 2003) 3:136.

[10] Muḥammad Abū Zahra, Zahrat al-Tafāsir (Cairo: Dār al-Fikr al-‘Arabī n.d.) 2:777. He asserts that the verse is general and allows nushūz to be from either side. Moreover, when nushūz is from the man it is called ‘zulm’ (cruelty) because he can divorce her and taking compensation in such a situation would be illegal. At 2:777-78.

[11] Qur’ān 4:35.

[12] Qurṭubī, Aḥkām al-Qur’ān, 5:175.  22 Muḥammad al-Ṭāhir b. ‘Ashur, Tafsīr Al-Taḥrīr wa Al-Tanvīr (Dār Saḥnūn, 1997) 2:408. 23 Abū Zahra, Zahrat al-Tafāsir, 2:779. According to the Zāhiriyah school, khul‘ can only be affected if discord is from the wife, because when discord is from the husband taking of compensation is prohibited. Abū Zahra, Zahrat, 2:781.

[13] Balqis Fatima v Najm-ul-Ikram Qureshi PLD 1959 Lahore 566, 573.

[14] Qurṭubī, Aḥkām al-Qur’ān, 5:175.

[15] Ibid.

[16] Ibid, 5:176.

[17] Ibn ‘Ashur, Al-Taḥrir, 5:46. 29 Ibid. 30 This has been interpreted by Oussama Arabi that the ‘woman to ransom (taftadī) herself from her husband by means of a negotiated settlement’, thereby meaning that the consent of the husband

[18] Abū ‘Abdur Raḥmān al-Nasā’ī, ‘al-Sunan’ (hadith.islam) ḥadīth no. 3497, available at <http://hadith.alislam.com/Page.aspx?pageid=192&BookID=27&TOCID=1774> accessed 20 June 2011.

[19] Sulayman Abū Dawūd, al-Sunan, 4 vols (Muṣtafā Muḥammad Press n.d.) no. 2228.

[20] Abū ‘Abdallah Ibn Māja, al-Sunan, ed. M. ‘Abd al-Baqī, ḥadith no. 2056 available at http://hadith.alislam.com/Page.aspx?pageid=192&BookID=29&TOCID=688 (last accessed 20 June 2011).

[21] Aḥmad b. Ḥanbal, al-Musnad, ḥadith no. 15663; also available at <http://hadith.alislam.com/ Page.aspx ?pageid=192&BookID=30&PID=15513> accessed 21 June 2011). Ibn Ḥanbal comments on this ḥadith that ‘It was the first khul‘ in Islām.’ Thābit’s wife in the report surveyed is referred to as Ḥabība or Jamila, while in other reports she is simply Thābit’s wife. Al-Bukhārī mentioned her as Thābit’s wife in two narrations but in one report her name was mentioned as Jamīla. Ibn Ḥanbal, Abū Dāwūd, and Imām Mālik in his Muwaṭṭā, mention her name as Ḥabība, whereas Ibn Māja and Al-Nasā’i mention her name as Jamila. The Superior Courts in Pakistan,

[22] The Egyptian Law No. 1 of 2000 declared that a married couple may mutually agree to separation (khul‘); however, if they do not agree and the wife sues demanding it, and separates herself from her husband by forfeiting all her financial legal rights, and returns to him the dower he gave to her, then the court is to divorce her from him. Article 20 of ‘Law No. 1 of the Year 2000: Regarding the Promulgation of a Law to Organize Certain Conditions and Procedures of

Litigation in Matters of Personal Status’, Al-Jarīda al-Rasmiyya (The Official Gazette), The Arab Republic of Egypt, No. 4, 22 of Shawwal, 1420 AH; 29 January 2000, p. 14. However, the court does not decree divorce (ṭaṭlīq) via khul‘ except after attempting reconciliation between the married couple, and after appointing two mediators to attempt conciliation between them for a period that may not exceed three months, … and after a wife decides explicitly that she abhors living with her husband and there is no way to continue the married life between them, and that she is also afraid of transgressing the bounds set by God, because of this discord. The separation affected under Article 20 is an irrevocable divorce (ṭalāq bā’in); and the court’s decision is, under all circumstances, not subject to appeal in any of the form and in any forum. At p. 15.  41 Jaṣṣāṣ, Aḥkām al-Qur’ān, 1:539.

[23] Muhḥammad b. Aḥmad al-Sarakhsī, Kitāb al-Mabsūṭ (Samīr Mustāfa Rubāb, Dār Iḥyā’ alTurāth al-‘Arabī 2002) 6: 169.

[24] Kāsānī, Badā’i‘, 3:229.

[25] Kamāl b. al-Ḥumām, Fatḥ al-Qadīr 3:199; Fakhr al-Din ‘Uthmān  al-Zayla‘i‘, Tabyin alHaqā’iq (Aḥmad ‘Azzu ‘Ināya ed, Dār al-Kutub al-‘Ilmiya, 2000) 3:182-83; al-‘Aynī, al-Bināya, 5:291; Aḥmad al-Qudūrī, Mukhtsar al-Qudūrī (Kāmil Muḥammad Muḥammad ‘Uwayda ed, Dār al-Kutub al-‘Ilmiyya 1997) 163; Maḥmud Ibn Mazā, al-Muhīṭ al-Burhānī (Aḥmad ‘Azzu ‘Ināya

[26] Saḥnūn b. Sa‘īd, Al-Mudawwana al-Kubrā li’l Imām Mālik b. Anas (Khayriyya Press, 1325 A.H.) 2: 231-232.

[27] Ibn ‘Abdul Bar al-Qurtabī, Al-Kāmil fī Fiqh Ahl Al-Madīna (Makatabat al-Riyādh al-Ḥadītha, 1980) 2: 596.

[28] Ibn Juzī, Al-Tashīl, 1: 190-191.

[29] Ibid.

[30] Ibid.

[31] Yūsuf b. ‘Abdullah b. ‘Abdul Bar al-Qurṭubī, Al-Kāfī fī Fiqh Ahl al-Madīna al-Mālikī (Maktaba al-Riyādh al-Ḥadītha, 1980) 2: 596.

[32] Muḥammad b. Yūsuf ‘Abdarī, Al-Tāj wal Iklil li Mukhtaṣar Khalīl (Dār al-Fikr n.d.) 4: 17.

[33] Saḥnūn, Al-Mudawwana, 2: 235.

[34] Ibid, 2: 266.

[35] ‘Abdul Wahab Baghdādī, Al-Talqīn (Dār al-kutub al-‘Ilmiyah, n.d) 1:131.

[36] Ibn Rushd, Bidāya, 2:81. 61 Ibid, 2:119.

[37] Taqīuddin al-Ḥilālī, Aḥkām al-Khul‘ fī al-Islām (Al-Maktab al-Islāmī n.d) 12.

[38] Ibn al-‘Arabī, Aḥkām al-Qur’ān, 1:250.

[39] Ibn Rushd, Bidāya, 2:80.

[40] Al-Shāfi‘ī, Kitāb al-umm, 11:183.

[41] Ibid. The wording used by al-Shāfi‘ī gives the impression that a married woman is possessed by a man and, therefore, he is the controlling authority.

[42] Ibid, 11:177.

[43] Ibid, 11:180. 69 Ibid, 11:179.

[44] Al-Khirāqī (d. 945), who is a classical authority of the Ḥanbalī school, has given three principles of khul‘: first, ‘If the woman loathes the man, and does not want to disobey God in preventing him from coming to her, it is presumed that she ransom herself from him’; secondly, ‘The compensation ought not to exceed the amount he originally paid to her as dower’; finally, ‘Were she is to separate from him otherwise [i.e., by paying him in excess of the dower], this would be reprehensible, but the separation would nevertheless be legally effective.’ Abū ‘Ali Ḥasan Ibn alBanna’s Commentary on al-Khiraq’s Digest, Kitāb al-Muqnī‘ fī Sharḥ Mukhtaṣar al-Khirāqī (‘Abd al-‘Azīz al-Bu‘aymī, Maktabat al-Rushd, 1993) 3: 952-953. Ibn Qudāma (d. 1223) has reproduced Al-Khirāqī’s three principles verbatim. Muwāffaq al-Dīn Ibn Qudāma, Al-Mughnī (Manar Press, 1348) 8:173-176. Ibn Qudāma argues that since khul‘ ‘is a transaction (mu‘āwāḍa),

[45] ‘Abdullah Roprī, Fatawa Ahl al-Ḥadīth (Muhammad Siddique ed, Idāra Ihyā’ al-Sunna alNabawiya n.d.) 2:523.

[46] Ibid 2:522. Roprī has described such a separation as ‘faskh e nikāḥ’ (at 2:522) and ‘khul‘‘ (at 2:523). Panchayat is a council of elders in villages of Punjab in Pakistan and India for settling local civil disputes.

[47] Thus it is the husband who has to say it.

[48] Najmuddīn al-Muhaqiq al-Ḥillī, Shar‘ā‘i al-Islām (Al-Syad Ṣādiq Al-Shīrāzī ed, Dār al-Qārī 2004) 2:42.  82 Ibid, fn 1.

[49] Ibid, 2:49.

[50] The Mālikīs also cite verse 4:35 of the Qur’ān as discussed above.

[51] Ṭalāq in which revocation is allowed but the couple can remarry with a fresh nikāḥ without the wife’s intervening marriage (ḥalāla).

[52] The Qur’ān 4:34 states, ‘Men are protectors and maintainers of women because Allah has made one of them excel over the other, and because they spend out of their possessions (to support them).’

[53] Munshi Buzul-ul-Raheem v Luteefutoon-Nissa (1861) 8 MIA 397.

[54] K. D. Gangrade, Social Legislation in India (New Delhi: Concept Publishing Co. 1974, reprint 2001) 26.

[55] AIR 1945 Lahore 51.

[56] PLD 1952 Lahore 113. 91 Ibid, 123.

[57] PLD 1959 Lahore 566.

[58] Ibid, 573.

[59] Ibid, 573. The Court relied on Syed Abū al ‘Alā Mawdūdī’s Huqooq-uz-Zawjain for its interpretation of the verse. Carroll argues that, ‘It is extremely unusual for the opinions of a living person not examined in the Court to be cited in a judicial decision.’ Carroll, ‘“Qur’ān 2:229” A Charter Granted to the Wife? Judicial Khul‘ in Pakistan”’ (1996) 3(1) Islamic Law and Society 103.

[60] PLD 1959 Lahore 566, 574, 586.

[61] Syed Abū al ‘Alā Mawdūdī’s Huqooq-uz-Zawjain (9th edn, Lahore, 1964) 61, 71–79. This opinion is based on Ibn Rushd’s view. See, Ibn Rushd, Bidāya 2:81. In his book Islami Riyasat (Islamic State) Moududi asserts that in a Muslim State ‘a Muslim woman can obtain khul‘ through the Islamic judiciary.’ Syed Abūl ‘Alā Mawdūdī, Islami Riyasat (Lahore: Islamic Publisher 2010) 462.

[62] Both were conflicting decisions from equal Benches of the Lahore High Court.

[63] Mst. Khurshid Bibi v Muhammad Amin PLD 1967 SC 97.

[64] PLD 1967 SC 97, 117-118 (per S.A. Rahman, J).

[65] Ibid, 121.

[66] PLD 1959 Lahore 566, 593.

[67] Carroll, ‘Qur’ān 2:229: “A Charter Granted to the Wife? Judicial Khul‘ in Pakistan”’ (1996) 3(1) Islamic Law and Society 110.

[68] Muhammad Yasin v Rafia Bibi PLD 1983 Lahore 377, 382. Justice Iqbal re-affirmed this principle in Rashidan Bibi v Bashir Ahmad PLD 1983 Lahore 549, 551. This principle was later approved by the Supreme Court in Abdul Rahim v Shahida Khan PLD 1984 S C 329, 332.

[69] PLD 1959 Lahore 566.

[70] Ibid, 584. See also, Khurshid Jan v Fazal Dad PLD 1964 Lahore 558; Justice Anwarul Haq was more specific on this point when he observed that ‘the views of early jurists must be treated with utmost respect but the right to differ from them cannot be denied to the present-day courts, as such a denial will not only be a negation of the true spirit of Islam, but also of the constitutional and legal obligations of the courts to interpret the law they are asked to administer and apply in cases coming before them.’ At 612. See also, Rashida Begum v Shahab Din PLD 1960 Lahore 1142 and Zohra Begum v Sh. Latif Ahmad Munawar PLD 1965 Lahore 695.

[71] Khurshid Bibi v Muhammad Amin PLD 1967 SC 97, 141.

[72] PLD 2014 FSC 43.

[73] Ibid, 50 (per Fida Muhammad Khan, J for the full Bench). The judgment was delivered on 25 August 2009, but was reported in 2014. At the time of writing this work the decision was pending in the Shariat Appellate Bench of the Supreme Court as Civil Shariat Appeal No. 1 of 2009 and Civil Shariat Appeal No. 2 of 2009.

[74] Ibid, 55.

[75] Ibid, 61.

[76] Ibid, 62-63.

[77] See for example Hakimzadi v Nawaz Ali PLD 1972 Karachi 540; Bashiran Bibi v Bashir Ahmad PLD 1987 Lahore 376; and Bibi Anwar v Gulab Shah PLD 1988 Karachi 602.

[78] See also Zahida Bi v Muhammad Maqsood 1987 CLC 57, it was held that the husband should not be given anything when he is the cause of dissolution of a marriage; see also, Khalid Mahmood v Anees Bibi PLD 2007 Lahore 626; Munshi Abdul Aziz v Noor Mai 1985 CLC 2546 Lahore; Anees Ahmad v Uzma PLD 1998 Lahore 52; Karim Ullah v Shabana PLD 2003 Peshawar 146. Haseeb

Ahmad v Shaista PLJ 2008 Peshawar 205. The Court gave an interesting interpretation to section 10(4) of the Family Courts Act 1964 and held that dissolution of marriage on the basis of khul‛, when other grounds exist would make khul‛ a ‘mechanical process’ and will deprive the wife to all other grounds of dissolution of marriage, other than khul‛, and ‘we cannot imagine that the proviso has been legislated to indirectly deprive women, of their all legally recognized grounds of dissolution of marriage, excepting khul‛.’ At 207.

[79] Ijtihād is the effort of the jurist to derive the law on an issue by expending all the available means of interpretation at his disposal and by taking into account all the legal proofs related to the issue. Imran A.K. Nyazee, Theories of Islamic Law (Islamabad: Islamic Research Institute, 1995, 3rd reprint 2009) 307.

[80] There are two important decisions on this point and both relate to the custody of children. Rashida Begum v Shahab Din PLD 1960 Lahore 1142 and Zohra Begum v Sh. Latif Ahmad Munawar PLD 1965 Lahore 695.

[81] See for example Khurshid Jan v Fazal Dad PLD 1964 Lahore 558 in which the Lahore High

Court overruled Aga Ali Khan v Altaf Hasan Khan ILR (1892) 14 Allahabad 429, stating that ‘The dictum of the Judicial Committee [of the Privy Council] in Agha Mahmood Jaffar Bindanium v Koolsoom Beebee, therefore, did not hold good for if a rule in a text book of whatever antiquity and high authority is in opposition to a clear injunction in [the] Qur’ān or an authentic ḥadīth of the Prophet (may peace be upon him), then undoubtedly the latter shall prevail and it is the bounden duty of the Courts to ascertain the correct rule of decision in all the matters enumerated above.’ At 567 (per Muhammad Yaqub Ali, J).

[82] Literally favoring or choosing a position from one of the schools to the practical exclusion of the other three schools, as was done in 1939 when the DMMA was legislated where the Mālikī doctrines for dissolution of marriage were adopted so that a Muslim woman could get her marriage dissolved on the basis of various grounds.

[83] Literally ‘patchwork’, it is combining or mixing the positions of two or more schools to produce a hybrid ruling which does not belong, exclusively, to any of them.

[84] See section 2 of Shari‛ah Enforcement Act 1991 (Act X of 1991).

[85] Under Islamic law there can be no ijtihād in texts that are definitive with respect to transmission as well as meaning. The Shāfi‘ī jurists mention that: ‘lā ijtihāda ma‘ al-naṣṣ’, i.e., there is no ijtihād with the naṣṣ. But the Arabic word naṣṣ in this principle does not mean ‘text’. Instead, it is the name for a word or text that gives a single or definitive meaning. Nyazee argues that ‘some writers have incorrectly interpreted this word to mean text for the purposes of this rule, which has the effect of eliminating a major part of the activity called ijtihad.’ Imran A.K. Nyazee, Islamic Jurisprudence: Usul al-Fiqh (Islamabad: International Institute of Islamic Thought 2000) 266.

[86] Muḥammad Taqī ‘Uthmānī, ‘Islam me khul‘ kihaqiqat’, in Fiqi Maqalāt (Karachi: Maiman Publishers 1996) 2:137-194. This is the most critical attack on any decision of the Supreme Court by a man of very high caliber, who himself served as judge of the Shariat Appellate Bench, Supreme Court for about two decades. ‘Uthmānī argues that the Prophet (peace be upon him) was acting as a muṣliḥ (conciliator) and was giving only his advice; that he was not acting as a judge; that he was a political and social leader and people used to bring to him their social problems and so on. These arguments cannot be accepted, however, because if we agree that the Prophet was acting as a muṣliḥ in the case of Jamīla/Ḥabība, then it can be said that in all other civil cases brought to him he was acting as a muṣliḥ and not as a qāḍī (judge). This would mean that in all those the Prophet gave only his non-binding opinion. This is a thesis of dangerous proportion. A full rebuttal of ‘Uthmānī’s thesis is beyond the scope of this article.

[87] Some notable cases are: Parveen Begum v Muhammad Ali PLD 1981 Lahore 116; Syed Dilshad Ahmed v Sarwat Bi PLD 1990 Karachi 239.

[88] See Articles 229 and 230 of the Constitution of the Islamic Republic of Pakistan (Islamabad: Ministry of Law, Justice and Parliamentary Affairs, 2010) 130-131.

[89] See Jeffrey A. Redding, ‘Constitutionalizing Islam: Theory and Pakistan’ (2004) 44:3 Virginia Journal of International Law 760, 770.

[90] Council of Islamic Ideology’s meeting 171, Annual Report, 2008-9 (Council of Islamic Ideology 2009) 170. At that time, the CII was headed by Dr Khalid Mas‘ud, the follower of Dr Fazlur Rahman.

[91] That is there shall be no sin upon either of them for what the wife may give up [to her husband] in order to free herself.

[92] ‘Don’t annul marriages in the name of Khula, CII Chief urges Courts’ The Express Tribune (28 May, 2015) <http://tribune.com.pk/story/893494/dontannulmarriagesinthenameofkhulaccichiefurgescourts/> accessed 8 August 2015.

Compensation Payable by Convicted Rapists to Their Illegitimate Children

Compensation Payable by Convicted Rapists to Their Illegitimate Children

 

Nadeem Masood v The State

2015 LHC 4524

 

Orubah Sattar Ahmed*

 

Introduction

 

The Lahore High Court’s (‘LHC’) judgment in Nadeem Masood v The State1 is a ‘revolutionary decision’ that has the potential to economically empower children born as a result of rape and clean the tainted lens through which society views them.2 The LHC ordered the appellant, Nadeem Masood, to pay Rs.1,000,000 to his illegitimate daughter born as a result of rape for which he was convicted. By issuing such an order, the LHC invoked the right of appellate courts to order compensation to be paid under Sections 544 and 545 of the Criminal Procedure Code 1898 (‘CrPC’).

 

This note evaluates this historical judgment by first summarising the facts of the case, its procedural history, and ruling of the LHC. Next, the note presents a brief discussion of prior case-law on the subject to show how Sections 544 and 545 of the CrPC have been used by Pakistani courts in the past and how these cases apply to the judgment at hand. With this background firmly established, the judgment itself is analysed to both, highlight it as a socially beneficial, significant landmark decision, and point out some of its worrisome aspects. In conclusion, the ongoing relevance of the judgment is discussed and some recommendations are offered to improve the judgment. It is recommended that the legislature should play its part in protecting the children born to rape victims.

 

Facts and Ruling

 

According to the facts disclosed in the judgment, one day Humaira Yasmeen was alone at her home in Sargodha when the appellant Nadeem Masood forcibly entered her home, armed with a pistol, and raped her. At the time of this incident she was

                                                    

* B.A. LL.B (Hons) Candidate Lahore University of Management Sciences (LUMS). 1 2015 LHC 4524; Criminal appeal No. 2066 of 2012.

2 Javaid Bashir, ‘Lahore High Court’s Landmark Decision’ The Lahore Times (Lahore). <http://www.lhrtimes.com/lahorehighcourtslandmarkdecision/> accessed 17 August 2015. Rana Tanveer, ‘Heinous crime: LHC directs lower courts to order compensation for rape victims’ The Express Tribune (August 10 2015).

already 32 weeks pregnant, due to the rape by the appellant many times before. An FIR was filed against the appellant under Section 376 of Pakistan Penal Code 1860 (‘PPC’),[1] a week after the incident. The appellant pleaded not guilty and claimed that the case was fabricated against him. However, the trial court found him guilty after examining the evidence produced by the prosecution. Medical examination proved that Humaira and Nadeem were the biological parents of the foetus. Witness testimonies and evidence of Humaira being less than 16 years old when she got pregnant were also presented. The appellant argued that the case fell under the purview of Section 496-B of the PPC,[2] which provides punishment for fornication, but this was dismissed by the trial court due to complete lack of evidence produced by the defence and the appellant’s refusal to make a statement on oath.[3] Subsequently, the trial court sentenced the appellant 20 years in prison and a fine of Rupees one lakh to be awarded to the victim.

 

After an appeal was filed before the LHC by Nadeem Masood, Justice Anwaarul Haq re-examined the evidence produced before the trial court and held the

‘accused remained totally fail [sic] to bring his case within the scope of Section 496B PPC by any stretch of imagination.’[4] He also observed that since Humaira was less than 16 years old when she became pregnant, this qualifies the criminal action as rape under Section 376 (v) of the PPC,[5] even if the sex was consensual.

 

The judge then expressed his concern over the trial court’s failure to award any compensation, under Sections 544-A and 545(b) of the CrPC,[6] to the innocent girl born because of the actions of the appellant.9 Nadeem Masood was therefore directed to pay a compensation of Rupees one million to the child for the ‘mental anguish and psychological damage’ caused by his actions, in addition to the Rupees one lakh payable to Humaira.10

 

Background and Prior Law

 

Now that it has been established that the judgment of the LHC was passed after examination of relevant clauses of Sections 544 and 545 the CrPC, it is important to see how these provisions have been applied in previous cases. There have been many past instances where appellate courts have noted the failure of trial courts to pay heed to Section 544 of the CrPC and have themselves ordered compensation to be paid. In Mokha v Zulfiqar,11 section 544(A) was declared as a ‘mandatory provision’ and the appellant was ordered to pay compensation to the legal heirs of the deceased since the trial court had failed to give any such directive.12 Similarly in Muhammad Shakeel v The State,13 the fine imposed by the trial court was converted into compensation under section 544(A) that was awarded to the legal heirs of the deceased.14 In another case, compensation given to legal heirs was increased by the appellate court from Rs. 70,000 to Rs. 250,000 in spirit of truly upholding the principles of equity and justice.15 In Shehzad Ahmed alias Mithu v The State,16 the accused was asked to deposit compensation in the form of installments as he did not

                                                   

or destroyed, as the case may be, such compensation as the Court may determine having regard to the circumstances of the case.  (5) An order under this section may also be made by an Appellate Court or by a Court when exercising its powers of revision.’ (Underlines provided). Section 545 reads:  ‘Power of Court to pay expenses or compensation out of fine- (1) Whenever under any law in force for the time being a Criminal Court imposes a fine or confirms in appeal, revision or otherwise a sentence of fine, or a sentence of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied (b) in the payment to any person of compensation for any loss [injury or mental anguish or psychological damage] caused by the offence, when substantial compensation is, in the opinion of the Court, recoverable by such person in a Civil Court…’ 9 (n 1) para [13].

  • (n 1) para [16].
  • PLJ 1978 SC 19.
  • See Safdar Ali v The State PLD 2015 Lahore 512; Tariq Mehmood v The State SCMR 2002 SC 1602; Riaz Ahmad v The State PCRLJ 2006 FSC 694; Amir Zaman Khan v The State PLD 2005 Peshawar 243; The State v Muhammad Aslam PCRLJ 2002 Lahore 113.
  • SCMR 2006 SC 1791.
  • Muhammad Yousuf v The State PLD 2005 Karachi 449; Saeed Shah v The State MLD 2005 Karachi 389.
  • Muhammad Younis v The State 2002 SCMR 1308.
  • PCrLJ 2005 FSC 1316.

have the means to pay all of it at once. In this way, the Court has ensured that the mandatory compensation to aggrieved parties is paid. Furthermore, in all of the above cases, the underlying principle has been the compulsory adherence to the Section 544(A) of the CrPC, by the trial courts or if they fail to observe it, by a higher court. They also illustrate the discretionary power given to the courts as regards the amount of compensation and the issuance of any additional order that would facilitate the process.

 

Thus, there are significant legal precedents, which establish that Section 544 of the CrPC is a compulsory provision, for courts to follow according to the circumstances of each case. It is a critical point to be noted however that in all of the cases cited above, Section 544 has been applied to compensate either the legal heirs of the deceased or the victims themselves. The illegitimate children born as a result of rape have never been considered to suffer from ‘mental anguish and psychological damage’, and thus have never been specifically compensated by the Pakistani courts before. It is in this background that the LHC judgment should be seen where Justice Anwaarul Haq establishes that such children have a legal right to be compensated for the trauma they suffer.

 

The judgment of the LHC justifies this right to compensation in two ways. Firstly, the judgment looks at precedents set by the Supreme Court of Bangladesh and the Supreme Court of India to conclude that ‘[A] child has an undeniable right of life [that has] to be protected by the biological parents and the State’.[7] This right extends to children born as a result of rape and cannot be repudiated due to the unfortunate circumstances of their birth that they had no sway over. According to the observation made by the Federal Shariat Court in Mst. Nusrat v The State,[8] this right has also been safeguarded by Islam as highlighted in the famous case of Ghamidiyyah, where:

 

The Holy Prophet Muhammad (P.B.U.H)… suspended the [death] sentence on pregnant-woman [for committing Zina], not only till delivery of the child but also postponed it till suckling period i.e., two years, obviously for the welfare of the child. This shows the paramount importance and significance of the right of a suckling child in Islam and the unprecedented care taken of, and the protection given to a child born or expected to be born, by our Holy Prophet Muhammad (P.B.U.H).[9] Secondly, the judgment explicates Sections 544 and 545 of the CrPC to conclude that an appellate court can pass an order in favour of a child given birth as a ‘result of the crime committed by the accused’.[10] This is because an analysis of Section 545 would make it clear that court-ordered compensation is not restricted to the victim or legal heirs of the victim, but can be extended to ‘any person’ who has suffered from ‘mental anguish or psychological damage caused by the offense’.[11] Furthermore, Section 544-A (5) vests in appellate courts the right to modify judgments regarding the compensation payable to all eligible parties.22 Thus, appellate courts can use these provisions to modify the trial court’s judgment and order compensation to be paid to any person i.e. the child born due to rape.

 

Analysis

 

This note will now analyse the above judgment in the context of societal treatment of rape victims and their illegitimate offspring to understand the impact of the decision of the LHC. This would be followed by the analyses of some troubling aspects of the judgment.

 

Firstly, from a societal welfare perspective, getting monetary compensation for illegitimate children helps in financially empowering women who raise them and removing some of the social stigma attached to their birth. The harrowing life they lead is explained a little by the findings of two NGOs, War against Rape, and Aurat Foundation:

 

A substantial percentage of victims and affected families are forced to relocate due to tremendous social pressures and ostracisation. The Government does not provide for alternate [sic] housing and often, families shift deliberately to disappear into anonymity and escape persecution.[12]

 

This small glimpse in the psychological torment that blights the life of a rape victim and any child born as a result is only exacerbated by the fact that rape is not a ground on which Pakistani law allows abortion.[13] While that doesn’t prevent those who seek out the option, granting monetary compensation is only humane for women and children trapped in such situations, especially when the State doesn’t even provide rape victims the option of abortion. Furthermore, society usually vilifies children born due to rape and views their mothers as hating their unborn children and ‘viewing their rape pregnancies as continuing their rape experience.’[14] However, the reality is often different as found in a study by Shauna R. Prewitt:

 

Perhaps surprisingly, the only study to ever analyse the effects of pregnancy upon raped women found that raped women are, above all, victims of rape, not pregnancy. Thus, contrary to the pregnant-rapedwoman prototype, which depicts the pregnant woman as suffering to a greater extent because of the “rapist’s child” growing inside her, “it appears that the pregnant victim’s problems stem more from the trauma of rape rather than from the pregnancy itself.”[15]

 

This doesn’t mean that pregnancy does not have any negative effect on rape victims but rather that just like psychological responses to rape varies in victims from ‘lack of concern’ to ‘major emotional disturbances’, responses to rape induced pregnancies also varies.[16] The simplistic portrayal of rape victims therefore makes matters worse for women who choose to stray from this socially constructed

‘prototype’ of rape victims that depicts them as individuals who hate their rapeconceived children.[17] Female rape victims who therefore raise and actually love their children are viewed as being unnatural and treated with suspicion and hostility.[18] Therefore, this judgment has established a precedent for other courts to follow that can financially and socially help individuals trapped in a situation similar to Humaira Yasmeen and her daughter’s.

 

The second point of significance is that in accordance with Section 544-A (2), if the accused doesn’t pay the court-ordered compensation, he has to suffer a period of no more than six months in imprisonment in addition to his original sentencing.[19] The rigor with which this legal principle has been upheld is demonstrated in Bahadur Ali v The State[20] where the previous sentencing of the accused to two years of rigorous imprisonment ‘in default of payment of compensation [was declared] patently illegal and against the statute’, leading to the accused’s imprisonment period being reduced to six months.[21] This would lead to the question of whether the child would actually get the Rupees one million awarded to her by the LHC in case the appellant decides to stay in jail for another six months rather than pay up. However this worry is eased because of two reasons. Firstly, in Muhammad Tufail v Sessions Judge Attock,[22] it was held that ‘under S.544 CrPC even if the accused undergoes imprisonment in default of payment of compensation, then also the amount of compensation would be recovered as an arrear of land revenue.’[23] Similar viewpoints have been expressed in a number of judgments[24] and such precedents can ensure that the child is paid the Rupees one million. Secondly, this compensation does not deprive the victims from suing the appellant and seeking compensation from Civil Courts.36 Still, some might criticise the judgment for being slightly lacking because it does not specify the kind of civil suit that can be successfully pursued by the complainant, thus shifting the burden on a civil court. However, this criticism is unjustified because specifying civil remedies to the complainant in a criminal case is something best left to the complainants and their lawyers. Despite this, the LHC judgment makes it abundantly clear that a compensation awarded by a criminal court would not prejudice any claims made for a similar compensation in a civil court. All of the above ensures that Humaira’s daughter would receive the compensation awarded to her.

 

Conclusion

 

The judgment in Nadeem Masood v The State is a welcome decision because it acknowledges the psychological scars that are inherited by children born due to rape, and it is this recognition that is crucial in building a foundation to a more accepting society for such children. Therefore, it has opened gates for both victims and their illegitimate children to get compensation. Moreover, it has clarified an interpretation of Sections 544 and 545 of the CrPC that is sometimes ignored by lower courts. This judgment would also encourage pregnant victims of rape, who intend to keep the child, to demand civil redress for the financial burden associated with the maintenance of the child.

 

Though the judgment is no doubt a welcome one, it could be improved by taking into account two points. Firstly, courts should specify the criteria for determining the amount of compensation payable to the illegitimate child to make the process less arbitrary. Such criterion must take into account the financial conditions of the convict and the requirements of the child. Secondly, courts can order the compensation payable by the appellant to be in form of monthly or yearly instalments. This could be done by using the precedent set by Shehzad Ahmed alias Mithu v The State[25] so that in case urgent money is required for the child before s/he attains majority, there is always some available for the guardian to cash out. However protecting the rights of children born due to rape is not an exclusive obligation to be undertaken by only the courts or civil society. This judgment needs to be followed by progressive legislation that facilitates the process of rehabilitating rape victims and their children.

 

No legislative action has yet been taken in Pakistan to specifically protect the rights of children born due to rape. Sections 488-490 of the CrPC allowed an illegitimate child to get a monthly allowance from the biological father under certain circumstances.[26] But these sections were repealed in 1981[27] and in any case the maximum allowance awarded to the child per month was Rs. 400 which is too insignificant to make a material difference. While these sections were repealed during the period of Islamisation of laws because under Islamic law illegitimate children have no right of maintenance and inheritance from their fathers, no alternative legislation was introduced to protect the interests of illegitimate children. This is ironical because Islam stresses on the duty of lawmakers to protect the rights of children to ‘name, identity, property and inheritance, sponsorship in a family, healthcare and education’ as well as to protect them ‘from physical and moral humiliation’.[28] The Qur’an in this regard lays down the principle, ‘Nor can a bearer of burdens bear another burdens,’[29] stating that an illegitimate child in Islam bears no stigma for the sin of one or both parents. Therefore, there is a need for both the judiciary and the legislature to protect the rights and interests of children who are born as a result of rape.

 

 

 

[1] Section 376 (1) reads: ‘Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten years or more, than twenty-five years and shall also be liable to fine.’

[2] According to Section 496 (B) of the PPC, if a man and a woman who are not married to each other willfully have sexual intercourse with one another, it qualifies as fornication. The maximum punishment for the offense of fornication is imprisonment of five years and fine of ten thousand rupees.

[3] (n 1) para [11].

[4] Ibid.

[5] According to Section 375 (v) of the PPC, a man is said to commit rape when he has sexual intercourse with a woman when she is less than sixteen years of age. This qualifies as rape irrespective of whether the woman gave her consent to sexual intercourse.

[6] Section 544-A reads: ‘Compensation of the heirs to the person killed, etc. (1) Whenever a person is convicted of an offence in the commission whereof the death of, or hurt, injury, or mental anguish or psychological damage, to, any person is caused or damage to or loss or destruction of any property is caused the Court shall, when convicting such person, unless for reasons to be recorded in writing it otherwise directs, order, the person convicted to pay to the heirs of the person whose death has been caused, or to the person hurt or injured, or to the person to whom mental anguish or psychological damage has been caused, or to the owner of the property damaged, lost

[7] (n 1) para [14].

[8] PLJ 1997 FSC 61.

[9] (n 1), para [14].

[10] Ibid, para [15].

[11] Ibid, para [16]. 22 Ibid.

[12] Sarah Zaman and Maliha Zia, ‘Women’s access to Justice in Pakistan’ 54th CEDAW Session <http://www.ohchr.org/Documents/HRBodies/CEDAW/AccesstoJustice/AuratFoundationAndW arAgainstRapePakistan.pdf> accessed 13 August 2015.

[13] Sections 338 and 338B of the PPC make it punishable by law if anyone causes a pregnant woman to miscarry. The law further states that abortion is only acceptable if caused in good faith for the purpose of saving the life of the woman, or providing necessary treatment to her. Sections 338A and 338C provide punishments for people who commit this offense and these punishments extend to a woman who gets an abortion. Xari Jalil, ‘Choosing to remain silent on abortion’ DAWN (28 February 2014) <http://www.dawn.com/news/1090050> accessed 17 August 2015.

[14] Shauna R. Prewitt, ‘Giving Birth to a ‘Rapist’s Child’: A Discussion and Analysis of the Limited Legal Protections Afforded to Women Who Become Mothers Through Rape’ (2010) 98 The Georgetown Law Journal 827.

[15] Ibid, 848-49.

[16] Sedelle Katz and Mary Ann Mazur, Understanding the Rape Victim: A Synthesis of Research Findings (New York, Wiley 1979) 216.

[17] (n 26).

[18] Ibid.

[19] Section 544(A) (2) reads: The compensation payable under sub-section (1) shall be recoverable as [an arrears of land revenue] and the Court may further order that, in default of payment [or of recovery as aforesaid] the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding six months, or if it be a Court of the Magistrate of the third class, for a period not exceeding thirty days.

[20] SCMR 2002 SC 93.

[21] Ibid, para [8].

[22] PLD 2004 SC 89.

[23] Ibid, para [1].

[24] Muhammad Nawaz v The State PCrLJ 1984 1696; Farid Bakhsh v Saeed Ahmad SCMR 1992 SC 549; Umar Hayat v The State PCrLJ 1990 125; Mst. Sarwar Jan v Ayub SCMR 1995 SC 1679. 36 (n 1) para [16].

[25] (n 16).

[26] Section 488 reads: Order for maintenance of wives and children. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable maintain itself, […] a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding four hundred rupees in the whole, as such Magistrate thinks fit and to pay the same to such person as the Magistrate from time to time directs.

[27] They were omitted under Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981.

[28] ‘Children in Islam Their Care, Development and Protection’ (Al-Azhar University International Islamic Center for Population Studies and Research, UNICEF 2005).

[29] Al-Qur’ān, Sura al-Fatir: 17.

A Woman’s Right to Unilateral Divorce under Islamic Law

A Woman’s Right to Unilateral Divorce under Islamic Law

 

Saleem Ahmed v Government of Pakistan

PLD 2014 FSC 43

 

Salman Ijaz*

 

Introduction

 

Saleem Ahmed v Government of Pakistan is a landmark case decided by the Federal Shariat Court (‘FSC’) that settled the controversy surrounding the requirement of a husband’s consent for the dissolution of marriage initiated by a wife (khula).1 In this case, the Court made a departure from the strict principles of Hanafi jurisprudence, and extended to wives the right of khula without the consent of their husbands by making a direct recourse to the Qur’an and Sunnah.2 The discussion in this note begins by briefly introducing the facts of the case, which is followed by the ratio of the decision. The note then moves on to discuss prior law in order to highlight the importance of this decision as a judicial precedent, followed by a brief analysis of the judgment. Finally, the discussion is summed up by contextualizing the judgment within the broader legal framework of social justice within the context of marital rights under Islamic law.

 

Facts and Ruling

 

The petitioners filed applications under Art. 203-D of the Constitution of Islamic Republic of Pakistan 1973, challenging a recent amendment to Section 10(4)3 of the Family Courts Act 1964 on the ground that it is repugnant to the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah of the Holy Prophet (SAW).4 They

                                                        

* B.A. LL.B (Hons) Candidate Lahore University of Management Sciences (LUMS).

  • See Saleem Ahmed v Government of Pakistan PLD 2014 FSC 43; ‘The word khula literally means ‘to put off’…. It signifies as [a] conditional situation on the part of wife, entered into for the purpose of dissolving the marital tie at her instance, in lieu of a compensation paid or agreed to be paid by her to the husband out of her property.’
  • Islamic Law in Pakistan largely adheres to the dictates of Hanafi jurisprudence. See generally Rubya Mehdi, The Islamization of Law in Pakistan (Routledge 2013); Martin Lau, The Role of Islam in the Legal System of Pakistan (Brill 2006).
  • After the 2002 amendment, section 10(4) provides for a summary procedure in khula cases and states that in circumstances where reconciliation fails, the court is obliged to pass a decree for dissolution of marriage and restore to the husband the Haq Mehr [dower] received by the wife in consideration of marriage at the time of marriage.
  • (n 1) 45.

contended that the amended form of the provision allowed women to obtain a divorce without the recording of evidence, which meant that women no longer needed to prove hardship in their marriage through the fault of the husband, as was previously required under the Dissolution of Muslim Marriages Act 1939.[1] This amounted to granting women a unilateral right of divorce; a very serious aberration from traditional Islamic law of divorce.

 

In this light, the FSC was confronted with a number of pertinent questions. The first and foremost concern was the admissibility of the petition, since the court was not empowered to examine questions related to Muslim Personal Law. To this, the FSC answered that since the matter of khula concerned enacted law and not the uncodified fiqh, the decision in Dr. Mehmood ur Rehman Faisal[2] granted it jurisdiction to examine the matter.

 

With that matter settled, the FSC turned to the question of the relative relevance and weight to be accorded to the fatawa of juris-consults and fuqahā’ while applying the repugnancy test. In response to the FSC’s questionnaires, an overwhelming majority of juris-consults had returned the opinion that khula could only be granted with the consent of the husband. Without it, the Qazi lacked the authority to order dissolution of marriage by way of khula.7 On this point, the FSC observed that the benchmark for repugnancy as laid down in the Constitution is limited to Islamic injunctions as laid down in the Qur’an and Sunnah, and that in the absence of a clear and specific nass (text) of the Holy Qur’an and Sunnah of the Holy Prophet (SAW) prohibiting or enjoining commission or omission of any particular act, it could not declare a law or provision of law repugnant to the Injunctions of Islam.[3]

 

On this foundation, the FSC went on to explore various verses of the Qur’an, including the verse 2:229 and found that 1) there is no express prohibition on allowing a woman to get divorce without the consent of her husband, and 2) marriage in Islam is significantly dependent on the possibility of reconciliation, thus if the wife expresses her unwillingness to continue the union, then the purpose of the marriage is defeated. The FSC held that the rights and responsibilities of husband and wife are similar and that there is no room for discrimination. Thus, as men could arbitrarily divorce to dissolve the marital tie, women could also ask for their release from the same bond through khula, if the parties felt that they could not live together while remaining within the limits prescribed by Allah.[4]

 

Background and Prior Law

 

The Pakistani judiciary favoured a more liberal construction of khula than the traditional Hanafi jurists of the subcontinent would have permitted. While the prepartition decision in Mst. Umer Bibi[5] declaring that khula cannot be obtained without the consent of the husband was initially reaffirmed in Mst. Sayeeda Khanam[6] in 1952, by 1959, there was a notable departure from such a reading of divorce rights under Islamic law. In Mst. Balqis Fatima,[7] the Lahore High Court interpreted verse 2:229 of the Qur’an to rule that a wife could be granted khula without the husband’s consent, and that the state (represented by the judges) was vested with the authority to determine the annulment of the marriage.[8] It held that if the court was of the opinion that the spouses would not be able to remain ‘within the limits prescribed by Allah’, it has the authority to unilaterally grant khula to the wife without the consent of the husband.

 

The decisive moment, however, came eight years later, when the Supreme

Court held in Khurshid Bibi[9] that the Qur’an and Sunnah supported equal rights between the spouses concerning divorce rights in Islam. Justice S.A. Rehman drew support from the Qur’an and various ahadith to declare that khula would be valid even in cases where the wife has an incurable aversion to her husband, and in such cases the court was empowered to grant her khula without the husband’s consent. In doing so, the court distinguished the exercise of khula from faskh,[10] thereby no longer requiring the wife to prove that her husband was at fault. The test for courts was relaxed to only require a woman to show that a continuation of the marriage would lead to either party being unable to remain within the ‘limits prescribed by

Allah.’[11]

 

As expected, the conservative ulama in Pakistan did not welcome the Supreme Court decision in the Khurshid Bibi case. A leading Deobandi scholar, Mufti Taqi Usmani, wrote a thorough rebuttal of the judgment in his book Islam Mein Khula Ki Haqeeqat (The Reality of Khula in Islam) in which he gave a detailed alternative account of the practice of khula and the position of the various traditional schools of fiqh on some of its rules and requirements. He argued that khula is viewed as an agreement between the parties, and so necessarily requires the consent of the husband to release the wife from wedlock, where he gives this consent in return for some form of compensation. Khula, according to him, is a transaction between willing parties, who cannot be forced to execute its conditions except where they do so of their own accord, free from any type of duress or coercion.[12]

 

While the superior judiciary neglected most of Taqi Usmani’s contentions, they readily adopted and deployed his argument concerning the moral obligation of man who is at fault in the dissolution of the marriage to not accept compensation for khula. In Syed Dilshad Ahmed,[13] the court held that the acceptance of compensation for khula by a husband who is at fault in the fulfilment of his obligations to his wife is forbidden in Shari‘a. This ruling was subsequently reaffirmed in Muhammad

Rafi[14] and Abdul Rashid.[15] In Karim Ullah,[16] the Peshawar High Court held that if khula is granted due to the husband’s cruelty, then he is not entitled to receive any compensation.

 

Similarly, the judiciary readily expanded on Khurshid Bibi to ease the exercise of the right of khula. In Mst. Shakila Bibi,[17] the court held that the wife is not required to give any reasons, nor disclose the circumstances, justifying her aversion for her husband.[18] It was observed that the court may upon its discretion spare the wife the compensation she has to pay to the husband, and that monetary payment is limited to returning the mehr (dower) the wife personally received upon her marriage.[19] Where a certain benefit to be received by the husband has already been considered as returnable property, the husband has to prove with ‘unimpeachable evidence’ that he is entitled to that property in the specific circumstances of his case. The enhanced standard of proof has subsequently often resulted in the husband’s total failure to prove returnable property, thereby allowing the wife a divorce without having to pay any compensation.[20] In Mst. Nabila Safdar,[21] the court held that the wife’s failure to pay the required compensation did not amount to the invalidation of the khula decree, but rather incurred a civil liability upon her. This ruling was upheld in Bibi Feroza.[22] In Mst. Nazir[23] and Abdul Ghafar,29 it was held that even where no fault can be proved on part of the husband, the wife could still invoke khula by meeting only the most minimal burden of proof. Recently, in Abdul Rashid,[24] it was held that it is possible for the court to accept the time a wife has spent with her husband, as well as the services she has rendered, as consideration for khula. The court also reiterated that the amount of compensation could not be fixed at a figure higher than the dower amount and that the court may even grant khula without any compensation.

 

Analysis

 

There are certain aspects of the Saleem Ahmed case that warrant attention, particularly because the judgment implicitly reaffirms and builds upon many principles and judicial decisions of the superior courts in Pakistan concerning Islamic law and Islamic jurisprudence.

 

Firstly, the Court did not rely upon the conclusions of the various jurisconsults who provided their expert opinions on Islamic law concerning khula. Instead, the Court preferred to engage with their reasoning and dismissed their opinions on merits. The decision to not give preference to the views of fuqahā’ tacitly fell in line with the decision in Khursheed Jan,[25] in which the Lahore High Court held that ‘courts can differ from views of Imams and Muslim juris consults on grounds of public policy, justice, equity and good conscience.’[26] In that case, the Court held that the Holy Qur’an and Sunnah were not esoteric texts that required specialised knowledge to understand, and that it was the task of judges to use ijtihad[27] and istihsan[28] as means to adapt Islamic law to address modern social problems in light of contemporary needs, especially in circumstances where there was disagreement amongst various fuqahā’.[29] Therefore, the FSC was not bound to abide by the advice tendered to it by the juris-consults, and this necessarily implies that religious scholars now, at best, occupy the position of amicus curiae in repugnancy matters before the FSC.

 

Secondly, while the FSC made no direct observation regarding its preference of methodology, it evidently opted for a loosely construed, purposive Maqasid alSharia36 based approach, rather than resorting to a more textualist, taqlid-based[30] approach. The Court engaged in a detailed discussion of the purpose of marriage and the various rights and obligations that a husband and wife owed each other under Islam and concluded that the purpose of marriage would be defeated if a woman was forced to remain in a marriage against her will. This suggests that the judges of the FSC favoured a rationalist reading of Islamic law rather than a traditionalist/taqlidi one. They operated under the presumption that Islamic law provides absolute gender equality and that marriage is a contract between two equal parties, rather than a sacred covenant. In this respect, the judges sought guidance from the writings of modernist jurists, and showed deference to classical jurists in spirit, but not in letter.

 

Thirdly, it is worth noting that if the challenge against section 10(4) of the Muslim Family Courts Act 1964 had been successful in this case, it would have had the effect of overruling Khurshid Bibi and Balqis Fatima. It is a distinct possibility that this is what the petitioners desired. Earlier, the FSC had demonstrated a willingness to strike down certain provisions of the Muslim Family Law Ordinance 1961 in the Allah Rakha case,[31] and it is possible that the petitioners had been encouraged by that ruling to levy a challenge against the law on khula.

 

Conclusion

 

The ruling in Saleem Ahmed surprised many people, given that the FSC has tended to adopt more traditional postures in the past, but it is evident that the decision fits in perfectly with contemporary legal and scholarly currents surrounding Islamic law in Pakistan. The use of khula as a vehicle for creating a woman’s unilateral right to divorce gained significant attraction in Pakistani law following the Khurshid Bibi decision. Even the provincial legislatures have followed the judiciary’s lead in the matter. In 2015, the Punjab Assembly made an amendment to section 10 of the Family Courts Act 1964, adding a subsection that set the ceiling for compensation paid to the husband in case of khula at fifty percent of the deferred dower or twentyfive percent of the prompt dower, further reducing the financial burden of obtaining khula. Further, it is a little known fact that in 2008, the Council of Islamic Ideology issued recommendations to the Government suggesting that once the wife has given a written request asking for divorce, the husband has to divorce her within ninety days, and absent a revocation from the wife, if the husband refuses to divorce her, the marriage will be automatically dissolved within ninety days.[32] This stands in sharp contrast to the oft-repeated criticism that Islamic law remains rigid and insensitive to changing social circumstances and needs. In this respect, the Saleem Ahmed ruling is reason for great optimism, not only from the perspective of women’s rights, but also for the movement to reinvigorate ijtihad in Islamic jurisprudence.

 

 

[1] The Dissolution of Marriage Act, 1939 provides the ten grounds for the dissolution of marriage:

(i) Disappearance of the husband for four years; (ii) Husband’s failure to provide maintenance for two years; (iii) Husband’s taking of an additional wife without the consent of the wife as required under the MFLO 1961; (iv) Husband’s imprisonment for seven or more years; (v) Husband’s failure to perform his marital obligations for three years; (vi) Impotency of the husband at the time of marriage and its continuity; (vii) Insanity of husband for two years or suffering from leprosy or a virulent venereal disease; (viii) Repudiation of marriage by a minor upon attaining the age of puberty; (ix) Cruel treatment of the wife by the husband (includes mental cruelty, association with women of ill repute or leading an infamous life, forcing a wife to live an immoral life, interference with wife’s property, obstruction in her observation of religious profession or practice, and failure to treat wives equitably); and (x) any other ground recognized as valid under Muslim law.

[2] Dr Mehmood ur Rehman Faisal v Government of Pakistan PLD 1994 SC 607; The Shariat Appellate Bench of the Supreme Court held that ‘a law which a particular sect of the Muslims, considers as its personal law based on its own interpretation of Holy Qur’ān and Sunnah is excluded from being scrutinised by the Federal Shariat Court under Article 203-D of the Constitution, as it would fall within the meaning of ‘Muslim Personal Law’. All other codified or statute laws which apply to the general body of Muslims will not be immune from scrutiny by the Federal Shariat Court in exercise of its power under Article 203-D of the Constitution…’ 7 (n 1) para [4].

[3] Ibid, para [7].

[4] (n 1) para [20].

[5] Mst. Umer Bibi v Muhammad Deen AIR 1945 Lahore 51.

[6] Mst. Sayeeda Khanam v Muhammad Sami PLD 1952 Lahore 113.

[7] Mst. Balqis Fatima v Najm-ul-Ikram Qureshi PLD 1959 Lahore 566.

[8] Ibid.

[9] Khurshid Bibi v Muhammad Amin PLD 1967 SC 97.

[10] The grant of Faskh requires the wife to declare and prove a fault by the husband in order to plead for divorce. Faskh, as illustrated in the Dissolution of Muslim Marriages Act, 1939, contains a limited number of faults of the husband which would validly constitute a divorce and do not view incompatibility or hatred as grounds for divorce.

[11] (n 13), para 12, 13. See for details Karin Carmit Yefet, ‘The Constitution and Female-Initiated Divorce in Pakistan: Western Liberalism in Islamic Garb’ (2011) 34 Harvard Journal of Law & Gender 553, 588.

[12] See for details, Mufti Taqi Usmani, Islam Mein Khula Ki Haqeeqat (The Reality of Khula in Islam) (Memon Islamic Publishers Karachi).

[13] Syed Dilshad Ahmed v Mst. Serwat PLD 1990 Karachi 239.

[14] Muhammad Rafi v Atta Ullah Kausar 1993 CLC 1364.

[15] Abdul Rashid v Shahida Parveen 2013 YLR 2616.

[16] Karim Ullah v Shabana PLD 2003 Peshawar 146.

[17] Mst. Shakila Bibi v Muhammad Farooq 1994 CLC 231.

[18] Ibid, 588.

[19] Ibid, 589-590.

[20] See Bashir Ahmad v Family Court 1993 CLC 1126.

[21] Mst. Nabila Safdar v Muneer Anwar PLD 2000 SC 560.

[22] Bibi Feroza v Abdul Hadi 2014 CLC 60.

[23] Mst. Nazir v Additional District Judge, Rahim Yar Khan 1995 CLC 296. 29 Abdul Ghafar v Parveen Akhtar 1999 YLR 2521.

[24] Abdul Rashid v Shahida Parveen 2013 YLR 2616

[25] Khursheed Jan v Fazal Dad PLD 1964 Lahore 558.

[26] Ibid, para [5].

[27] Ibid; refers to independent reasoning through personal effort, unfettered by the jurisprudential schools/madhabs; See generally Al-Shāfi‘ī, Al-Risāla fī uṣūl al-Fiqh (2nd edn Majid Khadduri tr, The Islamic Texts Society 1961) 295-303.

[28] Ibid; the equivalent of equity in Islamic jurisprudence. See Khursheed Jan (n 31).

[29] Ibid. 36 See generally Felicitas Opwis ‘Maslaha in Contemporary Islamic Legal Theory’ (2005) 12.2 Islamic Law and Society 182; Maqasid al-Sharia is an Islamic jurisprudential interpretive approach that is comparable to Purposive interpretation of statutes within the Common Law tradition.

[30] See generally Muhammad Fadel ‘The Social Logic of Taqlid and the Rise of the Mukhtasar’ (1996) 3.2 Islamic Law and Society 193; Taqlid refers to the strict adherence to the opinions of past/ancient jurists who rank higher in the hierarchy of mujtahids within a particular madhab (school).

[31] Allah Rakha v Federation of Pakistan PLD 2000 FSC 1.

[32] Council of Islamic Ideology’s meeting 171, Annual Report, 2008-9 (Islamabad: Council of Islamic Ideology, 2009) 170.

Does Muslim Law Allow Husbands to Deny Paternity to Their Children?

Does Muslim Law Allow Husbands to Deny Paternity to Their Children?

 

Ghazala Tehsin Zohra v Mehr Ghulam Dastagir Khan

PLD 2015 SC 327

 

Hiba Fatima Hassan*

 

Introduction

 

In a country where matrimonial authority determines paternity, Ghazala Tehsin Zohra v Mehr Ghulam Dastagir Khan1 surfaced as a noteworthy case that interwove legitimacy, paternity, Islam, and law. The legal dispute traces the involvement of Muslim Personal Law, the Qanun-e-Shahadat Order and the influence of Islam on legislative intent. The issue at hand was whether the respondent, Mr. Ghulam Dastagir Khan, could shirk the responsibility of providing maintenance to his children born from his first marriage by simply denying that he was their father – an action that the Qanun-e-Shahadat seemingly allowed.  It was clear to the court that the confusion regarding Article 128 of the Qanun-e-Shahadat Order 1984 (‘QSO’)2  must be explained in light of Section 2of the West Pakistan Muslim Personal Law

(Shariat) Act 19623. The decision of the court amplifies the concern surrounding ‘societal cohesion and the values of the community’,4 while attempting to avoid the infliction of unjust harm on mothers and their children. This case urges the discussion and analysis of its judgment. Hence, this case note initially outlines the facts of the case, and sheds light on the ruling of the Supreme Court. It proceeds by examining the involvement and effect of relevant legislation, which is analysed with a socio-legal perspective. In conclusion, this case note distils the essence of the judgement and provides a recommendation to avoid differences of opinion amongst courts with respect to laws regarding paternity.

                                                   

* B.A. LL.B (Hons) Candidate Lahore University of Management Sciences (LUMS). 1 C.A No.90/2011 (SC) in W.P. No.4729 of 2010 (LHC); PLD 215 SC 327.

  • Article 128 of the Qanun-e-Shahadat Order 1984 provides: ‘Birth during marriage conclusive proof of legitimacy.—(1) The fact that any person was born during the continuance of a valid marriage between his mother and any man and not earlier than the expiration of six lunar months from the date of marriage, or within two years after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless:- (a) the husband had refused, or refuses, to own the child;’
  • Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Act V of 1962) provides ‘notwithstanding any custom or usage, in all questions regarding … legitimacy or bastardy … the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims’.
  • Ghazala Tehsin Zohra v Mehr Ghulam Dastagir Khan PLD 2015 SC 327, para [10].

 

Facts and Holding

 

In 1997, the appellant, Ms. Ghazala Tehsin Zohra, married the respondent, Mehr Ghulam Dastagir Khan and subsequently the couple had two children. The elder child, Hania Fatima, was born in 2000, and the younger, Hasan Mujtaba, in 2001. Khan then took a second wife, which prompted Zohra to file a suit for maintenance for herself and for their two children.[1] In response to the notice of the suit brought against him, Khan divorced his first wife and refused to provide for the children, alleging that they were not his biological offspring and sought a declaration to this effect. On 27 October 2007, just before the paternity trial was about to conclude, the husband sought permission from the local court to introduce DNA evidence. When the court turned down the request, he took the matter to the Lahore High Court (LHC) which granted his request on 9th February 2010. In light of Khan’s allegation that Hania Fatima and Hassan Mujtaba were not his biological children, and that the Qanun-e-Shahadat did seemingly permit him to disown his children, the LHC allowed Khan to bring forth DNA evidence to strengthen his claim. Against this decision, Zohra moved the Supreme Court (SC), which accepted her appeal on 2nd February 2015.[2]

 

The SC granted Ghazala Tehsin Zohra her appeal with costs, setting aside both the allegedly impugned judgment of the LHC and the suit brought forth by Khan. Hania Fatima and Hasan Mujtaba were permitted to obtain, from the respondent, any remedy available to them under the law.[3] In the formulation of this judgment, the court bore in mind the sequence of events, the interpretation and reconciliation of the statutory provisions at hand, lack of assistance provided at the Bar with respect to the aforementioned statutes, and legislative intent of Islamic lawmakers.

 

Background and Prior Law

 

The SC held that the judgment of the LHC was flawed for a number of reasons. A few aspects of this case have far-reaching consequences and hence must be probed into, ‘so that the law can be clearly enunciated in the light of Article 189 of the Constitution’,[4] which makes the decision of the SC binding on all other courts of

Pakistan.9 These aspects include the wording and interpretation of Article 128 of the QSO, presumption of paternity based on the sequence of marriage, birth and divorce, and the influence of classical Islamic law on legislation.

 

Although children born during marriage are presumed to be legitimate according to Muslim Personal Law, Justice Jawwad Khawaja understood that the provisions of the QSO had created confusion in this regard. Article 128 of the QSO states that the presumption of paternity does not exist where ‘the husband had refused, or refuses, to own the child’. The SC clarified the impugned judgment of the LHC by evaluating the aforementioned provision in light of principles of Muslim Personal Law (Shariat) as mandated by the Act V of 1962. This Act states that in cases involving issues of ‘legitimacy and bastardy’, if the parties involved were Muslims, the Court shall apply rules of Muslim Personal Law derived from Sharia.

 

Although the QSO lays down the blueprint for presumption of legitimacy, it is the Muslim Personal Law that provides details that are essential for understanding the former accurately. While the QSO conveys that a father may deny his child his paternity, Muslim Personal Law narrows the scope of focus by specifying that a father, if he wishes, must deny paternity within a stipulated time period of 40 days immediately after the birth of the child. The respondent, Khan, denied paternity of both his children long after the stipulated period of 40 days. Hence, Khan could not legally disown his children from his first marriage. The respondent’s paternity was determined in the absence of DNA evidence,10 because the chronological order of the dates of marriage, births of the two children and the divorce support the fact that the respondent had conjugal access to the appellant during marriage, hence upholding the presumption of legitimacy of Hania Fatima and Hasan Mujtaba.

 

The intention of laws regulating the presumption of paternity, the judgment says, is to prohibit individuals, particularly unscrupulous fathers, from making bald assertions that stigmatise children and their mothers.[5]

 

Analysis

 

An action challenging the paternity of a child is a difficult question for courts to answer.[6] Questions surrounding the legitimacy of a child have emotionally as well as legally and socially detrimental impacts on the child and his/her parents, whether purported or biological.[7] What fundamental imperatives drive Islamic law regarding legitimacy and paternity? Under Islamic law, a child’s legitimacy may be established through his/her birth during a marriage, through acknowledgement by the father, or by evidence.[8]

 

Notably, the grounds for ascertaining legitimacy through the principles of ‘the conjugal bed’ are quite lenient: a child born after six months of the consummation of marriage or two years after its dissolution is presumed to be legitimate. Muslim jurists were well aware of the normal period of gestation (nine months), then why did they allow a maximum period of two years, that too when the mother is no longer married to the father? Pakistani courts apply the principle of the conjugal bed even when conditions of its applicability are not fulfilled. In Hamida Begum v Murad Begum,[9] the SC applied this principle to a child born within six months of the marriage and held the child to be legitimate. Through such clemency, the law attempts to preserve societal values and order by shielding the child and mother from possible censure. However, effects of the presumption of legitimacy on the husband of the mother must also be elucidated.

 

A man may deny paternity by proving lack of conjugal access to his spouse, or in case of adultery, successfully alleging that his spouse indeed conceived a child with another man. However, there is a time limit for such an accusation: the husband of the mother must deny paternity within 40 days of the birth of the child. Failure to do so upholds the presumption of legitimacy, and the man must provide for the child.

 

Establishment of paternity by evidence is stronger than establishment of paternity by acknowledgment.[10] DNA tests have made it easier to prove or disprove paternity. However, Muslim scholars are wary of resorting to scientific methods for testing legitimacy. It is preferable to prioritise the Sharia and principles of the conjugal bed and treat scientific proof as circumstantial evidence. In Pakistan especially, there is wariness attached to using DNA testing as conclusive proof, because it may be prone to error due to lack of technical facilities. Such an ‘error’ could possibly stigmatise a child forever.[11]

 

Muslim jurists, when laying down the principles of paternity, were not indifferent to the laws of nature; rather, they were motivated by a desire to prevent the misuse of laws regarding divorce and disavowal of children. A child does not control the circumstances he/she is born into, and hence must not be subject to undue and unwelcome societal glare due to alleged illegitimacy. As a result, the acknowledgement of paternity and the fatherly behaviour of a man towards his children often supersedes DNA evidence in a courtroom.

 

Conclusion

 

The case at hand illuminates not only how protective Islam is of mothers and children, but also how wary the religion is of the stigma associated with illegitimacy, bastardy, and the societal upheaval it is capable of causing. The discrepancy between the decisions of the LHC and the SC hints at a lack of comprehensive legislation regarding issues of paternity in Pakistan. This ultimately results in contradictory decisions regarding these issues, which impede the quick dispensation of justice. There exists a need to formulate a detailed legislative plan that encompasses all points of the Islamic Law regarding paternity, so that courts may find their jobs a little easier.

 

[1] Ibid, para [1].

[2] ‘Muslim law does not vest husbands with right to deny paternity of child, SC rules’ Dawn (20 March 2015). <http://epaper.dawn.com/DetailImage.php?StoryImage=20_03_2015_005_002> accessed on 13 June 2015.

[3] (n 4) para [16].

[4] Article 189 of the Constitution provides: ‘Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.’ 9 (n 4) para [5]. 10 If a child’s birth is not proven through the concept of the ‘conjugal bed’ (i.e. it cannot be proven whether the alleged father had conjugal access to the child’s mother or not), Courts resort to DNA evidence. Mudasra Sabreen, ‘Parentage: A Comparative Study of Islamic and Pakistani Law’ (2013) 1(2) Frontiers of Legal Research 30.

[5] (n 4) para [13].

[6] See Heather Faust, ‘Challenging the Paternity of Children Born During Wedlock: An Analysis of Pennsylvania Law Regarding the Effects of the Doctrines of Presumption of Legitimacy and Paternity by Estoppel on the Admissibility of Blood Tests to Determine Paternity’ (1996) 100 Dickison Law Review, 963.

[7] Jacqulyn A. West, ‘Maintaining the Legal Fiction: Application of Presumption of Paternity and Paternity by Estoppel in Pennsylvania’ (2004) 42 Duquesne Law Review, 577.

[8] This includes DNA evidence. Mudasra Sabreen, ‘Parentage: A Comparative Study of Islamic and Pakistani Law’ (2013) 1(2) Frontiers of Legal Research 21, 36.

[9] PLD 1975 SC 624.

[10] Ibid.

[11] Ibid.

The Jurisprudence of the Codified Islamic Law: Determining the Nature of the Legal System in Pakistan

The Jurisprudence of the Codified Islamic Law: Determining the Nature of the Legal System in Pakistan

 

Zahid Rehman v The State

PLD 2015 SC 77

 

Kamran Adil*

 

The Supreme Court judgment in Zahid Rehman v the State1 has raised the ‘persistent question’2 about the nature of the legal system in Pakistan, that is, is it based on common law, Islamic law, or a hybrid of both systems? This question, however, still remains unanswered. Though the judges tried to weigh various reasons and took different lines of reasoning, the core of the question dissipated in the struggle to find an answer – perhaps due to the contentious nature of the question.

 

Let the facts of this case be conceptually seen before entering into the analysis of the judgment. The case of sentencing of one Zahid Rehman (who was convicted of Qatl-e-Amad punishable as Ta‘zir) came up before the Supreme Court in 2012. The Court passed a short order and noted that two of its earlier judgments on the issue were in conflict. In Naseer Ahmed v the State,3 the court held that a convict of Qatl-e-Amad punishable as Ta‘zir could be punished under the statutorily provided exceptional clauses4 of Qatl-e-Amad punishable as Qisas. While in Faqir Ullah v Khalil-uz-Zaman,5 a contrary view was taken. Following the ratio of Naseer Ahmed

                                                        

* BCL Oxford University, B.A LL.B (Hons) International Islamic University, Islamabad. He is an officer of the Police Service of Pakistan and is presently serving as Assistant Inspector General Police, Legal in the Punjab Police. 1 PLD 2015 SC 77.

  • L.A Hart in his The Concept of Law styled the first chapter as ‘Persistent Questions’. See H.L.A Hart, The Concept of Law (3rd ed., Oxford University Press 2012, first published 1961) 1-
  • PLD 2000 SC 813. See also the allied judgments in cases of Dil Bagh Hussain v the State 2001

SCMR 232; Muhammad Abdullah Khan v the State 2001 SCMR 1775; Amanat Ali v Nazim Ali 2003 SCMR 608; Muhammad Ilyas v the State 2008 SCMR 396; and Khalid Mehmood v the State 2011 SCMR 1110.

  • Sections 306 and 307 of the Pakistan Penal Code constitute the statutory exception to the liability and enforceability of a Qatl-e-Amad liable to Qisas, and the consequent punishment is provided in Section 308 of the Pakistan Penal Code.
  • 1999 SCMR 2203 and allied judgments in cases of Muhammad Afzal alias Seema v the State 1999 SCMR 2652; Umar Hayat v Jahangir 2002 SCMR 629; Muhammad Akram v the State 2003

SCMR 855; Ghulam Murtaza v the State 2004 SCMR 4; Nasir Mehmood v the State 2006 SCMR 204; Abdul Jabbar v the State 2007 SCMR 1496; Iftikhar ul Hassan v Israr Bashir PLD 2007 SC 111; and Tauqeer Ahmed Khan v Zaheer Ahmed 2009 SCMR 420.

meant punishing under the Qisas regime (which under the Islamic criminal jurisprudence is a divinely determined regime and is not open to legislation by state); conversely, the ratio of Faqir-Ullah meant punishing under non-Qisas regime, and by implication, punishing under the state’s legislative sentencing policy. On a wider jurisprudential plane, the ratio of the two judgments touched upon the very soul of the Islamic law where one of the chief considerations is to preserve the divine law in its most pristine form.

 

The Court observed that in view of the diverging opinions in these judgments, a larger Bench of judges was required to examine the issue and pass an authoritative judgment. Accordingly, a larger Bench, comprising five judges, was constituted. The Bench heard the case in 2014, and passed a detailed judgment with a split decision of three to two in Zahid Rehman v the State.[1][2] Justice Asif Saeed Khosa authored the main opinion. Dost Muhammad Khan and Qazi Faez Isa JJ concurred and added their separate notes. Ejaz Afzal Khan and Ijaz Ahmed Chaudhry JJ disagreed and Ejaz Afzal Khan J authored the dissenting opinion. The judgment upheld the view in the case of Faqir Ullah v Khalil-uz-Zaman.7

 

With this factual background, it is now appropriate to examine the reasoning in the judgment. A common point in all the opinions rendered in this case is that the judges interpreted the statutory codified Islamic criminal law without referring to any established rule of interpretation, either from English law or Islamic law.[3] This is a bit surprising as the whole issue in this judgment revolved round the interpretation of various conflicting sections of the Pakistan Penal Code (‘PPC’). Therefore, for the sake of certainty, it would have been better had the judges explicitly referred to some rule of interpretation. This would have also added to the precedent value of the case, thereby establishing its significance for future reference. The need for following a particular rule of interpretation cannot be overemphasised. S. M. Zafar, Senior Advocate Supreme Court, very elaborately captured the essence of following the rules of interpretation by a judge in our system. He noted:

 

… I found judges oscillating between activism and self-restraint. The area between these two is filled by various rules of interpretation… Thus the judge’s discretion operates freely to the extent of his choice of principles or to the extent of the priority that he may assign to one or the other of such principles. It is a free choice but within a determined number of choices.[4]

 

This shows that judges are not entirely free when arriving at a decision. Though they may appear to be free, they are bound to follow certain formal and informal rules. They operate within a limited paradigm of choices, sometimes due to societal restraints, and at others due to established customary practices. The opinions of the judges reproduced the statutory provisions applicable to the case, but the interpretation of these provisions has not been disciplined under a particular scheme of interpretation. This has left little space for a systematic principle based interpretation to emerge that would have added precedent value to the judgment.

 

Secondly, the role of the Supreme Court in adjudicating Islamic law has not been fully examined. Three views emerge out of the judgment on this point. The first view was expressed by Justice Khosa who towards the end of his opinion, referred to Article 203-G of the Constitution of Pakistan,[5] read with Section 338-F of the PPC,[6] which provides a bar upon the jurisdiction of the Supreme Court and High Courts in matters related to Islamic law. He observed:

 

… [I]t must never be lost sight of that by virtue of the provisions of Article 203 G of the Constitution of the Islamic Republic of Pakistan, 1973 this Court or even a High Court, has no jurisdiction to test repugnancy or contrariety of any existing law or legal provision to the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah and such jurisdiction vests exclusively in the Federal Shariat Court and the Shariat Appellate Bench of this Court.[7]

 

Justice Khosa apparently assigned the adjudication of Islamic law to the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court. Justice Dost Muhammad Khan’s concurring note, however, was not in agreement with Justice Khosa on this point. He contended that the statute (i.e. PPC) does not give section 338-F ‘any overriding or superimposing effect’ over sections 299 to 310, implying thereby that the interpretation of sections 299 to 310 could not be controlled by the Injunctions of Islam and therefore the matter fell within the jurisdiction of the Supreme Court. The third view was expressed in the dissenting opinion of Justice Ejaz Afzal Khan who brought up the question of legal basis of the punishment of ta‘zir and noted that it was not provided by either the Qur’an or the Sunnah,[8] implying thereby, that the Supreme Court could adjudicate this issue.

 

It is interesting to note how the judges weighed various alternatives and reasons before arriving at a conclusion. This shows not only that the judges exerted themselves to arrive at a conclusion, but also the inherent contentious nature of the matter at hand. Judging the nature of a legal system is never an easy task, as a host of factors that determine its nature are at play. In particular, in a country like Pakistan, where two legal systems run simultaneously, the complexities further increase.

 

However, the ultimate question, regarding the adjudication of Islamic law by the Supreme Court, remained unanswered. In this case, the judges have interpreted the codified statutory Islamic law without necessarily examining Islamic law on the point in the light of the Qur’an and Sunnah. It may be noted that one of the primary reasons for preferring Faqir Ullah case over Naseer Ahmed case in the main judgment was the numerical strength of judges in the former case (i.e. five member bench of the Supreme Court had decided Faqir Ullah case). Without undermining the importance of this rule, one may ask could the numerical strength of judges be made the basis of adjudicating a rule of Islamic law? Further, should Islamic law be interpreted based on its original sources, i.e. the Qur’an and Sunnah, or through the codified statutory legislation? The codification of a law in statutory form for legislation is surely a human endeavour; should the veil of codification be lifted in interpreting codified Islamic law? All these questions, regarding the nature of the legal system of Pakistan, have persisted. The questions need to be resolved for the sake of consistency, certainty and for settling the issue at policy level.

 

The third aspect that warrants consideration in this case is about the working of the criminal justice system in Pakistan. Justice Khosa took pains in documenting how the diverging views of the Supreme Court persisted since 1994 when the case of Khalil-uz-Zaman v Supreme Appellate Court, Lahore[9] was decided and it ‘sowed the seeds of all the monumental confusion’. In this case, a two-member bench of the Supreme Court had held that the statutory exceptions provided in sections 306 and 308 of the PPC are applicable to the case of Qatl-e-Amad punishable as Ta‘zir. The judgment in the Khalil-uz-Zaman case was reviewed and reversed in the Faqir Ullah case, which was decided by a five-member bench of the Supreme Court in 1999. Justice Khosa noted that in a string of cases[10] after the decision in the Faqir Ullah case, the Supreme Court did not ‘advert to’ it. He, however, did not examine the impact of the omission of not considering the Faqir Ullah case in subsequent judgments. Should the bar or the bench be held liable for this omission? Or, how could in future such omissions be avoided? What should be the impact of any such omission on those who are undergoing the sentences in the cases in which the precedent of the Supreme Court was not followed? These aspects have not been discussed in the case. From a practitioner’s point of view, the certainty of a sentencing regime is very important and has serious implications for the society. The significance of these aspects is further amplified by the fact that most cases in which the Faqir Ullah case is not followed relate to honour killings. Noting this point, Justice Isa, while discussing the inapplicability of exceptions provided under sections 306 and 308 of the PPC, from a sociological perspective, concluded that allowing sentencing under these provisions may entitle a murderer who is also a legal heir (wali) to pay compensation (diyat), hence it may amount ‘to grant of licence of killing innocent persons by their walies.[11] The point was not fully elaborated especially in view of the concern of human rights that need to be protected under law whether based on Islamic norms or otherwise.

 

It may not be out of place to record appreciation for Justice Khosa who authored an elaborate and authoritative judgment on the issue; his fellow judges also contributed in their own way. The analysis of the judgment evinced that it underlined the perennial questions related to Islamic law in a modern state. For example, the problem of preserving the divine law in codified form in a statute has once again been highlighted in the case. Likewise, the interaction of the modern legal system with classical Islamic law has come to the fore as the question of interpretation of Islamic law by either Sharia judges or non-Sharia judges was at the heart of the instant case. Where is the locus of the source of Islamic law in case of a conflict between a validly passed statute by a parliament? Is it in the statute or the Qur’an and the Sunnah? Should a judge not interpret the Qur’an and the Sunnah instead of the statute in case he wants to discover a rule of Islamic law? How is interpretation by a Sharia judge different from the interpretation by a non-Sharia judge? These questions have not been answered in the judgment. The need for developing adjective legal jurisprudence alongside the substantive Islamic law has been clearly identified in this case.

 

In a nutshell, the question regarding the nature of the legal system in Pakistan still remains unanswered. Though the judges tried to resolve this question, but its complex nature hindered their investigation. This has once again established that we need to adopt a clear approach regarding the extent to which we want to integrate Shari‘a into our legal system. Otherwise, due to overlapping domains of the two existing legal systems, and at times opposing methodologies, the complexities will further increase. The pressures and demands of a modern state cannot be ignored in coming up with a new approach, as an ideal and modern Islamic state needs to be capable of resolving the modern conflicts. The sooner we realise this, the shorter it will take to resolve many of our persistent legal problems.

 

 

 

[1] PLD 2015 SC 77.

[2] SCMR 2203.

[3] The only exceptions are paragraphs 1 to 10 of the opinion of Justice Dost Muhammad Khan, which slightly touch upon the subject of interpretation. Justice Dost has briefly alluded to a ‘maxim’ ‘A Causus Omissus’ (sic). Justice Ejaz, however, does not refer to any rule of interpretation.

[4] S.M. Zafar, Understanding Statutes Canons of Construction, (PLD Publishers 2002) ix.

[5] Article 203-G of the Constitution of Pakistan 1973 provides a bar on the jurisdiction of the Supreme Court and the High Courts on matters falling in the jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court of Pakistan.

[6] Section 338-F of the PPC provides that the interpretation of the Qisas and Diyat law shall be guided by the Injunctions of Islam as laid down in the Qur’ān and Sunnah.

[7] Paragraph 30 of the opinion of Justice Khosa.

[8] Paragraph 2 of the opinion of Justice Ejaz.

[9] PLD 1994 SC 885.

[10] Muhammad Iqbal v the State 1999 SCMR 403; Sarfraz alias Sappi v the State 2000 SCMR 1758; Naseer Ahmed v the State PLD 2000 SC 8; Dil Bagh Hussain v the State 2001 SCMR 232; Muhammad Abdullah Khan v the State 2001 SCMR 1775; Amanat Ali v Nazim Ali 2003 SCMR 608; and Muhammad Ilyas v the State 2008 SCMR 396.

[11] Paragraph 4 of the opinion by Justice Isa quoting from Muhammad Akram v the State 2003 SCMR 855.

Saying not what the Constitution is … but what it should be: Comment on the Judgment on the 18th and 21st Amendments to the Constitution

Saying not what the Constitution is … but what it should be:

Comment on the Judgment on the 18th and 21st Amendments to the

Constitution

 

District Bar Association (Rawalpindi) v Federation of Pakistan  

PLD 2015 SC 401

 

Waqqas Mir*

 

Introduction

 

This Case-Note discusses the ruling of the Supreme Court of Pakistan (‘Court’) on the consolidated petitions challenging the 18th and 21st Amendments to the Constitution of the Islamic Republic of Pakistan, 1973 (‘the Constitution’).

 

A majority of the Court answered in the affirmative the question whether the judiciary can review the substance of constitutional amendments.1 Never before has a majority of the apex court affirmed the existence of a power to sit in judgment over the substance of constitutional amendments. This ruling is arguably the most important constitutional law decision in the history of Pakistan. It decides who has the final say on what counts as a substantively valid constitutional amendment while also revealing the apex court’s treatment of the two amendments that seriously impinge on the judiciary’s turf—these are the new appointment mechanism for superior judiciary through the inclusion of Article 175-A under the 18th Amendment; and the trial of a specified class of civilians before military courts under the 21st Amendment. The decision matters immensely because, among other things, it reveals different conceptions of democracy that are at play in our legal system. Just like the domestic public discourse, the Justices disagreed vehemently on the extent of the Parliament’s power to amend the Constitution. A significant majority, that is, thirteen out of the seventeen Justices, ruled that the Court can strike down a constitutional amendment if it repeals, alters or abrogates the ‘salient features’ of that document. Four Justices ruled that the Court has no power to examine the validity of constitutional amendments and hence they dismissed the petitions. Eight other Justices joined these four in dismissing petitions—but these eight Justices ruled that while the power to strike down constitutional amendments exists, it is not

                                                   

* LL.M (Harvard); Bar at Law (Lincoln’s Inn). Partner at Mohsin, Tayebaly & Co. The title of the article is inspired by the motto of the Federalist Society in the US.

1 For a concise yet nuanced explanation of how courts elsewhere have ruled on substantive validity of constitutional amendments see Aharon Barak, ‘Unconstitutional Constitutional Amendments’ (2001) 44 (3) Israel Law Review 321.

being exercised in the current cases. The remaining five Justices ruled that not only does the Supreme Court have the power to examine the substance of constitutional amendments, but that various parts of the 18th and 21st Amendments ought to be struck down.

 

The news-clippings as well as the Honourable Court’s own short order explained the decision in terms of the split for and against allowing the petitions. But that is hardly the complete story. The real dichotomy between the majority and minority opinion lies between those who opined that the Court can strike down a constitutional amendment and those who disagreed. Hence, while four Justices who dismissed the petitions were ostensibly in the majority dismissing the petitions, they were actually in the minority on the bigger question of the limits on the respective powers of the Parliament and the judiciary.

 

This Case-Note will confine itself to the larger question of the limits on powers of the Parliament to amend the Constitution. It will not, for reasons of space and structure, go into the minute details of how individual challenges to various amendments were decided. That is, of course, an important endeavour in its own right and deserves separate engagement. This Note, however, concerns itself with the ‘salient features’ doctrine. It argues that while the Court did exhibit judicial restraint in not striking down far-reaching constitutional amendments, yet it is of considerable concern how far the plurality opinion goes in assuming a power that no previous majority on the Court had considered valid. The writer respectfully disagrees with the limitations laid down on the Parliament’s power to amend the Constitution since the conception of democracy and constitutional interpretation relied upon by the plurality is at odds with history, the text of the Constitution, as well as precedent. Furthermore, while there are powerful arguments to support the existence of a ‘salient features’ doctrine, this Note argues that our democracy is weaker moving forward with the spectre of this newfound power hanging over the Parliament.

 

Part II provides a basic background to the questions involved in the 18th and 21st Amendment cases. Part III takes issue with the doctrine of ‘salient features’ as a basis for striking down amendments to the Constitution and examines its various aspects. The essential thesis of this piece is that while the contours and limits of the ‘salient features’ doctrine remain unclear, it is rather obvious that with an increase in judicial power to rule on constitutional amendments, the people of Pakistan will be more excluded and less able to hold the real decision-makers accountable.

 

Part I

 

There will, perhaps, never be a more ironic divide between the majority and minority in a major Supreme Court ruling. In principle, five in the minority and eight Justices in the majority agreed: the Supreme Court of Pakistan can strike down an amendment to the Constitution if an amendment violates ‘salient features’ of the Constitution. The only difference was whether to let the amendments under review stand. The power was announced in unequivocal terms—with five Justices in favour of striking down one or more parts of the amendments under review while eight assumed the power but chose to let the amendments stand.

 

In many important respects, this is the most important ruling on a constitutional question in the history of Pakistan. The 18th Amendment to the Constitution introduced a number of far-reaching changes to our constitutional scheme. These include, but are not limited to, increasing provincial autonomy through abolition of the Concurrent Legislative List,[1] reforming the appointments mechanism to superior courts (High Courts, Federal Shariat Court and Supreme Court),[2] changes to representation of religious minorities in the Parliament,[3] and powers of heads of political parties over legislators concerning voting on certain specified matters.[4] The 21st Amendment, for a temporary period, granted constitutional cover to trials conducted by military courts of civilians claiming or known to belong to any terrorist group or organization using the name of religion or a sect.[5]

 

Among other things, the cases involved challenges to the new judicial appointments mechanism, the powers of leaders of political parties over parliamentarians and electorates for religious minorities under the 18th Amendment, as well as the constitutional cover granted, under the 21st Amendment, to military courts to try civilians accused of specified offences. Hence, the questions under scrutiny pertained to, and indeed affect, judicial power and the independence of the judiciary, as well as competing conceptions of democracy. If these issues were not enough to establish the seminal importance of this case, there was also the allimportant question of who has the final word on how much the substance of the constitution can be amended; the Parliament or the Judiciary?

 

The biggest over-arching questions concerning both amendments before the apex court were these: Is there a ‘basic structure’ of the Constitution? Alternatively, does the Constitution have certain salient features which are not just descriptive but, in effect, proscriptive? If so, does  existence of a basic structure/salient features limit the power of the Parliament to amend the Constitution? Furthermore, which actor, if any, has the power to enforce such limits if the Parliament transgresses its powers of amending the Constitution?

 

The ‘basic structure’ doctrine of judicial review is premised on the conviction that certain features of a written constitution are so fundamental to the constitutional edifice that they cannot be amended, i.e. they are immutable and not susceptible to repeal or significant alternation by the legislature.[6] Furthermore, in case the legislature does try to change the ‘basic structure’ of a constitution through an amendment, the courts exercising powers of judicial review can strike down a constitutional amendment, i.e. declare it of no legal effect. There are certain countries, such as Germany, where the constitution itself provides that certain provisions cannot be amended. Hence, the text of the constitution limits the legislature’s power of amendment. However, in other countries (such as India, Bangladesh, Nepal etc.) the superior courts have devised a ‘basic structure’ of the relevant constitution to strike down constitutional amendments.[7] While our Supreme

Court, more often than not, uses the word ‘salient features’ instead of ‘basic structure’ while examining the constitutionality of any amendments to the Constitution, it is submitted that in essence there is no substantive difference between the two. However, the approaches to how one arrives at a ‘basic structure’ or ‘salient features’ can vary between individual judges as well as jurisdictions.

 

Part II

 

Before the Court could get into the question of the ‘basic structure’ or ‘salient features’ of the Constitution, there was a preliminary question too, which set the tone for further analysis: Were the petitions maintainable considering Article 239(5) and (6) of the Constitution, which expressly oust the jurisdiction of any court to review constitutional amendments and expressly state that there is no limit on the power of the Parliament to amend the Constitution. This is where different methods of reading a constitution become particularly important. The Judges who followed the reasonable meaning of the text of the Constitution held, in powerful opinions, that the apex court lacks jurisdiction to hear petitions challenging the substantive validity of constitutional amendments. However, the majority chose to come up with salient features of the Constitution (based, we are told, on a holistic reading of the Constitution) and linked this to the scope of the power of the Parliament to amend the Constitution. This involved deciding what the ‘basic structure’ or ‘salient features’ doctrine requires, in application as well as precedent, along with a strong focus on the meaning of the word ‘amendment’—with the majority concluding that

‘amendment’ does not mean fundamentally changing the bargain struck by the Constitution. Hence, the real analysis does not begin with reading the Constitution but with each Judge/citizen asking himself a larger question: is there a ‘basic structure’ or ‘salient features’ theory applicable to the constitution? Those who answered this in the affirmative while considering it a proscriptive theory, that is allowing courts to strike down constitutional amendments that repeal, alter or abrogate the ‘basic structure’ or ‘salient features’ of the Constitution, then used the word ‘amendment’ to argue that the scope of an amendment, as opposed to a repeal or abrogation, is limited; thereby imposing a limitation on the power of the Parliament.

 

While there may be some ostensible appeal to the argument that the word

‘amendment’ implies a limited power, it becomes clear on a deeper analysis that this restrictive view of the Parliament’s power raises serious concerns. Why should the word ‘amendment’ not include the power to repeal any provision no matter how salient it may be? Do legislatures not repeal laws all the time by introducing legislation under the heading of amending the law? Did the framers of the Constitution think that they and their successors would have to answer to the apex court for each major amendment? Is it reasonable to think that the Parliament only has the power to correct mistakes of language without ever substantively changing the nature, quality or existence of salient rights and/or institutional mechanisms?

 

Even if one assumes for a moment that the power of the Parliament to amend the Constitution is limited, this still does not provide any support for the ‘salient features’ doctrine as a proscriptive tool to strike down constitutional amendments. The Court had never before used the ‘salient feature’ doctrine in such proscriptive terms. At best, it was used to outline the obvious characteristics of our Constitution in descriptive terms.[8] The departure from precedent in the latest ruling is quite obvious and betrays the promise of clarity. It is therefore submitted with respect that the plurality opinions affirming the power to strike down constitutional amendments engages in a reading of precedent that is difficult to objectively justify.

 

The opinions of four Judges stand out and present powerful counterarguments to the reasoning of the plurality that accepted ‘salient features’ as a basis for judicial review of the substance of amendments to the Constitution. Justice Saqib Nisar reminds us that judicial aggrandisement is a real danger.[9] The restraint and realism exhibited by him, Justice Khosa, Justice Iqbal Hameed-ur-Rehman and Chief Justice Mulk will serve as an inspiration for all those who value clarity, judicial statesmanship and precedent in legal reasoning. Particularly relevant is Justice Nisar’s observation that [T]he Constitution does not end (it certainly did not begin) with the Judges, and the courts would do well to remember that.’[10]

 

One of the major cases relied upon by the plurality to justify the assumption of power to strike down constitutional amendments is the Zafar Ali Shah[11] case. In the said case, the Court articulated certain ‘salient features’ of the Constitution and ruled that while General Musharraf had the power to amend the Constitution, he could not be allowed to interfere with the ‘salient features’. Almost as an aside, the Court noted that even the Parliament did not have such power. Hence, the case was never considered express authority for the proposition that our top court could strike down constitutional amendments. The issue in the case did not concern the powers of the Parliament but a military dictator who had usurped power and was essentially seeking a temporary lease of life from the Court. Any limits imposed on him should hardly define the scope of authority of the people’s elected representatives when it comes to amending the basic bargain. A whole host of cases before this had expressly held that superior courts had no power to strike down constitutional amendments.

 

Any reliance on the Zafar Ali Shah[12] case is also cast in an unflattering light when one considers that a few years later, in the Pakistan Lawyers Forum[13] case, the Court itself chose not to follow the Zafar Ali Shah ruling. In the Pakistan Lawyers Forum case, it was once again affirmed by a majority that the ‘salient features’ of the Constitution were only descriptive, and even if the Parliament chose to interfere with them, the cost would be political—not legal. Yet the latest case explains the Pakistan Lawyers Forum case’s conclusion and the judicial restraint exhibited by the Court in that case as ‘prudence trumped jurisprudence’[14]—opining that the former case was decided that way in an attempt to save the system since democracy was being newly restored. This could be plausible, but then the question arises that if the Supreme Court in the past felt this power existed, why did it not spell it out in earlier cases? Nothing stopped earlier Courts from spelling out a similar power as this court and then reserving it. The lack of precedent is rather obvious and hence should lead us to see the transformation of the ‘salient features’ doctrine as an institutional response to changes affecting the judiciary in a fast evolving polity. In order to retain some semblance of control, it appears that the Honourable Supreme Court has seized all control. Even if it chooses not to apply this doctrine in the coming years, its presence as a precedent will raise many interesting and difficult questions.

 

There is no way for anyone to know what can or cannot be classified as part of the ‘salient features’ doctrine. This is an important point to remember. The only things that have been outlined as falling within the ‘salient features’ are democracy, parliamentary form of government and independence of the judiciary.[15] Furthermore, the limit imposed says that the Parliament cannot abrogate, repeal or substantively alter these.[16] However, the specifics remain unclear. There is, of course, a level of generality that exists but there is little guidance for the legislature. What we do know is that the new method of judicial appointments and (for the most part) denial for two years of an independent judiciary to a certain class of accused passes constitutional muster. Yet, if there was lack of clarity before this judgment then the acceptance of the ‘salient features’ as a prescriptive or proscriptive doctrine for the legislature has not clarified much.

 

Essentially, the standard is political and not legal[17]—blurring forever the scope of the Parliament’s power as well as the scope of judicial authority. Hence, in one way, the Court is now the final author of the Constitution—not a position that the framers of the Constitution or those in the first Constituent Assembly would have enthusiastically endorsed. The counter-argument would be that the authorship remains with the Parliament and the apex court will only step in when something drastic happens. But there exists no standard for determining what is drastic. Is this a desirable outcome? A.K. Brohi, while commenting on the broad powers of judicial review under the Constitution of 1956, stated that ours is a ‘government of judges’.[18] The latest ruling reaffirms such fears and extends them to now include the judiciary being the final author of the substance of the Constitution. While superior courts do, indeed, often apply competing conceptions of various values to a society,[19] the Court could easily have avoided the murky waters of a doctrine the basic contours of which can conveniently change with the person engaging in the analysis. The legal or structural basis of ‘salient features’, which appear to be controlling the powers of the Parliament and making the Court more powerful than ever before, still remains unclear.

 

Equally problematic is any attempt to distinguish between the ‘constituent power’ of the Parliament versus its ‘legislative or amending power’. An argument is often made that the power of the assembly that drafts a constitution is somehow greater than any later assembly’s power—particularly when it comes to amending a constitution. However, this is problematic in the Pakistani setting. Firstly, the Constitution does not create any distinction between the two powers and therefore, the Parliament has been entrusted with the task of deciding what goes into the substance of the Constitution. Furthermore, one would do well to remember the importance of not overly romanticizing the mandate of earlier legislative bodies that existed to frame a constitution. For example, Pakistan’s first Constituent Assembly, which took office in 1947, was indirectly elected by legislators serving in provincial assemblies—these legislators were holding office as a result of an election in which historians claim that percentage of adults allowed to participate were between 15 and 28 percent.[20] Should we put on a pedestal the first assembly or the one that framed the 1973 Constitution? What allows us to assume that the previous generations had any greater validity or legitimacy to write the Constitution and control our destinies?

 

However, constitutions (like other political ideals) end up developing a life of their own—often resulting in consequences not envisaged by their creators. Hence, the Court saw the Constitution as carrying ‘salient features’ even if they were not laid down as un-amendable by the framers. Why did this happen? One view could be that the latest assumption of power by the Court is an exercise in political compromise and the sharing of space with other state institutions. It is no small matter that the Court decided to not interfere with Article 175-A, considering the process made the appointments process more broad-based and brought in nonjudicial members. Courts in Pakistan have, in the past, seen themselves as conducting a dialogue between the state and civil society[21] and the assumption of power while foregoing its exercise could be seen in this light. However, even this explanation is problematic since neither civil society nor democracy is necessarily stronger as a result of this judgment. The four Justices who dismissed the petitions for lack of jurisdiction to hear challenges to constitutional amendments go to great lengths to remind us of the dark past of the court itself—as well as imploring us to be mindful of the fact that even values like the independence of judiciary in Pakistan are best safeguarded by safeguarding and strengthening democracy. Justice Saqib Nisar’s opinion for the ages makes a poignant observation that judicial independence in Pakistan was secured not by virtue of judicial sanction but a vibrant democratic culture, which challenged acts of a military dictator.

 

As pointed out in oral argument during the latest cases and also in individual opinions, the structure of our Constitution has undergone radical changes since its promulgation. Whether one looks at judicial appointments mechanism, powers of the President, Fundamental Rights, or provincial autonomy, our Parliament has over time changed the structure of the Constitution through successive amendments. Over time, the powers of the President vis-à-vis the Parliament started growing but were then cut down to facilitate substantive democracy—empowering people’s representatives instead of the Executive. Similarly, the Chief Justice of Pakistan could earlier be appointed by the President of Pakistan without consulting with anyone—compare this with the position today where the senior most Supreme Court Justice is now appointed. The matter of appointments of other Judges of the High Courts and the Supreme Court have also undergone substantial change with the insertion of Article 175-A [22] into the Constitution.

 

Should all constitutional amendments, therefore, be checked now on the touchstone of ‘salient features’? And who decides when something becomes a ‘salient feature’ of the Constitution? The right to a fair trial was incorporated through the 18th Amendment with the addition of Article 10-A. However, the superior courts have long interpreted the chapter on Fundamental Rights as well as Article 4 to mean that natural justice and a fair hearing was an essential requirement. Was the right to a fair trial always a ‘salient feature’ or did it become salient only after being expressly incorporated into the Constitution? This is not a rhetorical question. The plurality’s opinion in the 18th and 21st Amendment cases holds that ‘salient features’ are obvious from a reading of the Constitution and one need not look outside the Constitution to decipher them.[23] But there is always an invisible or ‘unwritten constitution’ that the courts are applying—general principles of law of constitutional importance, for instance, the general rule requiring natural justice. This tension is likely to come to the forefront in the coming years—unless the Court re-visits the latest enunciation of the ‘salient features’ doctrine.

 

A clear majority of the opinions in these cases also held that the Constitution is a document intended to cater to our needs for all times to come.25 This language is, of course, based on precedent but this view of the Constitution deserves serious engagement and debate. Should we even see our Constitution as a document intended to cater to our needs for all times to come? What happens if these needs change and why should we not be able to re-arrange our priorities? Written constitutions of most nation-states have hardly proven to possess the virtue of longevity.[24] Pakistan itself is on its third constitution currently. Hence, why see the Constitution as something that is a ‘living breathing’ document, ever changing in its meaning? Our Constitution is not particularly difficult to amend, so why does its meaning need to change? Why can’t we change the words when needed? Why is it impermissible for the people’s representatives to re-write it from time to time? These questions must be debated, since part of the reason the ‘salient features’ doctrine of allowing courts to strike down constitutional amendments appeals to many people is the criticism that the Constitution can be amended too easily. Those championing the ‘salient features’ doctrine are often from the ‘living breathing document’ camp. Yet, the idea of the Constitution as a living, breathing document has been borrowed from the US—a written constitution that is particularly difficult to amend. So why see an easily amendable Constitution as ‘living breathing’? And, equally so, why not allow legislators to ensure that the substance of the Constitution can have different conceptions of life breathed into it from time to time—as opposed to one decided by a largely unaccountable judiciary.

 

There is also the issue of the rhetorical discussion of how far the Parliament can go when amending the Constitution. Can it turn Pakistan into a monarchy, declare it secular, make military service compulsory, etc.? The judgments of Chief Justice Mulk, Justice Nisar and Justice Khosa decide these issues in clear terms by saying that there is no limitation on powers of the Parliament to amend the Constitution. Hence, they are asking us to turn to the political process and the politicians instead of unelected judges on the Supreme Court if we do not like a constitutional amendment. This view, no doubt, strengthens democracy.

 

The dissenting judgments, however, make much of the fact that the Attorney General could provide no satisfactory answer to the abovementioned questions about the potential extent of the Parliament’s power to amend the Constitution. But while these questions have rhetorical appeal, they cannot be used to decide concrete cases. The question before the Supreme Court in these cases was not whether the

Parliament’s action of declaring Pakistan a monarchy was valid . That has not happened, and merely because of the political cost involved, no Parliament would probably do it. Reading the Constitution as a political document rather than just a legal one could have answered these questions. Was the court creating these strawmen to shoot them down so that it could expand its power? This is a charge that has been made and this is not entirely without merit. When an apex court changes the ground rules of politics, it will be seen as political. This is another likely fallout of the latest ruling and will affect the way the public sees the apex court.

 

One must also comment on the desirability of laying down the power to review constitutional amendments at this stage, even though the majority was not striking down any amendment. Why could the setting out of this power, if needed at all, not have waited? This is also an important question. I will, with respect, submit two possible reasons. One reason is that the apex court wanted to send out the message that while the judiciary will not become party to attempts to derail the democratic process, it will jealously guard its own turf. In this context, the new judicial appointments mechanism, as well as the trial of civilians before military courts, are particularly relevant. This was important from an institutional point of view and one can see force behind this reasoning. But this comes at a serious cost— the same institution that legitimised military dictators has now clipped the powers of the Parliament. That is the burden of history and will trigger debate. To be fair, however, the current Supreme Court cannot be expected to answer for all that their predecessors did. Hence they, from one perspective, have allowed the results of a democratic process to stand while reserving an extraordinary power to be exercised in rare cases.

 

A second possible reason for setting out a power but reserving its use could be military courts. The Honourable Court could turn around and ask us, ‘What are you on about? We all know that the 21st Amendment happened because the military wanted it, not the civilians. And things may not stop here. What if they want these courts for Balochistan through a constitutional amendment? So, being realists we need an extra check in the system to ensure civilian supremacy. We do not love that we have to do it but so be it.’ From a hard-core realist’s point of view, this reasoning has serious merit. Of course, one could say that this is a slippery slope and where should the line be drawn? But everyone admits that the military’s push was the reason for the 21st Amendment. And keeping in view the civil-military imbalance, maybe this will be seen as an acceptable compromise for some. Furthermore, one could argue that by setting out the basics of the ‘salient features’ doctrine, the Supreme Court has arguably guarded against any tendency to push aside democracy and civilian form of government in the future. But we all know that Supreme Court judgments do not stop military dictators from tearing up the Constitution. Hence, it is important not to sugar-coat the serious erosion of the Parliament’s authority to amend the Constitution.

 

Conclusion

 

The 18th and 21st Amendment cases will be remembered in history for a number of reasons. One of them will be the re-defined notion of parliamentary sovereignty. Pakistan never had an unqualifiedly sovereign Parliament. Unlike England, our courts routinely strike down sub-constitutional legislation. However, the latest judgment means that even though the Constitution expressly excluded the judicial review of the substance of constitutional amendments, the superior courts can now examine them. Even if the people unanimously support an amendment, the Supreme Court has now assumed the power to review it. The debate does not end here and will continue. The existence of a doctrine will do no harm as long as the apex court exercises it tactfully to support democratic measures—even if it disagrees with the politics of such actions. But the existence of this doctrine will result in more litigation and many interesting, as well as potentially difficult, if not embarrassing, questions being raised about the legitimate scope of the judiciary’s power. The judgments of Chief Justice Nasir-Ul-Mulk, Justice Nisar and Justice Khosa should continue to remind us of the dangers of judicial supremacy.

 

The law before this judgment allowed the Parliament to have the final say as far as substance of constitutional amendments is concerned. After this ruling, it appears that the apex court will step in as a measure of last resort to guard against changes that fundamentally alter the bargain struck by the Constitution. In one way, the apex court gets to have the final say on what can go into or come out of the Constitution. Yet the standard for when the apex court will step in remains unclear. In terms of clarity, therefore, the plurality’s ruling only tells us that there are limits but there is little guidance on the substance and reach of those limits. Those on the bench who disagreed with the court’s assumption of such power are far clearer in their premise as well as guidance for the future.  What is also clear is that the people, while having no way of holding the judiciary accountable, will look to the courts for the final word—with an uncertain standard.

 

How will governments in Pakistan now proceed with constitutional amendments? Will we see a referendum being called under Article 48(6) for important constitutional amendments? Will the President ask for an advisory opinion on whether any proposed amendments to the Constitution violate the ‘salient features’ doctrine? The answer lies in our politics and discourse. Only one thing is certain: as far as constitutional law is concerned, the debates will only get more exciting.

 

[1] Fourth Schedule of the Constitution.

[2] Article 175-A of the Constitution.

[3] Article 51(6)(e).

[4] Article 63-A of the Constitution.

[5] Article 175 and the First Schedule of the Constitution.

[6] Barak (n 1).

[7] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461.

[8] See Mahmood Khan Achakzai v Federation of Pakistan PLD 1997 SC 426; Wukala Mahaz

Barai Tahafaz Dastoor v Federation of Pakistan PLD 1998 SC 1263; Pakistan Lawyers Forum v

Federation of Pakistan PLD 2005 SC 719; Syed Zafar Ali Shah v General Pervez Musharraf PLD 2000 SC 869; Fazlul Quader Chowdhry v Mr. Muhammad Abdul Haque PLD 1963 SC 486; and The State v Zia-ur-Rehman PLD 1973 SC 49.

[9] District Bar Association (Rawalpindi) v Federation of Pakistan PLD 2015 SC 401, para [185

(e)].

[10] Ibid, para [185 (j)].

[11] Syed Zafar Ali Shah v General Pervez Musharraf PLD 2000 SC 869.

[12] Ibid.

[13] Pakistan Lawyers Forum v Federation of Pakistan PLD 2005 SC 719.

[14] (n 10) Opinion of Justice Azmat Saeed, para [52].

[15] Ibid, 370 and 371, para [180].

[16] Ibid.

[17] M. Rosenfeld, ‘Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts’ (2004) 2 (4) International Journal of Comparative Law 633.

[18] A.K. Brohi, Fundamental Law of Pakistan (Din Muhammad Press 1958) 39.

[19] David Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton University Press 2010).

[20] Hanna Lerner, Making Constitutions in Deeply Divided Societies (Cambridge University Press 2011) 114.

[21] Paula Newberg, Judging the State (Cambridge University Press, 1995) 13.

[22] As per the new procedure, a Judicial Commission of Pakistan (‘JCP’) now sends recommendations to a constitutionally created Parliamentary Committee—manned by legislators from both Treasury and Opposition—which can accept or reject name of any candidate proposed by the JCP. If accepted by the Committee, the name is sent to the Prime Minister who then sends it to the President for appointment. Any reasons for rejection of a name are justiciable, i.e. can be challenged before the superior courts. A most relevant judgment is Munir Hussain Bhatti,

Advocate v Federation of Pakistan PLD 2011 SC 308 and PLD 2011 SC 407.

[23] (n 10) Per Justice Azmat Saeed, para [180] of plurality’s ruling, sub-paras [(a) to (h)].  25 Ibid, para [141], relying on Sardar Farooq Ahmed Khan Leghari v Federation of Pakistan PLD 1999 SC 57.

[24] Lifespan of Written Constitutions, Ginsburg, Elkins and Melton—available at <http://www. yale.edu/macmillan/ruleoflaw/papers/Ginsburg-Lifespans-California.pdf> accessed 24 August 2015.