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Analysis: Clearing Shariat Court’s cobwebs

Updated June 06, 2014

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Federal Shariat Court building, Islamabad. —File photo
Federal Shariat Court building, Islamabad. —File photo

With the swearing-in of new Federal Shariat Court (FSC) Chief Justice Sardar Mohammad Raza Khan, there is a palpable sense of hope among the legal community that things may yet improve in this key legal institution, which has been all but dormant for the better part of the last five years.

The court, which primarily hears Shariat petitions related to matters which have a religious underpinning, or appeals against criminal convictions under the Islamic Hudood, is also entitled to review and declare void any law that does not conform to the principles laid out in the Quran and the Sunnah of the Prophet (Peace be upon him). This, says legal expert Aslam Khaki, is a supra-parliamentary power and gives the FSC great responsibility.

One of the unique aspects of the FSC is the aalim (scholar) judges. These are individuals who are well-versed in the intricacies of Islamic jurisprudence and can settle legal questions with their extensive knowledge of the Quran and Sunnah. Only a full bench of the FSC can hear Shariat petitions. A full bench must necessarily consist of three judges, one of whom must be an aalim judge.

But things were not always like this. Initially, the FSC did not have any scholars and consisted of “five members, including the Chairman, to be appointed by the President”, while the Shariat Appellate Bench (a bench of the Supreme Court constituted to hear challenges to FSC decisions) was supposed to consist of “three Muslim Judges of the Supreme Court”.

In March 1981, the FSC gave a judgment in what has come to be known as the Hazoor Bakhsh case, where it struck down the Islamic punishment of stoning those found guilty of adultery or fornication. This was a controversial decision and, faced with a right-wing backlash, then-president General Ziaul Haq decided to induct three “ulema who are well-versed in Islamic law”, as well as giving the FSC the power to review its judgments. When the re-constituted FSC sat to review its judgment in the Hazoor Bakhsh case, it decided differently.

But a sense of the great responsibility that lies on this court has not been felt here as of late. Observers within the legal community feel that the court doesn’t have enough on its plate. A Lahore-based lawyer, who has argued criminal appeals in Hudood cases, told Dawn that the judges of the FSC usually have a caseload that is far sparser than that of their high court counterparts.

Mr Khaki echoes this view. A jurist consultant to the FSC, Mr Khaki says he has already filed a petition with the Supreme Court to have matters - related to blasphemy, qisas and diyat and any other such cases where an Islamic Hadd is involved - heard by the FSC. This, he says, will add to the court’s productive output and also decrease the burden on high courts. “In certain cases, high court judges are not as well-versed in Islamic law as the scholar judges of the FSC. Transferring these cases will also help ensure that justice is properly served in all matters where a religious question is involved,” he said.

Then there are also those who disagree with the existence of the FSC altogether. A handful of senior bar members Dawn spoke to referred to the institution as “an unnecessary appendix to the judiciary”. A senior jurist linked to the FSC said light-heartedly that even peons enjoyed air-conditioned offices at the court and called this “a blatant wastage of resources”.

But the legal community, by and large, appears optimistic about the appointment of the new chief justice. Justice Sardar Mohammad Raza Khan is, by all accounts, a competent adjudicator and possesses a keen legal mind. Taufiq Asif, a former president of the high court bar association in Rawalpindi, said, “The new chief is an upright man whose integrity and impartiality are second to none.”

Both Mr Asif and Mr Khaki appeared optimistic about what the appointment would mean for cases and constitutional petitions pending before the court. “Judgments on matters pertaining to questions of khula or riba (interest) have been pending for quite some-time, doubtlessly because they are sensitive issues,” said Khaki. “We are hopeful that under Justice Raza Khan, key constitutional matters will be heard and swiftly disposed of,” Mr Asif said.

Qazi Fazl Elahi, senior research adviser at the FSC, has been with the court since its inception in 1980. He says that rather than increasing, the jurisdiction and role of the FSC have been considerably reduced over time. “With the advent of the Women’s Protection Act, most of the sections that were previously part of Hudood laws were transferred to the Pakistan Penal Code (PPC), thereby reducing the number of cases that fell within the FSC’s jurisdiction,” he said.

In addition, Mr Elahi says, if the court’s jurisdiction is increased to include other aspects of religious law, such as Muslim Family Law and qisas and diyat matters, it will help reduce the caseload on high courts and facilitate complainants in obtaining justice swiftly.

“A detailed examination of the PPC is currently pending with the court, as is a case dealing with riba that was remanded by the apex court. We hope that with the appointment of Justice Raza Khan, who is a professional judge, these pending matters will be disposed of soon,” he said.

Published in Dawn, June 6th, 2014