Islamic Jurisprudence and Constitutionalism in Pakistan: Harmony or Conflict

Abstract

This paper assesses the compatibility or inconsistency of Islamic jurisprudence and constitutionalism with Pakistan through evaluating the question not as an ideological battle, but as a constitutional design, institutional practice and interpretive authority question. The Constitution of Pakistan is both an Islamic identity and a constitutionalist system: it both envisions democratic government by elected officials, a basic set of rights, and an independent judiciary, and an obligation that current and future laws be in compliance with the Injunctions of Islam as enshrined in the Quran and the Sunnah. The institutional structure developed to deal with this two-commitment is unique. Conventionally, the Council of Islamic Ideology is constitutionally required to propose methods of allowing Muslims to organize their lives in accordance with Islamic doctrines, provide advice on whether the proposed legislations are abhorrent to Islam when presented to it, and propose measures to make the current legislations comply accordingly.  On the adjudicatory side, the Injunctions of Islam may be repugnant, and the inquiry and decision regarding that issue may be made by the Federal Shariat Court (FSC); its rulings may have legal effect following appeal procedures; the Shariat Appellate Bench of the Supreme Court is the major appellate adjudicator of such questions. Simultaneously, there are textual limits to the FSC jurisdiction, which is defined by definitional and subject-matter exceptions, such as the exclusion of the Constitution itself and Muslim personal law of the definition of a law in this Chapter, which is an attempt to avoid unlimited theological scrutiny of the constitutional arrangement.

The essence of the discovery is that the constitutional system of Pakistan can be viewed as a hybrid model that is striving to achieve managed harmony between Islamic norms on the one hand and constitutional rule on the other; when legal principles such as the notion of repugnancy are viewed as being politically decisive words, rather than as highly reasoned cases of juristic judgment; when institutional incentives encourage symbolic Islamization at the expense of rights-compatible rule; and when interpretive pluralism in Islamic jurisprudence has been reduced to the status of a state-approved reading. The paper shows how the system can produce some form of coherence and contradiction by looking at the constitutional text, functions of the  and FSC, and symbolic issues, including the jurisprudence of riba/interest in banking. It suggests that the best and practical way to achieve harmony is neither the denial of the constitutional presence of Islam nor the transformation of religious doctrine into an unqualified veto, but a principled interpretive approach balanced in constitutional supremacy, procedural fairness and juristic pluralism that can be used to put Islamic objectives (maqasid) into the law of the land without undermining the principle of equal citizenship or the rule of law.