THE three constitutions adopted by Pakistan since its creation in 1947, despite considerable differences among them, all declare the state’s commitment to upholding the principles and values of Islam and to taking all necessary steps to enable Muslims to lead their lives according to Islamic teachings and requirements.

To this end, the constitutions also recognise the significance of redesigning the Pakistani legal system along Islamic lines. Interestingly, however, even in its eighth decade, Pakistan appears not to have fully reconciled the tussle between secular and Islamic values.

The relevant provisions of the 1956, 1962 and 1973 constitutions provide a good starting point for understanding the scope of Pakistan’s constitutional commitment to Islamisation. The 1956 constitution called for “an Islamic way of life” (Article 25) only as a principle of policy. However, it did bar the enactment of laws “repugnant to the injunctions of Islam” (Article 198) while largely retaining the institutional infrastructure of the Government of India Act, 1935, and following the Universal Declaration of Rights in stipulating the fundamental rights of Pakistani citizens.

The only Islamic institution it mandated was “an organisation for Islamic research and instruction” (Article 197), however, it did not clarify how research conducted by this organisation would feed back into the workings of the state.

The 1962 constitution while largely reproducing the Islamic provisions of the 1956 constitution relegated the provision barring the enactment of laws repugnant to the injunctions of Islam to a principle of policy (Article 1A) and replaced the organisation for Islamic research with the “Advisory Council of Islamic Ideology” to recommend appropriate Islamic laws and policies to the government and to the legislature (Articles 199-206).

It was the 1973 Constitution, as originally formulated, that first declared Islam to be the state religion (Article 2); reinstated the injunction barring enactment of laws repugnant to Islam as an enforceable provision (Article 227) and proposed the Council of Islamic Ideology (Articles 228-231) with members from the superior judiciary as well as Islamic scholars, to act as a bridge between the secular and Islamic legal values.

However, it was only under the Zia regime that the Pakistani legal system became the primary focus of the Islamisation project. The year 1979 saw the promulgation of the Offence of Zina (Enforcement of Hudood) Ordinance, the introduction of additional blasphemy provisions in the Pakistan Penal Code and the creation of Islamic benches in the superior courts and 1980 the Zakat and Ushr Ordinance and the establishment of the Federal Shariat Court (Articles 203A-203J) comprising exclusively of Muslim judges albeit with the limited mandate of evaluating the Islamic-ness of laws and the legality of decisions enforcing Hudood.

However, decisions of the FSC remained appealable to the secular Supreme Court thereby rendering the FSC subordinate to the Supreme Court. By 1984 the rules of evidence were also Islamised under the Qanun-i-Shahadat Order 1984.

Islamisation of the legal system continued beyond the Zia era.

The Islamisation of the legal system continued well beyond the Zia era. Ghulam Ishaq Khan promulgated the Qisas and Diyat Ordinance 1990; Benazir Bhutto introduced the Nifaz-i-Nizam-i-Sharia Regulation 1994; Nawaz Sharif promulgated the Shari-Nizam-i-Adl Regulation 1999, the Enforcement of Shariat Act 1991 and further tightened the law against blasphemy while Asif Ali Zardari ratified the Nizam-i-Adl Regulation in 2009.

Even today, laws perceived to be contrary to Islamic values are regularly challenged before the FSC (such as the Transgender Persons Act 2018) or are rejected by the legislature (such as the Domestic Violence Bill 2020) or are retained despite repeated calls for their repeal or reconsideration from civil society (such as the blasphemy laws).

Interestingly, however, judges appointed to the secular courts in Pakistan are still not required to be qualified to rule on complex matters of the Sharia. Ideally this would mean that the Supreme Court would defer to the FSC or the Council of Islamic Ideology on religious matters, as it did for instance in its 2002 review judgement in the riba case and its 2005 judgement in the hisba case.

In reality, however, it has resulted in the Supreme Court invoking Islam to bolster its constitutional arguments, for instance, in its 2012 judgement in the Anita Turab case and in its 2014 judgement affirming the rights of minorities to practise their religion freely, or even in citing Quranic verses in interpreting legal provisions, for instance, in its 2015 Supreme Court judgement in the Aasia Bibi case and in its 2017 judgement in the Panama Paperscase.

Interestingly, however, even as Islamic principles have permeated legal decision-making at the highest level in Pakistan, the country has been besieged by calls for even greater Islamisation. Some of these calls have come from academics; for instance, Prof Fazlur Rahman of the University of Chicago criticised the 1973 Constitution for not being Islamic enough. Others, however, have come from grassroots religious organisations, for instance, the Tehreek-i-Nifaz-Shariat-i-Mohammadi whose call for the establishment of Sharia courts in the tribal areas in time, gave way to the Afghan Taliban.

Others still have come from private persons who have resorted to religious vigilantism, allegedly to uphold the values of Islam but often only to settle personal scores.

In the 75 years of its existence, Pakistan’s Islamisation project has gone from being aspirational, to being haphazardly institutionalised, to becoming gradually personalised, even privatised. In all these phases, those who have acted in the name of Islam have claimed to draw legitimacy from the will of the people who it is said wish to have their lives ordered in accordance with the injunctions of Islam.

However, doing so without a clear institutional framework has created an odd patchwork of Islamic and secular laws administered by persons who have no qualification beyond their consciences to reconcile the two. This has not only reduced religious principles to populist dogma but has also opened space for other personal interpretations of Islam thereby further undermining the rule of law in the country.

The writer is a Lincoln’s Inn barrister and an advocate of the Supreme Court of Pakistan. She holds a PhD in law from UCL and teaches law at the University of Manchester.

Published in Dawn, July 20th, 2023