An Appraisal of Methodology for Islamization of Laws in Pakistan

Abstract

This research argues that Islamization of Laws is inevitably an ijtihād-based notion; however, its analysis in Pakistani legislative system reveals that the institutions entrusted with this mission are not equipped with the protocols as required by principles of Islamic jurisprudence. The process of Islamization involves borrowing or adopting the laws from other nations or civilizations; when they are approved through the test of stringent Islamic legal methodologies and principles. Pakistan being a colonial state, after its independence, had to adopt the Common Law of Britain that ultimately required their Islamization. The Constitution of Pakistan, 1973 (the Constitution) has entrusted this noble task to Council of Islamic Ideology (CII) at one hand; and Federal Shariat Court (FSC) on the other. Both institutions are empowered to analyze the existing laws to test their conformity with Islamic injunctions. The CII in its recommendatory and advisory jurisdiction has power to propose Islamization of laws to the Legislature. Likewise, FSC is given power to adjudicate upon the Islamic status of existing laws, which if not appealed against would hold the force of law and the legislature is bound to amend the same accordingly. For cases in which reference is made to Supreme Court, the Judgement of its Shariat Appellate Bench is dealt alike. The given constitutional set up for Islamization of laws arises some crucial questions. The foremost to be analyzed through Islamic legal tradition, to see, if there is any defined set of legal rules and methodologies that may be followed to Islamize the laws? Moreover, whether there are any criteria for persons involved in such an ijtihād-based process? Whether, the given constitutional institutions follow any methodology while exercising their respective powers to Islamize the laws? Finally, if the appointment criterion for members of CII and judges of FSC is in line with the criteria set out for exercise of this noble task? The study involves qualitative and analytical research methods through the source materials on principles of Islamic Jurisprudence, related provisions of the Constitution; selective case law and existing literature on Islamization of Laws in Pakistan.