Good Governance in Action: Pakistani Muslim Law on Human Rights and Gender-Equality

Abstract

Flexibility and pluralism of Islamic law could be used for democratization and good governance, in almost total contradiction to the essentialized stereotypical portrayal of Islamic law. Thanks to the practice of precedent in Pakistan, the lower courts are bound by the decisions of the higher courts but the higher courts are free to resort to ijtihad for deriving new rules from the Qur’an and Sunnah. The Supreme Court of Pakistan and the Federal Shariat Court significantly contributed to the expansion of human rights in Pakistan for they have developed a human-rights friendly approach. They have interpreted the constitutional commitment to injunctions of Islam to mean conformity with general principles of Islamic law such as equality, justice (adl), and welfare (maslaha) rather than with concrete provisions of traditional Muslim law. Contrary to the stereotypical image of Islamic law as being opposed to women’s rights, the constitutionalization of Islam in Pakistan has helped women in a predominantly Muslim society where traditional patriarchal norms prevail and work against women. In order to help women, Pakistani judiciary has directly appealed to the Qur’an and Sunnah and has employed an interpretative strategy by using a combination of constitutional rights, Islamic law and international human rights in order to advance women’s rights. The courts have only maintained differences on the basis of sex when they are favorable to women.

Keywords: Pakistan, Good Governance, Islamic Law, Human Rights, Gender Equality

JEL Classification: Z00