Non-Repugnancy Decisions of the Federal Shariat Court of Pakistan: An Analysis of Politico-legal Ramifications

Abstract

The Federal Shariat Court (FSC) of Pakistan is vested with an extra-ordinary jurisdiction to examine laws and customs having force of law on touchstone of Islamic injunctions. The court has been analyzed in the constitutional polity with an extended role of Islam and how it has contributed to progressive construction of Islamic law. Such analyses are mainly confined to those decisions in which the FSC has declared various laws as repugnant to Islamic injunctions. The paper brings into focus those decisions in which the FSC has declared certain laws and customs as non-repugnant to Islamic injunctions. This genre of the court’s decisions though far surpasses from the decisions of repugnancy, but surprisingly has attracted little scholastic attention. Analyzing the non repugnancy decisions, the paper posits that they strengthen the statehood and constitutional polity of Pakistan in many ways. They broadly identify a theory of legislative competence and autonomy of a state from Islamic perspective; extend religious sanctity to laws many of which were enacted in British colonial era, and in this manner, problematize politically motivated calls for Islamization of laws in the country.

Keywords: Federal Shariat Court; Shariat Court; Pakistan; Islamic Law; Islamic Constitutionalism