Cecily Zamora
Pakistan is an Islamic republic with Islam as its state religion and its legal system is derived from English common law. The country's constitution requires that laws be consistent with Islam, and the Federal Shariat Court determines whether laws are in line with Islamic injunctions. The legal system is based on the much-amended 1973 constitution and Islamic law (Sharia), with the country's founder, Muhammad Ali Jinnah, envisioning a legal system in accordance with Islamic teachings. Pakistan's legal system is influenced by its unique history, including the legacy of the British Raj, and differs from classic common law in several ways, such as the near-complete codification of criminal and civil laws.
| Characteristics | Values |
|---|---|
| Type of legal system | Common law |
| Basis of common law system | Legal system of British India, i.e. common law of England and Wales |
| Codification of criminal and civil laws | Yes |
| Jury trials | Phased out since independence |
| Influence of US legal system | Yes, especially in constitutional law matters |
| Influence of Islamic law | Yes, with a Federal Shariat Court determining whether laws are consistent with Islamic injunctions |
| Influence of traditional jirga-based law | Yes |
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What You'll Learn
- Pakistan's legal system is based on English common law
- Islamic law and traditional jirga-based law influence Pakistan's legal system
- Pakistan's legal system is codified, a legacy of British rule
- Pakistan's legal system differs from classic common law
- Islamic law and common law are in tension in Pakistan
Pakistan's legal system is based on English common law
Following the establishment of the Dominion of Pakistan in 1947, the laws of the British Raj remained in force, and Pakistan is now a common law system with an adversarial court procedure. It follows other common law practices such as judicial precedent and the concept of stare decisis. However, Pakistan's legal system differs from classic common law in several ways. For example, both criminal and civil laws are almost entirely codified, which is a legacy of the British Raj. Jury trials have also been phased out since independence due to dissatisfaction with their operation, and Pakistani jurisprudence has been influenced by the US legal system, with the country adopting a US-style Federal Structure.
The 1973 Constitution, which has been much amended, guarantees freedom of speech, press, and religion, as well as the right to bail, counsel, habeas corpus, and representation. The Supreme Court, provincial high courts, and other courts have jurisdiction over criminal and civil issues, and the president appoints the Supreme Court's chief justice. The Federal Shariat Court determines whether laws are consistent with Islamic law (Sharia), and special courts and tribunals hear specific types of cases, such as those related to drugs, commerce, and terrorism.
Islamic law and traditional jirga-based law have also influenced the country's judicial development. During the rule of General Muhammad Zia-ul-Haq, elements of Islamic Sharia law were incorporated into Pakistani law, and a Federal Shariat Court was established. This court and the Shariat bench of the Supreme Court serve as appellate courts for certain convictions in criminal court under the Hudood Ordinances, and their judges and attorneys must be Muslim. Pakistan's penal code also incorporates several Islamic law provisions, and while the country's judiciary has limited independence from the executive branch, the government has constitutional authority to restrict civil liberties in accordance with Islamic doctrine.
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Islamic law and traditional jirga-based law influence Pakistan's legal system
Pakistan is a common law country with an adversarial court procedure and follows common law practices such as judicial precedent. However, its legal system is heavily influenced by Islamic law and traditional jirga-based law.
Islamic law, or Sharia law, has been a critical component of Pakistan's tribal customs and its conventional court system. During the rule of General Muhammad Zia-ul-Haq, elements of Islamic Sharia law were incorporated into Pakistani law, leading to the creation of a Federal Shariat Court (FSC). Sharia courts have the power to review any law for conformity with Islam and declare any statute that does not conform to be null and void. References to Islamic principles can be found in rulings on a wide range of issues, from due process in administrative law to enforceability of contracts and environmental regulation. In addition, Islamic law has taken precedence over secular laws in some cases. For example, in a rape case, one of the defendants argued that he and the victim, Kainat Soomro, were married. Although Soomro was a minor at the time of the alleged assault, the judge ruled in the defendant's favour based on a loophole in Islamic law that allows minors who have reached puberty to marry.
Jirga, a council of tribal elders, is another influential aspect of Pakistan's legal system. In some Federally and Provincially Administered Tribal Areas (FATA) and (PATA), disputes are settled by jirgas, which employ traditional methods. While jirgas were declared unlawful by the Supreme Court of Pakistan in 2019, they continue to function as arbitration, mediation, or negotiation bodies. Jirgas have ruled on a variety of issues, from minor property disputes to more serious offenses, including rape. However, they have been criticised for violating human rights, particularly in cases where they have ordered honour killings or discriminated against women.
The influence of Islamic law and traditional jirga-based law on Pakistan's legal system has created a delicate balance between religious and secular law in the country. While Pakistan's legal system is primarily based on common law, it has been shaped by a variety of influences, including Islamic law and traditional jirga-based law, as well as the legacy of British colonial rule.
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Pakistan's legal system is codified, a legacy of British rule
Pakistan's legal system is a complex mix of common law, religious law, and civil law. It is primarily a common law system with an adversarial court procedure, following judicial precedent and the concept of stare decisis. However, Pakistan's legal system differs from classical common law in several ways, owing to its unique history and influences.
The country's legal system is deeply rooted in its colonial past, deriving from the legal system of British India, and thus, ultimately, the common law of England and Wales. After the establishment of the Dominion of Pakistan in 1947, the laws from the era of the British Raj remained in force. This resulted in a legal system that is heavily codified, with both criminal and civil laws being almost entirely based on statutes, a direct legacy of British colonial rule.
The founder of Pakistan, Muhammad Ali Jinnah, envisioned a legal system in accordance with Islamic teachings. While this vision was not initially fulfilled, it did influence later lawmakers. During the rule of General Muhammad Zia-ul-Haq, elements of Islamic Sharia law were incorporated into Pakistani law, impacting criminal law in particular. This led to the creation of the Federal Shariat Court, which hears appeals related to Islamic law and determines whether laws are consistent with Islamic injunctions.
The tension between the inherited common law system and Islamic law, based on the Quran, is an ongoing dynamic within Pakistan's legal landscape. The country's constitution requires that laws be consistent with Islam, and the Penal Code incorporates several Sharia law provisions. The judiciary system includes multiple court systems, reflecting the interplay between civil, criminal, and Islamic jurisprudence. While Pakistan's legal system is largely codified, the influence of Islamic law adds a layer of complexity, with religious doctrines shaping the interpretation and application of the law.
In conclusion, Pakistan's legal system is a unique blend of common law traditions inherited from colonial rule and Islamic legal principles. The codification of its laws is a direct legacy of British rule, while the incorporation of Islamic law has added nuances and complexities to the country's legal framework. The interplay between these influences has resulted in a legal system that continues to evolve and adapt to the needs and values of Pakistani society.
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Pakistan's legal system differs from classic common law
Pakistan's legal system is a common law system, with an adversarial court procedure and practices such as judicial precedent and the concept of stare decisis. However, Pakistan's legal system differs from classic common law in several ways.
Firstly, Pakistan's criminal and civil laws are almost entirely codified, a legacy from the British Raj when English laws were extended to India. In contrast, common law systems like the United States do not have comprehensive codes, and many laws develop from judicial decisions rather than legal codes.
Another difference is the absence of jury trials in Pakistan since independence. Jury trials were phased out due to judicial and public dissatisfaction with their operation, with one Pakistani judge referring to them as "amateur justice".
In constitutional law matters, Pakistani jurisprudence has been significantly influenced by the United States' legal system, adopting a US-style Federal Structure. Additionally, Islamic law and traditional jirga-based law have also influenced the country's judicial development.
Furthermore, Pakistan's legal system may differ from classic common law due to its historical context. Pakistani law is based on the legal system of British India, which itself was based on the common law of England and Wales. However, Pakistan's legal history has also been influenced by the vision of its founder, Muhammad Ali Jinnah, who sought to implement a system in accordance with Islamic teachings. During the rule of General Muhammad Zia-ul-Haq, elements of Islamic Sharia law were incorporated into Pakistani law, leading to the establishment of a Federal Shariat Court (FSC).
In summary, while Pakistan operates as a common law system, it differs from the classic model due to its unique historical influences, codification of laws, absence of jury trials, and incorporation of Islamic and traditional legal principles. These factors have shaped the country's legal development and set it apart from a typical common law system.
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Islamic law and common law are in tension in Pakistan
Pakistan is a common law country, with an adversarial court procedure and practices such as judicial precedent. However, the country's legal system has been influenced by Islamic law, also known as Sharia law, which has created tension with common law.
Pakistan's founder, Muhammad Ali Jinnah, had a vision for the country's legal system to be in accordance with Islamic teachings, which was later fulfilled when Pakistan gained its first constitution in 1956. During the rule of General Muhammad Zia-ul-Haq, elements of Islamic Sharia law were incorporated into Pakistani law, and a Federal Shariat Court was established. This Islamisation programme led to the introduction of new criminal offences, such as adultery and blasphemy, and new punishments, including whipping and stoning to death.
The implementation of Islamic law in Pakistan has been a source of tension and controversy. On the one hand, it has been supported by conservative Islamic groups and scholars. However, it has also faced opposition from various quarters. Religious minorities and human rights groups have criticised the blasphemy laws, arguing that they are used to persecute minorities and settle personal scores. Women's and human rights groups have opposed certain laws that appear to discriminate against women, such as the incarceration of rape victims under hadd punishments and the valuation of women's testimony and compensation at half that of men.
Additionally, the process of Islamisation has contributed to sectarian strife within the country. Disputes between Shia and Sunni Muslims over Islamic jurisprudence, particularly regarding the distribution of Zakat donations, led to religious riots in 1983 and 1984. The Shia Muslim minority accused Zia's Islamisation of being "Sunnification", as the Pakistani government favoured the application of Sunni law.
The tension between Islamic law and common law in Pakistan is further complicated by the country's legal history. The country's laws are based on the legal system of British India, which in turn is derived from the common law of England and Wales. This has resulted in a hybrid legal system that incorporates both common law and Islamic law principles, leading to ongoing debates and challenges in interpreting and applying the law in Pakistan.
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Frequently asked questions
Pakistan is a common law country. Its legal system is derived from English common law and is based on the 1973 constitution, which has been amended several times, and Islamic law (Sharia).
The primary source of law in Pakistan is the 1973 constitution, which has been amended over time. The country's laws are also influenced by Islamic law, also known as Sharia law, which is the basis for the Federal Shariat Court.
Pakistan's judiciary has limited independence from the executive branch. The legislative and executive branches often try to avoid judicial oversight. Additionally, the judiciary faces challenges such as low public credibility, case backlogs, corruption, and insufficient resources.
Pakistan's legal system has some unique features. Firstly, it retains elements of the common law system inherited from the British colonial era, but it also incorporates Islamic law, creating tension between the two systems. Secondly, the country has a Federal Shariat Court that determines whether laws are consistent with Islamic injunctions. This court has extensive powers and hears appeals related to Islamic law.
