Islamic Review in Pakistan: Problematising the Divide between Shari’a Courts and their ‘Secular’ Counterparts

Special Shariat Courts with powers of Islamic review – including the Federal Shariat Court (“FSC”) and its appellate branch, the Shariat Appellate Bench of the Supreme Court (“SAB”) –have operated parallel to the “mainstream” constitutional courts in Pakistan for almost four decades. In global comparison, these Shariat Courts are truly distinctive. There is no other contemporary example of a parallel court system invested with the “exclusive” power to judge whether existing laws, even those enacted by popularly elected parliaments, are repugnant to Islamic injunctions, and to render ineffective laws held to be repugnant. Yet, these Courts remain mostly understudied and mired in deep controversy. They have attracted much acrimonious criticism from different sides of the ideological spectrum that view these Courts as either not Islamizing the law sufficiently or as thwarting the liberal agenda of constitutionalism. Despite the Courts’ record of generating an arguably modernist Islamic jurisprudence over time, the legitimacy deficit of the Shariat Courts has not abated. Valid as the many critiques are of the Shariat Courts, they eschew any methodical thinking about how the Shariat Courts are positioned within the judicial system as a whole, and how this larger institutional structure mediates the relationship between the Shariat Courts and the co-existing constitutional courts that exercise general powers of constitutional and judicial review, including the apex Supreme Court. The question of institutional design is especially germane in the case of Pakistan’s Shariat Courts because of their “hybrid” nature. 

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Authors

Dr. Maryam S. Khan IDEAS

Keywords

• Comparative Constitutional Law
• Islamic Constitutionalism
• Islamic Jurispudence
• Legal Instituitions
• Secularism

Cite this publication

Khan, M. S. (2021). Islamic Review in Pakistan: Problematising the Divide between Shari’a Courts and their ‘Secular’ Counterparts. Invisible Institutionalisms: Collective Reflections on the Shadows of Legal Globalisation. Hart Publishing, Pg. 147-165.

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