Interpretation of Laws according to Islamic Injunctions: A Statutory Obligation with Special Reference to Family Law

Abstract

Pakistan is a state created in the name of Islam. Since independence, a struggle started for Islamization of laws. Attempts were made by the Parliament and several provisions were inserted in the constitutions as well as other laws to bring them in conformity with Islamic injunctions. However, multi-cultural societal norms and earlier colonialism were the main challenges in this regard. Until the 1980s, the main source of any Islamic law was the Parliament but thereafter many scholars have noted that the Federal Shariat Court became the primary source for Islamization of law and in absence of any political leadership or societal consensus, the actual determinant for the Islamization of laws in Pakistan are the courts. Various Islamic provisions have been inserted in the Constitution and other laws including Articles 2-A and 227 of the Constitution, but all of them cannot be declared Islamic, unless they are interpreted by the courts in accordance with Islamic injunctions. On the hand, provisions declared against the injunctions of Islam can also be interpreted in the light of Islamic injunctions. Article 227 of the Constitution impliedly and Section 4 of the Enforcement of Shari’ah Act, 1991 expressly cast a duty on courts to take the judicial notice of the provisions of laws and interpret them in accordance with Islamic law. The matter also came before the Apex Court of Pakistan in Hakim Khan etc. v Government of Pakistan etc. (PLD 1992 SC 559), wherein it was held that any question regarding any provision of the Constitution being against the injunctions of Islam shall be referred to the Parliament, which is the sole authority to bring it in conformity with the injunctions of Islam. According to Prof. Imran Ahsan Khan Niyazee, the matter could have been solved easily if it was interpreted in accordance with the injunctions of Islam by declaring that Article 45 is not applicable in Qisas. Therefore, interpretation of any law by the courts is very important and this paper attempts to highlight the need, scope, mode and problems of interpretation of laws in accordance with Islamic injunctions with special reference to family laws.