Shariat court can’t issue directions, SC rules

Justice Alam-led appellate bench sets aside FSC's October 22, 2012 verdict


Hasnaat Malik March 10, 2019
PHOTO: REUTERS

ISLAMABAD: The Supreme Court has declared that the Federal Shariat Court (FSC) has no jurisdiction to pass directions for the enforcement of fundamental rights.

The apex court also noted that the FSC has no jurisdiction to pass direction for the implementation of any law or constitutional provision.

“[The] Federal Shariat Court has no jurisdiction to examine or be influenced by any proposed draft legislation [with reference to the] bill “the teaching of the Holy Quran and Arabic language, Act, 2009, which has not yet been translated into an act of parliament nor possesses any jurisdiction in the nature of Article 199 or 184(3) of the Constitution, for the enforcement of fundamental rights or to issue order, declaration or directions to implement any command of the Constitution or law”, says the detailed judgment authored by Justice Mushir Alam.

The three-judge Shariat Appellate bench led by Justice Alam had set aside the FSC's October 22, 2012 verdict about the introduction of the Arabic language in all walks of life and for the issuance of necessary direction to the federal government to make Arabic part of the curriculum from primary and secondary schools.

Earlier, the Punjab government through Punjab Additional Advocate General Qasim Chohan had challenged the FSC judgment whereby directions to implement Article 31(2)(c) of the Constitution and the Shariat Act, 1991 were issued.

The judgment says that the direction given to the federal government and all four provinces to take necessary steps under Article 31(2)(c) of the Constitution and “Enforcement of Shariah Act, 1991 for the promotion of Arabic language for educational and other relevant purposes”, the jurisdiction and authority, if any, to issue such direction, may rest elsewhere but, certainly not with the FSC.

The court also observed that the Principles of Policy as embedded in Articles 29 through 40 are guidelines for the state, standalone, and are not enforceable.

“Sub-Article (1) on the one hand places responsibility on each organ and authority of the state to strive to achieve the same, on the other, Sub-Article (2) of Article 30 insulates it against examination even by high courts and the Supreme Court unless same are translated into commands of the Constitution or law like Article 141A, Article 10A, Article 25A, corresponding to Articles 32, 37(d) and 37(b) and (c), respectively, grafted through the 18th Constitutional Amendment,” it adds.

The verdict says that the FSC erred by treating Article 31(2) of the Constitution as a command of the Constitution or law capable of implementation by the Federal Shariat Court.

“The jurisdiction of the Federal Shariat Court is confined to the extent of examining the compatibility or otherwise of law (per Article 293(B)(c) on the touchstone of injunctions of Islam.

Once a law or any provision thereof is held to be repugnant to injunctions of Islam by the Federal Shariat Court, then it becomes the responsibility of the appropriate legislature to harmonise it in accordance with injunctions of Islam; otherwise, declaration so made by the Federal Shariat Court becomes effective on the day so specified in its decision”

The court also noted that the Federal Shariat Court issued a direction in the form of a writ of mandamus (court order), which is clearly beyond its jurisdictional authority.

“Article 203D clearly set down the original jurisdiction of the Federal Shariat Court, to the extent of examining the statute laws, custom or usage having force of law, including statutory rules, regulations framed thereunder on the touchstone of injunctions of Islam and issuance of declaration in relation thereto; however, the Constitution, Muslim Personal Laws, fiscal law and law of procedure of any court as mentioned in Clause (c) of Article 203B; are kept beyond the pale of its jurisdiction.”

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