SC discusses quota system's legitimacy

Issues notices on appeal challenging FSC ruling against quota system

ISLAMABAD:

The Shariat Appellate Bench of the Supreme Court on Monday issued notices to the federation in an appeal challenging the Federal Shariat Court's (FSC) ruling that declared the quota system un-Islamic and adjourned the hearing until the first week of April.

A five-member bench headed by Justice Jamal Khan Mandokhail heard the case. Other members of the bench included Justice Shahid Waheed, Justice Irfan Saadat Khan, and Islamic scholars Justice (retd) Dr Khalid Masood and Dr Qibla Ayaz.

During the proceedings, Justice Mandokhail observed that the issue was of great national importance and asked Additional Attorney General (AAG) Munawar Iqbal Duggal to explain how the quota system could be justified under Islamic principles.

The law officer argued that Article 27 of the Constitution explicitly provides for the quota system and authorises parliament to legislate in this regard. He further submitted that legislation had already been enacted to extend the duration of the quota system.

Justice Mandokhail remarked that the original 40-year period of the quota system had already expired. Justice Irfan noted that the quota system was based on population ratio; the AAG replied that quotas were indeed implemented according to provincial population.

Justice Mandokhail questioned whether the policy effectively conveyed a message that provinces with smaller populations should increase their numbers to secure greater representation.

The appeal was filed by the federal government against the Federal Shariat Court verdict declaring the quota system contrary to Islamic injunctions. The court adjourned further hearing of the case until the first week of April after issuing formal notices.

The same Shariat Appellate Bench also issued notices to the federation and all provinces in an appeal challenging the FSC ruling that declared the government's power to remit sentences un-Islamic.

During the hearing, Justice Mandokhail observed that under Islamic law punishments fall into two categories: those prescribed in the Holy Quran and those awarded under tazir.

He remarked that in tazir cases, the judge determines punishment in view of the circumstances of each case. He questioned how an accused person could seek remission of punishment from the government. "If such a practice is allowed, courts will become redundant," he said.

He further observed that a person who is himself a party to a case cannot be allowed to have his punishment withdrawn, as this would lead to the collapse of the justice system.

Justice Irfan observed that while compromise may be possible in murder cases, offences such as robbery could not be settled through reconciliation.

Justice Mandokhail added that if a victim approached the state for justice after a theft and later discovered that the government had withdrawn the case, it would amount to denial of justice.

Justice Waheed directed the parties not to take the matter lightly and to come prepared with complete arguments. Justice Mandokhail noted that the cases dated back to 1989 and said efforts would be made to hear them daily.

The bench clarified that it would not seek an opinion from the Council of Islamic Ideology (CII), observing that it would not be appropriate if the court were to disagree with such an opinion.

The case relates to sections 401 and 402 of the Pakistan Penal Code and the Criminal Law (Amendment) Act, 1958, which Syed Islamuddin challenged before the FSC. In 1991, the FSC declared the relevant provisions un-Islamic.

The federal government challenged the 1991 verdict before the Supreme Court the same year. The Shariat Appellate Bench adjourned further hearing of the case until the first week of April after issuing notices to all concerned parties.