The following research journal entries discuss: (1) The incompatibility of secular laws and religious laws; (2) The judicial hierarchy of courts in Pakistan; (3) Types of punishments outlined from religious laws that are incorporated into Pakistan’s legal system; (4) Types of religious authority present in Pakistan; (5) Types of religious schools of thought; (6) Unawareness of legal laws and rights. Many of the blog posts have mind maps that summarize these topics.
Category Archives: Judicial Structure
Organization of the Judiciary of Pakistan
Hussain, Faqir. The Judicial System of Pakistan. Lahore: All Pakistan Legal Decisions, 1969. Supreme Court of Pakistan. 15 Feb. 2011. Web. (Click on this link to see this document: http://www.supremecourt.gov.pk/web/user_files/File/thejudicialsystemofPakistan.pdf)
In the following mind map, I have structured the courts into a judicial hierarchy with the Supreme Court at the top and subordinate courts (civil and criminal courts) at the bottom. This gives one a rough idea of where the Federal Shariah Courts are placed with respect to other branches. 
Research Journal: Interpretive Frameworks
Khouri, N. (2007). Human Rights and Islam: Lessons from Amina Lawal and Mukhtar Mai. The Georgetown Journal of Gender and the Law, 8(93), 93-109.
Khouri explains three accounts/ interpretative frameworks that are used to draw relationships between human rights and Islamic law. There are named as Clash of Civilizations, Global Legal Pluralism, and Transnational Legal Process. The following mind map briefly outlines the important components associated with each:
She also analyzes two case studies – Amina Lawal and Mukhtar Mai- and interprets both of them in light of the three frameworks that she provides in this article. I will only be summarizing Mukhtar Mai’s case since it happened in Pakistan and it is directly related to my topic. The other case is that of a Nigerian woman, but since the penal code in Nigeria is different, I will not go into its detail.
In 2002, Mai was ganged raped on orders of her panchayat (village council) in retribution for alleged zina committed by her younger brother. Khouri explains this case in view of the three frameworks.
1. Clash of Civilization
International media adopted this interpretative framework to state that Mai’s human rights had been violated as a result of Sharia law. However, this framework ignores the fact that the village council did not have any legal authority to impose Sharia. Local tribunals are not part of the federal state law or the penal code. The clash is between traditional tribal law and official state law, not human rights and Islamic law.
2. Global Legal Pluralism
Because global legal pluralism recognizes human rights and Islamic law as separate and interacting entities, it takes local political structures into account. This framework explains that while the village council did not have legal authority, it was the village imam who spoke against the sexual violence. It also considers the class differences of perpetrator and victim. Mai’s perpetrators were from Mastoi tribe and because most members of the village council were from that tribe, they issued such a horrific act of violence against Mai, who was from the socially low Gujar tribe.
3. Transnational Legal Process
This interpretative framework emphasizes the concept of norm internalization. In Mai’s case, government condemned rape, compensated her and provided her legal costs. This could be partly attributed to international pressure which emphasizes human rights norms.
Each interpretative framework provides a unique analysis, but because the global legal pluralism accepts alternative models, it is neutral and more tolerant. Of course, the relationship between human rights and Islamic law is more complex than it is portrayed in these frameworks.
Research Journal: Doublethink in Laws
Bari, F. (2002). Pakistan: Woman Rape Victim Sentenced to Death by Stoning – According to Moslem Law. Women’s International Network News, 28(3), 47.
In this short article, Bari explains that the Hudood Ordinances provides a legal basis of gender discrimination. She writes, “Hudood laws are clearly in conflict with the principle of gender equality that is enshrined in article 25 of the constitution that does not permit discrimination on the basis of sex.” When I read this statement, it reminded me of George Orwell’s 1984, where doublethink is the norm among people of Oceania. In Orwell’s words, doublethink is,
The power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them… To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then, when it becomes necessary again, to draw it back from oblivion for just as long as it is needed, to deny the existence of objective reality and all the while to take account of the reality which one denies – all this is indispensably necessary.
Essentially, Bari calls for a reform in the laws; she proposes to eliminate gender discrimination in the legal framework. Although she does not present any other reason for the repeal of strict laws like Hudood Ordinances (such as human rights violation etc.), she underscores that the clash of Sharia and secular laws is a problem because they cannot be upheld at the same time.
Research Journal: Debate on Hudood Ordinances in Television Series
Khan, A. (2006). After TV Series, Pakistan Rethinks Rape, Sex Laws. Christian Science Monitor, 98(157), 1-10.
Geo Television Network is a private station that has emerged in recent years. To determine whether the Hudood Ordinances are divine or man-made, Geo TV organized a show called “Zara Sochieye” – it literally translates to “Just Think” in Urdu. In this show, Islamic scholars, clerics, muftis, and jurists were invited to debate on the issue. Despite the fact that scholars were from various schools of thought, they all agreed that the law was flawed and needed change. Mohammad Farooq Khan, a religious scholar, stated, “The biggest flaw in the ordinance is that it does not distinguish between fornication and rape.”
Although one cannot say that this television show is the main reason why Hudood Ordinances came under spotlight, it certainly began a conversation about its repeal. It also brought attention to some of the statistics, which were either not talked about or not well known at that time. For instance, in 2005, Human Rights Commission of Pakistan reported that out of the 6,000 women imprisoned, two-thirds cases were directly related to Hudood. I think that when people see such high rates of imprisonment due to Hudood Ordinances, they can understand the restrictive nature of these laws. The opinion of public matters a lot because, theoretically, they can influence the government’s decisions about amendments of such laws. So having shows like this being aired on national television can prove to be a catalyst in the improvement of women’s rights.
Khan mentions that the Islamic Ideology Council, which is comprised of up to 20 scholars from both Sunni and Shiite sects, is a constitutional body created for advising the government on religious laws. My next step should be to find more about how this legal body functions. Although this is not on my immediate to-do list, I am also going to peruse through sections of the show and understand both sides of the debate.
Research Journal: Elements of Islamic Law and Types of Punishments
Weiss, A. (1986). The Historical Debate on Islam and the State in South Asia. In Islamic Reassertion in Pakistan (21). New York: Syracuse University Press.
Ibn Khaldun was a 14th century Islamic theorist, who suggested that the following three elements are important in the creation and establishment of an Islamic state:
The following mind map details the types of punishment outlined in Sharia law. Pakistan’s legal system has incorporated Hudood laws in the past. Click on the image to enlarge it.
Research Journal on Women Prisoners in Pakistan: Changing Practices to Enforce Laws and Rights
Ali, A., and Shah, N. A. (2011). Women Prisoners In Pakistan: Changing Practices To Enforce Laws & Rights. Kuwait Chapter of Arabian Journal of Business and Management Review. 1(4). 57-63.
In Pakistan, rates of female imprisonment have increased significantly over the recent decades. Ali and Shah identify the Hudood Ordinances as one of the major reasons for the increase. They cite that a report by National Commission on the Status of Women states that 80% of female prisoners are locked up because they cannot disprove rape charges and have subsequently been convicted of adultery. (They did not provide which year the report was released.) Furthermore, 80% of them are raped in police custody.
Ali and Shah note that only 10% of the judges in the country are female. They argue that people (including judges) carry the cultural prejudices of their society. Having predominantly male judges reflects the patriarchal norms that work against women. The lack of representation of women in the judicial system is troubling. I want to find out the percentage of female judges in lower and higher courts and see whether more restrictive laws are applied to rape charges in the lower or higher levels of judiciary. This will enable me to see if there is a higher correlation between male judges and restrictive laws issued.
Ali and Shah conducted a study at Youth Offenders and Special Prison for Women, a jail founded in 1993 in Peer Ilahi Bakhash Colony, Jamshed Town. After surveying 200 women prisoners under the jail staff’s supervision, they concluded the following:
Research Journal: Reasons for the Lack of Women’s Participation in Pakistan’s Workforce
Raza, F. (2007). Reasons for the Lack of Women’s Participation in Pakistan’s Workforce. Journal Of Middle East Women’s Studies, 3(3), 99-102.
After re-reading this article, I was grappling with these questions: Do we really need laws to bring equality in society? Why doesn’t their existence mean that we have achieved equality? When do laws fail to play a fair role? I think that passing laws is just the beginning step, but implementing it is another feat in itself. That is because implementing laws need a wave of change in the overall attitudes of people towards women, in general, and especially towards women who have been raped or sexually assaulted. After watching the documentary titled Outlawed in Pakistan, I realized that although repealing restrictive laws like the Hudood Ordinances is relieving, the prejudice still exists and is reflected in the sort of outcomes that young women like Soomro face today.
Raza states that according to the Constitution of Pakistan, which was ratified in 1973, women are equal citizens. However, gender inequality is widespread and lack of women’s role in Pakistan’s economy is dismal. He elaborates on the government’s efforts to create committees such as Commission on Marriage and Family Laws (1955), Women’s Rights Committee (1976), Commission of Inquiry for Women (1977), and Pakistan Commission on the Status of Women (1985). Although they have been founded to address gender imbalances, Raza notes that the government’s initiative to tackle problem of gender inequality by increasing reserved parliament seats for women provides a temporary solution. In 2001, Pakistan’s government reserved 33% of seats in local bodies and 17% of seats in nationals and provincial assemblies for women. With less than 10% of women working, the rationale for increasing the number of reserved seats was clear: (1) to deter underemployment of women in government offices and (2) to increase their participation in political decision-making. However, reasons for underemployment arises from factors such as gender-specific roles in society, lack of safety using public transportation, inadequate education or vocational training, and workplace harassment. Raza mentions that human rights report indicate that women in secretarial jobs and semi-skilled or unskilled employments face sexual harassment. (He does not give specific numbers.)
Reseach Journal: Socio-cultural, Religious, and Political Aspects of the Status of Women in Pakistan
Hakim, A., Aziz, A. (1999). Socio-cultural, Religious, and Political Aspects of the Status of Women in Pakistan. The Pakistan Development Review. 37(4). 727-746.
Most women in Pakistan do not identify their ethnic race (Balochi, Pathan, Sindhi, and Punjabi) or language as a unifying factor. Instead, Islam is the single most important aspect common to an overwhelming majority. In this article, the term “status” of women, specifically in Pakistan, is defined either in terms of access to resources such as education, employment, and health services, or position, which includes power, prestige, and authority. Note that here women’s status is defined as a conglomeration of indicators that can be measured and easily reported in numbers. This way of analysis overshadows cultural factors such as family caste/class etc.
Hakim and Aziz categorize limitations on women into two broad groups: (1) Legal restrictions interpreted from Quran, Hadith, Sunnah, and Sharia; (2) Enforcement of Purdah. The second category refers to the tradition of seclusion of women from men. This practice was also prevalent in the Hindu community in the Indian subcontinent and was perceived as a symbol of high class. It is important to understand the similarities between Hindu and Muslim communities because Pakistani culture has definitely borrowed some ideas/customs/values from outside. I want to research how these foreign influences and blend of ideas have impacted the perception of women in society.
Another important thing that I learnt from this article was the division of religious authority in Pakistan (See the following diagram). It was interesting to find that ulema (Islamic scholars) are the only one who can directly drive a political change since they are involved in political organizations. Maulvis (local preachers) and pirs (spiritual leaders or sufi shaikhs) are active in the local community, but they do not have any political contributions. Here we are not counting indirect influences that maulvis and pirs can potentially have on citizens who would later have an active role in politics/ government.
Research Journal: Sunni Schools of Thought
Weiss, A. (1986). The Historical Debate on Islam and the State in South Asia. In Islamic Reassertion in Pakistan (21). New York: Syracuse University Press.
The four sunni schools of thought that have survived are Malikite fiqh, Hanafi fiqh, Shafi fiqh, and Hanbali fiqh. What makes them different from each other? Their approach to man-made interpretations of the Quran. Each school either allows ijma (analogical deduction) or qiyas (collective reasoning) or both or none.
Click on this to access the PDF: Sunni Schools of Thought. Learn which school allows which man-made interpretation(s) and find out where they are prevalent.
