Moeen Cheema | The Australian National University (original) (raw)
Papers by Moeen Cheema
Icon-international Journal of Constitutional Law, Dec 1, 2020
This article charts the historical marginalization of Pashtun tribal areas to the periphery of th... more This article charts the historical marginalization of Pashtun tribal areas to the periphery of the Pakistani state and undertakes an analysis of the recent movement for their integration in Pakistan’s constitutional structure. It also analyzes contemporaneous developments in Pakistan’s constitutional system, in particular the accommodation of a stronger form of federalism and the emergence of a powerful judiciary brandishing robust judicial review and fundamental rights jurisdictions, which have provided both the backdrop and impetus to the integration of the Federally Administered Tribal Areas (FATA) in Pakistan’s constitutional system of governance. The article asserts that this case study of FATA’s integration demands an acknowledgment of the deeply political and inherently transitional nature of constitutionalism in Pakistan, and arguably many other parts of the Global South.
RePEc: Research Papers in Economics, 2006
ISBN 969-8905-24-3 (print) ISBN 969-8905-25-1 (online) * Financial support for this study was pro... more ISBN 969-8905-24-3 (print) ISBN 969-8905-25-1 (online) * Financial support for this study was provided by LUMS-Citigroup Corporate Governance Initiative at Centre for Management and Economic Research, Lahore University of Management Sciences. Taimur Adil and Nadia Sattar provided excellent research assistance on the study. 27 According to the Mutual Fund Association of Pakistan (MUFAP), both open-end and closed-end funds are incorporated in the definition of mutual funds. For further discussion, see MUFAP (2005), available at http://mufap.com/mufap/informations.htm. 28 For benefits of investment through mutual funds, see Wang (1994).
Over the last decade, the Supreme Court of Pakistan has emerged as a powerful and overtly politic... more Over the last decade, the Supreme Court of Pakistan has emerged as a powerful and overtly political institution. While the strong form of judicial review adopted by the Supreme Court has fostered the perception of a sudden and ahistorical judicialisation of politics, the judiciary's prominent role in adjudicating issues of governance and statecraft was long in the making. This book presents a deeply contextualised account of law in Pakistan and situates the judicial review jurisprudence of the superior courts in the context of historical developments in constitutional politics, evolution of state structures and broader social transformations. This book highlights that the bedrock of judicial review has remained in administrative law; it is through the consistent development of the 'Writ jurisdiction' and the judicial review of administrative action that Pakistan's superior courts have progressively carved an expansive institutional role and aggrandised themselves to ...
Washington International Law Journal, Jun 1, 2016
The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and... more The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that of any apex court with constitutional and administrative law jurisdiction, has always been deeply and structurally political and will continue to be so in the future. As such, this article focuses on the nature and consequences of the Chaudhry Court's judicial politics rather than addressing the issue of whether it indulged in politics at all. It analyzes the underlying causes that enabled the court to exercise an expanded judicial function and in doing so engages with the literature on the "judicialization of politics" around the world. I. INTRODUCTION The tenure of the former Chief Justice of Pakistan Iftikhar Muhammad Chaudhry 1 has undoubtedly been characterized by remarkable developments in the institutional role and jurisprudence of the Supreme Court of Pakistan. This recent era in Pakistan's legal history, that of the "Chaudhry Court," 2 was also marked by great controversy and vociferous debate on the place of the Supreme Court in Pakistan's state structure and constitutional politics. By the end of Chief Justice Chaudhry's tenure in December 2013, the Court faced a chorus of
International Journal of Constitutional Law, 2020
This article charts the historical marginalization of Pashtun tribal areas to the periphery of th... more This article charts the historical marginalization of Pashtun tribal areas to the periphery of the Pakistani state and undertakes an analysis of the recent movement for their integration in Pakistan’s constitutional structure. It also analyzes contemporaneous developments in Pakistan’s constitutional system, in particular the accommodation of a stronger form of federalism and the emergence of a powerful judiciary brandishing robust judicial review and fundamental rights jurisdictions, which have provided both the backdrop and impetus to the integration of the Federally Administered Tribal Areas (FATA) in Pakistan’s constitutional system of governance. The article asserts that this case study of FATA’s integration demands an acknowledgment of the deeply political and inherently transitional nature of constitutionalism in Pakistan, and arguably many other parts of the Global South.
![Research paper thumbnail of [25WashIntlLJ0447] The “Chaudhry Court”: Deconstructing the “Judicialization of Politics” in Pakistan](https://attachments.academia-assets.com/111476068/thumbnails/1.jpg)
](The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and... more The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iflikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that...
Peter Cane. Peter has always been a source of inspiration and set very exacting standards which, ... more Peter Cane. Peter has always been a source of inspiration and set very exacting standards which, while somewhat intimidating, pushed me to try to produce my best work. Peter's generosity with his time, constructive feedback and detailed comments enabled me to produce a thesis I can be proud of. I would also like to thank other members of my supervisory panel, Professor Michael Coper and Associate Professor Leighton McDonald, whose advice and support was vital at critical junctures of this project. In addition, there are many other colleagues and members of the executive who deserve credit for creating a wonderfully collegial
There is growing appreciation that the processes of constitutional formation in post-colonial sta... more There is growing appreciation that the processes of constitutional formation in post-colonial states are complicated by the inheritances of colonial governance. Whether that be a haphazard political sphere, hamstrung by colonial powers anxious to retain collaboration or a heavily centralised administrative apparatus, the idea that transitions can be enacted by the law is increasingly called into question. This chapter argues, through a case study of Pakistan’s earliest constitutional founding, that the consolidation of sovereignty in moments of transition can act to constrain and bracket the transformative potentiality of a constituent power. Thus, the period in which the first constitution for an independent Pakistan was being formed provides an indicative sense of where and through which mechanisms the transition from an ideational Muslim nationalism was recreated as authorisation for centralised and somewhat immovable executive rule....
Judicial Review of Elections in Asia, 2016
International Journal of Constitutional Law, 2018
SSRN Electronic Journal, 2006
Pakistan's Hudood (Islamic criminal) laws have been a source of controversy since their promulgat... more Pakistan's Hudood (Islamic criminal) laws have been a source of controversy since their promulgation by the military regime of General Muhammad Zia-ul-Haq in 1979. For their supporters, these laws are a welcome step towards the enforcement of shari'ah (Islamic law) and, as such, represent a logical and inevitable progression of those historic processes that had led to the creation of the Islamic Republic of Pakistan. To their opponents, these laws represent gross violations of fundamental human rights and constitutional norms designed to uphold democratic participation in lawmaking and the equality of citizens irrespective of their religion or gender. However, despite the protests at home and the notoriety generated in the international media, these laws continue to exist on the statute books and are enforced in the courts of law. This paper will survey the contours of the controversies surrounding the Hudood laws, and seek to broaden the horizons of the debate surrounding these laws by incorporating an "Islamic critique" of these laws that has generally been lacking in the discourse. More importantly, the paper seeks to analyze the role that the Federal Shariat Court has played in substantively shaping the law, through a chronological analysis of the Court's decisions on the most contentious aspects of the Hudood laws: the conviction of rape victims for zina (consensual adultery/fornication) regarding as proof the pregnancy caused by the rape. This analysis will indicate the strengths of the Islamic critique and propose reforms that may offer a viable avenue for alleviating the hardships perpetrated in the application of the Hudood laws.
Routledge Handbook of Autocratization in South Asia, 2021
Cambridge University Press, 2022
Routledge Handbook of Autocratization in South Asia, 2021
This chapter investigates the role that the Supreme Court has played in the context of an increas... more This chapter investigates the role that the Supreme Court has played in the context of an increasing democratic deficit and the emergence of what is being widely referred to as a civil-military ‘hybrid’ regime in Pakistan. It closely analyses high-profile constitutional cases before and after the 2018 elections, and the resulting transfer of power to the incumbent government. The chapter argues that in such cases involving matters of high constitutional law and politics the apex court has developed a method to temporarily reduce the political and inter-institutional tensions by mediating between the various power centres and reaching intermediate outcomes, rather than principled peremptory decisions. While such judicial intervention temporarily reduces political strains, it ultimately enables the hybrid regime to assert its dominance under the cover of judicial oversight, contributing to autocratization in Pakistan.
16 International Journal of Constitutional Law 503, 2018
This article charts the historical marginalization of Pashtun tribal areas to the periphery of th... more This article charts the historical marginalization of Pashtun tribal areas to the periphery of the Pakistani state and undertakes an analysis of the recent movement for their integration in Pakistan's constitutional structure. It also analyzes contemporaneous developments in Pakistan's constitutional system, in particular the accommodation of a stronger form of federalism and the emergence of a powerful judiciary brandishing robust judicial review and fundamental rights jurisdictions, which have provided both the backdrop and impetus to the integration of the Federally Administered Tribal Areas (FATA) in Pakistan's constitutional system of governance. The article asserts that this case study of FATA's integration demands an acknowledgment of the deeply political and inherently transitional nature of constitutionalism in Pakistan, and arguably many other parts of the Global South.
ICON, 2018
Pakistan's superior courts have evolved from marginal state institutions to key players mediating... more Pakistan's superior courts have evolved from marginal state institutions to key players mediating the balance of powers in a deeply divided and politically fragmented polity during seven decades of the country's postcolonial history. Although the political salience of the Supreme Court's recent actions-including the disqualification of two elected prime ministers-has created the sense of a sudden and ahistorical judicialization of politics, the courts' prominent role in adjudicating issues of governance and statecraft was long in the making. The perception of an historically docile and subservient court which has suddenly become activist has been shaped by an undue focus on the big constitutional moments of regime or governmental change in which the Apex Court has more often than not sided with the military or military-backed presidency. While these constitutional cases and crises are important, an exclusive focus on this domain of judicial action hides the more significant and consistent developments that have taken place in the sphere of "administrative law." It is through the consistent development of the judicial review of administrative action, even under military rule, that Pakistan's superior courts progressively carved an expansive institutional role for themselves. This article highlights the progressive, though non-linear, expansion of judicial power in Pakistan and argues that despite some notable and highly contentious moments of judicial interference in mega politics, the bedrock of judicial review has remained in administrative law-i.e., the judicial review of executive action.
Icon-international Journal of Constitutional Law, Dec 1, 2020
This article charts the historical marginalization of Pashtun tribal areas to the periphery of th... more This article charts the historical marginalization of Pashtun tribal areas to the periphery of the Pakistani state and undertakes an analysis of the recent movement for their integration in Pakistan’s constitutional structure. It also analyzes contemporaneous developments in Pakistan’s constitutional system, in particular the accommodation of a stronger form of federalism and the emergence of a powerful judiciary brandishing robust judicial review and fundamental rights jurisdictions, which have provided both the backdrop and impetus to the integration of the Federally Administered Tribal Areas (FATA) in Pakistan’s constitutional system of governance. The article asserts that this case study of FATA’s integration demands an acknowledgment of the deeply political and inherently transitional nature of constitutionalism in Pakistan, and arguably many other parts of the Global South.
RePEc: Research Papers in Economics, 2006
ISBN 969-8905-24-3 (print) ISBN 969-8905-25-1 (online) * Financial support for this study was pro... more ISBN 969-8905-24-3 (print) ISBN 969-8905-25-1 (online) * Financial support for this study was provided by LUMS-Citigroup Corporate Governance Initiative at Centre for Management and Economic Research, Lahore University of Management Sciences. Taimur Adil and Nadia Sattar provided excellent research assistance on the study. 27 According to the Mutual Fund Association of Pakistan (MUFAP), both open-end and closed-end funds are incorporated in the definition of mutual funds. For further discussion, see MUFAP (2005), available at http://mufap.com/mufap/informations.htm. 28 For benefits of investment through mutual funds, see Wang (1994).
Over the last decade, the Supreme Court of Pakistan has emerged as a powerful and overtly politic... more Over the last decade, the Supreme Court of Pakistan has emerged as a powerful and overtly political institution. While the strong form of judicial review adopted by the Supreme Court has fostered the perception of a sudden and ahistorical judicialisation of politics, the judiciary's prominent role in adjudicating issues of governance and statecraft was long in the making. This book presents a deeply contextualised account of law in Pakistan and situates the judicial review jurisprudence of the superior courts in the context of historical developments in constitutional politics, evolution of state structures and broader social transformations. This book highlights that the bedrock of judicial review has remained in administrative law; it is through the consistent development of the 'Writ jurisdiction' and the judicial review of administrative action that Pakistan's superior courts have progressively carved an expansive institutional role and aggrandised themselves to ...
Washington International Law Journal, Jun 1, 2016
The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and... more The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that of any apex court with constitutional and administrative law jurisdiction, has always been deeply and structurally political and will continue to be so in the future. As such, this article focuses on the nature and consequences of the Chaudhry Court's judicial politics rather than addressing the issue of whether it indulged in politics at all. It analyzes the underlying causes that enabled the court to exercise an expanded judicial function and in doing so engages with the literature on the "judicialization of politics" around the world. I. INTRODUCTION The tenure of the former Chief Justice of Pakistan Iftikhar Muhammad Chaudhry 1 has undoubtedly been characterized by remarkable developments in the institutional role and jurisprudence of the Supreme Court of Pakistan. This recent era in Pakistan's legal history, that of the "Chaudhry Court," 2 was also marked by great controversy and vociferous debate on the place of the Supreme Court in Pakistan's state structure and constitutional politics. By the end of Chief Justice Chaudhry's tenure in December 2013, the Court faced a chorus of
International Journal of Constitutional Law, 2020
This article charts the historical marginalization of Pashtun tribal areas to the periphery of th... more This article charts the historical marginalization of Pashtun tribal areas to the periphery of the Pakistani state and undertakes an analysis of the recent movement for their integration in Pakistan’s constitutional structure. It also analyzes contemporaneous developments in Pakistan’s constitutional system, in particular the accommodation of a stronger form of federalism and the emergence of a powerful judiciary brandishing robust judicial review and fundamental rights jurisdictions, which have provided both the backdrop and impetus to the integration of the Federally Administered Tribal Areas (FATA) in Pakistan’s constitutional system of governance. The article asserts that this case study of FATA’s integration demands an acknowledgment of the deeply political and inherently transitional nature of constitutionalism in Pakistan, and arguably many other parts of the Global South.
The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and... more The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iflikhar Muhammad Chaudhry (2005-2013). This era in Pakistan's judicial history was also marked by great controversy as the court faced charges that it had engaged in "judicial activism," acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion of judicial activism is premised on the existence of artificial distinctions between law, politics and policy and fails to provide a framework for adequately analyzing or evaluating the kind of judicial politics Pakistan has recently experienced. The Supreme Court's role, like that...
Peter Cane. Peter has always been a source of inspiration and set very exacting standards which, ... more Peter Cane. Peter has always been a source of inspiration and set very exacting standards which, while somewhat intimidating, pushed me to try to produce my best work. Peter's generosity with his time, constructive feedback and detailed comments enabled me to produce a thesis I can be proud of. I would also like to thank other members of my supervisory panel, Professor Michael Coper and Associate Professor Leighton McDonald, whose advice and support was vital at critical junctures of this project. In addition, there are many other colleagues and members of the executive who deserve credit for creating a wonderfully collegial
There is growing appreciation that the processes of constitutional formation in post-colonial sta... more There is growing appreciation that the processes of constitutional formation in post-colonial states are complicated by the inheritances of colonial governance. Whether that be a haphazard political sphere, hamstrung by colonial powers anxious to retain collaboration or a heavily centralised administrative apparatus, the idea that transitions can be enacted by the law is increasingly called into question. This chapter argues, through a case study of Pakistan’s earliest constitutional founding, that the consolidation of sovereignty in moments of transition can act to constrain and bracket the transformative potentiality of a constituent power. Thus, the period in which the first constitution for an independent Pakistan was being formed provides an indicative sense of where and through which mechanisms the transition from an ideational Muslim nationalism was recreated as authorisation for centralised and somewhat immovable executive rule....
Judicial Review of Elections in Asia, 2016
International Journal of Constitutional Law, 2018
SSRN Electronic Journal, 2006
Pakistan's Hudood (Islamic criminal) laws have been a source of controversy since their promulgat... more Pakistan's Hudood (Islamic criminal) laws have been a source of controversy since their promulgation by the military regime of General Muhammad Zia-ul-Haq in 1979. For their supporters, these laws are a welcome step towards the enforcement of shari'ah (Islamic law) and, as such, represent a logical and inevitable progression of those historic processes that had led to the creation of the Islamic Republic of Pakistan. To their opponents, these laws represent gross violations of fundamental human rights and constitutional norms designed to uphold democratic participation in lawmaking and the equality of citizens irrespective of their religion or gender. However, despite the protests at home and the notoriety generated in the international media, these laws continue to exist on the statute books and are enforced in the courts of law. This paper will survey the contours of the controversies surrounding the Hudood laws, and seek to broaden the horizons of the debate surrounding these laws by incorporating an "Islamic critique" of these laws that has generally been lacking in the discourse. More importantly, the paper seeks to analyze the role that the Federal Shariat Court has played in substantively shaping the law, through a chronological analysis of the Court's decisions on the most contentious aspects of the Hudood laws: the conviction of rape victims for zina (consensual adultery/fornication) regarding as proof the pregnancy caused by the rape. This analysis will indicate the strengths of the Islamic critique and propose reforms that may offer a viable avenue for alleviating the hardships perpetrated in the application of the Hudood laws.
Routledge Handbook of Autocratization in South Asia, 2021
Cambridge University Press, 2022
Routledge Handbook of Autocratization in South Asia, 2021
This chapter investigates the role that the Supreme Court has played in the context of an increas... more This chapter investigates the role that the Supreme Court has played in the context of an increasing democratic deficit and the emergence of what is being widely referred to as a civil-military ‘hybrid’ regime in Pakistan. It closely analyses high-profile constitutional cases before and after the 2018 elections, and the resulting transfer of power to the incumbent government. The chapter argues that in such cases involving matters of high constitutional law and politics the apex court has developed a method to temporarily reduce the political and inter-institutional tensions by mediating between the various power centres and reaching intermediate outcomes, rather than principled peremptory decisions. While such judicial intervention temporarily reduces political strains, it ultimately enables the hybrid regime to assert its dominance under the cover of judicial oversight, contributing to autocratization in Pakistan.
16 International Journal of Constitutional Law 503, 2018
This article charts the historical marginalization of Pashtun tribal areas to the periphery of th... more This article charts the historical marginalization of Pashtun tribal areas to the periphery of the Pakistani state and undertakes an analysis of the recent movement for their integration in Pakistan's constitutional structure. It also analyzes contemporaneous developments in Pakistan's constitutional system, in particular the accommodation of a stronger form of federalism and the emergence of a powerful judiciary brandishing robust judicial review and fundamental rights jurisdictions, which have provided both the backdrop and impetus to the integration of the Federally Administered Tribal Areas (FATA) in Pakistan's constitutional system of governance. The article asserts that this case study of FATA's integration demands an acknowledgment of the deeply political and inherently transitional nature of constitutionalism in Pakistan, and arguably many other parts of the Global South.
ICON, 2018
Pakistan's superior courts have evolved from marginal state institutions to key players mediating... more Pakistan's superior courts have evolved from marginal state institutions to key players mediating the balance of powers in a deeply divided and politically fragmented polity during seven decades of the country's postcolonial history. Although the political salience of the Supreme Court's recent actions-including the disqualification of two elected prime ministers-has created the sense of a sudden and ahistorical judicialization of politics, the courts' prominent role in adjudicating issues of governance and statecraft was long in the making. The perception of an historically docile and subservient court which has suddenly become activist has been shaped by an undue focus on the big constitutional moments of regime or governmental change in which the Apex Court has more often than not sided with the military or military-backed presidency. While these constitutional cases and crises are important, an exclusive focus on this domain of judicial action hides the more significant and consistent developments that have taken place in the sphere of "administrative law." It is through the consistent development of the judicial review of administrative action, even under military rule, that Pakistan's superior courts progressively carved an expansive institutional role for themselves. This article highlights the progressive, though non-linear, expansion of judicial power in Pakistan and argues that despite some notable and highly contentious moments of judicial interference in mega politics, the bedrock of judicial review has remained in administrative law-i.e., the judicial review of executive action.
Copyright (c) 2008 Regents of the University of California UCLA Journal of Islamic and Near Easte... more Copyright (c) 2008 Regents of the University of California UCLA Journal of Islamic and Near Eastern Law. 2008 / 2009. 8 UCLA J. Islamic & Near EL 1. LENGTH: 20799 words FROM THE HUDOOD ORDINANCES TO THE PROTECTION ...
60 American Journal of Comparative Law 875 (2012)
The discourse on the 'Islamization' of laws in the legal systems of post-colonial Muslim states i... more The discourse on the 'Islamization' of laws in the legal systems of post-colonial Muslim states is dominated by two conflicting narratives. The dominant Western narrative views the Islamization of laws as the reincarnation of narrow and archaic laws embodied in discriminatory statutes. In contrast, the dominant narrative of political Islam deems it as the cure-all for a range of social, political and economic ills afflicting that particular Muslim state. This Paper presents a deeper insight into the Islamization of Pakistan's law. Pakistan has three decades of experience with incorporating shari'a law into its Common Law system, an experience which has been characterized by a constant struggle between the dominant Western and Islamist narratives. Pakistan's experience helps us deconstruct the narratives and discourses surrounding Islamization and understand that the project of incorporating Islamic laws in a modern Muslim society must be based upon indigenous demands and undertaken in accordance with the organically evolving norms of recognition, interpretation, modification and enforcement in that society. Furthermore, substantive law cannot be understood or enforced outside of a legal system, its legal culture(s) and professional discourse(s), and of the broader socio-political dialectics that give context and relevance to it. Therefore, we need to shift focus to the systemic problems deeply ingrained in Pakistan's legal system that allow law and legal processes to be used to prolong disputes and cause harassment. Islamic legality can, in fact, play a significant role in breaking down the resistance that vested interests may offer to such a restructuring of the legal system along more egalitarian lines.
Pakistan has earned considerable notoriety on the international stage because of its failure to c... more Pakistan has earned considerable notoriety on the international stage because of its failure to curb violent crimes against women committed in the name of honor. Academic analyses of the state's failure to deter honor killings focus primarily on lacunae in statutory law (especially the Islamized provisions introduced by legislation), while assigning secondary blame to gaps in the criminal justice system, failings of the policing system, and the inherent defects in the workings of the informal tribal or community-based adjudicatory mechanisms. However, most of these studies fail to dissect the perplexing array of Pakistan's laws, especially the different punishment regimes and rules concerning pardon that apply to various categories of murder. As such, these studies miss the mark since the main culprit is neither the substantive legal provisions nor the frequently demonized Islamic law principles, but rather the superior judiciary of Pakistan which has historically patronized honor killing by consistently exercising all available discretion in sentencing to the benefit of those accused of such crimes. It is, therefore, important to appreciate the history of the judicial approach towards sentencing and the allegiance to the exculpatory doctrine of grave and sudden provocation in Pakistan, lately in the face of statutory intervention as well as Islamic law doctrines.
8 UCLA Journal of Islamic and Near Eastern Law 1 (2009)
This paper provides a review of Pakistan's Islamized laws pertaining to sexual offences and to hi... more This paper provides a review of Pakistan's Islamized laws pertaining to sexual offences and to highlight the major structural and theoretical problems therein, paying particular attention to the perspectives of the modernist Islamists, human rights lawyers as well as traditionalist Islamic scholars. We hope to demonstrate that there is a set of fundamental theoretical disagreements between the modernist and traditional Islamic accounts which preclude the possibility of full agreement on the scope, remit and applicability of these laws. Over the last two decades the Shariat (Islamic) courts, although appearing to be responsive to some of the human rights criticisms and political opposition, have been unable to define the underlying philosophical premises on the basis of which they interpret and apply these laws. The legislature too has failed to resolve the fundamental tensions and recent legislative interventions represent a compromise between the two perspectives, while also accommodating the human rights critique through a number of procedural safeguards. This is typical of recent efforts at law reform in the context of 'de-Islamization' and means that in reality the real debate concerning the nature and scope of Islamic laws regulating sexual conduct is only being deferred.
32 Brooklyn Journal of International Law 121 (2006)
Pakistan's Hudood (Islamic criminal) laws have been a source of controversy since their promulgat... more Pakistan's Hudood (Islamic criminal) laws have been a source of controversy since their promulgation by the military regime of General Muhammad Zia-ul-Haq in 1979. For their supporters, these laws are a welcome step towards the enforcement of shari'ah (Islamic law) and, as such, represent a logical and inevitable progression of those historic processes that had led to the creation of the Islamic Republic of Pakistan. To their opponents, these laws represent gross violations of fundamental human rights and constitutional norms designed to uphold democratic participation in lawmaking and the equality of citizens irrespective of their religion or gender. This paper surveys the contours of the controversies surrounding the Hudood laws, and seeks to broaden the horizons of the debate by incorporating an “Islamic critique” of these laws that has generally been lacking in the discourse. More importantly, the paper analyzes the role that the Federal Shariat Court has played in substantively shaping the law, through a chronological analysis of the Court's decisions on the most contentious aspects of the Hudood laws: the conviction of rape victims for zina (consensual adultery/fornication) regarding as proof the pregnancy caused by the rape. This analysis indicates the strengths of the Islamic critique and provides the basis of reforms that may offer a viable avenue for alleviating the hardships perpetrated in the application of the Hudood laws.