Authors: Fayal Mehmood, Fazila Nawaz, Kanwal Zahra, Maria Zafar and Safia Javed
1
TITILE
The Need of Doctrine of Binding Precedents in Pakistan with
Reference to Article of Muhammad Munir
2
ABSTRACT
This research has critically analyzed the article of Muhammad Munir and has made a context based research to figure out the adoption of doctrine of precedent by Legal system of Pakistan, despite being repugnant to Islamic Judicial system. The bulk of knowledge given by Muhammad Munir in his Article is analyzed with other jurist, writers and researchers to find more accuracy in the topic. After in-depth analyzing the topic covered by Muhammad Munir, this research has gone for the critical analyses to apply the context based research for the reasons of the application of doctrine of precedents in Pakistani legal system.
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INTRODUCTION
Judicial precedent is a process used by judge that bind them to follow decisions made previously in similar issues. Doctrine of judicial precedents involves the application of
principle of Stare decisis that means that the inferior courts are bound by the
legal principles set down by the superior courts in earlier cases. The doctrine
of precedents provides consistency and predictability in the law.[1]
However, in Islamic judicial system this doctrine this doctrine doesn’t exists.
Yet, the Pakistani legal system has adopted it from the British Indian law
despite being strange to the states Islamic law. The Article of Muhmmad Munir
has given an abundant content based knowledge regarding this topic in reference
to Pakistani legal system. However, this research paper has covered the context
based research to figure out the reasons of adopting the doctrine of
precedents.
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SIGNIFICANCE OF STUDY
The result of this study will assist to understand the need of adopting doctrine of precedent despite being odd to the Pakistani state law. Other then covering the content based research provided by Muhammad Munir in his article, this research has given an insight to the context based research for the need of doctrine of precedents with reference to Pakistani society and problems in Islamic legal system.
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LITERATURE REVIEW
5.1
Background
to the Legality of Doctrine in Pakistan[2]
In
the Subcontinent Mugals settled their legal system essentially on Islamic laws
and upon the Hanafi School of Thought. However, when the British came in power
the overall system of administration of Jurist got a turning point. Matters of
Shariah were dealt by the British Judge sitting in the Shariah Courts through
help of muftis and muvlavis. Gradually, the judges incorporated the formulas of
Privy Councils, rules of equity, justice and good conscious and altered the of
Shari’i laws. Eventually, the application of Hanafi law by the British judges
with the formulas of Privy Council created a novel form of Islamic law which
they named Anglo-Muhammadan law.
The
Doctrine of Precedent is one of the important sources of law that the British
introduced in the legal system of Subcontinent. It was the Doctrine of
Precedents that transformed the legal authority of Shariah law into the
Anglo-Muhammadan law. Critics of this doctrine for instance Hallaq argue that
the doctrine of precedent deprived the Muslim qadi’s from the application of
ijtehad and it left no place for the Muslim mufti’s in the judicial process
because of its binding character. However, another prospective supports the
Doctrine of precedent with the claim that it helps to maintain uniformity of
law in all cases and it is because of the judicial decision and doctrine of
Precedents that west has successful inaugurated various branches of law such as
torts and freedom of citizens. [3]
5.2
Doctrine
of Precedent in Pakistani Legal System
After
independence Pakistan adopted the Anglo-Indian law in the form of Indian Act
1935. Section 212 of the Act carried the Doctrine of Precedents that was
adopted by the Pakistani constitutions with minor changes despite of being
repugnant to the Islamic Judicial system where the judge is not bound to any
former decision. Article 189 and 201 of present constitution gives the legality
to the Doctrine of Precedent in Pakistan. The Articles are read as;[4]
·
Article 189 “ Any decision of the Supreme Court shall, to
the extent that it decides a question of law or is based upon or enunciates binding principle on other courts in Pakistan.
·
Article
201 “Subject to Article 189, any decision of a High
Court shall, to the extent that it decides a question of law or is based upon
or enunciates the binding principle of law on courts subordinate to it.“
Additionally,
the Law Reports Act 1875 has given the force of precedents to the judgments
made by the Federal Shariat Court, Service Tribunal, the Income Tax Appellate
Tribunal and the National Industrial Relations Commission. Thereby any
violation to the precedents is a violation against the constitution and law of
the land. The Section 5 of the Law Report Act 1875 reads as; [5]
·
Section 5 “Explanation: For the purpose of
this Act the expression, Court or Tribunal includes the Federal Shariat Court,
a Service Tribunal, the Income Tax Appellate Tribunal and the National
Industrial Relations Commission.”
5.3
Doctrine
of Judicial Precedent in Islamic Law
In
Islamic law Doctrine of Precedent has not been recognized nor has a binding
force in the Islamic Judicial system. Islamic law prefers each case to be
decided on the basis of its own merit. The previously made decisions are only
considered as guidance for the future cases however, it don’t have a binding
effect. In Islamic Judicial system the Judge plays an essentially role in
deciding a case. Judges give decisions according to their own personal
interpretations. They are neither prevented nor are bound by their previous
decisions. Nevertheless, the previous decision may be used as guidance. Thus it
can be evidently seen that this rule in Islamic Judicial system is contrary to
the doctrine of Precedent practiced in Pakistan. [6]Allah
supports this method of deciding a case with the verse revealed as;
“They believe falsehood to devour things that are forbidden. So if they come to
you (O Muhammad), either judge between them, or turn away from them. If you
turn away from them, they cannot hurt you in the least. And do justice while judging between them. Verily, Allah loves those who act justly.”[7]
The
Islamic Judicial system follows the maxim “Ijtihad cannot be revoked by another
Ijtihad.” This maxim was first pronounced by Imam al-Karkhi’s in his book Usul al-Karkhi. The maxim applies the
rule that except by Nass, a rule cannot be revoke by another rule made by
ijtihad. However, the in the Doctrine of Precedents a former decision of the
same court is set aside by a new rule formed. Hence, it can be stated that the
western Doctrine of Precedent and the precedents in Islamic Judicial systems
are apple and oranges to each other.
5.4
Islamic
Law and Application of Doctrine of Precedent in Pakistan
Since
its creation Pakistan has attempted to institutionalize Islamic Law. However,
the inherited common law from the British and the practices of Pakistani
society never adheres to the rigid Islamic laws. Pakistan’s experiment with the
Islamic laws has marred by controversies and has implemented an alien rule of
Justice in the country. On this Martine
Lau writes in his book, the role of Islam in the Legal System of Pakistan that
due to the lack of commitment to the radical constitutions of Pakistan have contained
provisions that transform the legal system in pure Islamic laws, meanwhile also
preserve the basic structure of inherited laws of British India that creates
inconsistency in the administration of Justice in Pakistan.[8]
The
most valuable document that Legal history of Pakistan is delighted with is the
Objective Resolution. However, the undecided status of the Objective Resolution
is the most controversial debate that is still unresolved by the legal system
of Pakistan. Upon 30 cases heard by the Pakistani Courts, related to the
Objective Resolution the precedents made by both the Supreme Court and the
lower Courts have applied any inconsistent rule of law. Even the binding
character of doctrine of precedent is ignored by the courts while deciding the
cases related to the Objective Resolution and the judges have used ijtehad to
give their own interpretation to the law instead of quoting the same previous
rule.
It can be elaborated with the following
explanation to the most important cases dealing with the objective resolution. Relatively,
the Supreme Court in Asma Jilani vs. The Government of Punjab (1972)[9]
declared the objective resolution to be the Grundnorm of the Country. However,
later on Justice Salahudin Ahmed ignored Islam as a Grundnorm and rejected the
effect of Asma Jilani case. Yet, again in case of Ziaur Rehman v. The State
objective resolution was given the supra constitutional status. In another case
Justice Cheema ruled that the Objectives Resolution could not be used to settle
on the variations of any law, let alone the provisions of the Constitution
itself. However, latter on
Justice Sajjad Ahmad held that Islam, as expressed in the Objectives
Resolution, constituted the Grundnorm in Pakistan. The decisions on the status
of objective resolution went inconsistent, until the Supreme Court closed this
debate in Ziaur Rehman v. State. The court recognized the importance of
objective resolution, yet denied being a supra constitutional document. In Hakim
Khan Case the drive of judges to institutionalize Islam in real means through
judicial decisions was given a full stop. However, the supremacy of Islamic
laws against the common laws or practices is still an ongoing debate.[10]
The
significant documents such as Objective resolution and constitution of Pakistan
unanimously agree to clearly null and void the provisions repugnant to Islamic
injunctions. Therefore, the legal system of Pakistan has set up Federal Shariah
Court and ideology of council to settle the laws inconsistent to the Islamic
principles. However, a pure rigid rule of Islamic law has never suited the
Pakistani society. That has become evident from the Zia-ul Haq Islamiazation
tenure, which the history of Pakistan counts as the horrific ruling period of
the history. The unjust decisions of two major cases Jehan Mena v. State[11]
and Safia Bibi v. State[12]
are stains on the history of administration of justice in Pakistan. The lower court convict the women despite being innocent. Moreover, the closed
door of ijtehad has forced the Pakistani legal system to adopt the western
doctrines to drive the rules with legality and to fill the gap between Islamic
law and the contemporary issues.
5.5
Hierarchy
of Doctrine of Binding Precedents
The
lower courts in Pakistan are bound to the decision of the higher courts in
Pakistan. Yet, the higher courts freely resorts ijtehad for driving new rules
from the source of Islamic law. The Pakistani higher courts are not confined to
a single school of thought to back up the law. Thus, Pakistani courts use this
freedom to fill the gaps between the bulk of Anglo Indian and law the net
result of statues that claim the interpretation in the light of Islamic law. Consequently, the attempt to fill the gaps
between this two diverging laws gives an integrated judicial system where civil
courts decide the matters peculiar to sharia.
According
to the Constitution of Pakistan article 203, the Federal Shariah Court
decisions are binding on High Courts as well as Subordinate Courts yet not
binding upon the Supreme Court if it doesn’t exclusively falls under the
jurisdiction of Federal Shariat Court. Also, the findings of the Federal
Shariah Court are binding upon the Supreme Court if it is not challenged in the
Shariat Appllete court, this decision was made in Zaheer ud Din v State. The
Federal Shariat Court is bound in ordinary cases by the Supreme Court or, in
the absence of its decision, by the High Courts. This would mean that since the
Federal Shariat Court is a subordinate court to Shariat Appellate Bench of the
Supreme Court, it has to follow the Supreme Court. It has the
freedom to overrule consequently, its own previous decisions like the Supreme Court. Besides
this, according to the Constitution of Pakistan article 189, Supreme Court
decisions are binding upon all other courts. Also, the Supreme Court and high
court can overrule their own previous precedent but an equal Bench is bound by
the decision of an equal Bench and if the contrary view is taken then the
request is made in the larger bench. Thus, in Pakistan, the doctrine of
judicial precedent is applicable in Shariah Courts as in the case of common law.
[13]
5.6
The rule of Stare Decisis
in Pakistan
Stare decisis literally mean ‘let the decision stand”. It is based upon the legal principle that “justice and certainty require for establishment of a legal principle under which right may accrue for recognition and to be followed.” Generally, it is believed that merely ration decidendi is a legal statement to be applicable and orbiter dictum is ignored. However, the constitution of Pakistan takes the situation beyond the circular limts of ratio decidendi, orbiter dictum and casual observations.[14]
5.7
Ijtihad
and Taqlid in Islamic Law and the Doctrine of Stare Decisis in Pakistani Law
5.7.1
Mujtahid and
Ijtihad
The
great scholars of Usul laid down rigorous conditions to be fulfiller for anyone
who want to perform Ijtihad. Once a person
fulfills these conditions he became Mujtahid and he is not bounded to follow
the Ijtihad of others. In
Islam legal system, Ijtihad is the process for derivation of law and the laws
are act as a precedent for later cases. Mujtahid perform Ijtihad and extract
rules from the Quran revolutions. Thus the process of finding rules from Quran
and the effort made by Mujtahid in seeking knowledge of the Akham of shariah is
known as Ijtihad.[15]
5.7.2
Ijtihad Role in
legislation of Pakistan
In
Pakistan Ijtihad is a legislative function because it sets down the law for the
first time and the state has monopoly over legislation. Federal shariah court
uses Ijtihad for the legislation of the present issues. The parliament of
Pakistan is supreme lawmaking body and all decisions which is given by it is
has to be in accordance with the injunctions of Islam. The lawmakers use Ijtihad as a legislative function. According to Hanfi School,
Ijtihad is not necessary condition for Qadi but the other schools consider it
necessary. Abu Bakar and Masua-al-Kasani who argues that Ijtihad is not a
condition and in the cases in which there is no authoritative text then judges
or qadi must fellow his Ijtihad. He said if a judge who is mujtahid decide a
case according to view of another school and his judgment is valid by consensus
and if two different decisions based on Ijtihad are given by the same qadi in
two similar cases, the first decision is not validated, from this it is
understandable that in Islamic law a court is not bound by the decision of
another court, whether the latter court is of equal rank or higher in the
hierarchal organization.[16]
5.7.3
Taqlid
Taqlid technically means to reproduce or copy. Every Muslims have to follow the law but everyone is not of enough knowledge about the rules of shariah. Thereby a lay man has to follow the opinions of those who know better and are Muqallidun.
This verse shows that if anyone with
insufficient knowledge about the Ahkam should concern to those who have
knowledge of Quran and shariah. Taqlid is unavoidable and is part of our daily
lives and we are indulging in form of taqlid like a layman is permitted to
accept the advice of doctor because he has knowledge about the patient
condition.
5.7.4
Taqlid role in
Islamic Adjudication
Taqlid
is the basis for the Islamic theory of adjudication and its purpose is to lay
down a methodology for the faqih to discovering and applying the law in the
light of the already settled law. This was function of modern judges too.
Nyazee says that in Islamic law the task of faqih appears to be the same as that
of the modern judges who settles issues of law and fact. The Taqlid provides us
the basic measures for developing an Islamic theory of adjudication.[17]
5.7.5
Significance of
Taqlid in Modern Time Pakistan
Article
189 and 201 of constitution of Pakistan are related to Taqlid. The institutionalized forms
of Taqlid are doctrine of precedent. The opinions of High court are followed by
lower courts this is considered as Taqlid. Thus, on the one hand, precedent is
binding and on the other hand, Islamic law is enforced by the national courts.
The result is that the decisions of the superior courts concerning Islamic law
become precedents.. In Bangladesh and India where Islamic law is enforced by the national
courts.[18]
5.7.6
Basic Reason to
Accept Taqlid by Majority of Muslims
As
we discuss that under Islamic law a judge is supposed to be Mujathid. In the famous hadith of Muadhb.Jabal, the
Prophet (peace be on him) permitted Muadh’s saying that he will resort to
Ijtihad to determine a matter if he could not find its answer in the Quran and
the Sunnah. If a judge is bound by the Ijtihad of other judges then he will be
prevented from undertaking his own Ijtihad. To prevent this deadlock Islam says
one mujtahid is not bound to follow another mujtahid. As a general principle of
Islamic law, if a judge later finds that the previous judgment was not correct,
that is, if the Ijtihad in the previous case was wrong, he will change his
Ijtihad and decide the new case accordingly.[19]
5.7.7
Reformist View
According
to the view of reformist, Taqlid acceptance by the community of Muslims is just
due to the misunderstanding of fiqh or shariah. The teachings of the jurists of
classical period formed the religious knowledge and that was the faith matter
and the work of early jurist doesn’t need any examination. The works of early
jurists is as valid in the present time as it was in the time of its
formulation.[20]
5.7.8
Decision of
Judge based on his Ijtihad can be reversed on appeal?
There
were no fixed institutions for appeal in the classical Islamic judicial institution.
Persons disappointed by a judgment often required its review, either by another
Qadi or by the ruler, or by his agents under the al-Mazalim courts. [21]
Hakim Khan v.
Government of Pakistan 1992
In
this case Supreme Court adopted this approach that it must be noted that since
Article 189, 201, and 203 GG are Constitutional provisions, the Federal Shariat
Court has no jurisdiction to discuss the question of their repugnancy to Islam.
However, other judicial norms, such as that an equal Bench cannot claim
superiority an equal Bench are probably outside the jurisdiction of the Federal
Shariat Court because these norms formed on judicial experience over the time. Such judicial norms are frequently supported by the Supreme
Court and the High Courts. In addition, judicial norms might not be in the
FSC’s jurisdiction as it can determine whether a certain law is in conformity
with the injunctions of Islam or not. The term law would mean codified law and
not judicial norms. Taking judicial norms in FSC re-open and overrule many decisions of the Supreme
Court and High Courts. In other words, this would be beyond the
FSC’s jurisdiction and would possibly bring in confrontation with other
Constitutional courts which, obviously, needs to be avoided. There is no
denying the fact that the doctrine of precedent restricts judges from
undertaking Ijtihad secondly, it somewhat restricts the independence of the
judiciary.[22]
5.8
The
Saudi Legal System and Precedent
Ijtihad
of Judges in this Kingdom officially follows the Hanbali School of thoughts.
Initially Judges Decree is bound to rule by the Hanbali Schools opinion on
which Fatawas are given. In a case, the Hanbali opinions create hardships and
conflicts with public interest, the view of another school may be adopted. It
look like that judges in Saudi kingdom are not free as to resort to Ijtihad as
the judges of the higher judiciary in Pakistan. But in Saudi Arab judges are
not bound by the decisions of the fellow judges. They are free to overrule
their own previous decisions if they feel they were wrong. The current laws in
this Kingdom are that the Board of Review does not consider the decision of the
trial judge to be correct. Yet, it respects the qadi’s independence. Thus in
Saudi Arabia the doctrine of binding precedent is not practiced and courts are
not bound by their own previous decisions or the decisions of other courts.[23]
6
CRITICAL ANALYSIS
Muhammad
Munir has in-depth explained the doctrine of precedent in the Pakistani legal
system and how it’s a complete diverging mechanism from the Islamic Judicial
system. It is a fact that the British incorporated the doctrine of precedents
through their newly formed Muhammadan law and it is still practice of the three
nations. Muhammad Munir through content base research has made it clear that
the doctrine of precedents is repugnant to the Islamic Judicial system,
however, hasn’t put light on the reason of adopting the western doctrines to
facilitate the nation with justices, equality and good conscious. The context
base research is completely ignored by the Muhammad Munir, which if was made has
shed light on the need of the doctrine of precedents to balance the
administration of justice with a predictable, uniform law.
Upon
the importance of predictability and uniformity of law in the administration of
Justice Sir Edward said that the
wisdom of law is than any mangers wisdom and justice represents the wisdom of
the entire community. Thus, doctrine of Precedent is source to bring justice,
uniformity and consistency in the law and cause systematic development of the
law. However, we strongly agree with Muhammad Munir that the rule of precedent
in Islamic Judicial system is give wide freedom for the Judges to decide the
case by giving importance to the facts and finding, instead of being relied on
an old decided case. However, in terms of Pakistani Society such wide freedom
might be hazardous instead of being a facility. This case be emphasized from
the case of Safia Bibi where the instant application of ijtehad in applying the
hudood laws convicted a blind girl to be executed for being the victim of rape.
The binding effect of the doctrine of precedent, other than being a restriction
on the application of rational thinking of judge also becomes a source to find
the just and common rule for all.
Other
than this in his Article Muhammad Munir has given a significant importance to
the process of ijtehad and has encouraged it to be applied by the judge instead
of relying on previous decisions of the courts through the application of
doctrine of precedent. However, while discussion the application of ijtehad we
must not forget that the doors of ijtehad had been closed for centuries and
it’s again an ongoing debate to reopen the doors of rational sources. So far
Pakistani courts are being criticized by the Muslims illuma’s to apply the
process of ijtehad when it is not allowed by Shariah. In such a situation the
courts to deal with the contemporary issues are only left the option to wear
the clothing of western doctrines to save justice, equality and peace which if
not done can be ruined by the rigid Islamic law. Eventually, that is again
completely repugnant to the basic Islamic principles and objectives.
Also,
the criteria set by the Islamic law for the Mutahid is extremely idealized that
a normal human cannot reach to that level. Thus, what should have been done by
the judges? Should they keep quite on any case that has no any clue in the
Islamic law or wait until the doors of ijtehad reopen? The fact is this that
the duty of judges is to solve the issue and facilitate the society with
justice and equality that is the ultimate aim of Islamic objectives too. Hence,
the adoption of the western doctrine of precedent is a necessity of the time;
otherwise there is no other way to resolve the contemporary issues. The
doctrine of precedent at least provides a way for the higher court to look upon
their own decided rule and apply rational sources of law to drive the law for
the lower courts on a similar case.
Furthermore,
upon the institutionalization of Islamic law Muhammad Munir has cited various cases
and has also discussed the controversial status of objective resolution as a
Grundnorm. However, a practical approach to this debate also brings up
contextual crises upon this matter. Such as the legal realism, especially with
reference to the two controversial prospective that exists in Pakistan, the
Traditionalist and Modernist. If the Islamic rule of precedents will be applied
judges of traditionalist perspective will independently give a rigid ruling
based on the rigid Islamic laws. The destructions of which has been witness by
the nation during the period of Islamization. On the other hand a free
Modernist judge will make a rule totally strange to the Islamic laws. Thus,
doctrine of precedent for to the two perspectives that exists in Pakistani is
suitable to binding at least one right decision out of hundred, in spite of
forming bulk of controversial and inconsistent decisions by letting the judges
of different prospective free.
Last
but not the least; Muhammad Munir has compared the doctrine of precedents
practiced in Islam with the Islamic Judicial system in Saudi Arab. This
comparison is likely to be made against water and sun. The Saudi society has
cherished the birth of Islam in its lap whereas, Pakistani society has adopted
it. The Pakistani society has got the color of Hindu traditions and has breath
under the rule of British common law. Thus, to completely change the tradition,
practices and habits of the society over the night is merely a day dream. In
order to give complete color of Islamic law in Pakistani society secondary
sources of Islamic law are essentially required that can be approached with the
only bridge of ijtehad. Hence of the doors of ijtehad is closed thus, the
western doctrines are applied to meet the needs of the contemporary world.
7
CONCLUSION
The article of Muhammad
Munir has given a significant amount of content based information regarding the
doctrine of precedents in Pakistan and in the Islamic law. However, preference
of the rule of Islamic Judicial system against the doctrine of precedents has
ignored the affect of legal realism and the fact of closed doors of ijtehad
which is a basic reason to use the western doctrines for the administration of
justice in Pakistani society.
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