The Islamization of the Law in Pakistan (RLE Politics of Islam)

This is a detailed, critical study of the reforms which have been made in recent years to the law in the State of Pakistan with the ostensible objective of bringing it into accord with the requirements of Islam. Special emphasis is given to the period from 1977 when General Zia ul Haque adopted a period of Islamization. This is a field of investigation of considerable importance both for the advancement of legal and political theory and for practical purposes, especially as regards human rights. The author, trained both in Pakistan law and the concepts and practice of Islamic law, has been able to advance significantly our understanding of the doctrinal developments documented in this book. First published in 1994. Cover 1 The Islamization of the Law in Pakistan 2 Title Page 4 Copyright Page 5 Original Title Page 6 Original Copyright Page 7 Table of Contents 8 Preface 11 Acknowledgements 12 1: Theoretical Framework: Islamization and an Inconsistent and Unstable Legal System in a Peripheral Capitalist State 14 1.1 Introduction 14 1.2 Pre-British Muslim Rule in India 15 1.3 Anglo-Muhammadan Law 17 1.4 The Structure of the Pakistani State 22 1.5 Law and Ideology in Pakistan 27 1.6 Islamic Revivalism in Pakistan 37 1.7 The Islamization of the Law in Pakistan: Instability and Inconsistency and Other General Features 46 1.8 Islamization of the Law and Anglo-Muhammadan Law 55 1.9 Legal Pluralism 61 1.10 Social Reforms Through Law 69 1.11 Development of Islamic Law in Pakistan 72 1.12 Conclusion 82 2: Islamic Provisions in the Constitutions of Pakistan 84 2.1 Introduction 84 2.2 The Objectives Resolution 85 2.3 The Constitution of 1956 and its Islamic Provisions 93 2.4 The Constitution of 1962 and its Islamic Provisions 100 2.5 Islamic Provisions in the Constitution of 1973 108 2.6 Revival of the Constitution Order, 1985 and Islamic Provisions 116 2.7 Conclusion 120 3: Criminal Law 122 3.1 Introduction 122 3.2 Offences against Property (Enforcement of Hudood) Ordinance, VI, of 1979 124 3.3 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 129 3.4 Offence of Qazf (Enforcement of Hadd) Ordinance, VIII, of 1979 145 3.5 The Prohibition (Enforcement of Hadd) Order, 1979 151 3.6 The Execution of the Punishment of Whipping Ordinance, 1979 155 3.7 Law of Evidence 160 3.8 Amendment to the Pakistan Penal Code (XLV of 1860) for Derogatory Remarks Against the Prophet of Islam, His Family and Quran 162 3.9 Draft Ordinance Relating to the Law of Qisas and Diyat 164 3.10 Conclusion 167 4: Family Law 170 4.1 Introduction 170 4.2 Registration of Marriage 171 4.3 Polygamy 174 4.4 Divorce 179 4.5 Women's Rights of Divorce in Pakistan 186 4.6 Maintenance 198 4.7 Dower (mahr) 200 4.8 Inheritance 202 4.9 Arranged Marriage /Child Marriage 206 4.10 Dowry 209 4.11 Failure of the Muslim Family Laws Ordinance, 1961 211 4.12 Challenges to the Muslim Family Laws Ordinance, 1961 212 4.13 Conclusion 215 5: The Procedure Used in the Islamization of the Law 216 5.1 Introduction 216 5.2 Institutions for Islamization 218 5.3 Conclusion 232 6: Conclusion 233 7: Postscript 238 Notes 242 Works Cited 257 Glossary 282 Table of Abbreviations 297 Table of Cases 298 Appendix I: Survey Conducted Among Lawyers 302 Appendix II: Text of Qisas & Diyat Ordinance, 1990; Criminal Law (2nd Amendment) Ordinance, 1990 311 Appendix III: Text of Enforcement of Shari'ah Act, 1991 337 Islam is a burning topic in modern scholarship and contemporary world affairs. It is a subject poorly understood by Western observers, and in this book Professor Montgomery Watt takes a significant step towards its demystification. Montgomery Watt examines the crucial questions of traditional world-view and self-image which dominate the thinking of Muslims today. This traditional self-image causes them to perceive world events in a different perspective from Westerners - a fact not always appreciated by the foreign ministries of Western powers. Professor Watt presents a brilliant and critical analysis of the traditional Islamic self-image, showing how it distorts Western modernism and restricts Muslims to a peripheral role in world affairs. In a scholarly and incisive way, he traces this harmful image to its origins in the medieval period and then to the traumatic exposure of Muslims to the West in modern times. He argues that Muslim culture is suffering from a dangerous introspection, and in his closing chapters presents a constructive criticism of contemporary Islam, aimed at contributing to a truer, more realistic Islamic self-image for today This is a detailed, critical study of the reforms which have been made in recent years to the law in the State of Pakistan with the ostensible objective of bringing it into accord with the requirements of Islam. Special emphasis is given to the period from 1977 when General Zia ul Haque adopted a policy of Islamization. This is a field of investigation of considerable importance both for the advancement of legal and political theory and for practical purposes, especially as regards human rights. The author, trained both in Pakistan law and the concepts and practice of Islamic law, has been able to advance significantly our understanding of the doctrinal developments documented in this book. A detailed and critical study of the reforms made in recent years to the law in Pakistan, which aim to bring it into line with the requirements of Islam. Special emphasis is given to the period from 1977 when General Zia ul Haque adopted a policy of Islamization.