The bulk of our legal system is still based on the colonial era laws
Mehreen Omer
If one wants to understand how the current system of law came into existence in Pakistan, one should really study this book in detail. It traces the history of the Statutes and Acts which had come into force during the colonial times and are still in force today. The East India Company initially came to India for purposes of trade, but later began to interfere in the administration of justice in many areas after it took over their revenue collection. Much of the subject matter is discussed with examples from Islamic history which makes it an even more intriguing read. Young political and social activists today are looking for clarity in many legal issues arising in Pakistan, and this work will certainly be a boon for them.
Munir talks about the phenomenon of ‘precedent’ whereby the decisions of higher courts are binding on the lower courts and even in some cases, on themselves. For the operation of the precedent, two directives were essential; law reporting and the hierarchy of courts. Under the judicial system of the Mughals, which was based on Islamic law, a qadi was not bound by the decision of another qadi. But this system was soon replaced by the Anglo-Indian legal system by the East India Company during the 18th and 19th centuries. This had vast implications, as even today Muslim lawyers look upon precedents as sources of law rather than on the principles of Islamic law. In Pakistan, the decisions of the Supreme Court, the High Court, and the Federal Shariat Court are binding on lower courts. And the decision of the Supreme Court is binding on the decision of all other courts. And it gets even more controversial when governments pressurize the Chief Justice to give a favorable verdict in their favor. Many books written by retired judges of the higher courts reveal that the judiciary has been independent of the executive only in theory in the past. This is a striking revelation considering that the freedom of the judiciary is being contented so passionately today. But even if the judiciary is not free, what to say of the other pillars of the state?
Thus, the current system of law in Pakistan is quite different to that advocated by the Islamic legal theory wherein every judge acts as a legal expert who engages in independent interpretation of Islamic laws, and is not bound the judgment of a fellow judge. Also, in Islamic law, a judge has to look upon the earliest decision, if there is one, whereas in common law, the judge has to apply the most recent decision of a higher court. Munir talks about the inherent disadvantages in such a system of common law, because even a wrong decision will have to be followed by the lower courts. It also causes stagnation the development of law as compared to legislation. But he says that poor precedents can be overruled by a higher court, especially when the reasoning is clearly flawed or some great wrong is being done. Munir reveals that although Islamic law has become an important source of Pakistani law, the Anglo-Indian law still constitutes its bulk.
Precedent in Pakistani Law
Author: Muhammad
Munir
Publisher: Oxford University Press, Karachi.
Pages: 281; Price: Rs. 995
The writer is a status quo critic by habit and a marketing scientist by profession. She tweets @mehreen_omer.
