Foundations of Pakistani law: the legal inheritance of the subcontinent, independence and the constitutions, the sources and hierarchy of law, the common-law heritage, the place of Islam and international law

Before 1858. Under the Delhi Sultanate and the Mughal Empire justice was administered by qazis applying Islamic law (largely the Hanafi school) together with imperial regulations; a seventeenth-century compilation of Hanafi opinions, the Fatawa-e-Alamgiri, became a standard reference. When the East India Company took over the administration of justice, a plan of 1772 left Muslim law for Muslims and Hindu law for Hindus in family and inheritance matters, and built Company courts on English lines. That choice, personal law by religion, general law by statute, is still the basic pattern of family law in Pakistan (Module 6).

The Raj and the codes. After 1858 the Crown governed India. High Courts were created in the 1860s, and a law commission begun under Macaulay drove a programme of codification: the Penal Code (1860), the Code of Civil Procedure, the Contract Act (1872), the Evidence Act (1872), the Transfer of Property Act (1882) and the Code of Criminal Procedure (1898). The Government of India Act 1935 introduced a federal structure with provincial autonomy and a Federal Court, and is the model for much of what followed.

Independence and the constitutions. Pakistan became a Dominion on 14 August 1947 under the Indian Independence Act 1947, using the 1935 Act as its interim constitution. On 12 March 1949 the Constituent Assembly adopted the Objectives Resolution, a statement of principles (sovereignty belongs to Allah, the state exercises power through the chosen representatives of the people, democracy, freedom, equality, tolerance and social justice are to be observed ‘as enunciated by Islam’, and minorities are to be able to practise their religions and cultures). The first Constitution came in 1956, a second in 1962 under martial law, and East Pakistan separated in 1971 to become Bangladesh. The Constitution of 1973, adopted on 10 April 1973 and in force from 14 August 1973, is the one that governs today. It was suspended during periods of martial law and amended many times, most importantly in 1985 and by the Eighteenth Amendment of 2010.

Supremacy. Article 8 provides that any law inconsistent with the fundamental rights is void to the extent of the inconsistency, and the courts treat the Constitution as the highest law, so that a statute, an ordinance or a rule that conflicts with it can be struck down. Article 268 keeps in force existing laws, including the colonial codes, until they are altered, repealed or amended by the competent authority. This is why a Pakistani lawyer still cites the Contract Act 1872 and the Penal Code of 1860, now Pakistan statutes with Pakistani amendments.

Precedent. Article 189 provides that a decision of the Supreme Court is binding on all other courts in Pakistan to the extent that it decides a question of law or enunciates a principle of law, and Article 201 provides that a High Court decision is binding on the courts subordinate to it. Judgments are written in English, are collected in law reports, and are cited to prove what the law is; the ratio binds, and remarks made in passing do not. Pre-1947 decisions of the Privy Council and the Indian courts are still cited as persuasive, and cases from England and India may be referred to, but Pakistani higher courts bind Pakistani lower courts. The Constitution also describes Urdu as the national language and allows English to be used for official purposes (Article 251), which is why statutes and judgments are mostly in English.

The common-law method. Pakistani courts are adversarial: the parties frame the case, advocates call and test the evidence, and a judge decides on the record. Reasoning moves from precedent and statute to the facts, and written judgments with reasons are the norm. The codes of procedure and evidence supply the rules of the game, and the superior courts supervise lower courts by appeal, revision and constitutional petition (Module 4).

The Islamic provisions. The Constitution declares Islam to be the State religion (Article 2), makes the Objectives Resolution a substantive part of the Constitution (Article 2A), and requires that existing laws be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, and that no law be made repugnant to them (Article 227). Muslim personal laws and the personal laws of non-Muslims are protected (the limits of Article 227 include the personal laws of non-Muslim citizens). Two institutions carry out the Islamic review: the Federal Shariat Court may examine whether a law is repugnant to the Injunctions of Islam, and the Council of Islamic Ideology advises the legislatures (Module 5). Constitutional supremacy and the Islamic provisions work together: the Constitution itself says how and by whom the Islamic provisions are applied, and no ordinary court may treat a rule as void simply because it is contrary to Islam; the decision belongs to the constitutional bodies.

• What stays common to all. The Constitution, the fundamental rights, federal statutes and the superior courts apply to everyone in Pakistan, including foreigners, in the way each provision says.
• What differs. Provincial laws differ by province, and personal laws differ by religion and, among Muslims, by school and sect (for inheritance especially). Do not assume that every Pakistani is subject to the same family rules.
• For a foreigner. Ask which province’s law applies, whether a federal statute governs the subject and, for family or inheritance matters, which personal law applies to the people involved.

International law. Pakistan has been a member of the United Nations since September 1947, belongs to the Organisation of Islamic Cooperation, the Shanghai Cooperation Organisation and other bodies, and has ratified a number of human rights treaties, among them the ICCPR, the ICESCR, the Convention against Torture, CEDAW and the Convention on the Rights of the Child, often with reservations or declarations. Like other common-law countries, Pakistan is a dualist system: the federal government makes treaties, but a treaty generally changes the rights of people in court only when it is implemented by legislation, as Parliament did for the New York Convention on foreign arbitral awards (Module 7). The courts may still use treaty standards to interpret the Constitution and statutes.