Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan, April 6, 2022. REUTERS
ISLAMABAD:
The Shariat Appellate Division of the Supreme Court on Monday issued notices to the federation in an appeal challenging the ruling of the Federal Shariat Court (FSC) which declared the quota system un-Islamic and adjourned the hearing until the first week of April.
A five-member bench headed by Justice Jamal Khan Mandokhail heard the case. Other members of the court included Justice Shahid Waheed, Justice Irfan Saadat Khan and Islamic Scholars Judge (retd) Dr Khalid Masood and Dr Qibla Ayaz.
During the proceedings, Justice Mandokhail observed that the issue was of great national importance and asked Additional Attorney General (AAG), Munawar Iqbal Duggal, to explain how the quota system could be justified on Islamic principles.
The legal official argued that Article 27 of the Constitution explicitly provides for the quota system and authorizes parliament to legislate in this regard. He further maintained that legislation had already been enacted to extend the duration of the quota system.
Justice Mandokhail noted that the original 40-year period of the quota system had already expired. Justice Irfan noted that the quota system was based on population ratio; The AAG responded that the quotas were indeed applied based on the provincial population.
Justice Mandokhail questioned whether the policy effectively conveyed the message that provinces with smaller populations should increase their numbers to ensure greater representation.
The federal government filed an appeal against the verdict of the Federal Shariat Court which declared that the quota system was contrary to Islamic prescriptions. The court adjourned the hearing of the case till the first week of April after issuing formal notices.
The same Shariat Court of Appeal also issued notices to the federation and all provinces in an appeal challenging the FSC ruling that declared the government’s power to remit judgments to be un-Islamic.
During the hearing, Justice Mandokhail observed that under Islamic law punishments are divided into two categories: those prescribed in the Holy Quran and those awarded under the tazir.
He commented that in tazir cases, the judge determines the sentence in view of the circumstances of each case. He questioned how an accused person could ask the government to remission the sentence. “If such a practice is allowed, the courts will become superfluous,” he said.
He further observed that a person who is a party to a case cannot be allowed to have his sentence withdrawn as this would lead to the collapse of the judicial system.
Justice Irfan observed that while settlement is possible in murder cases, crimes like robbery cannot be resolved through reconciliation.
Justice Mandokhail added that if a victim goes to the State seeking justice after a robbery and later finds out that the government has withdrawn the case, it would amount to denial of justice.
Justice Waheed directed the parties not to take the matter lightly and to present full arguments. Justice Mandokhail noted that the cases dated back to 1989 and said efforts would be made to hear them on a daily basis.
The court clarified that it would not seek an opinion from the Council of Islamic Ideology (CII), noting that it would not be appropriate for the court to disagree with such an opinion.
The case relates to sections 401 and 402 of the Pakistan Penal Code and the Criminal Law (Amendment) Act, 1958, which Syed Islamuddin challenged before the FSC. In 1991, the FSC declared the relevant provisions to be un-Islamic.
That same year, the federal government challenged the 1991 verdict before the Supreme Court. The Shariat Appellate Court adjourned the hearing of the case until the first week of April after issuing notices to all interested parties.
