Federal Shariat Court (FSC)

Evaluated against these tests: 1) sovereignty must reside in taxpayers; 2) the state must not create or protect “imagined goods”; 3) books/authors/messengers that claim state-governing authority must be open to criticism.

Profile

The Federal Shariat Court (FSC) was created under Article 203C–203J of the 1973 Constitution, inserted by General Zia-ul-Haq through the Hudood Ordinances (1979) and constitutional amendments. Unlike the CII’s advisory role, the FSC holds judicial authority: it can examine and strike down laws deemed “repugnant to the injunctions of Islam” (Art. 203D). Its decisions bind the state unless overturned by the Shariat Appellate Bench of the Supreme Court.

Constitutional Evaluation

1. Sovereignty Test: Must not attribute sovereignty to any entity other than taxpayers

• FSC posture: The Court derives legitimacy from Article 227, which subordinates all law to Islamic injunctions. This reorients sovereignty away from taxpayers and their elected representatives toward divine injunctions.
• Illustrative decision:
  • Faisal v. The State (1992): The FSC held that certain punishments under the Hudood Ordinances must be enforced strictly as per Qurʾānic injunctions, regardless of evolving legislative preferences.
  • By asserting that no human legislature could override divine law, the FSC directly displaced parliamentary sovereignty.
• Verdict: The FSC is unconstitutional under the sovereignty test, subordinating citizens’ authority to divine command.

2. Imagined Goods Test: Must not create or protect imagined goods

• Case: Interest-Free Banking (1991; reaffirmed 1999)
  • The FSC declared all forms of interest (riba) unlawful and ordered Pakistan’s financial system to transition to Islamic modes of finance. This was not based on measurable harm to taxpayers but on sacralized conceptions of economic morality.
  • The ruling caused decades of economic uncertainty, with the Supreme Court later suspending implementation—but the imagined good (“Islamic finance purity”) continued to dominate political discourse.
• Other examples:
  • FSC rulings upheld elements of the Hudood Ordinances, prioritizing “Islamic morality” over tangible public goods like justice for women or fair evidentiary standards.
  • In blasphemy cases (e.g., Muhammad Ismail Qureshi v. Pakistan, 1991), the FSC justified death penalties for derogatory remarks about the Prophet as protecting the sanctity of Islam—an imagined good above individual rights.
• Verdict: The FSC produces and perpetuates imagined goods, undermining material welfare and legal equality.

3. Criticism Test: Must not exempt books, authors, or messengers from criticism

• Institutional design: Article 203D empowers the FSC to test laws solely against Qurʾān and Sunnah—two sources deemed beyond critique. This builds constitutional immunity for texts and their messengers into judicial review itself.
• Illustrative rulings:
  • In blasphemy jurisprudence, the FSC affirmed that insulting the Prophet was not protected speech and warranted capital punishment (Muhammad Ismail Qureshi, 1991). This explicitly exempts the Prophet and religious texts from criticism.
  • In rape cases under Hudood, the FSC prioritized testimonial rules derived from classical fiqh, treating them as unalterable because they originated in sacred sources, not human reasoning.