Challenging State Authority or Running a Parallel Judicial System?

‘Ulama versus the Judiciary in Pakistan

Prof. Dr. Muhammad Munir*

This article focuses on the issue of whether the authority of

the State of Pakistan can be challenged by ‘ulama, who
though uneasy with some legal developments, have pledged
their loyalty to the State of Pakistan through their covenant,
provided their desired criterion was agreed. It showcases the
debate about the tussle between ‘ulama and the state from the
case law study of khul‘ in which the judiciary has put its
weight towards state law depriving ‘ulama from their desired
space. The article attempts to prove that the authority of the
State of Pakistan is legitimate under Islamic law; that all
appointments including judicial appointments in Pakistan are
legitimate; that decisions given by judges are binding and
implementable; that decisions of the superior Courts, i.e.,
High Courts, Federal Shariat Court, and the Supreme Court,
which are based on ijtihad exercised by these Courts rather
than the opinions of fuqaha, are binding; that the muftis and
‘ulama in Pakistan cannot issue fatwas against such decisions;
and that such rulings might amount to challenging the state‘s
authority.

Introduction

According to a newspaper report, on 28 June 2011, a woman, Maryam

Khatoon, in village Thoha in tehsil Talagang near Rawalpindi, Pakistan was
married to Shaukat Ali in 2008. Two years later the differences emerged and
the wife demanded khul‘ which the Family Court granted. She intended to
marry another man. The village‘s cleric, however, refused to solemnize the
nikah and the woman had to solemnize her nikah at a local court in Talagang
city. On 24 June 2011, three clerics from the village issued a fatwa (religious
ruling) from the loudspeakers of a mosque declaring the new couple to have
committed adultery and thereby liable to death (wajibul qatal). The local
police registered a case against the three clerics.1 However, even if the

* Vice President Administration, Finance, and Planning; Director General Shari‗a Academy,
International Islamic University Islamabad. PhD (Karachi University); LL.M (Stockholm
University); LL.M & LL.B (Hons) International Islamic University.
1
‗Fatwa-Stricken Couple Lives in Terror‘ (Dawn, 1 July 2011)
<https://www.dawn.com/news/641828> accessed 10 January 2018. According to the paper,

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‗ulama had not attempted to take law into their hands, they would have
certainly opposed the granting of khul‘ by the court as the ‗ulama throughout
Pakistan are against the dissolution of marriage through khul‘ without the
consent of the husband by the courts.

This paper focuses on a number of core issues emerging out of this

issue. These issues include: first, though ‗ulama have legitimate right as per
constitution that they can raise their voice against legal initiatives, their own
covenants do not allow them to go out of the system to challenge it; second,
the practice adopted by renowned scholars in past from their own school of
thought confirms that they should follow the system established by the
Muslim state irrespective of their resentment on certain issues; third, under
Islamic law ‘ulama and muftis are not supposed to issue fatwas that are
against the decisions of the courts such as in the case of khul‘; and finally,
any such fatwa would amount to challenging the authority of the state and
would be against the covenant agreed upon by all the ‘ulama.

The paper also discusses the status of the decisions of the courts in
Pakistan when these are not based on the opinions of jurists of a particular
school of thought, rather in which judges have exercised ijtihad. In addition,
what is the status of judgments when rulers and judges are not spiritual and
pious persons? To answer these questions, the role of ‗ulama in the struggle
for Pakistan and after the creation of the State of Pakistan must be
highlighted. Moreover, the Islamicity of our legal system needs some
attention for which evidence has to be provided to prove our case. To answer
the questions posed above, we take the perspective of Islamic law, according
to the opinions of Hanafi jurists (fuqha) whose opinions are adhered to in
Pakistan and quoted by the muftis to support their views regarding other
issues.

The Role of ‘Ulama in the Independence Movement

The independence movement for Pakistan had divided the Deobandi ‗ulama
into two groups: the Thanawi group, which supported the struggle and
participated in it, and the Madani group which opposed the partition of India
and the creation of a separate homeland for Muslims.2 Once Pakistan was

people were pressurizing the police not to submit the chalan of the case and no one was
ready to become a witness. It was this news that convinced me to explore this area.
2
The ‗ulama were split into two main parties: The Jamiat Ulama-i-Hind supported the
Indian National Congress Party whereas The Jamiat–ul-Ulama-i-Islam supported the
Pakistan Movement. Muhammad Qasim Zaman, The Ulama in Contemporary Islam:
Custodians of Change (Oxford University Press 2004) 32-37; KM Chaudhary and N. Irshad,

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 Challenging State Authority or Running a Parallel Judicial System? ‗Ulama versus the
Judiciary in Pakistan

created, the Thanawi group as well as the followers of the Madani group in
the newly born Pakistan declared their loyalty to Pakistan. The new State of
Pakistan had to adopt pre-independence laws. The Indian Independence Act
1947 was enacted by the British Parliament, which provided for the partition
of India and the establishment of two independent dominions to be known as
India and Pakistan, with effect from 15 August 1947. Section 18(3) of the
Act provided:

Save as otherwise provided in this Act, the law of British

India and of the several parts thereof existing immediately
before the appointed day shall as for as applicable and with
the necessary adaptations, continue law of each of the new
Dominions and the several parts thereof until other provision
is made by laws of the legislature of the Dominion in question
or by any other legislature or other authority having power in
that behalf.

Adaptations were made to the existing pre-colonial laws under the Pakistan
(Adaptation of Existing Laws) Order 1947 and the Adaptation of Central
Acts and Ordinances Order 1949.

All Pakistani Constitutions from 1956 till the present Constitution of

1973 included articles providing for the continuance of existing laws. Article
224(a) of the 1956 Constitution, Article 225(1) of 1962 Constitution, and
Article 280(1) of the 1972 Interim Constitution all provide for continuation
of pre-existing laws.3 Article 268(1) of the present 1973 Constitution
provides:

Except as provided by this Article, all existing laws shall

subject to the Constitution, continue in force so far as

‗The Role of Ulema and Mashaikh in the Pakistan Movement‘ (2005) (3) Pakistan Journal
of Life and Social Sciences 34-35. For a detailed study of the political activities and role of
‘ulama in the independence movement, see Ishtiaq Husain Qureshi, Ulema in Politics: A
Study Related to the Political Activities of the Ulema in the South-Asian Sub-continent from
1556 to 1947 (Ma‗aref 1972).
3
Martin Lau, ‗Introduction to the Pakistani Legal System with Special Reference to the Law
of Contract‘ (1994) 1 Yearbook of Islamic and Middle Eastern Law 6; Martin Lau, ‗Islam
and Constitutional Development in Pakistan‘ (1999-2000) 6 Yearbook of Islamic and Middle
Eastern Law 45, fn. 3.

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applicable and with the necessary adaptations until altered,

repealed or amended by the appropriate Legislature.4

Continuation of existing laws also applies to the periods of Martial Law,

each of which was governed by a Laws (Continuance in Force) Order or
something similar. Such laws were promulgated in 1958, 1969, 1977, and
1999 and provided for the continuation of laws during the Martial Law
period.5

‘Ulama Endorsing the Authority of the New State and its Judiciary
‘Ulama and the new State

‗Ulama in the new State did not have a big role to play. During the colonial
period, the role of even the top ‗ulama was that of a mufti who issued fatawa.
However, before the East India Company penetrated into and subsequently
replaced the Islamic character of the Mughal legal system in the areas under
the Company‘s control, ‗ulama used to be appointed as qadis (judges) in the
vast state and used to decide both criminal and civil cases.6 But in 1772, their
role was changed and they could only advise the Company‘s judges in cases
involving Islamic law. This role was later abolished and ‗ulama were
confined to seminaries and mosques where they could give rulings (fatawa)
when sought by people. The natural result of this treatment at the hands of
the colonials was the creation of hostile attitude of ‗ulama towards the
colonialists which continued till the creation of Pakistan. One issue that was
prominent in the writings and fatawa of the ‗ulama during the late colonial
period was the absence of Muslim qadis (judges) in the sub-continent. The
‗ulama and the muftis of that time emphasized too much on the link between
the dissolution of marriage and the presence of Muslim judges so much so
that they used to advise people to go to princely Muslim states within India
for such petty issues.

Let us examine two fatawa, issued by the illustrious Darul uloom

Deoband regarding faskh (dissolution of marriage by the court):

4
Constitution of the Islamic Republic of Pakistan (Ministry of Law, Justice and Human
Rights, 2004). It should be noted that the title of the chapter regarding adaptations of
previous laws is ‗transitional‘.
5
Muhammad Munir, ‗The Judicial System of the East India Company: Precursor to the
Present Pakistani Legal System‘ (2005-2006) (13) & (14) Annual Journal of International
Islamic University Islamabad 65.
6
Under the 1772 plan, English judges, called Collectors, were advised in the case of
Muslims, by a Qazi and in the case of Hindus, by a Pundit. For details, see ibid.

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 Challenging State Authority or Running a Parallel Judicial System? ‗Ulama versus the
Judiciary in Pakistan

1. Question: Hinda was given by her uncle in marriage to Zayd while

she was a minor. Upon reaching the age of majority, she expressed
her displeasure with the marriage and, in the presence of a few men,
expressed her refusal to accept it. Has her marriage contract become
annulled because of this refusal, or not?

Answer: According to the Durr al-mukhtar [of al-Haskafi] and al-

Shami [Ibn ‗Abidin‘s Hashiyat Rad al-mukhtar],7 Hinda does have
the right to have her marriage annulled immediately after attaining
the age of majority. However, without the judgment of a qadi (qadi
shar‘i), her marriage contract will not be annulled. The Durr al-
mukhtar requires ‗the qadi’s verdict for annulment‘; and, as al-Shami
has it, ‗if she chooses annulment, [then] that cannot take place
without a judicial decision‘. Consequently, since at this time there is
no Islamic qadi, the marriage contract in question will not be
annulled; for Hinda cannot annul her marriage contract on her own,
and she cannot marry anyone else unless her husband has divorced
her.8

2. Question: A woman used to have her regular menstrual cycles, but

for a year these cycles have ceased. Her husband has divorced her.
How long should her waiting period (‗idda) last? Will it be reckoned
by months or by menstrual cycles? If the latter, then must she wait till
the time she has despaired of further menstruation? The woman is
extremely poor and lacks any means of financial support. Explain and
be rewarded!

Answer: One learns from the chapter on ‘idda in the Durr al-mukhtar
and Radd al-mukhtar that, according to the Hanafis [scholars], it
would be necessary to wait until the time that the woman has
despaired of further menstruating by reason of age (sinn-i iyas).
According to the Maliki [jurists], however, the waiting period is nine
months; or, according to a more authoritative opinion [within the
Maliki school], it is one year after divorce. Acting on this opinion is
permitted in case of necessity. [However, I] say that the following
matters ought to be considered before [this view can be adopted].

7
Muhammad Amin ibn ‗Abidin‘s, Rad al-muhtar ‘ala al-durr al-mukhtar sharh Tanvir al-
absar (Muhammad Subhi Hallaq and Aamir Husain (eds), Dar al-Fikr, 1421 AH) 3:68. ‗Al-
Shami‘ (the Syrian) is a common way by which ‗ulama in the subcontinent referred to Ibn
‗Abidin and his famous work Rad al-muhtar.
8
Mufti Muhammad Zafir al-din (ed), Fatawa Dar al-‘Ulum Deoband (Dar al-isha‗at, 2002))
8:122. The fatwa itself is undated.

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First, she should receive medical treatment; only if such treatment

does not restore her menstrual cycles should the [Maliki] opinion be
followed; the ‗necessity‘ [for adopting that opinion] is based on this
[unsuccessful treatment]. Second, in order to act on this [Maliki]
opinion, the decision of a [Muslim] qadi is required. A Muslim
judge, even if appointed by an infidel king, is acceptable as a shar‘i
qadi. Consequently, a petition should be given to the government to
empower a Muslim judge to decide on this matter; that Muslim qadi
may then allow the woman to remarry after having passed her
waiting period, as laid down in this fatwa. This is the way to act [on
this matter]. Thirdly, in case, the waiting period had begun according
to this [Maliki] opinion, and her menstrual cycle happens to start
before the end of this year, then the waiting period would be
observed from the time of the [commencement of the] menstrual
period. And Allah knows best. 9 Dhu‘l-qa‗d, 1325 A. H. [14
December 1907].9

The point to note is that the muftis who issued these fatawa (plural of
fatwa) considered the practice of Islamic law dysfunctional in British India
and small issues such as the determination of the ‗waiting period‘ or the
dissolution of marriage through the option of puberty could not be resolved
without a Muslim qadi.10 Another important point is that according to the
second fatwa, if the judge were a Muslim, then, even if the appointing
authority was itself non-Muslim, the former‘s decision should be valid.11
Writing in 1933 the main proponent of the Dissolution of Muslim Marriages
Act 1939 (DMMA), Mawlana Ashraf ‗Ali Thanawi stated that it is
mandatory for the judge who has to decide the issue of dissolution of
marriage between a Muslim husband and his wife that he himself should be a
Muslim. He mentions that the decision of a Muslim judge in such matters
would be binding even if the ruler is a non-Muslim.12 ‗[However], where
there is no Muslim judge or it is not allowed to take the case to the court of a
Muslim judge or when the Muslim judge is not allowed to rule according to
Islamic law, husband‘s divorce of the wife seems the only option for the
dissolution of marriage as per the Hanafi fiqh’.13 A legal circumvention
given by him in situations of dire necessity is that ‗when there is no

9
Ashraf ‗Ali Thanawi, ‗Imdad al-fatawa’ (Mufti Muhamamd Shafi (ed), Idarat ta‘lifat-i
awliya‘, 1394 A H) 2:509f.
10
Zaman (n 2) 27.
11
(n 9) 2: 487f, 492.
12
Khurshid Hasan Qasami (ed), Ahkam-e-Talaq wa Nizami Shari‘i ‘Adalat (Al-Faisal
Nashiran wa Tajirani Kutub 1996) 60.
13
Ibid, 62-63.

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 Challenging State Authority or Running a Parallel Judicial System? ‗Ulama versus the
Judiciary in Pakistan

(Muslim) judge then the Maliki school of thought allows that the people of
the street should constitute a village council (panchayat) of at least three
practicing learned Muslim members who should investigate the matter and
decide it as per Islamic law and this decision would be considered as the
decision of a (Muslim) judge‘.14 Since these men have to decide the matter
according to Islamic law as interpreted by the Maliki school of thought, they
have to have great knowledge of Islamic law. In other words, they have to be
clergies, ‘ulama or muftis, as only they would have good knowledge of
Islamic law. Zaman argues that muftis sometimes suggested that the person
seeking to dissolve an undesirable marriage might have to go to principalities
outside British India such as the Muslim ruled principality of Bhopal, which
still had qadis;15 but in the meanwhile they insisted that ‗the stipulations of
the legal texts were to be unrelentingly followed in the most literal sense‘.16

The leaders of the new State of Pakistan had a secular education and
no religious knowledge; yet they were backed by an important group of
religious scholars – the Thanawi group, which exercised influence over
Muhammad Ali Jinnah – the founder of the new Muslim State.17 The
combined efforts of ‗ulama resulted in the passing of the ‗Objectives
Resolution‘ by the first Constituent Assembly in 1948, which has been made,
with slight changes, the preamble to the 1956, 1962, and 1973
Constitutions.18 The most important part of the Objectives Resolution, for the
purpose of this discussion, is:

Whereas sovereignty over the entire universe belongs to Allah

Almighty alone and the authority which He has delegated to
the State of Pakistan, through its people for being exercised
within the limits prescribed by Him, is a sacred trust.19

This paragraph leaves no doubt that the authority exercised by the

people of Pakistan was delegated to the State of Pakistan by God Almighty,
which was to be exercised within the limits prescribed by the Almighty

14
Ibid, 63.
15
Zaman (n 2) 27.
16
Ibid.
17
A full account of the life and promises of Jinnah is beyond the scope of this work.
18
The Preamble was made an integral part of the 1973 Constitution by the Revival of
Constitution Order 1985 (P. O. No. 14 of 1985).
19
Para 1 of the 1973 Constitution and para 1 of Objectives Resolution. For the text of
Objectives Resolution, see Annex to the Constitution of the Islamic Republic of Pakistan
(Ministry of Law, Justice, and Human Rights 2008) 173.

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Himself. Subsequently, all legislation and its interpretation by the courts,

administrative orders, regulations, adjudications, has to conform to shar‘ia.

Paragraph four of the Objectives Resolution has further strengthened

the obligations of the State. It states: ‗wherein the Principles of democracy,
freedom, equality, tolerance and social justice, as enunciated by Islam, shall
be fully observed‘. Paragraph five also explains some of the goals to be
achieved by the State; it states: ‗wherein the Muslims shall be enabled to
order their lives in the individual and collective spheres in accordance with
the teachings and requirements of Islam as set out in the Holy Qur‘an and the
Sunnah.

However, these are lofty goals as this was the language of the
Resolution to serve as guidance for the framers of the Constitution for the
new Muslim State. Moreover, the language of paragraph five is not
mandatory. The fact that the Resolution was made only a preamble and not
an integral part of the three Constitutions indicates that the Constitutions
themselves were not dictated by it and many of the provisions in all the three
Constitutions were not fully based on Islamic law. In addition, the fact that
the present Constitution was adopted in 1973 and the Preamble was made its
integral part only in 1985, implies that the framers‘ discussions were not
based on the Resolution. It is very important to note that the Resolution was
the brain child of the then top ‗ulama, who were also members of the first
Constituent Assembly, and the 1973 Constitution was fully backed by the
mainstream ‗ulama. Under the 1973 Constitution, Islam is the state
religion.20 The President, who is the head of state, and the Prime Minister –
the head of government – have to take an oath of being good Muslims.21

In 1951, a convention was held in Karachi from 21 to 24 January

which brought together ‗ulama of all schools of thought – both Sunni and
Shi‗a. They agreed on a declaration called, the ‗Basic Principles of the
Islamic State‘. The Convention was attended by thirty-one ‗ulama and all
their decisions were unanimous.22 According to the declaration, the real ruler
and lawgiver is Allah, ‗the law of the land is to be based on the Qur‘an and
the Sunnah, and no law shall be enacted nor any administrative order issued,

20
The Constitution of Islamic Republic of Pakistan 1973, art 2.
21
Ibid sch. 3.
22
For the full text of the document, see Khurshid Ahmad (trs), Islamic Law and Constitution
(Islamic Publications Ltd 1997) 332-336. The text is also reproduced in Muhammad Taqi
‗Uthmani, Nifaz-i shari‘at awr us-ke masa‘il (Maktaba-i Dar al-‗Ulum 1413 A.H.) 19-23.

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 Challenging State Authority or Running a Parallel Judicial System? ‗Ulama versus the
Judiciary in Pakistan

in contravention of the Qur‘an and the Sunnah‘.23 The State shall provide for
the basic needs of the people, including food, clothing, housing, medical
care, and education, and ensure to its citizens security of life, property and
honour, freedom of religion and belief, freedom of worship, freedom of
person, freedom of expression, freedom of movement, freedom of
association as given to them by Islamic law.24 The ‗recognized‘ Islamic sects
are to enjoy religious freedom within the limits of the law, and matters
pertaining to laws of personal status are to be decided according to their
respective schools of law.25 What is important to note is that ‗ulama
themselves are aware of the fact that as far as the opinions of fuqaha (jurists)
are concerned, they should be confined to matters of personal status only.

The above provisions are almost all accommodated in the 1973

Constitution. The Constitution makes the Qur‘an and the Sunnah as the two
primary sources of Islamic law in terms of cases that come under the
jurisdiction of the Federal Shariat Court by way of Article 203D as well as
through the preamble.26

One of the oft-quoted provisions of the Constitution is Article 227(1)

which states that ‗[a]ll existing laws shall be brought in conformity with the
Injunctions of Islam as laid down in the Holy Qur‘an and [the] Sunnah, in
this part [i.e., Part IX of the Constitution] referred to as the Injunctions of
Islam, and [that] no law shall be enacted which is repugnant to such
Injunctions‘. This is, however, a lofty proclamation because the operation of
this Article is limited to the provisions of Article 227(2) which states that
‗[e]ffect shall be given to the provisions of clause (1) [Article 227(1)] only in
the manner provided in this Part‘, i.e., only through the limited roles and
responsibilities of the Council of Islamic Ideology. Interestingly, an
explanation to Article 227, sub-article 1 says that ‗[I]n the application of this
clause to the personal law of any Muslim sect, the expression ‗Qur‘an and
Sunnah‘ shall mean the Qur‘an and [the] Sunnah as interpreted by that
sect‘.27 This is in essence the same stipulation as recommended by the
‗ulama themselves in their recommendations in 1951. Perhaps this is the
23
22-Point Declaration, art. 2. An explanatory note was attached to this article which states
that already enforced laws which are against the Qur‘an and the Sunnah ‗shall be gradually,
within a specified period, repealed or amended in conformity with Islamic law‘.
24
Ibid, art. 7.
25
Ibid, art. 9.
26
Also see paragraphs one, four, and five of the preamble to the 1973 Constitution, which is
an integral part of the Constitution from 1985.
27
However, it is important to note that recommendations of the Council of Islamic Ideology
are not mandatory and the Council only has an advisory role under Article 230 of the
Constitution.

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reason why ‘ulama agreed on the Constitution of 1973 when it was passed
by the Parliament. The text of the convention of the ‘ulama is better known
as ‗the 22 points of the ‘ulama‘ as the points on which they agreed were 22,
but the document is considered as the pledge of loyalty by the ‘ulama of
different backgrounds to the then newly created State of Pakistan.

The ‗ulama have always participated in political process in Pakistan.

Prominent ‗ulama have continuously been elected to the Senate and
National/Provincial Assemblies. Moreover, they have fully participated in
the working of the Council of Islamic Ideology – a constitutional body which
advises the Federal and Provincial Governments regarding the repugnancy of
proposed legislations.28 In addition, the efforts of the ‘ulama led to the
creation of the Federal Shariat Court, which is mandated to declare whether
laws – except Muslim personal law, constitutional law and procedural law –
are in conformity with the Injunctions of Islam, was the most significant step
towards the Islamization of the remaining laws in Pakistan.29

The crux of the above discussion is that Pakistan is a Muslim country

with Islam as its religion and the authority of the state‘s functionaries is
based on the Constitution, which is not against Islamic law. The head of
state, head of government, ministers, judges, and even the majority of
Muslims in this state may not be very good practicing Muslims (ahl al-
‘adalat). But the question is whether the authority of the state of Pakistan
ruled by bad Muslims or where the government is controlled by bad
Muslims, is binding on Muslims? And whether the authority of a Muslim
government, which has come to power even illegally, is binding on
Muslims? Are the judgments of the courts in such a state binding on
Muslims? And is the judgment of a judge based on his ijtihad binding on
Muslims? These are some of the important questions that we shall try to
answer in the following section.

Status of Decisions of the Courts in Pakistan

To answer the questions posited above, reliance is placed on the opinions of

classical jurists of the Hanafi school as they are considered most important to
the Hanafi ‘ulama in Pakistan. According to Muhammad Amin ibn ‗Abidin
(d. 1252/1836) – the 19th century Hanafi scholar, whose opinions are
28
The Constitution of Islamic Republic of Pakistan 1973, art. 228.
29
The Federal Shariat Court was established in 1980 by the Constitutional Amendment
Order, 1980 (P. O. No. 1 of 1980) w.e.f. 26th May, 1980. An entire chapter 3A which
comprises Articles 203A to 203J was added to the Constutution. It replaced the Shariat
Benches in the High Courts that existed prior to it since 1979.

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 Challenging State Authority or Running a Parallel Judicial System? ‗Ulama versus the
Judiciary in Pakistan

frequently quoted and are most popular among the Hanafi ‗ulama of the
subcontinent, ‗[i]f a usurper took over power [of the Muslim State] by force
without the consent of ahl al-hill-i-wa al-‘qad (men of deep knowledge and
opinion), and if he fulfills the other conditions, then it is obligatory for the
Muslims to obey him‘.30 He further argues that ‗piety is not a condition [to
be the Head of a Muslim State], therefore, it (such a government by a non-
pious Muslim) is allowed; although it is not preferred that a fasiq (sinful)
[Imam] could be followed [by Muslims]. And if a pious person was chosen
but later on he became sinful, he shall not be removed‘;31 ‗[A]nd Muslims
shall not rebel against his rule‘.32 According to Marghinani, appointment by
a cruel [Muslim] ruler is as lawful as a good ruler‘.33 As a matter of fact,
shortly after the period of the rightly guided Caliphs, the Ummyad rulers
were not considered ‗ahl al-‘adl‘, except ‗Umar ibn ‗Abdul ‗Aziz
(d.101/719), but the Muslims followed their edicts. Moreover, Muslims have
rarely been ruled by pious rulers but the people never rejected their authority.

According to Hanafis, ‗al-‘adalat‘ (probity) is not a condition for

judgeship; it is only preferred. Ibn ‗Abidin does not agree with those who
argue that a ‗fasiq‘ (sinful) cannot be a qadi and says that ‗[I]f this was
applied in our times, no one will be eligible to be a qadi‘.34 He argues that
the judgment of any person appointed by the Sultan [head of State] is
binding even if he be ignorant and ‗fasiq‘.35 What about the decision of a
qadi who himself is not only un-educated about the rules of Islamic law, but
is also a bad Muslim (fasiq)? According to Hanafis, decisions of such a qadi
are binding and must be implemented. Now, in the context of the State of
Pakistan where the rulers are not considered to be ‗ahl al-‘adl and are not
well-versed in Shari‗ah rather they are ignorant of Shari‗ah; should the
orders given by them in the administration of justice or otherwise be
considered legal under Islamic law? There is no doubt that the authority of
the State of Pakistan is binding on all the citizens, Muslims and non-
Muslims, under Islamic law.36

30
Ibn ‗Abidin (n 7) 2:241.
31
Ibid.
32
Ibid.
33
Burhanuddin al-Marghinani, Al-Hidaya (Idarat al-Qur‘an, n.d.) 5:359.
34
Ibn ‗Abidin (n 7) 8:25.
35
Ibid.
36
See also the verdict of 42 top muftis who met for two days in 1954 in Multan to get
consensus on the issue of moon-sighting (ro’yat al-hilal). They duly presumed the
legitimacy of the authority of the State of Pakistan and issued a collective verdict regarding
the same. For collective fatwa, see Mufti Rashid Ahmad Ludyanwi, Ahsanul Fatawa
(Qur‘an Mahal 1379 A.H.) 348-363. There was a consensus among the muftis that Pakistan

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The doctors of Islamic law (of the Hanafi School) have discussed in
details many of the situations that are now unfolding in Pakistan. The
situation in the case mentioned in the introduction of this paper is that the
court gives its decision before the muftis give their fatwa; whereas Hanafi
jurists have discussed the situation where if a person gets a fatwa or legal
verdict from a mufti and then gets a court decision regarding the same issue
which is different from the fatwa of the mufti, it has been held that he is
bound by the decision of the court and not the ruling of the mufti. Imam
Kasani states:

Where the qadi renders a judgment that opposes the opinion

of the plaintiff or the defendant, then, that is understood
according to the agreement and disagreement we have
mentioned. The issue of the muqallid (lit. imitator; a layman
who follows a school of thought) is the same when he has
been asked to issue a fatwa by someone in an incident and
then the matter is brought to the qadi, who renders a judgment
opposed to the opinion of the mufti. The judgment of the qadi
is to be followed by this person and he is to give up the
opinion of the mufti, because the opinion of the mufti stands
rejected due to the judgment of the qadi.37

About the execution of the judgment of the qadi in a matter subject to

ijtihad, Kasani further argues that:

As for the issue where they (the parties) are those who are
qualified to perform ijtihad and their opinion is different from
the opinion of the qadi, then, the summary statement about
the issue is this: The judgment of the qadi is executed,
without dispute, against the defendant in an issue that is
subject to ijtihad, irrespective of the defendant being a layman
(muqallid) or a faqih (jurist) qualified to undertake ijtihad,
whose opinion on the issue is different from the opinion of the
qadi.38

being an Islamic State should follow the dictates of Islamic law regarding moon-sighting
although they differed regarding some details of moon-sighting itself.
37
‗Ala al-Din Abu Bakr bin Mas‗ud al-Kasani, Bada’i‘ al-Sana’i‘ fi Tartib al-Shara’i‘ (Dar
al-kutub al-‗ilmiyah 1406 A.H.) 7:6. The English translation of the above text is taken from
Imran A. K. Nyazee (trs), The Unprecedented Analytical Arrangement of Islamic Laws
(Advanced Legal Studies Institute 2007) 44.
38
Ibid 42. According to Sarkhasi, ‗if the husband (in a dispute between him and his wife) is
himself a mujtahid but the qadi ruled against his [the husband] ijtihad, so if he thought that

12
 Challenging State Authority or Running a Parallel Judicial System? ‗Ulama versus the
Judiciary in Pakistan

Imam Sarkhasi is even more specific on this issue. He asserts that ‗the fatwa
of a mufti cannot be against the decision of a qadi and if a qadi decided
against the fatwa [of a mufti] he [the mufti] is bound by the decision of the
qadi‘.39 On this account, if the three muftis in the above case would get
judgments of the courts regarding khul‗, these would be binding on them and
had to be executed according to Sarkhasi and Kasani.

I asked a fatwa from the muftis of the famous darul ifta of the
prominent Darul ‘uloom in Karachi which is headed by Mufti Rafi‗
‗Uthmani – the elder brother of Mufti Muhammad Taqi Uthmani who has
severally criticized the decision of the Supreme Court which ruled that the
consent of the husband is not necessary for the validity of khul‘ by the
courts. The important questions and their answers are given below:

1. Question: ‗It is true that in Pakistan the Head of State, the

Prime Minister, Ministers, Advisors, and Secretaries do not
understand Islamic law and are not practicing Muslims.
Should their decisions be obeyed and implemented as those
coming from ‘Olul Amr’? Should their appointments,
especially judicial appointments and decisions given by such
judges be valid, binding, and implemented?‘40

Answer: ‗The Head of State or other Government Officials

are still considered as ‗Olul Amr‘ even if they are ignorant of
Islamic law and are not practicing Muslims and their
obedience is obligatory in permissible things and as long as
they do not given any order that is against the Shari‗a, their
orders (that are beneficial for the people) will be
implemented‘.41

This is about the orders of the rulers but the mufti has carefully avoided in
his answer the questions whether their judicial appointments will be valid
and binding and whether the decisions given by such judges will be valid and

his wife was legal for him but the qadi ruled that she was not legal for him, then he must
accept the judgment of the qadi and leave his own opinion (in the issue)‘;Abu Bakr bin
Ahmad al-Sarkhasi, Kitab al-Mabsut (Sameer Mustafa Rubab (ed), Dar Ehya al-turath al-
Arabi 2002) 10:171. Al-Sarkhasi, in his book, quotes Muhammad ibn Hasan al-Shaybani
who said that ‗Ijtihad should not be against the decision of a judge‘.
39
Ibid, 10:172.
40
The questions were sent through email on 3 July 2011 when I was writing the first draft of
this article but the answer was given through email on 13 February, 2012. See the Annex.
41
See the Annex.

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 LUMS Law Journal 2017: 4 (1)

binding. However, he has given two references in support of his view. In one
reference, he has cited a passage from al-Fatawa al-‘Alamgiriyya (also
known as al-Fatawa al-Hindiya) which is about the validity and
implementation of the decisions of judges appointed by sinful rulers who are
ignorant of Shari‗a. The passage is given below:

It is allowed to appoint a sinful person [as a judge] and his

decisions are implemented if these are not against the Shari‗a,
however, it is not recommended to appoint a sinful person [as
a judge]. Same is in Al-Bada‘i [Al-Bada‘i wa Al-Sana‘i by
Kasani]. And if appointed when he was pious but he became
sinful (later), he deserves removal [from judgeship] but
should not be removed because of this [sinfulness] and this is
according to most of the scholars. And it is obligatory for the
Sultan [the Muslim Authority] to remove him [such a judge]
as is in Al-Fusul Al-‘Imadiyya.42

The passage seems self-contradictory but one interpretation could be

that he does not stand removed because of his sinfulness. That is, the
decisions he gave while in the state of sinfulness would all be considered
valid. But it is obligatory for the Sultan (the Muslim Authority) to remove
him. But until the Sultan does so, he should not be considered ‗removed‘.
Another interpretation could be that according to the majority of Hanafi
scholars, such a judge should not be removed, whereas in the opinion of
others (which is a minority view within the school) he should be removed.

The second question and its answer are omitted in this discussion and
can be seen in the Annex to this work. The third question is about a person
who himself does not obey a decision of the courts in Pakistan and even
instigates other people to disobey it even when the decision is not against the
Qur‘an and the Sunnah. The whole question is given below:

3. Question: What is the ruling of Islamic law about a person

who instigates other people to disobey a court‘s decision,
which is against his school of thought but is not against the
Qur‘an and the Sunnah?
Answer: If a decision is not against the Qur‘an and the
Sunnah, then instigating people against it because it is not
based on a particular school of thought is not lawful.

42
Shaikh Nizam, al-Fatawa Al-Hindiyyah (Syed Amir Ali (tr), Dar Al-Kotb Al-Ilmiyah n.d
) 3:307.

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 Challenging State Authority or Running a Parallel Judicial System? ‗Ulama versus the
Judiciary in Pakistan

However, if that decision is against the school of thought that

is followed by the majority in that country, then attempt
should be made to change it [that decision] within the legal
boundaries.43

What is problematic is that if a decision is not against the Injunctions

of Islam as laid down in the Qur‘an and the Sunnah of the Prophet
Muhammad (PBUH) but is not based on the schools of thought then why
should it be changed through legislation? Is it not amounting to forcing
others to follow a particular school of thought?

Analysis of Two Important Cases on Khul‘

Let us examine the two prominent decisions about khul‘, which brought a
revolution in providing a remedy to helpless women in Pakistan. In two
successive decisions: Balqis Fatima44 and Khurshid Bibi,45 by the Lahore
High Court and the Supreme Court of Pakistan respectively, it was held that
khul‘ is available as of right and the consent of the husband is not necessary
for the dissolution of marriage through khul‘. This was against the
established opinions of the jurists of three Sunni schools, i.e. Hanafi, Shafi‗i,
and Hanbali schools of thought.46 Surprisingly, jurists of these schools
mention the famous hadith in which Habibah binth Sahl, the wife of Thabit
b. Qays b. Shamas, told the Prophet Muhammad (peace be upon him) about
her hatred of her husband and the Prophet (peace be upon him) ordered
Thabit to let her free,47 but do not base their rulings regarding khul‘ on it. In
all the versions of the hadith, the husband remains passive and had no role
and the Prophet (peace be upon him) told him to let her free (farriqha) or
divorce her (talliqha). The husband is not asked whether he agrees to it or
not, yet fuqaha unanimously gave the husband a decisive role. Balqis
Fatima‘s case was decided by a Full Bench of the Lahore High Court
whereas Khurshid Bibi‘s case was decided by a larger Bench of five judges
of the Supreme Court. The judges in both cases discussed the opinions of
fuqaha, but ruled that they are not bound by them. Instead, they based their
rulings on the above mentioned hadith and the explicit words of the verse
2:229. Thus, they resorted to the wording of the Qur‘an and the hadith and

43
See the Annex.
44
Mst. Balqis Fatima v Najm-ul-Iram Qureshi PLD 1959 Lahore 566.
45
Mst. Khurshid Bibi v Muhammad Amin PLD 1967 SC 97.
46
For details of the opinions of fuqaha regarding the consent of husband in khul‘, see
Muhammad Munir, ‗The Law of Khul‗ in Islamic Law and the Legal System of Pakistan‘
(2015) 2 LUMS Law Journal 33-63.
47
Muhammad Ismail al-Bukhari, al-Jami‘ al-Sahih (People‘s Edition n.d.) hadith no. 4971.

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 LUMS Law Journal 2017: 4 (1)

not to the opinions of the fuqaha. In other words, they based their decisions
on the Qur‘an and the Sunnah of the Prophet (PBUH). But this was exactly
what the previous constitutions as well as the present constitution allowed
the judges to do. In addition, this is exactly what a judge should be doing
under Islamic law. Sarkhasi has categorically stated that:

He [the qadi] is supposed to give his decisions according to

the Book of Allah [the Qur‘an] but if there is a case in which
he does not find a specific rule in the Qur‘an, then he should
give decision in that case according to what has reached him
from the Sunnah of the Prophet (PBUH), if he does not find a
rule within it [the Sunnah], he should look at the precedents of
the companions of the Prophet (PBUH) and decide… and the
crux of this matter is that if he found the opinion from one of
the well-known companions (may Allah be pleased with them
all) of the Prophet (PBUH) he should base his decision on it
and should not resort to qiyas (analogy) before that.48

The Federal Shariat Court Endorses Statutory Law on Khul‘

The Federal Shariat Court (‗FSC‘) in Saleem Ahmed v Federation of

Pakistan49 ruled that section 10(4) of the Family Courts Act 1964 (‗FCA‘) as
amended 2002, which is the statutory law of khul‘ in Pakistan, is not against
the injunctions of Islam. The relevant provision is reproduced below:

If no compromise or reconciliation is possible the Court shall

frame the issues in the case and fix a date for [recording] of
evidence. Provided that notwithstanding any decision or
judgment of any Court or tribunal, the Family Court in a suit
for dissolution of marriage, if reconciliation fails, shall pass
decree for dissolution of marriage forthwith and ‗shall also
restore to the husband the Haq Mehr [sic] received by the
wife in consideration of marriage at the time of marriage.50

Some of the petitioners had requested the FSC to stay proceedings of khul‘
before the Family Courts which were refused. The FSC sent a questionnaire

48
(n 38) 16: 88.
49
PLD 2014 FSC 43. The FSC disposed off six Shariat Petitions bearing No.S.P.3/L-2005,
S.P.2/L-2006, S.P. 1/K-2007, S.P. 2/K-2007, S.P.3/K-2007 and 7/I-2007 respectively. The
judgment was delivered on 25 August 25 2009 but was reported in 2014.
50
Family Courts Act 1964 as amended in 2002, s. 10 (4). The new provision was added in
2002.

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 Challenging State Authority or Running a Parallel Judicial System? ‗Ulama versus the
Judiciary in Pakistan

to its juris-consults. The questions are reproduced here. First, who is the
addressee in the Qur‘anic verse: which reads ‗if you fear that they both will
not observe the limit of Allah‘ (2:229): the Qadi, Ul-ul-amr (authorities), or
the spouses? Second, in the case of Thabit and Habibah/Jamila in what
capacity the Holy Prophet asked Thabit to release Jamila from marriage
bond?51 Whether the Holy Prophet acted in his capacity as a qadi, or as a
head of the State or as a Messenger of God?52

The petitioners supported their arguments by the Qur‘anic verses53

and the relevant hadith literature about khul‘. The crux of their arguments
was that a Qazi [qadi] before whom prayer for dissolution of marriage is
made is not authorized to decree in her favour if the husband is unwilling to
accept the offer. Secondly, under section 10(4) the court is bound to pass a
decree in case reconciliation fails at pre-trial stage without recording the
evidence in the matter which is against the injunctions of the Qur‘an and the
Sunnah of the Prophet (PBUH). Some petitioners also produced various
fatawa to the effect that khul‘ can be effected without the consent of the
husband. The FSC rejected the arguments of the petitioners, their
interpretation of Qur‘anic verses and ahadith, the fatwas produced by them.

The FSC categorically stated that unless there is a clear specific

‗Nass‘ [definitive proof] of the Holy Qur‘an and [the] Sunnah of the Holy
Prophet )‫ (صلى هللا عليه وسلم‬prohibiting or enjoining commission or omission of
any particular act, the FSC cannot declare any law or provision of law as
repugnant to the Injunctions of Islam. The FSC expressly ruled that the
impugned provision of law was examined and was not found to be in conflict

51
The courts in Pakistan are of the opinion that Thabit had two wives, i.e., Jamila and
Habibah. The FSC has mentioned the same. In hadith literature Habibah as well as Jamilah
are mentioned but as we have mentioned elsewhere her name was Habibah bint Sahl and her
nickname was Jamila. See PLD 2014 FSC 43, [21]; (n 46).
52
To this list may be added other capacities of the Prophet (PBUH) such as a social or
political leader. The third question is not that important. In this the FSC asked its juris-
consults to evaluate the views of contemporary ‗ulama who are of the view that the court is
not empowered to dissolve the marriage without consent of the husband while on the other
hand the august Supreme Court of Pakistan, Maulana Maududi and some Egyptian scholars
have divergent views. The FSC should be aware that the contemporary ‗ulama are not alone
in holding this view and that the Maliki jurists have the same view on this point. For details,
see (n 46).
53
The main verses on which reliance was placed are: 2:228, 2:229, 2: 231, 4: 434, and the
famous hadith of Habibah bint Sahl – the wife of Thabit b. Qays b. Shamas Al-Ansari. The
petitioners had not paid due attention to the hadith, however, because the husband, i.e.,
Thabit had only a passive role in the episode as he is ordered by the Prophet to divorce
Habibah or let her go. The Prophet never asked his consent whether he accepts the ruling or
whether he wants to divorce her or not.

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 LUMS Law Journal 2017: 4 (1)

with any specific injunction contained in the Holy Qur‘an and [the] Sunnah
of the Holy Prophet )‫(صلى هللا عليه وسلم‬. According to the Qur‘anic teachings,
the husband is supposed to divorce his wife when the two cannot live within
the bounds set by God but if the husband does not divorce his wife and is
bent on harming her and does not accept any compensation, then ‗what
should be the course of action for the wife?‘, the court asked. The court
further argued, ‗What would she do if reconciliation fails and the husband
proves adamant not to dissolve the marriage?‘54 The FSC argued that the
Qur‘an has repeatedly stressed the husband to keep the wife with kindness;
to keep them in good fellowship or let them go with grace;55 to retain them in
kindness or set them free with kindness;56 not to retain them (women) for
injury and not to exceed the limits;57 and treat them with grace and
kindness.58

The court put women on equal footing when it observed: ‗obviously

Islam does not intend to force a wife to live a miserable life, in a hateful
unhappy union, for ever. If she is unhappy and reconciliation fails, she
should be entitled to get relief whatsoever‘.59 Another noticeable observation
of the court is that how could the jurisdiction of the courts be ousted in case
of khul‘? If the courts can decide all matters including dissolution of
marriage on other grounds, ‗one wonders why they are not authorized to
decide the case of Khula [khul‘], if a husband does not at all agree to the
divorce of his wife and all the reconciliatory efforts fail‘. 60 The court
summed up the discussion in this way: ‗there is no specific verse or authentic
Ahadith that provides a bar to the exercise of jurisdiction by a competent
Qazi [qadi] to decree the case of Khula [khul‘] agitated before him by a wife
after reconciliation fails‘.61

Certain points to note on the basis of Islamic law and after reading
this judgment are: first, it is undeniable that there is a split among the

54
The court put these and other questions to all the advocates and scholars but their answers
did not satisfy the court.
55
The Qur‘an, 2:229.
56
The Qur‘an, 2:231.
57
Ibid.
58
The Qur‘an, 4:19.
59
The court relied on verse 2:228 which state: ‗Women shall have rights similar to the right
against them, according to what is equitable‘.
60
(n 49), 61. Regarding the interpretation of Thabit‘s wife episode the court relied on Syed
Abul A‗ala‘ Mawdudi, The Rights and Duties of Spouses (Markazi Maktaba Islami
Publishers 2009) 58-80.; ‗Umar Ahmad ‗Uthmani, Fiqh al-Qur’an (Idara Fikr Islami) 3:
398-417.
61
(n 49), 62-63.

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 Challenging State Authority or Running a Parallel Judicial System? ‗Ulama versus the
Judiciary in Pakistan

Muslim jurists regarding the issue of the consent of the husband on khul‘,
that is, the majority of fuqaha consider the consent of the husband necessary
for khul‘ to be granted by the courts but the Maliki jurists do not consider the
consent of the husband as necessary; second, in matters of difference of
opinion among the jurists, the state is the final authority and no one can
challenge the authority of the state once it has taken a position and legislated
on such matters; finally, no jurist is allowed to challenge or disagree with the
decision of a court even if that is against his school of thought or against his
ijtihad. Consequently, any mufti or jurist or mawlavi or cleric or religious
leader in Pakistan cannot and should not challenge state‘s laws on issues
such as khul‗ and neither should they issue a fatwa about it. Any such
challenge or fatwa should be declared as strictly prohibited and punishable
by state‘s authority. Therefore, the government of Pakistan is requested to
pass legislation to this effect.

The FSC has put an end to the controversy about the Islamicity of
Section 10(4) of the Family Courts Act 1964. But the question remains
whether our ‗ulama would whole-heartedly accept the judgment of the FSC,
the constitutionality of which they appreciate and which they have credited
for Islamisation of laws in Pakistan? Moreover, the harsh critic of khul‘ cases
by the courts – Mufti Muhammad Taqi ‗Uthmani – who has been a judge of
the FSC and the Shariat Appellate Bench of the Supreme Court of Pakistan,
should have no objection to this ruling as it is coming from the FSC. 62 Let us
hope that our ‗ulama accept the decision of the FSC and thereby the
authority of the State as well. However, at the time of writing this work the
decision in the case was being appealed against to the Shariat Appellate
Bench of the Supreme Court.63

Conclusion

To sum up the above discussion, ‗ulama played a significant role in the

judicial system under the Muslim rule in the sub-continent; but this role was
eroded by the British colonialists who confined ‗ulama and the muftis to a
private role. ‘Ulama did not support the Pakistan movement unanimously but
later on tried to play some role in shaping the framing of the Constitution.
They agreed on certain recommendations for the place of Islam in the

62
Mufti Taqi ‗Uthmani has put a scornful attack on the landmark judgements on khul‘ in
Pakistan such as Balqis Fatima v Najmul Ikram Qureshi, PLD 1959 Lahore 566, and
Khurshid Bibi v Muhammad Amin PLD 1967 SC 97. Muhammad Taqi Uthmani, ‗Islam me
Khul‘ ki Haqiqat: Fiqi Maqalat (Maiman Publishers 1996) 2:137-194.
63
Appeal against this judgment were filed by Muhay ud Bukhari, Civil Shariat Appeal No. 1
of 2009 and Syed Matanat Muazzam Bukhari, Civil Shariat Appeal No. 2 of 2009.

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constitution which was more or less accommodated by the framers of the

Constitution. The creation of the FSC was a turning point in the process of
the Islamization of laws and since 1980 ‗ulama have become more vocal.

According to Hanafi jurists, even a sinful person can be a ruler and

his judicial appointments shall be accepted and decisions given by such
judges are valid and binding. In addition, the decision of a judge which is
against the opinion of the litigant is still binding on him. Even if the decision
is against the ijtihad of the mujtahid, who is also a litigant, it is still binding
on him.

It is not allowed under Islamic law to instigate others when a decision

is against a particular school of thought, but is not against the Qur‘an and the
Sunnah of the Prophet (peace be upon him). Therefore, any instigation by
‗ulama against cases decided by courts in Pakistan regarding khul‘ is not
allowed under Islamic law and would amount to challenging the authority of
the state or running a parallel judicial system. Loyalty to the state is a
citizen‘s obligation, regardless of the nature of rulers and judges, and
whether their decisions are based on a particular school of thought or are
based on their ijtihad.

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Judiciary in Pakistan

Annex

Section 10 of the Family Courts Act 1964 as amended in 2002

Section 10: Pre-trial Proceedings. (1) When the written statement is filed,
the Court shall fix an early date for pre-trial hearing of the case.
(2) On the date so fixed, the Court shall examine the plaint, the written
statement (if any) and the précis of evidence and documents filed by the
parties and shall also, if it so deems fit hear the parties, and their counsel.
(3) At the pre-trial, the court shall ascertain the points at issue between the
parties and attempt to effect a compromise or reconciliation between the
parties, if this be possible.

(4) If no compromise or reconciliation is possible the Court shall frame the

issues in the case and fix a date for [recording] of evidence.

Provided that notwithstanding any decision or judgment of any Court or

tribunal, the Family Court in a suit for dissolution of marriage, if
reconciliation fails, shall pass decree for dissolution of marriage forthwith
and ‗shall also restore to the husband the Haq Mehr received by the wife in
consideration of marriage at the time of marriage‘.

Translation of the Fatwa

Dear Mufti Sahib,

Assalamalaikum,

I send you these questions for your answers on what Islamic law says about
them. They are all concerned with the same problem.

It is well known that in Pakistan, the head of state, the prime minister,
advisors and secretaries are generally not familiar with the shariah. Many
such people are also not practicing Muslims. Would the decisions of such
people still be binding upon the general public in Pakistan since they are the
People of Authority (olul ‘amr)? Would the designation of such people on
different positions of power such as judges in courts and the decisions given
by such judges be valid and implemented?

The second question concerns the schools of law. The judges of the Supreme
Court or the High Courts in Pakistan sometimes, instead of following any
particular school of law, either choose one from among the different opinions
of a school on a problem on the basis of the principle of takhyir; or,

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following the principle of talfiq, combine opinions from different schools of

Islamic law. Yet sometimes they practice ijtihad through rendering decisions
by considering the texts of the Qur‘an and the Sunnah directly. Would such
kind of a decision, rendered by the unanimous or majority opinion of a bench
of judges be binding on the general public?

The third question is about the person who, declaring such decisions to be
against Islam, denies their validity and incites the public to oppose them
even when these decisions do not oppose any explicit text of the Qur‘an or
the Sunnah. Sometimes, such a decision may be in accord with the opinion
of another school of law not followed by such a person; or while not an
opinion of any school of law at all, is still not against the texts of the Qur‘an
and the Sunnah.
Response

Glory to God and Blessings upon the Prophet (God bless him).

1. Even if the head of state or the other holders of office are ignorant of the
shariah and are not practicing Muslims, they would still be considered
among the People of Authority (olul amr). It follows that obedience to
them is binding in matters which are permissible according to the
shariah. And for as long as they do not issue an order which goes against
the shariah, their decisions which are meant for the well-being of the
people would all be legally valid and implemented.

It is in the al-Fatawa al-Hindiya (volume 3, page 308):

The designation of a fasiq is permissible and his decisions

will stand implemented so long as he does not transgress the
bounds of the shariah. But a fasiq should not be made a judge.
Such is written in the Badai’. And if such a person is
designated as a judge and he thereafter becomes a fasiq, he
would become deserving of being removed (from the
position); but he is not removed (automatically) thereby. This
is the position taken generally by scholars. And it would be
obligatory upon the sultan to remove him. Such is written in
al-Fusul al-‘Imadiyyah.

It is in al-Bahr al-Raiq (volume 18, page 141):

(His saying: because obedience to the People of Authority is

obligatory) ‗Allama al-Biri says at the end of his commentary

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 Challenging State Authority or Running a Parallel Judicial System? ‗Ulama versus the
Judiciary in Pakistan

on al-Ashbah wa al-Nazair, while discussing the conditions of

the imamate: then, when the oath of allegiance (bai‘ah) from
the ahl al-hil wa al-aqd has been rendered, he (the
contender/candidate) becomes the imam. It is (then)
obligatory to be obedient to him—as is given in the khizana
al-akmal and the commentary of al-Jawahir. It is obligatory
to be obedient to him in what the religion permits, which is
what is beneficial to the general public; as the ‗imarah of the
Dar al-Islam and Muslims in accordance with the Qur‘an, the
Sunnah and Ijma.

2. If the government does not bind the judge it designates to decide

according any particular school of law, and such a judge—while deciding
cases—does not adhere to any particular school of law or decides
according to the opinion of a faqih other than the four imams, his
decision will stand implemented. However, someone who is not a
mujtahid should not decide cases on his own; and since the talfiq and
takhyir mentioned in the question has not been clarified, we are unable to
say anything concerning them at this point.

It is in al-Bahr al-Raiq (volume 17, page 472):

It is in the Umdah al-Fatawa that it is permissible for the

judge to decide according to an opinion which has been left
over (not preferred). And the case for when he decides in an
area subject to ijtihad is similar. And the same is found in al-
Sirajiyyah. And in the Maal al-Fatawa it has been decided in
opposition to the school of law (not understood properly).
Abu Hanifa said it would be implemented, while Abu Yusuf
said it will not be implemented. It has been described that the
decision of the muqallid judge, when he decides according to
a school of law he himself does not follow, will stand
implemented. And similar would be the case when he decides
according to a weak narration or opinion because of the
indeterminateness (itlaaq) of their opinion that the weak
opinion is strengthened by the adjudication of the judge. And
what this (indeterminate opinion) has been restricted in the al-
Fatah al-qadir with that this would stand true for problems
subject to ijtihad is established (only) by some texts. It is for
this reason that it has been said in the Quniah al-Qadi that the
muqallid qadi, when he decides against the position of his
school of law, the decision will not stand implemented.

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It is in the Tanqih al-Fatawah al-Hamidiyyah (volume 2, page 184):

And they have clarified that the judge is an agent of the Sultan
in his adjudication and his representative; so that if his
adjudicating powers have been restricted to a place, or time,
or (kind of) persons, or (kinds of) cases, they would be
restricted and not otherwise. And the judges in our time have
been ordered to adjudicate according to the sound narrations
of the school of law of our master, Abu Hanifa, God have
mercy on him. And they mention in the rasm al-Mufti that the
decision of the muqallid against his school is not implemented
by default. Therefore, it is mandatory to appoint a Hanbali or
a Maliki judge, who may decide accordingly which should be
executed by the Hanafi judge.

It is in the Hashiyah of Ibn Abidin (volume 5, page 408):

And he said in the al-Nahr and proclaimed in al-Bahr that

when the muqallid adjudicates according to a school other
than his own, or according to a weak narration or opinion, the
decision will stand implemented. And the best opinion is that
mentioned in the al-Bazzaziyyah that if the judge is not a
mujtahid and (yet) decides according to a fatwa against his
school, the decision would stand implemented and no one but
himself can nullify it. Such is narrated from Muhammad.
According the opinion of Abu Yusuf, (even) he cannot render
it void. What is mentioned in al-Fatah al-qadir should be
followed in the Hanafi school. And it can be said about the
opinion in al-Bazzaziyyah that it is one of the opinions of
Sahibayn and that they had forgotten their previous opinion
which is mentioned above, that is, the decision of a judge who
is a mujtahid is not implementable if it is against his school of
thought, therefore, the decision of a judge who is muqallid
shall not be implemented in the first place.

3. If the decision is not against the Qur‘an and the Sunnah, then, it is not
proper to incite the people against it merely because of its being against a
particular school. However, if the decision is against the school of the
vast majority of Muslims of a country, efforts should be made within the
permissible bounds of law to get it changed.

It is in the Usul al-Fatawa wa Adabuhu by Taqi Usmani (page 234):

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(Adjudication outside of the four schools) All these problems

are proof of the position that the implementation of decisions
is not limited to the four schools; rather, they‘ll stand
implemented if they accord with an accepted mujtahid; with
the condition that such an opinion is established through a
sound method.

God knows the best.

Rashid Sa‘eed

Dar al-Ifta, Jamiah, Dar al-Ulum Karachi

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Original Text of the

Fatwa

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