Guest writer Noor Zafar writes on how the Federal Sharia Court of Pakistan used Pakistan’s Protection of Women Act of 2006 as part of its efforts to broaden its jurisdiction by reassessing the definition of hudud crimes. Though the Court used this new definition to regain some of the control it had under the Hudud Ordinances of 1979, the effects created a more extensive Federal Sharia Court.
The Federal Sharia Court (FSC) of Pakistan has used Islamic criminal law (hudud) cases to expand its jurisdiction, in a move that has wide ranging effects for the adjudication of Islamic law in the country. One notable case in which it sought to do so arose in a 2010 challenge to the constitutionality of the highly contentious Protection of Women Act of 2006 (WPA). In its ruling, the Court exercised its limited original jurisdiction to dispose of three consolidated petitions challenging the WPA. The Court thereby expanded its scope of jurisdiction over matters of Islamic law in the process. That is, the FSC expanded the list of elements constitutive of a hudud crime, thus expanding its jurisdiction over a broad variety of criminal law cases and entrenching its power to shape national discourse about Islam.
Pursuant to Article 203-D of the Pakistani Constitution, the FSC has exclusive original jurisdiction to decide whether a law is “repugnant to the injunctions of Islam.” Pursuant to Article 203-DD(1), it also has the ability to review hudud cases decided by lower trial-lever criminal courts. While the FSC’s decisions may be appealed to the Supreme Court, they are binding on the provincial High Courts and trial courts subordinate to those institutions.
In the 2010 case, petitioners argued that the WPA: (a) violated Article 2 of the Constitution because its provisions were “repugnant to the injunctions of Islam;” and (b) violated Article 203-DD(1) because it stripped the FSC of exclusive jurisdiction to decide hudud cases. Petitioners enumerated a list of seven complaints relating to the Act, but the FSC established that it would only discuss a limited number of consensus issues in its judgment.
The FSC had to decide two important questions: (a) What categories of crimes does it cover? and (b) What is the scope of jurisdiction that may be exercised by the FSC under the Pakistani constitution? The crux of petitioners’ argument was that the Act took some offenses (e.g., rape) out of the exclusive purview of hudud laws and granted lower criminal courts concurrent jurisdiction over such cases. This reallocation of jurisdiction, in turn, unconstitutionally circumscribed the FSC’s jurisdiction because, according to Article 203-DD(1), only the FSC can examine laws or provisions of laws that implicate hudud. The WPA took the exclusive power of review for hudud cases away from the FSC by placing such crimes in the Penal Code. Once in the Penal Code, hudud crimes can also be reviewed by the provincial High Courts.
The Pakistani parliament, acting under pressure from President Pervez Musharraf, introduced the Protection of Women Act in 2006 in an effort to quell the national and international protest by human rights groups against the Hudud Ordinances of 1979. Among other reforms, one major objective of the Act was to rectify the deeply flawed treatment of rape cases. Under the 1979 Hudud Ordinances, if a woman alleged rape, she had to meet the same evidentiary burden required to accuse someone of adultery (four eye witnesses to the act). If she were unable to do so, her accusation was taken as a confession and she could be accused and convicted of adultery or false accusation of zinā (qadhf).
The 1983 case of Safia Bibi illustrates the perverse rulings sanctioned by the Hudud Ordinances. Bibi, a 13-year old blind girl, was raped by her employer and his son. Both men were acquitted while she was sentenced to 15 lashes and three years imprisonment for engaging in extramarital sex.
The Protection of Women Act of 2006 moved all provisions of the Hudood Ordinances dealing with zinā (sex crimes) into the Pakistan Penal Code. This reorganization of the criminal code placed sex offenses outside the exclusive jurisdiction of the FSC, subjected accusations of zinā to higher evidentiary standards, and repealed the hadd punishments (stoning to death for adultery and public lashing for fornication) for zinā crimes.
The FSC rejected these reforms. In holding the 2006 WPA unconstitutional, the FSC began by interpreting the language of Article 203-DD in order to determine its own jurisdiction. It concluded that it does indeed have exclusive (appellate) jurisdiction over cases relating to the enforcement of hudud punishments.
The court then proceeded to analyze the scope of hudud laws. First, it determined the literal meaning of hudud to be “prevention, impediment, barrier, bounds, and limit.” Next, it cited references to the word hadd/hudud in both the Quran and Sunnah. It concluded that hudud are “specific punishment[s] awarded or prescribed under or in pursuance of an Injunction of Holy Quran or Sunnah.”
After providing a textual definition of hudud, the court expanded upon the relationship between hadd and tazir. It defined the latter as “any punishment prescribed by State in matters related with Hudood or ancillary or akin thereto.” If the State is unable to meet the evidentiary burden necessary to charge an individual with a hadd crime, it can impose discretionary punishment of tazir. The Court concluded that “all those acts, preparatory or otherwise, which contribute towards the commission of a Hadd crime, for which specific punishment has not been provided in Shariah, also becomes cognizable as a Hadd offence.”
Although the judgment is not very clear on this, it seems as if the drastic expansion of hadd laws is for jurisdictional—and not sentencing—purposes. The FSC seems more concerned about asserting its relevance and entrenching its power to arbitrate issues implicating Islamic law than it is about meting out strict punishments. The Court reasoned that potential hadd crimes usually include elements punishable by tazir, and it makes more sense administratively to have one system of courts dealing with all elements of the crime rather than having bifurcated jurisdiction over different elements of the same crime.
Such a construction of hadd and tazir laws seems to give quite a bit of power to the FSC. Any petition asserting prima facie that a hadd crime was committed could fall within the exclusive appellate jurisdiction of the FSC, regardless of the substance of the petition itself and whether or not it is even plausible for a hadd crime to have occurred.
The Court justified the broad expansion of its jurisdiction by referencing the phrase “la taqrabu [zinā]” (do not even go near [adultery or fornication]) used in the Quran in relation to hudood (Quran 6:15). Anything that could facilitate, enable, or lead up to the commission of a hadd offense should be cognizable as a hadd offense. Such an offense would fall within the exclusive appellate jurisdiction of the FSC because the words used in Article 203DD are “relating to the enforcement of hudood” (emphasis added). The Court emphasizes that only an express constitutional amendment could take away jurisdiction that was conferred upon a court by the Constitution. An ordinary statute (such as the Act) cannot do so.
The FSC strikes down the WPA because it constricts the Court’s jurisdiction and limits its power to frame important social problems implicating Islamic law. In the process of using its constitutional power to declare the Act “repugnant to the injunctions of Islam,” the Court also expands the scope of hudud crimes as legally defined in Pakistan.
 203D. Powers, Jurisdiction and Functions of the Court: (1) The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH), hereinafter referred to as the Injunctions of Islam. Pak. Const. art. 203-D, sec. VII.
 Id., Article 203-DD(1).
 PLD 2011 FSC at 6.
 AltMuslimah, The case of Pakistan’s Safia Bibi, AltMuslimah.com (Dec. 7, 2009). Available at http://www.altmuslimah.com/2009/12/the_case_of_pakistans_safia_bibi/.
 Safia Bibi v. The State PLD 1985 FSC 120; Safia Bibi v. The State PLD 1986 SC 132.
 Protection of Women (Criminal Laws Amendment) Act (2006). Available at http://www.na.gov.pk/uploads/documents/1321341579_812.pdf.
 Pakistan: Penal Code [Pakistan], Act No. XLV, 6 October 1860.
 PLD 2011 FSC at 29. The FSC does not indicate from where it derived this definition.
 Id. at 29-31.
 Id. at 40. The FSC drew this inference from a hadith in Sahih Bukhari: “Earlier nations had perished simply because punishment (Hadd) was imposed only when a lowly commoner had committed a crime but influential persons were spared the agony of punishment.”
 Id. at 41.
 Id. at 45.
 This expansion jurisdiction may also be for judicial economy and administrability reasons, as the FSC generally has a smaller caseload than the other High Courts. See Hessan Bilal Zaidi, Analysis: Clearing Shariat Court’s cobwebs, Dawn.com (June 06, 2014). Available at http://www.dawn.com/news/1110944/analysis-clearing-shariat-courts-cobwebs.