By Noor Zafar
This commentary explores the Pakistani Supreme Court’s use of the principle of “harmonious interpretation” in order to expand the Federal Shariat Court’s jurisdiction.
In this post, I will examine a landmark case, Abdul Waheed v. Asma Jehangir, that was brought before the Pakistani Supreme Court and decided in 2004. The Court was asked to decide the substantive issue of whether a Muslim girl who has reached the age of puberty needs the consent of a male guardian (walī) in order to legally marry. The Court, affirming that the consent of a walī is not required, renders judgment on jurisdictional grounds and holds that precedent from the FSC is binding upon the High Courts. In so holding, the Supreme Court further expands the FSC’s jurisdiction in order to uphold the principle of “harmonious interpretation.”
The case comes on appeal to the Supreme Court as consolidating petitions filed by the walīs of two women who had each eloped without consent. In the first case, the Lahore High Court (LHC) ruled the marriage invalid, while in the second case it ruled the marriage valid. The essence of the dispute boils down to a jurisdictional issue of whether judgments by the Federal Shariat Court are binding on the LHC. A long line of FSC precedents indicate that it has consistently held that a sui juris Muslim woman can contract marriage of her own accord. Petitioners argue that, while this may be true, the LHC is competent to make such a determination itself and is not bound by the rulings of the FSC.
In order to support their position, petitioners presented three arguments based on the text of Article 203GG of the Constitution. . . .