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The Role of Islam in the Legal System of Pakistan

Categories: CourtIslamLawPakistan

Law

Law is basically a system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.

Every individual met almost daily with scenarios that demand legal actions.

Without law survival is very difficult and our right are not secure.

That’s why people said this phrase “Ignorance of law is no excuse”

Laws are the code of conducts which we usually follow during our life time in order to maintain the equilibrium for us and other people as well.

There are two types of laws:

  1. Public law
  2. Private Law

Public laws are those Laws that are made to maintain the law and order situation in the country, in other words to provide security to the public against criminal activities.

It consists of:

  • Constitutional law. (government lawas)
  • Administrative law. (CIA, FIA, Police)
  • Criminal law. (related to criminal activities)

Private Laws are the laws which are made to maintain the standards in Business or commercial world.

It consists of:

  • Contract,
  • Agency,(appoint agent)
  • Surety ship (assure guarantee)
  • Negotiable instruments (pay order, demand draft, cheque)
  • Sales (related to sales)

Sources of Law

Every law in this world has been derived by some way; whether it would be made by the court of the country by considering their religious values or derived or come to existence by itself.

There are various sources of Law:

Formal Source

These are the sources of court, when the specific law is made by the decision of court.

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Material sources

These are the sources of law which made the law by legislatures or derive by itself through customary conducts.

a) Historical Sources: The rules which were made traditionally but later they have been accepted / adopted by society as rules. Such sources also termed as COMMON LAW of EQUITY.

b) Legal Sources: this is the main source by virtue we made legal rules.

Legal sources are further classified into 4 sources,

Which are as,

Legislatures

Members of parliament present new bills which are first discussed in parliament by members.

Then they vote and consult senate members after consultation they become LAW.

Precedent

The precedent serves as authority for legal cases, which are cited and referred to as an authority for deciding identical cases.

Customary Conduct

Society creates customs when these customs become old and famous or well established than majority members of society assume the custom to be accepted or respectful .

Agreements

Legal system of Pakistan:

Legal system of Pakistan consists of four different steps or branches:

  • Quran and Sunnah
  • Precedent
  • Legislation
  • Customs

Quran and Sunnah

Being Islamic Republic of Pakistan our country intends to follow the rules and regulation mentioned in the Quran and Sunnah. Quran and Sunnah have the prime importance in our life therefore the rules and laws mentioned in them should be adapted by us.

Some of acts which are directly forbidden in Quran and Sunnah like; drinking Alcohol, having Pork, Infanticide, gambling, degrading of women has also forbidden in our country’s law.

There are two major Laws in our countries that are adapted from the teaching of Islam:

  • Ijma
  • Ijtihad

Ijma is the universal and infallible agreement of the Muslim community, especially of Muslim scholars on any Islamic principle, at any time. The consensus-based on the Ḥadith.

It is basically the consensus, that is, acceptance of a matter by a specified group of people those are followers of Hazrat Muhammad (P.B.U.H) with the court of law.

Example

Some of acts which are directly forbidden in Quran and Sunnah like; drinking Alcohol, having Pork, Infanticide, gambling, degrading of women has also forbidden in our country’s law.

Ijtihad means to derive and deduce religious opinion about some matter that is not mentioned in the sources of Islam, keeping in view the spirit and overall framework of Islam. In other words, the area of Ijtihad is the area in which Islam is silent and one must use one’s common sense, intellect and experience to arrive at an opinion that should be in conformity with the spirit of Islam. For example, matters like test-tube babies, organ donation and cloning are some of the recent developments in science and one needs to know whether they are permitted by religion or not. It is in such matters that need for Ijtihad arises.

Precedent

Precedent is also called Rule of Stare Decision, a term meaning to stand by that which has been decided. This legal principle dictates that once a law has been determined by the appellate court, future cases will follow the same principle of law if they involve considerably identical facts.

A Precedent directs a court to look into past decisions for guidance on how to decide a case. This means that the legal rules applied to a prior case with facts similar other cases before a court should be applied to resolve the legal dispute.

Four Vital point to remember while making a precedent,

  1. Question of law should be same,
  2. Question of fact should be same,
  3. Decidendi ratio should be same,
  4. Preceding court has equal or higher status to that of later court.

Legislation

Legislation means the preparation and enactment of laws by a legislative body through its lawmaking process.

In Pakistan the law is made by Majlis-e-Shoora of Pakistan, that consist of President and two Houses that are lower house and Upper house.

The law is presented in the National Assemble, after discussing in the assembly and voting they are further passed in Senate for the consultation and then it become an official law.

As discussed in above Majilis-e-shoora consist of two house that is Upper and lower.

National Assembly is the lower house of the country which consist of 272 members which are directly elected by public through voting in the form of general election and 70 seats are reserved for women and minorities (non Muslims) and they are selected by internal election of National Assembly by the votes of already selected 272 members of parliament.

President can dissolve the National assembly any time. National Assembly has an authority to scrutinize and check the spending of the government sector and has the right to call any of the executive members of sector for accountability.

When assembly in not intact then the law can be declared by the President that can accepted by new assembly, and when the assembly is intact but not in session then President can passed the law but it should be accepted by Assembly within 120 days otherwise the law shall be void.

Senate is the upper house of the country which consists of 104 member and these members are elected by public voting on every three years where half of its members are retired after every three years consecutively.

President could not dissolve the Senate. In the absence of President or if he is not functioning then the Chairman of Senate should act as a President.

As cited above Senate consists of 104 members.

  1. Out of which 14 members elected from each of provinces that is: 14 + 14 + 14 + 14 = 56 members.
  2. 8 members are selected fro, Federally Administered Tribal Areas.
  3. 4 are selected from Federal capital (2 from general seats, 1 woman and 1 Technocrat)
  4. 4 women are selected from each of the four Provinces that is: 4 + 4 + 4 + 4 = 16
  5. 4 technocrats are selected from each of the provinces that is: 4 + 4 + 4 + 4 = 16
  6. 1 member representing minorities is selected from each of the province that is: 1 + 1 + 1 + 1 = 4

Therefore the calculation shall be; considering vide above points:

56 + 8 + 4 + 16 + 16 + 4 = 104 members

The senate shall not be subject to dissolution but The term of each member ,who shall retire as follows, shall be for six years.

  • The members mentioned in above clause 1, seven shall retire expiration of first three years and seven shall retire after expiration of next three years.
  • The members mentioned in above clause 2, Four shall retire expiration of first three years and Four shall retire after expiration of next three years.
  • The members mentioned in above clause 3, one elected on general seat shall retire expiration of first three years and 2nd one Shall retire after expiration of next three years, one elected on Technocrat shall retire expiration of first three years and one elected on reserved seat for woman Shall retire after expiration of next three years,
  • The members mentioned in above clause 4, two shall retire expiration of first three years and two shall retire after expiration of next three years.
  • The members mentioned in above clause 5, two shall retire expiration of first three years and two shall retire after expiration of next three years, provided that the term of office of a person elected to fill a vacancy shall be the un expired term of the member whose vacancy he has filled.

Custom

Customary law refers to old-style common rules or practices that has become an basic part of the accepted and expected conduct in a community, profession, or trade and are treated as a legal obligation.

Customs are one of the important source of law, law which is based on custom is termed as customary law. They are changed and replaced by Shariat law.

In society good & bad customs are being practiced, good customs normally get shape of new laws and against bad customs laws are made.

Karo Kari is bad custom in which if man & woman go in private relation without marriage both were sentenced to death.

Cite this page

The Role of Islam in the Legal System of Pakistan. (2021, Mar 03). Retrieved from http://studymoose.com/the-role-of-islam-in-the-legal-system-of-pakistan-essay

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