Challenging State Authority or Running a Parallel Judicial System?: Ulama Versus the Judiciary in Pakistan

Abstract

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.

Keywords: khul, Islamic law, Pakistani law, ulama, judicial ijtihad, fatwa