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Article Excerpt
I. INTRODUCTION
Pakistan's legal regime, particularly the status of its women, is the subject of considerable academic and media interest both domestically and internationally. (1) The legal plight of Pakistani women is well documented, and virtually all accounts stress the brutality with which their rights are violated. They are portrayed as subject to a legal system that allows them to be veiled, secluded, silenced, harassed, mutilated, forced into prostitution, beaten, raped, murdered, and otherwise humiliated. (2) This study, however, seeks to unravel for the first time a different and surprising picture of the marital rights of Pakistani women and the protection afforded them by the Constitution.
While the legal literature is replete with discussions of both marriage law and constitutional law, the interplay between the two within the context of Islam seems to have largely escaped scholarly attention. This article seeks to fill this gap; it explores the actual and potential intersections of Pakistan's Constitution with legal regulation of marital love, and reveals the uniqueness of this system and its striking sensitivity to women's rights.
Examining the Constitution's impact on marriage law in Pakistan is a tricky endeavor. To begin with, the supreme law of the land seems to embody a blatant contradiction. The Pakistani Constitution extends protection to an impressive catalog of fundamental rights, placing Pakistan in line with some of the most western-minded constitutional regimes in the world. (3) At the same time, in contrast to the American-style constitutional commitment to separate church and state, (4) the Pakistani regime is constitutionally committed to integrate the two, in the sense that all laws must conform to the injunctions of Islam as a condition of their constitutional validity. (5) So the same Constitution that protects western fundamental rights also elevates Islamic law, a legal tradition usually associated with the loss of rights. (6) This raises the question of how a legal system is expected to adequately function when its defining document seems inherently flawed, and how its judges are meant to carry out its conflicting mandates faithfully, especially when dealing with the delicate regulation of marriage. Interestingly, this fundamental dilemma is not unique to Pakistan; more and more countries in the Islamic world are facing a similar problem. (7)
This article suggests an answer to this question. Using the fascinating Pakistani system as a case study, it argues that Islamic law and human rights are not competing or contradictory, but rather compatible and complimentary, and that together they have in fact provided comprehensive protection to Pakistani women's marital rights.
To fulfill its end, the article is comprised of two chief parts. The first is designed to familiarize the reader with the constitutional system of Islamic governance in Pakistan. It briefly sketches the fundamentals of Pakistan's constitutional jurisprudence and focuses on the tension between human rights and Islamic law at the heart of the Constitution. The second part analyzes the impact of these two constitutional norms on the regulation of marital love in Pakistan. It explores the ingenious interpretive techniques Pakistani courts have developed in order to harmonize the constitutional scheme and defend women's rights when addressing controversial issues, which range from prerequisites to marriage, legal and culturally based restrictions on marital freedom and polygamous marriage, to marriage and divorce registration. Ultimately the article concludes, the exemplary Pakistani regime may potentially serve as an illuminating model for the productive and complementary utilization of Islam and constitutional jurisprudence in the regulation of a marriage law respectful of human rights.
II. WEDDING ISLAMIC LAW TO HUMAN RIGHTS: OUTLINE OF A UNIQUE CONSTITUTIONAL PROFILE
The relationship between Pakistan and Islamic law is quite unique. Pakistan was envisioned and created in the name of Islam, and as a home for the Muslims of India. (8) It was the first country in modern history to introduce the concept of an Islamic Republic, a concept later copied by other Muslim nations. (9) Naturally, the Pakistani fascination with Islamic law was given expression in the supreme legal document of the land--the Pakistani Constitution. The most conspicuous feature of the 1973 Constitution is its painstaking devotion to Islamic law. Many of its articles serve to articulate the centrality of Islam, and indeed, it contains more Islamic provisions than any other constitution in the entire Muslim world. (10)
The predominantly Islamic character of the Constitution was dramatically strengthened when, in a revolutionary step in 1985, Article 2-A was incorporated into the Constitution to require that all laws be consistent with the injunctions of Islam, as laid down in the Qur'an and Sunna. (11) The Constitution also established special tribunals called the "Shariat Courts"--that is, the Federal Shariat Court (FSC) (12) and its appellate instance, the Shariat Appellate Bench of the Supreme Court (SAB) (13)--as the judicial bodies empowered to review legislation for consistency with the "injunctions of Islam." (14) This groundbreaking step was totally unprecedented; never before had a court anywhere in the world been authorized to examine nearly the entire legal system on the basis of Islam. (15) Moreover, the Shariat Court was granted suo moto power to review laws even on its own motion, a power almost unheard of in constitutional history. (16)
But fidelity to Islamic law is only one side of the constitutional story. Pakistan takes pride in its very generous Constitution, extending protection to an impressive catalog of "western" fundamental rights. It recognizes almost all of the rights guaranteed in the 1948 Universal Declaration of Human Rights, including the rights to life and liberty, privacy of home, human dignity, and equality. (17) The Pakistani right to equality is particularly strong; it encompasses both the English concept of equality--"all citizens are equal before the law"--as well as the American concept of "equal protection of the law," (18) and further prohibits "discrimination on the basis of sex alone," unless it operates favorably as a protective measure for women or children. (19)
In addition to these explicitly-guaranteed fundamental rights, Pakistani constitutional thought further acknowledges the existence of rights even outside of the constitutional text, with the right to life as the chief constitutional basis for deriving unenumerated fundamental guarantees. (20) In the generous hands of the Pakistani courts, the right to life has achieved promising breadth; it is construed expansively to secure not only physical life, but also the quality of life and the full enjoyment and meaning thereof. (21) For example, this right is so broad as to engender a positive state duty to ensure an adequate standard of living and education for its citizens, and even environmental rights, a policy which would do credit to even the most liberal, human-rights conscious states in the world. (22) Pakistani courts have also interpreted the right to life to include the right of a couple to marry, establish a home, and live together as a basic human guarantee. (23) Any law which infringes on the sanctity of these fundamental rights--enumerated and unenumerated alike is invalid and void. (24)
To complete the constitutional picture, the Constitution also contains "principles of policy" which must guide policymakers, state organs, and courts in interpreting legislation, but cannot be used to challenge laws which fail to conform to their letter and spirit. (25) Two important principles of policy are securing women's full participation in all spheres of national life (26) and protecting the institution of marriage and the family. (27)
To the western observer, Pakistan must seem a constitutional battlefield between two central contradictory norms: "western" fundamental rights and Islamic law, which is notorious for its discriminatory treatment of women, especially in the area of marriage law. (28) Which commitment, then, is to gain the upper constitutional hand in the inevitable case of conflict? As the Supreme Court acknowledged, this critical question "shook the very constitutional foundations of the country," (29) giving rise to fierce debates among the judiciary. For many lower courts this issue was rather simple; they treated Article 2-A's commitment to Islamic law as a paramount, supra-constitutional clause controlling all other legislation and even the Constitution itself. (30) The Pakistani Supreme Court, however, rejected this simplistic solution--it declared Article 2-A equal in weight and status to the other provisions of the Constitution, and cautioned that courts, being themselves the creatures of the Constitution, cannot annul any existing constitutional provisions for inconformity with Islam. (31)
The question, then, remains: how can the constitutional commitment to human rights live side by side with an equally important constitutional commitment to Islamic law? This article attempts to resolve this pivotal question by examining selected issues relating to marriage through a constitutional prism. The discussion will demonstrate that the Pakistani experiment with Islamic law is nothing short of unique--both the regular and Shariat Court systems have interpreted the injunctions of Islam in such a liberal and progressive manner as to equate Islamic law in a de facto manner with fundamental rights and thus have been able to skillfully harmonize the constitutional framework.
III. WEDDING MARRIAGE TO THE CONSTITUTION: THE REGULATION OF LOVE IN PAKISTAN
This part explores the interplay between marital love and constitutional law in Pakistan, and the role the Constitution played in framing the debate and shaping the Pakistani law of marriage. I analyze the elements required for the contraction of a valid marriage, examine the extent to which a woman may enter into marriage of her own volition under both statutory law and customary practice, question the institution of polygamy and touch upon the procedural yet substantial issues of marriage and divorce registration.
A. Prerequisites to Marriage: The Meaning of "I Do NOT"
The Muslim Family Law Ordinance (MFLO) is the main body of law regulating marriage in Pakistan. The MFLO mainly deals with the procedural aspects of marriage, meaning that courts enjoy wide discretionary power to decide what the substantive, uncodified Muslim personal law is. (32) It follows that unlike legislation in many other Muslim countries, Pakistani law is silent as to the right of an adult woman to marry a person of her choice and as to whether her consent to marriage is sufficient or even required as a prerequisite for its validity. (33)
Apparently, this basic requirement is not so self-evident in Pakistan. Quite to the contrary, absent any clear legislative guidance, the phenomena of forced and "exchange" marriages became prevalent in Pakistan, severely jeopardizing women's independent decision-making in marriage. (34) A girl is often promised in marriage to her parents' friend, sometimes even before she is born, or may be given in marriage in exchange for a young girl from the groom's family to be married to her brother or even her father. (35) Moreover, Pakistani criminal law inadvertently encourages forced marriages. The penal code allows the victim of a crime or his heirs to "forgive" the offense in return for compensation, and this has resulted in the practice of giving women in marriage to aggrieved parties in exchange for the waiving of criminal charges. (36) Of course these traded women, "have no more of a voice than the money, land, or other property that changes hands in these transactions." (37)
This grim reality did not escape the eye of Pakistani courts. On the occasions they were called upon to deal with forced marriages, the courts proved highly critical of what they regarded as an "inhuman" and "gender-insensitive" practice. (38) One such particularly brutal case of forced marriage reached the Pakistani court--the story of the 28 year-old Humaira Mehmood, the only daughter of a then-member of the Legislative Assembly. (39)
Humaira married against the wishes of her parents, who had already planned her entire marital fate: she was promised in marriage to her cousin when she was still a child in exchange for his sister who was to be given in marriage to Humaira's brother. (40) When her parents found out that their plan was frustrated, they went to extreme lengths to enforce their will on their wayward daughter. (41) The court narrated the tragic tale of her subsequent abduction, torture, attempted murder, and eventual forced marriage to her cousin: She was "chased, harassed, abused, beaten and disgraced, abducted from her husband with the help of the police, brought to the custody of her parents, and forcibly married to her cousin. (42) She was made to participate in a staged marriage ceremony, where she was videotaped sobbing and crying; her thumbprints were forcibly obtained on the marriage contract; and the forced marriage was even backdated in the Marriage Register, so as to appear to have taken place before her first, consensual marriage. (43) Humaira then managed to escape with her husband to a government-run shelter only to find that her cousin/"husband" pressed criminal charges against her for adultery and accused her husband of abduction. (44) A heavy contingent of police stormed the shelter, arrested the couple, beat and restrained them, and subsequently detained them at separate police stations. (45) Humaira in turn petitioned the Lahore High Court to quash the criminal charges against the couple on the grounds that her alleged marriage to her cousin had occurred under duress and was thus void. (46)
The Court did not mince words in its condemnation of forced marriages. (47) Justice Jilani noted the hypocrisy in calling Humaira "adulterous," and was highly critical of "the manner in which she was hunted like a prey and the way the State functionaries become partners in a feudal vendetta notwithstanding the mandate of their office." (48) The Court then held that a woman enjoys the right to marry the man of her choosing, and that her consent is indispensable and a sine qua non for a valid marriage. (49) This right, the Court stressed, is supported by the triple force of Islam, the Pakistani Constitution, and international human rights conventions. (50)
The Court embraced an egalitarian interpretation of Islam over the claims of Humaira's family, and cautioned that "[m]ale chauvinism, feudal bias and compulsions of a conceited ego should not be confused with Islamic values." (51) It stressed that the advent of Islam was a milestone in human civilization, as it changed the status of women from that of serfs and chattel to that of equals and conferred upon them an equal right to choose their life partners of their own free will. (52) Thus, Humaira was entitled to exercise her right of exit and disassociation "from the high walls of a feudal bondage," (53) and to marry whomever she desired. (54)
The Court further resorted to the Pakistani Constitution in support of its findings. It enlisted both the fundamental guarantee to equality and the State's duty, as established under the Constitution's principles of policy, to protect the institution of marriage, (55) and concluded that forced marriages were abhorrent to the very spirit of the Constitution. (56) Accordingly, the Court voided Humaira's forced marriage and quashed the criminal charges against the couple, thus restoring justice in the name of both Islam and the Constitution. (57) Henceforth, Pakistani women must enjoy the same right as men to marry the person of their choosing, and they must not and cannot be coerced into unwanted unions.
In another case, the Karachi High Court again invoked Islam and fundamental rights in order to alleviate the plight of a woman who was sold into marriage by her father. (58) The woman refused to accept the new marital status imposed on her, but her father refused to let her question the validity of his male authority and of the marriage. (59) She then petitioned for a court order restraining her father from preventing her approach to the family court to invalidate the marriage. (60)
The Court expressed sensitivity to her plight and relied on both the constitutional commitment to fundamental rights and Islamic law to grant her the requisite relief. As the Court explained, several fundamental rights were at stake in a case of forced marriage, in particular, a woman's right to liberty and human dignity, (61) as well as the constitutional prohibition against slavery and the trafficking of human beings. (62) Importantly, the Court also stressed that these rights were sanctioned by Islamic law and that the incorporation of Article 2-A rendered Islamic law an additional source in Pakistani constitutional...
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