Carlo J.V. Caro
Pakistan’s latest constitutional amendment, which transfers the Supreme Court’s authority over constitutional questions to a new Federal Constitutional Court and elevates the army chief to a constitutionally entrenched post with lifetime legal immunity, is widely described as the final blow to an already fragile democracy. The familiar storyline is straightforward: a besieged liberal judiciary is being strangled by an overmighty military. There is an important truth in that account. But it also omits a more awkward dimension. For roughly four decades, Pakistan’s higher courts have operated within an Islamized constitutional framework they did not design but have repeatedly enforced, elaborated, and legitimized.
The question, therefore, is not whether judges are personally “Islamists,” but whether the architecture of judicial review has, in practice, served Islamist objectives in ways that have made governing harder and, at times, contributed to radicalization and security problems. Read against the constitutional text, key judgments, and their political effects, there is a strong case that it has.
The 1973 Constitution declared Islam the state religion, created the Council of Islamic Ideology as an advisory body, and gave Islam a prominent symbolic place. Under General Zia-ul-Haq, those gestures were converted into an institutional program designed to reshape the hierarchy of constitutional authority. The Objectives Resolution—originally a preamble declaring that sovereignty belongs to God and that laws must reflect Islamic principles—was elevated into the operative text of the Constitution as Article 2A. Article 227, which requires all existing laws to conform to “the injunctions of Islam,” was activated as a substantive constraint. And in 1980 Zia created the Federal Shariat Court (FSC), with authority under Article 203D to examine and strike down any law deemed “repugnant to the injunctions of Islam,” with appeals to a Shariat Appellate Bench of the Supreme Court.
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