For an accessible and comprehensive account of these events see John Bray, "Pakistan at 50: a state in decline", InternationalAffairs, 73, 2, 1997, pp. 315-332. See the Constitution (Eighth) Amendment Act, 1985.
3 For a concise overview of the amendments to the 1973 constitution introduced by the Eighth Amendment see Makhdoom Ali Khan (ed.), TheConstitutionoftheIslamicRepublicofPakistan, Karachi, Pakistan Law House, 1990. 4 See Abdttl MujeebPirzadav.FederationofPakistan PLD 1997 SC 232, at 234. 5 For a critical analysis of the Eighth Amendment see especially Hamid Khan, EighthAmendment:ConstitutionalandPoliticalCrisisinPakistan, Lahore,Wajidalis, 1994.
6 See Abdlll MlljeebPirzada1'.Federationof Pakistan 1997 PLD SC 232, at 234. 7 see FederationofPakistanv.MuhammadSaifullabKhan PLD 1989 SC 178. See [(haJl'ajaAHmadTaiiqRahim,1'. TheFederationof Pakistan PLD 1992 SC 646 and BenazirBhutto1'.President of Pakistan 1997 SCMR 353. 9 SceMuhammadNamazSharifFederationof Pakistan PLD 1993 SC 473. )0 Muhanuned Nawaz Sharit's success in the Supreme Court, however, did not last long. In July 1993, barely two months after having been reinstated, both he and President Ishaq Khan, who had dismissed him, resigned and paved the way for the elections which brought Benazir Bhutto back into government in 1993. '' Many judges refused to take a new oath of office, introduced by Zia-ul-Haq in 1977, which did not require them to discharge their duties in accordance with the constitution and from which die sections requiring them to preserve, protect and defend the constitution were also deleted. A prominent victim of the new oath was Dorab Patcl, the current Chairman of Pakistan's Human Rights Commission. He was forced to resign as a Judge of die Supreme Court, when he refused o take the new oath. See the High Court Judges (Oath of Office) Order 1977 (President's rder 1 of 1977) and die Supreme Court Judges (Oadi of Office) Order, 1977 (President's Order 9 of 1977).
tZ For a comprehensive account of these events see Mushahid Hussain, Pakistan'sPolitics:theZiaYears, Lahore, Progressive Publishers, 1990. 13 See Chapter 3A of the Constitution of Pakistan; for an overview of the Shariat Courts' powers see Martin Lau, "The legal system of Pakistan with special reterence to the law of contract", in this Yearbook, vol. 1 ( 1994), pp. 3-29. 14 See DrMabmood-Ur-RahmanFaisalTheState PLD 1992 FSC 1. 15 Justice Maulana Taqi Uthmani, one of the two Ulema members of the Shariat Appellate Bench of the Supreme Court, conceded that the reasons for the long delay in deciding the appeal was for political reasons and he was unable to give any indication as to when the matter would come before the Court; Justice Maulana Taqi Uthmani, "The role of the Federal Shariat Court in the legal system of Pakistan", lecture delivered at the School of Oriental and African Studies, University of London, 3 September 1997.
16 Art. 9 of the Constitution of the Islamic Republic of Pakistan, 1973 provides that "No person shall be deprived of life or liberty save in accordance with law". ' See HumanRightsCase(EnvironmentPollutioninBaluchistan) PLD 1994 SC 102 and ShelaZiar.WAPDA PLD 1994 SC 693 discussed in Martin Lau, "The right to public participation: public interest litigation and environmental law in Pakistan", in 4 RECIEL 49 ( 1994). 18 For a brief overview of public interest litigation cases in Pakistan see Mansoor Hassan Khan, PublicInterestLitigationinPakistan:Grolvthof theConceptanditsMeaninginPakistan, Karachi: Pakistan Law House, 1993.
�9 See the Government of India Act, 1935, read together with the Indian Independence Act, 1947, the 1956 Constitution, the Basic Democracies Order 1959, the 1962 Constitution, and the 1973 Constitution for some of the constitutional documents of Pakistan. zo See especially the Constitution (Eighth Amendment) Act, 1985, which inter alia strengthened the position of the President and confirmed the introduction of Shariat courts. See Comparative Statement of the Constitution as it Stood before the 20th March, 1985 and as it Stands after that Date, Islamabad: Government of Pakistan, M-Law-265 (no date), for a detailed account. For a critical discussion see Hamid Khan, Eighth Amendment:ConstitutionalandPoliticalCrisisinPakistan, Lahore, Wajidalis, 1994. z� See John Esposito, "Islam: ideology and politics in Pakistan", in Ali Banuazizi and Myron Weiner, TheState,Religion,andEthnicPolitics:Pakistan,IranandAfghanistan, Lahore, Vanguard, 1985, pp. 333-371, at p. 336. zz At the time of independence Pakistan adopted the laws of British India under the provisions of the Indian Independence Act, 1947, which provided in section 18(3) that Save as otherwise expressly provided in this Act, the law of British India and of die several parts thereof existing immediately before the appointed day shall as far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf. The contemplated adaptations were made by the Pakistan (Adaptation of Existing Laws) Order, 1947, and by The Adaptation of Central Acts and Ordinances Order, 1949. Successive constitutions contained articles providing for the continuance of existing laws. Art. 224 (1) of die 1956 Constitution, Art. 225 (1) of the 1962 Constitution and Art. 280 (1) of the Interim Constitution 1972 all provided for the continuation of pre-existing laws in substantially the same form as Art. 268 of the present 1973 Constitution. This provides that all existing laws should, subject to the Constitution, continue in force, so far as applicable and with the necessary adaptions, until altered or repealed or amended by the appropriate legislation. z; All references to pre-1973 constitutional documents are taken from Satdar Mahmood, ConstitutionalFoundationsofPakistan, Lahore, Jang Publishers, 1990.
24 For a comprehensive discussion of these debates see Inamur Rehman, PublicOpinionandPoliticalDevelopmentinPakistan1947-1958, Karachi, Oxford University Press, 1982. z5 For a good comparison of the 1956 and 1962 constitutions of Pakistan see G. W. Chaudhury, ConstitutionalDevelopmentinPakistan, London, Longman Group, 1969, 2nd edn.. 26 See the Constitution (First Amendment) Act, 1964. 27 Sec Art. 184 (3), constitution of Pakistan. ze Martial law was declared in 1977 and was lifted in 1985. 29 The new court is called the Federal Shariat Court; see the Constitution (Amendment) Order, 1980. 30 See Presidential Order No. 14 of 1985.
31 On the jurisdiction of the Federal Shariat Court see Charles Kennedy, "Repugnancy to Islam: who decides? Islam and legal reform in Pakistan", in InternationalandComparativeLau,Quarterlil, 41, 1992, pp. 769-787, and Martin Lau, "The legal mechanism of Islamization: the new Islamic criminal law of Pakistan", in Journalof LawandSociety, 11, 1992, pp. 43-58. ;2 See Art. 203B (c) of the Constitution of Pakistan, 1973.
33Zaheer-ud-dinv.TheState 1993 SCMR 1718, at p. 174, for a brief discussion of this case see Martin Lau, "Islam and fundamental rights in Pakistan: the case ofZaheer-ud-Dinv.TheState and its impact on the Fundamental right to freedom of religion", in this Yearbook, vol. 1 ( 1994), pp. 565-573. 34 PLD 1988 SC 416. isIbid., at p. 489. 3�' See Muhammad Atzal Zullah, "Human rights in Pakistan", in CommonwealthLawBulletin, 1992, pp. 1343-1384, at p. 1343. 37 1991 SCMR 2114.
3R PLD 1990 SC 513. 3� Ibid., at pp. 545-546. A similar expansion of the potential scope of fundamental rights has been achieved in the Indian manifestation of Public Interest Litigation, see especially BandhuaMuktiMorchav.Unionoflndia AIR 1984 SC 802, in which Bhagwati J. held that the right to life, enshrined in Article 21 of the Constitution of India, includes the right to live in dignity and free from exploitation. However, Bhagwati arrives at this interpretation not by linking this fundamental right to the precepts of a religion, which would have been difficult within the secular frame of reference of the Indian constitution, but by reading it together with the Directive Principles of State Policy contained in Part IV of the Indian Constitution. For a succinct discussion of Indian Public Interest Litigation see Francois du Bois, "'Well-being' and 'The common man': a critical look at public interest environmental law in South Africa and India", in Robinson, David and Dunkley, John (eds.), PublicInterestPerspectivesinEnvironmentalLaw, London, Wiley Chancery, 1995, pp. 135-153. '°Ibid., p. 546. 41 The Quctta Declaration is reproduced in Zullah, "Human rights in Pakistan", at p. 1350. 4z PLD 1990 SC 661. °3 See Art. 25 (3), Constitution of Pakistan, 1973.
aa See MtibammadNawazSharifa. FederationofPakistani PLD 1993 SC 473. as See Human Rights Case No 14 of 1992, reproduced in Zullah, "Human rights in Pakistan", at pp. 1360-1361. 46Ibid., at p. 1371. 47 PLD 1996 SC 324.
48 PLD 1997 SC 84. The judgment occupies almost three hundred pages in the law report.