| 2. | Insertion of new Chapter 3-A in Part VII of the Constitution.
In the Constitution, in Part VII, after Chapter 3, the following new Chapter shall be
inserted, namely :-
CHAPTER 3-A
SHARIAT BENCH OF SUPERIOR COURTS
| 203A | Provisions of Chapter to override other provisions of the
Constitution.
The provisions of this Chapter shall have effect
notwithstanding any contained in the Constitution. |
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| 203B | Conferment of jurisdiction on High Court.
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(1)
| A High Court may, on the
petition of a citizen of the Pakistan or the Federal Government or a Provincial
Government, examine and decide the question whether or not any law or provision
of law is repugnant to the injunctions of Islam as laid down in the Holy
Qur'an and the Sunnah of the Holy Prophet, hereafter in this Chapter
referred to as the Injunctions of Islam.
Explanation.- In this Chapter, "law" includes any custom or usage
having the force of law but does not include the Constitution, Muslim Personal
law, any law relating to the procedure of any Court or tribunal or, until the
expiration of three years from the commencement of this Chapter, any fiscal
law, or any law relating to the collection of taxes and fees or banking
insurance practice and procedure.
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(2)
| If the High Court decides that any law or provision of law is repugnant to
the Injunctions of Islam, it shall set out in its decision :-
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(a)
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the reasons for its holding that opinion ; and |
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(b)
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the extent to which such law or provision is so repugnant; |
and specify the day on which the decision shall take effect.
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(3)
| Every decision of the High Court shall be published in the official
Gazette. |
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(4)
| If any law or provision of law is held by the High Court to be repugnant
to the Injunction of Islam,--
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(a)
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the President in case of a law with respect to a matter in the Federal
Legislative list or the Concurrent Legislative List, or the Governor in the
case of a law with respect to a matter not enumerated in either of those lists,
shall take steps to amend the law so as to bring such law or provision into
conformity with the injunctions of Islam ; and
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(b)
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such law or provision shall to the extent to which it is held to be so
repugnant, cease to have effect on the day on which the decision of the High
Court takes effect.
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(5)
| A party to any proceedings before the High Court under clause (1) may be
represented by a legal practitioner who is a Muslim who has been enrolled as an
advocate of a High Court for a period of not less than five years or as an
advocate of the Supreme Court or by a jurisconsult selected by the party from
out of a panel of jurisconsults maintained by the High Court for the purpose. |
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(6)
| For being eligible to have his name borne on the panel of jurisconsults
referred to in clause (5), a person shall be an aalim who, in the opinion of
the high Court , is well versed in Shariat. |
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(7)
| A legal practitioner or jurisconsult representing a party before the High
Court shall not plead for the party but shall state, expound and interpret the
injunctions of Islam relevant to the proceedings so far as may be known to him
and submit to the Court a written statement of his interpretation of such
Injunctions of Islam. |
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(8)
| The High Court may invite any person in Pakistan or abroad whom the High
Court considers to be well-versed in Islamic law to appear before it and render
such assistance as may be required of him. |
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(9)
| No court-fee shall be payable in respect of any petition or application
made to a High Court under this Article. |
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(10)
| For the purpose of the exercise of the jurisdiction conferred by Article,
there shall be constituted in each High Court a Bench consisting of three
Muslim Judges of the High Court, to be called the Shariat Bench; and reference
in the preceding clause to the High Court shall be construed as a reference to
the Shariat Bench. |
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| 203C | Appeal to Supreme Court.
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(1)
| Any party in any proceedings before
a High Court under Article 2O3-B aggrieved by the final decision of the High
Court in such proceedings may, within sixty days of such decision, prefer an
appeal to the Supreme Court. |
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(2)
| The provision of clause (2) to (9) of Article 203B shall apply to and in
relation to the Supreme Court as if reference in those provision to High Court
were a reference to the Supreme Court. |
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(3)
| For the purpose of the exercise of the jurisdiction conferred by this
Article, there shall be constituted in the Supreme Court a Bench consisting of
three Muslim Judges of the Supreme Court, to be called the Shariat Appellate
Bench ; and reference in the preceding clauses to the Supreme Court shall be
construed as a reference to the Shariat Appellate Bench. |
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| 203D | Pending proceedings to continue.
Nothing in Article 203B or
Article 203C shall be deemed to require any proceedings pending in any court
or tribunal immediately before the commencement of this Chapter, or initiated
after such commencement, to be adjourned or stayed by reason of a
petition having been made to a High Court or the Supreme Court for a
decision as to whether or not a law or provision of law relevant to the
decision of the point in issue to such proceedings is repugnant to the
Injunctions of Islam ; and such proceedings shall continue, and the point in
issue therein shall be decided, in accordance with the law for the time being
in force. |
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| 203E | Power to make rules.
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(1)
| The Supreme Court, in consultation with
the High Courts, may, by notification in the official Gazette, make rules for
carrying out the purposes of this Chapter. |
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(2)
| In particular, and without prejudice to the generality of the foregoing
power, such rules may make provision in respect of all or any of the following
matters,--
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(a)
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regulation of the practice and procedure of a High Court and the Supreme
Court in
the exercise of Jurisdiction under this Chapter;
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(b)
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the maintenance by a High Court and the Supreme Court of a panel of
jurisconsults and of ulema who may be invited by the High Court or, as the case
may be, Supreme Court to appear before it and render assistance to it in the
performance of its functions under this Chapter and the qualification of such
ulema ; and
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(c)
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the scale of payment of the honorarium, travelling allowance and daily
allowance to
be paid to ulema, jurisconsults, experts and witnesses summoned by the High
Court or the Supreme Court in the performance of its functions under this
Chapter.
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