Rights of the Child under Islamic Law and Laws of Pakistan: A Thematic Overview
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RIGHTS OF THE CHILD UNDER ISLAMIC LAW AND LAWS OF
PAKISTAN: A THEMATIC OVERVIEW
Shaheen Sardar Ali, Professor of Law, Warwick University, United Kingdom
1. Introduction
The purpose of this paper is not to engage in a comparative description of laws
affecting children under two sets of laws i.e., Islam and Pakistan. It is proposed to
place the debate surrounding what place, rights and privileges have been accorded to a
child in these two legal systems into a thematic framework and analyse the interface
and interplay of the two legal traditions on fights of the child. This approach is in my
view important in that oftentimes, the distinction between the different sets of laws is
neither very evident nor clearly laid out. Also perhaps the most important factor to
bear in mind when discussing subjects emanating from a pluralist legal tradition, is to
conceive the identity of the subject of the law, in our case the child, as concentric
rings in perpetual circular movements, merging different legal norms. A further word
of caution: Although it may not be expressly acknowledged, but neither Islamic law,
nor Pakistani law, nor indeed any legal system for that matter operates in a void.
Custom and cultural practices and economic and political expediency play a major
role in determining what law or norm filters through unadulterated, in its original
fonn, and what is tailored to 'match' existing social practices.
2. Background, sources and overview of Islamic law and laws of Pakistan
Pakistan, formally designated as the Islamic Republic of Pakistan, came into
existence in 1947 when British colonial rule in the Indian subcontinent came to an
end. Under its 1973 constitution, Pakistan is a federal state with four1 federating units
(known as provinces), and some Federal territory. In addition to these units, the
country also has areas designated as the Federally Administered Northern Areas
(FANA), and the State of Azad Jammu and Kashmir (AJ&K). Some of the tribal areas
are known as Provincially Administered Tribal Areas (PATA) and are under the
control of the provinces; others are known as Federally Administered Tribal Areas
(FATA) and under the administrative control of the Federal government.
Under the constitution of 1973, power to legislate is divided between the
federal and provincial governments. Article 70(4) provides a federal legislative List,
which falls exclusively under the jurisdiction of the federal government, and a
concurrent Legislative List, under which both federal and provincial governments are
competent to legislate. If a subject is not specified in either list, a provincial
government has exclusive jurisdiction to legislate in that area under the principle that
residuary powers to legislate belong to the provinces. The President of Pakistan2 and
the Governors of provinces3 have the power to promulgate Ordinances should an
1 Baluchistan, North West Frontier Province, Punjab and Sindh.
2 Under article 89 of the constitution.
3 Under article 128 of the constitution.
Journal of Islamic State Practices in International Law 2006, Vol.2(1).
[ISSN: 1742-4941]](ViewImageLocal?handle=hein.journals/jispil2&div=5&collection=&method=preview&ext=.png&size=3)
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Rights of the Child under Islamic Law and Laws of Pakistan: A Thematic Overview
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