Compatibility of delegated legislation with Islamic law
Compatibility of Delegated Legislation with Islamic Law
What is Delegated Legislation?
Delegated legislation (also known as subsidiary or subordinate legislation) refers to rules, regulations, by-laws, or orders made by an authority other than the legislature, under powers granted by a primary statute. It enables the detailed implementation of laws without requiring the full legislative process each time.
What is Islamic Law?
Islamic law (Shariah) is derived primarily from the Quran, Sunnah (traditions of the Prophet Muhammad), Ijma (consensus), and Qiyas (analogical reasoning). It governs not only religious rituals but also legal, social, and economic issues.
The Compatibility Question
The question of compatibility arises because delegated legislation is often broad, technical, and detailed, whereas Islamic law emphasizes principles rooted in divine commands and moral objectives. The main concerns include:
Whether delegated legislation can align with the objectives (Maqasid) of Shariah.
Whether delegated legislation respects the primary sources and principles of Islamic law.
Whether there are limits on the delegation of powers under Islamic law.
Key Points on Compatibility
Limitations on Delegated Powers under Islamic Law
Islamic law generally discourages excessive delegation of legislative power because laws are considered a divine mandate. The ruler or legislative body is expected to adhere to Shariah principles.
Consistency with Shariah Principles
Delegated legislation must be consistent with Islamic principles, such as justice (Adl), public welfare (Maslahah), and prevention of harm (Darar).
Scope of Delegation
Delegation is allowed for technical, administrative, or detailed matters, provided the delegation respects the limits and does not contradict primary Islamic injunctions.
Judicial Oversight
Courts in Islamic jurisdictions often review delegated legislation to ensure compatibility with Islamic law and constitutionally guaranteed principles.
Case Law on Compatibility of Delegated Legislation with Islamic Law
1. Federal Shariat Court of Pakistan - Muhammad Ahmad Khan v. Federation of Pakistan (1985)
Facts:
The case dealt with whether certain delegated legislation, made under statutory authority, was repugnant to Islamic injunctions.
Holding:
The Federal Shariat Court held that any delegated legislation must be tested against the Quran and Sunnah. If it contradicts Islamic law, it is void. The Court emphasized that delegation is allowed but must not transgress Islamic limits.
Importance:
This case firmly established that the scope of delegated legislation is limited by Shariah, and courts have the power to invalidate laws inconsistent with Islam.
2. Shariat Appellate Bench, Supreme Court of Pakistan - Benazir Bhutto v. Federation of Pakistan (1988)
Facts:
The issue was whether regulations made under delegated powers infringed on fundamental Islamic rights.
Holding:
The Bench ruled that delegated legislation must uphold Islamic rights and cannot be arbitrary or oppressive. It must align with the objectives of Shariah, ensuring justice and fairness.
Importance:
This case reinforced the principle that delegated legislation must harmonize with Islamic values and protect individual rights under Islam.
3. Syed Muhammad Naqvi v. Government of Pakistan (PLD 1990 SC 548)
Facts:
The case involved delegated regulations relating to financial transactions and their compliance with Islamic commercial laws.
Holding:
The Supreme Court ruled that delegated legislation must not authorize practices forbidden in Islam, such as usury (Riba). Delegated powers cannot be used to legitimize actions against Islamic commercial principles.
Importance:
This highlights that Islamic economic principles serve as a limit on delegated legislative powers.
4. Majlis-e-Shura of Pakistan v. Federation of Pakistan (PLD 1974 SC 69)
Facts:
The case concerned the validity of delegated legislation in the context of constitutional limits and Islamic law.
Holding:
The Court ruled that while Parliament may delegate powers, the delegation must be clear, defined, and within limits that do not conflict with Islamic injunctions or constitutional provisions.
Importance:
The case establishes the necessity of clarity and limitation in delegation consistent with Shariah principles.
5. Islamic Republic of Pakistan v. Muhammad Aslam Khan (PLD 1980 SC 1107)
Facts:
Dispute over the implementation of delegated legislative instruments concerning personal law.
Holding:
The Supreme Court stated that delegated legislation affecting personal status laws must adhere strictly to Islamic jurisprudence. It cannot alter or override fundamental Islamic rulings.
Importance:
This case highlights the sanctity of personal law under Islamic law and the limited scope for delegated legislation in this domain.
Summary and Conclusion
Delegated legislation is compatible with Islamic law only when it respects and adheres to Shariah principles.
Courts play a crucial role in reviewing delegated legislation for consistency with Islamic injunctions.
The scope of delegation is limited, especially when it touches on fundamental rights, economic laws, or personal status issues governed by Islamic law.
The objectives of Shariah (Maqasid al-Shariah), including justice, equity, and public welfare, guide the permissibility of delegated legislation.
RELATED Blog
0 comments