Islamic law and Court

Islamic law and Court

Question one

Introduction

Islamic law and Court are becoming popular and gaining much influence in most Southeast Asian countries. The main focus of this answer is to examine how Islamic courts are spreading their influence in Pakistan. The answer has three major sections. Section 1 explores the history of Islamic and government courts in Pakistan. Section 2 examines the division of jurisdiction between the Islamic and government courts in Pakistan. Section 3 describes how conflicts between the government courts and Islamic courts are resolves.

Section 1: a history of Islamic and government courts in Pakistan

The first influential Islamic Court to be established in Pakistan was the Federal Shariat Court, which was established on 26 might, 1980. This action followed the order of No.1 of president 1980, which was in line to the provisions of the constitution of Pakistan Chapter 3A. on the preamble page of the constitution of Pakistan 1973, Almighty Allah was to be held supreme, and all activities in Pakistan were supposed to be done according to his mighty will. Therefore, the call of the president of Pakistan for the formation of the Federal Shariat Court was in conjunction with the provisions of the constitution and not necessarily serving the interests of Muslims. According to Pakistan Law, Almighty Allah was supposed to be held sovereign all over the world (Ayaz, Shah & Yusuf).

The establishment of government courts in Pakistan is dated back to the 1930s. In 1937, the Federal Court of India was established and was became the only working government court in southeast Asian countries. In 1948, the federal court was set up. The establishment of the Supreme Court succeeded this under the provisions of the constitution of Pakistan, 1956. The constitution of Pakistan 1956 ruled out that the Supreme Court shall be located in Karachi, and the Chief Justice shall head it. The constitution also provided that the Supreme Court shall head all court processes in Pakistan. A new constitution was drafted in 1973 and provided that the permanent Supreme Court shall be situated at Islamabad. However, in 1974, the government of Pakistan shifted the Court to Rawalpindi, where there was a more spacious house called East Pakistan House (Ahmad, 2019).

Section 2: the division of jurisdiction between the government court and the Islamic Court in Pakistan

The court system in Pakistan is arranged hierarchically. There is a Supreme Court that stands on the top of the government’s judicial system. There is also a High Court in every province and many other courts that exercise both civil and criminal jurisdictions. The constitution of Pakistan provides only for the formation of the Supreme Court and the High Courts. The Other courts are formed under the provisions of the Acts of Parliament or the Acts of the Provincial Assemblies. The Supreme Court is composed of the Chief Justice, who, in most occurrences, termed as the Chief Justice of Pakistan and several other judges. The Act of Parliament of Pakistan determined the number of the other judges to work in Supreme Court. The jurisdiction holds that, apart from the Supreme Court having the duty to handle cases presented in courts under it, it has a unique mandate to give declaratory judgment on cases affecting the Federal Government and the governments of the provinces and especially to some cases affecting two or more provinces. Additionally, the Supreme Court has the mandate to listen to appeals on judgments passed in the recent past, decree, and pass sentence previously passed by the High Courts, the Federal Shariat Court, and other court tribunals. However, the other courts have the right to do appeals but with permission from the Supreme Court (Nazi, 2016).

Another role of the Supreme Court of Pakistan is a jurisdiction to play the role of the main advisor to the President of Pakistan. In conditions where the President finds it necessary to request for advice, he must first prioritize the Opinions of the Supreme Court. However, Supreme Court is majorly preferred when there is a contradiction in the field of law in order to provide clarification to the President and other state agencies in the process of protecting the legal rights and responsibilities. Finally, the Supreme Court Proceedings are primarily guided by the provisions of the constitution and any other rule of conduct agreed upon by the office bearers of the Supreme Court. It is the responsibility of the Supreme Court to ensure that the independence of the Judiciary is protected to avoid contamination of the justice system by any leader or persons with self-interests (Yilmaz, 2019).

Pakistan has four provinces. There is a High Court in every province. As per the constitution of Pakistan, the High Court has the power to make four Orders. Firstly, the High Court has jurisdiction to make an order demanding the person within the territorial jurisdiction of the Court to refrain from doing anything not provided by the law or to command him or her to do anything as the law orders him or her to do. Secondly, the High Court has jurisdiction to make an order directing the person held in custody to be brought before the Court for trial. Third, the High Court has the power to declare anything done without the provisions of law as illegal. Finally, the Court has jurisdiction the make an order directing any individual, person, or authority to enforce the fundamental right as per the provisions of the constitution. Other jurisdictions of the High Court include; appellate jurisdiction to hear and pass sentence on an appall presented before the Court provided that the Supreme Court allows the Court to do so, make rule regulating the conduct and functioning of other subordinate courts and control the decisions made by their junior courts (Yilmaz, 2019).

The Shariat Court is an Islamic Court and is composed of eight Muslim judges. The Court is led by a Chief Justice who is appointed by the president of Pakistan.   Among the other seven judges, four should be judges who qualified to work at High Courts while the other three must have undergone training under Islamic Law. The original jurisdiction of the Shariat law is to determine whether the general law of Pakistan agrees with the teachings of the Holy Quran, which governs the conduct of the Muslims (Masud 2019). In scenarios where the Court finds that the law of the land does not agree with the provisions of the Holy Quran, the Court writes a report expressing the extent to which the law is not differing with the Injunctions of Islam. After the report is received by the relevant body, which in most cases, is the president of the Provincial assemblies, they take the right steps required to amend the law in order to ensure it serves in the best interest of everyone in the society. Finally, the Court has the jurisdictions to listen to the appeals of cases related to Hudood Law. Other people who fight for Islamic law are the Ombudsmen, whose main jurisdiction is to investigate, diagnose, redress, and rectify any injustice done to individuals or persons as a result of malpractices in administration (Masud 2019).

Other subordinate courts are the civil courts and criminal courts, which are located in every district. The district judges and magistrates head them, and their major role is to solve any criminal and civil case, which is caused by interpersonal misconduct, that is, cases against individual and person-level (Shaikh, Dars & Munir, 2018).

Section 3: how cases between government courts and Islamic courts are resolved in Pakistan

In Pakistan, government courts are designed to listen to cases regarding the general violation of the law of the land. However, the Islamic courts handle cases that are deeply rooted in the violation of the Injunctions of Islam. The key focus of the Islamic courts can be attributed to the violation of the teachings of the Holy Quran and the Islamic culture at large. Therefore, the government courts and the Islamic courts handle different cases, and thus, there can be a conflict between the decisions made by the government courts and the Islamic courts (Munir, 2016).

Throughout the Islamic reign in Pakistan, the constitution has been made concerning Islamic law. As a result, there has been a gross misunderstanding of the legislative power in Pakistan because most of the laws are lifted directly from the Quran. Therefore, in case there is a conflict between the government court and the Islamic Court, the Islamic Courts will always win. This is because most of the leaders in Pakistan hold the notion that no man should go against the teachings of the Almighty Allah. Additionally, the Sharia is penetrating the judicial system of Pakistan at a very high rate. As a result, the whole Judiciary has been influenced to follow the Sharia Law in that, in any cases concerning the conflict between the government court and the Islamic courts, the government courts get influenced and follow the ruling of Sharia Law (Ali & Jan 2018). An Example of this is a case of Zahid Rehnab against the state. There was a conflict between the ruling of the Islamic Courts and government courts, but the Islam judges gave the most powerful ruling.

Conclusion

This answer sought to examine the increasing influence of Islamic Courts in Southeast Asia. The country of focus was Pakistan. The key issues discussed were the history of the development of Islamic and government courts in Pakistan, the jurisdiction between government and Islamic Courts and how the conflict between the government courts and Islamic courts are resolved in Pakistan.

Question five

Introduction

in many parts of East Asian countries, land disputes have occurred several because the government forcefully takes land from farmers for infrastructure and industrial agriculture projects. The main focus of this answer is to the relationship between land disputes and conflict of understanding between the farmers and the government on who access to land and on what terms, a case of China. This answer has five sections. Section 1 explores the current land tenure in China. Section 2 examines the difference in land tenure understanding between farmers and the government. Section 3 evaluates how the difference in understanding land tenure causes land conflict. Section 4 examines whether the government of china employs foreign land tenure models. Section 5 explores the origin of land tenure employed by followed by farmers in China.

Section 1: an overview of land tenure in China

According to the land tenure in China, all the land in China is owned by the state or by collectives. Since 1978, China adopted the opening policy and has often used the socialistic business ecosystem. Additionally, the government adopted the land tenure of the western countries (Mullan, Grosjean & Kontoleon, 2011). According to China’s Land Administration Act, 1986, the land tenure provided that the state should own all urban land while farmers are supposed to own the rural land collectively. Therefore according to this tenure, there is no private ownership of land in China. After this tenure was put into practice, the government proposed that the previous landowners can continue using the land as they used before but with compliance with the requirements of the state. The state requires the owner to pay land tax or acquire the land by paying the land grant premium. This tax and land grant premium are paid to the government through the local authorities, after which the payee is assigned with a certificate to prove compliance (Rao et al., 2017).

Chinese administration has undertaken the process of land registration. There are various rules and guidelines set by the government of China to ensure that the process is made a success. The idea of land registration was introduced in China in 1987 under the Land Use Right. The government of China is strict on land ownership and has designed more than thirty tules governing land ownership and land rights in order to ensure that there is a minimal dispute on land (Dong, 1996). However, the case has been different because land disputes still exist. This may be a result of a difference in understanding of land tenure between the farmers and the government of China.

Section 2: the differences in land tenure understanding in china

There has been a greater disparity in land tenure understanding between the farmer and the government of China. This is due to the implementation of the China Land Administration Act in 1978, which brought new modes of land ownership. Previously, all citizens had the right to possess land privately. However, the urban regions were left under the ownership of the government. The new land act brought only two modes of land ownership. It provided that, the urban region belonged to the government while the rural area was to be owned by farmers collectively. This forced the previous private owners of land to pay taxes annually or pay land grant premium. This proved a bit hard for the chine citizen to cope up with. As a result, the government and farmers understood the provisions of this new act from two different perspectives. To the government, collective farm ownership could boost the productivity of their land.  To the farmers, the case was different (Li, Rozelle & Brandt, 1998). This is because they believed in private ownership of land was more productive to especially those who had large tracks of land. Therefore, this difference in understanding of the new tenure is the root cause of all land disputes china has ever experience both internally and territorial.

Section 3: land disputes in china as a result of the difference in understanding of land tenure

In present-day China, there have been many conflicts as a result of land expropriation. This as a result of rapid growth in urban centers, which leads to the conflict between farmers and the government of China over land ownership. This is because as towns grow, the keep penetration the rural parts where the land of farmers is located. According to the China Land Administration Act, all urban land belongs to the government. Thus, when the interior becomes more urban, it will consequently become as state property misplacing farmers. As a result, the farmers protest against the action of the government because they acquired the land within the provisions of the law (Shi et al. 2018).

Additionally, as urbanization grows at a faster rate, there is a need for infrastructure linking big towns. As a result, highways need to build, which will eventually pass through rural farms. From this perspective of urbanization, there is a conflict because of different understandings of the land tenure because either party thinks that its firmly practicing the provisions of the Land Use Rights.

Some other land conflicts occur between the farmers. When the government came up with the new land ownership rules, they believed that collective land ownership among farmers would be more productive than when the land is left for one individual to run. However, they did not understand that farmers have different desires and motives. Instead of farmers taking collective land ownership as a positive thing, they continued with the pursuit of their self-interests. As a result, the idea of collective land ownership was dissatisfying, and thus, a series of conflicts between farmers has been experienced in China today (Shi et al. 2018). Additionally, due to the greed of some of the farmers to get a bigger share of land for farming, they end up murdering so that they can inherit the land.

Section 4: foreign land tenure in China

The nature of land tenure in china is similar to the property tenure of communist states such as the Soviet Union. This is because the government does not allow for private land ownership. To the Chinese ideologists, collectivity increases productivity. In communist societies, the property is either owned by the state or by a collectivity. By following the ideas of the communism, the government of China found it wise to reform their land tenure from capitalistic nature, to a more communistic nature so that they can enjoy a collective advantage of land ownership. Additionally, through employing this socialistic land tenure, the government will take control of all property located in urban centers and any other place where the infrastructural extension can be done (Hu, 1997). The Chinese government has enjoyed the fruits of this nature of their land tenure, but farmers have suffered a lot.

Section 5: the origin of land tenure followed by the farmers

Between the 1930s and 1950s, Land tenure in China allowed for private ownership of land with the farmlands and forested areas. The land ownership was based on households, and production far production was majorly managed by families. During this era, the family was regarded as the smallest unit of production in China (Hu, 1997). The farmers had all the rights to manage their farms independently and market the products for him. This was an era where many farmers were motivated to participate in competitive and substitute production. However, during this period of freedom of ownership, there was a series of land conflicts in china. This is because some of the private owners of the land, more so in a densely populated region, participated in border conflicts wanting to expand their land. This is not contrary to Karl Marx’s definition of human nature that human beings are guided by the motive of ‘pursuit for more,’ meaning that they are never satisfied. As a result, there were increased land conflicts in China in most of the rural areas, which forced the government to come up with new land tenure in the 1950s. The new land tenure advocated for collectivism in land ownership. According to this new tenure, the land was a state-owned property. This is an idea which farmers protested against. Due to the decline in farm production in China, the government chose to allow short-termed private land ownership, which is carried out today. However, farmers still stick to the traditional land tenure and confuse it with the present-day land tenure. (Kung & Liu, 2017) As a result, there has been a gross misunderstanding of land tenure between the government and the farmers, which lead to land disputes in China today. The government of China, in the Land Administration Act, has come up with stricter rules and regulations in China to ensure that there are minimal land disputes in the country.

Conclusion

This answer focused on the root causes of land conflicts in East Asian countries, a case of China. The main key issues discussed were; the present-day land tenure in China, how it has been understood differently by the farmers and the government, how these differences have led to land conflict in China, and finally, the origin of the understanding of the farmers have for the land tenure.

References

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