The History of Customary Laws in Pakistan
Karim Khan Saka
Pakistan is a country with a diverse cultural and linguistic landscape, where customary law has played a crucial role in regulating social and economic relations. The princely states of Pakistan, which existed before the country’s independence in 1947, were also governed by customary law. The legal status of customary law in these princely states of Pakistan was complex and varied.
Pakistan’s legal system is a complex amalgamation of laws derived from various sources, including Islamic law, British common law, and customary law. Customary law is an important aspect of the legal system, especially in the princely states of Pakistan. In this article, we will discuss the legal status of customary law in the princely states of Pakistan.
Before we delve into the legal status of customary law, it is essential to understand what customary law means. Customary law refers to the unwritten laws and customs that are passed down from generation to generation through the cultural practices of a particular community. Customary law is an important source of law in Pakistan, especially in the rural areas where it coexists with statutory law.
The princely states of Pakistan, also known as the Princely States of the Dominion of Pakistan, were territories ruled by hereditary princes who acknowledged British sovereignty but retained local autonomy. These princely states were under the jurisdiction of British India until 1947 when Pakistan gained independence. At the time of independence, there were 562 princely states in India, out of which 219 joined Pakistan.
The legal status of customary law in the princely states of Pakistan was recognized and protected under the Indian Independence Act, 1947. The Act provided that the princely states would be free to accede to either India or Pakistan or to remain independent. The Act further stated that the laws applicable in the princely states would continue to be in force until they were altered by competent authority. This provision ensured that the customary laws of the princely states would continue to be recognized and enforced until they were modified or replaced by statutory laws.
After independence, the princely states were given the option to either accede to Pakistan or remain independent. The accession of the princely states to Pakistan was governed by the Instrument of Accession, which was a legal document that specified the terms and conditions of the accession. The Instrument of Accession ensured that the legal systems and laws of the princely states would be respected and recognized by Pakistan.
The princely states were given the autonomy to govern themselves under their own legal systems and laws. The rulers of the princely states were responsible for administering justice in their territories, and customary law played a crucial role in their legal systems. The rulers of the princely states had the power to make laws and regulations in accordance with their customs and traditions.
However, the legal status of customary law in the princely states of Pakistan underwent a significant change in 1962 when the West Pakistan Muslim Personal Law (Shariat) Application Act was passed. The Act introduced Islamic law as the supreme law of the land and repealed all the customary laws that were inconsistent with Islamic law. This meant that customary law was no longer recognized as a separate source of law, and all legal disputes had to be resolved in accordance with Islamic law.
The 1962 Constitution was abrogated on 25th March, 1969. The Civil Government, which came to power in December 1971 pursuant to 1970 elections, gave the nation an interim Constitution in the year 1972.
In reality, customary law played an important role in the legal systems of the princely states of Pakistan. The legal status of customary law was recognized and protected under the Indian Independence Act, 1947, and the Instrument of Accession.
However, the chapter of Gilgit-Baltistan is slightly different from the rest of the country. The people of Gilgit-Baltistan fought against the Dogra Raj and ousted them from the area. At the independence of Pakistan Gilgit-Baltistan voluntarily amalgamated to Pakistan. When India raised the issue of Kashmir in the United Nations, Pakistan merged Gilgit-Baltistan to Kashmir in order to strengthen the Pakistani version of Kashmir showing that the larger disputed land was in the territory of Pakistan.
Yaseen valley in 1972, while Punyal, Nagar and Hunza acceded to Pakistan in 1974, but unfortunately these states, willing to be part of Pakistan were by default able to be merged to the already disputed Kashmir only. Within the context of Gilgit-Baltistan, these states are known as unsettled Districts while the rest of Districts have their land records from the period of Dogras and Maharajas.
These states, under the Mirs and Rajas, have been practicing a strong customary law for centuries. This legal system is deeply rooted in the traditions and customs of the community and reflects the values and beliefs of the people who practice it. Customary law here has been providing a framework for resolving disputes and maintaining social order in a way that is unique to each community.
Moreover, customary law has the potential to complement and enrich the modern legal system. In some cases, the principles of customary law can be incorporated into the legal system of the country to provide a more comprehensive and inclusive framework for resolving disputes and maintaining social order. This can help to promote cultural diversity and protect the rights of indigenous communities.
