Maria Butt and sister falsely claim NADRA is going against Constitution, Shariat Court
Claim comes as NADRA resumes registration of transgender people’s CNICs
Claim: The NADRA is “going against” the Constitution of Pakistan and a decision by the Federal Shariat Court by resuming the registration of transgender persons’ identity cards.
Fact: The NADRA is not going against either because the Constitution of Pakistan states that a ruling by the Federal Shariat Court cannot take effect until the defined period, during which an appeal can be filed against said ruling, expires or until the Supreme Court of Pakistan hears the appeal and disposes it off.
On 25 September 2023, fashion designer Maria Butt and her sister, Najia Butt, alleged that the National Database and Registration Authority (NADRA) was “going against” the Constitution of Pakistan and a ruling passed by the Federal Shariat Court (FSC).
Earlier, transgender rights activist Nayyab Ali announced that the NADRA has recommenced the registration of Computerised National Identity Cards (CNIC) for trans folks. Butt quote-tweeted Ali’s post and wrote (archive), “I don’t understand how any department can go against the constitution so blatantly.”
The FSC ruling and appeal
On 19 May 2023, the FSC issued a ruling, striking down three clauses of the Transgender Persons (Protection of Rights) Act, 2018, for being “against Islamic teachings” (archive). Human rights defenders and some individuals in the legal fraternity widely criticised the FSC’s decision, which was subsequently challenged by “trans community and the civil society”, according to Nayyab Ali, who posted about the appeal (archive) on X (formerly Twitter).
On 20 July 2023, the NADRA refused (archive) to update Nayyab Ali’s CNIC details. A news report (archive) about what had transpired with Ali revealed the agency’s directive to its staff — issued on 13 June 2023 — that “registration of transgender persons [is] to be ceased”. Both incidents led to outrage by activists.
However, by 26 September, the NADRA reversed its directive and “announced the resumption of registration for transgender persons”, according to different media reports (archives available here, here, and here).
Fact or Fiction?
Section 2 of Article 203 D lays out that no ruling by the FSC can take effect until a defined period to file an appeal against the ruling expires or if the Supreme Court of Pakistan accepts an appeal and a decision regarding the said appeal has been announced.
The full text of Section 2 is as follows:
“2. If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision:—
(a) the reasons for its holding that opinion; and
(b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect
[Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal there from may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal.]”
To further verify the claim, Soch Fact Check referred to comments made by Asad Jamal — a human rights lawyer, legal researcher, and managing partner at Dignity Law Chambers — whom we interviewed in July 2023.
“Briefly and simply put, the power conferred to the FSC is not an unlimited power because, where it has been empowered to review and analyse any law based on the principles or standards that it, the court, believes are Islamic, at the same time, there is also a limitation on it [the court] that if there’s any appeal filed against any of its rulings, then the Federal Shariat Court’s ruling cannot be implemented until the appeal has been decided upon, meaning that it [the ruling] cannot be enforced,” Jamal said.
He added that it was “only appropriate — and this is the purpose of the Constitution as well — that the NADRA and other government departments wait till the appeal has been decided upon, because the Federal Shariat Court’s ruling is not final”.
“If an appeal has been filed in the Supreme Court, then, until that appeal has been decided upon, this [the Federal Shariat Court’s ruling] cannot be considered final.”
Commenting on the ruling when it was announced, Reema Omer — the legal adviser for South Asia for the International Commission of Jurists (ICJ) — wrote (archive) on X that she hoped “the judgment is challenged and set aside by SC”, underscoring the Supreme Court’s finality and its power to dispose off the Federal Shariat Court’s ruling, which is not final in legal terms.
At that time, Jamal, too, had tweeted his remarks, saying (archive), “Though the court announced that the verdict is immediately effective, proviso to art.203D(2) prescribes no such decision shall take effect (a)bef the period for appeal to the Supreme Court expires or, (b) where an appeal is so preferred, bef the disposal of such appeal.”
Therefore, the claim that the NADRA went against the Constitution of Pakistan and the FSC’s ruling stands false.
Numerous people, such as this user, are mistakenly under the impression that the FSC ruling is final.
Conclusion: The NADRA is not going against either the Constitution of Pakistan or the Federal Shariat Court. As the Constitution states, a ruling by the Federal Shariat Court cannot take effect until a defined period, during which an appeal can be filed against said ruling, expires or until the Supreme Court of Pakistan disposes off an appeal after approving it for hearing.
Background image in cover photo: Daily Times
To appeal against our fact-check, please send an email to firstname.lastname@example.org