Judiciary of Pakistan

Justice n. Fairness, moral rightness, and a scheme or system of law in which every person receives his/her/its due from the system, including all rights, both natural and legal. One problem is that attorneys, judges, and legislatures often get caught up more in procedure than in achieving justice for all Judiciary: The branch of government that is endowed with the authority to interpret and apply the law, adjudicates legal disputes, and otherwise administers justice. Every society in human history has confronted the question of how to resolve disputes.

Definition of Court: Court n. any official tribunal (court) presided over by a judge or judges in which legal issues and claims are heard and determined. Judicial courts are created by the government through the enactment of statutes or by constitutional provisions for the purpose of enforcing the law for the public good. They are impartial forums for the resolution of controversies between parties who seek redress from a violation of a legal right. In a broader sense, the term may also refer to a legislative assembly; a deliberative body.

The public has a right to attend judicial proceedings. This right ensures that the proceedings will be conducted in a fair and unbiased manner. Most courts have a multilevel structure. A few states have a two-tiered system, but the federal government and most states use a three-tiered model. All litigants have an opportunity to argue cases before a trial-level court, and subsequently to pursue the matter further through two levels of appeals courts. Purpose of Judicial System: The purpose of the legal system is to provide a system for interpreting and enforcing the laws.

The purpose of the legal is to provide a systematic, orderly, and predictable mechanism for resolving disagreements. Functions of Judicial System In order to do its job, any such system must perform three closely connected, but nevertheless distinct, functions: • Adjudication( Arbitration, negotiation), • Legislation • Execution. Judicial Function The judicial function is the core of any legal system. In its judicial function, a legal system adjudicates disputes, issuing a decision as to how the disagreement should be settled. Legislative Function.

The purpose of the legislative function is to determine the rules that will govern the process of adjudication. Legislation tells judicial function how to adjudicate. Executive Function Finally, the purpose of the executive function is to ensure, that the disputing parties submit to adjudication in the first place, and they actually comply with the settlement eventually reached through the judicial process. In its executive function the legal system may rely on coercive force, voluntary social sanctions, or some combination of the two.

The executive function gives a legal system its “teeth,” providing incentives for peaceful behavior; both domestic law enforcement and national defense fall under the executive function. HISTORICAL RETROSPECT: The roots of the current judicial system of Pakistan stretch back to the medieval period and even before. The judicial system that we practice today has evolved over a long period of time, spanning roughly over a whole millennium. The system has passed through several epochs covering the Hindu era, Muslim period including the Mughal dynasty, British colonial period and post-independence period.

Notwithstanding the successive changes i. e. one rule/dynasty substituted by the other, which naturally resulted in the socio-economic and political transformation of the Indian society, the judicial system generally maintained a steady growth and gradual advance towards consolidation and improvement/refinement, without indeed, having to undergo any major disruption or substantial change. All in all, the system experienced and passed through 3 distinct stages of historical development, namely, Hindu Kingdom, Muslim-rule and British colonial domination.

The 4th and current era, commenced with the partition of India and the establishment of Pakistan as a sovereign and independent State. The system, thus, has evolved through a process of reform and development. This conclusion enjoys near unanimity among historians and commentators of Indian legal history. During this process of evolution and growth, the judicial system did receive influences and inspirations from foreign doctrines/notions and indigenous norms/practices, both in terms of organising courts’ structure and hierarchy, and following procedures/practices in reaching decisions.

Therefore, the present judicial system is not an entirely foreign transplant, as is commonly alleged, but has acquired an indigenous flavour and national colour. And whereas the system may not fully suit the genius of our people or meet the local conditions, its continued application and practice has made it intelligible to the common man. The very fact that the people are making resort to the courts for the resolution of their conflicts/disputes indicates that the system enjoys a degree of legitimacy and acceptance. Judicial Structure of Pakistan.

Pakistan’s judicial system stems directly from the system that was used in British India as on independence in 1947, the Government of India Act 1935 was retained as a provisional Constitution. As a consequence, the legal and judicial system of the British period continued, of course, with due adaptations and modifications, where necessary, to suit the requirements of the new Republic. This way, neither any vacuum occurred nor did any break result in the continued operation of the legal system. Pakistan is an Islamic republic. Islam is the state religion, and the Constitution requires that laws be consistent with Islam.

Superior Judiciary The Constitution of Pakistan deals with the superior judiciary in a fairly comprehensive manner and contains elaborate provisions on the composition, jurisdiction, powers and functions of these courts. The Constitution provides for the “separation of judiciary from the executive” and the “independence of judiciary”. [13] It entrusts the superior courts with an obligation to “preserve, protect and defend” the Constitution. [14] The qualifications of Judges, their mode of appointment, [15] service conditions, salary, pension, [16] etc are also laid down in the Constitution.

The remuneration of judges and other administrative expenditures of the Supreme Court and High Courts are charged on the Federal/Provincial Consolidated Fund, [17] which means it may be discussed but cannot be voted upon in the legislature. The Constitution also provides for the grounds as well as forum and procedure for the removal of judges of the superior courts. [18] The Supreme Judicial Council, consisting of the senior judges of the Supreme Court and High Courts, on its own or on a reference made by the President, may recommend the removal of a Judge on the ground of misconduct or physical or mental incapacity.

Thus, the Constitution ensures the freedom, independence and impartiality of the superior judiciary. There is a Supreme Court in Pakistan and a High Court in each province, and other courts exercising civil and criminal jurisdiction. The Supreme Court and High Courts have been established under the Constitution and other Courts have been established by or under the Acts of Parliament or Acts of Provincial Assemblies. The Constitution also provides for the office of Ombudsman. Judiciary Supreme Court ORGANISATION AND STRENGTH OF JUDICIAL HIERARCHY: (1) Supreme Court.

The Supreme Court is at the apex of the judicial systems of Pakistan. The Supreme Court of Pakistan consists of Chief Justice and not more than 16 other Judges appointed by the President. A person with 5 years experience as a Judge of High Court or 15 years experience as an advocate of High Court is eligible to be appointed as a Judge of the Supreme Court. The President of Pakistan appoints Judges to the Supreme Court from amongst the persons recommended by the Chief Justice of Pakistan on the basis of their knowledge and expertise in the different fields of law.

The recommendation of Chief Justice is binding on the President and is entitled to be accepted except for reasons to be recorded by President, which are justifiable. As per practice, usually the most Senior Judge of the Supreme Court is appointed as the Chief Justice. A Judge holds office until attaining the age of 65 years, unless he resigns earlier or is removed from office, in accordance with the Constitution. No Judge may be removed from office except on the grounds specified by the Constitution, namely, physical or mental incapacity, or misconduct, to be determined by the Supreme Judicial Council.

The Supreme Court exercises: • Original Jurisdiction • Appellate Jurisdiction and • Advisory Jurisdiction ORGINAL JURISDICTION: Exercises: It possesses exclusive original jurisdiction for settlement of intergovernmental (federal/provincial) disputes. Under this jurisdiction, the Court pronounces declaratory judgments. The Supreme Court can also exercise original jurisdiction, with respect to the enforcement of fundamental rights, if the case involves a question of public importance.

Jurisdiction: The Supreme Court, if it considers that a question of public importance, with reference to the enforcement of any of the Fundamental Rights ensured by the Constitution of Pakistan is involved, it has the power to make any appropriate order for the enforcement of fundamental rights. APPELLATE JURISDICTION: Exercises: Under its appellate jurisdiction, the Court entertains appeals against orders and decisions of High Courts and other special tribunals and courts. Under the Constitution, the Court is invested with authority to make its rules of practice and procedure.

Under the rules, the Chief Justice, as the head of the institution, nominates Judges for hearing of cases and exercising other administrative powers and functions. Jurisdiction: The Supreme Court has jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences passed by a High Court, the Federal Shariat Court and the Services Appellate Tribunals. An appeal to the Supreme Court can be made as a matter of right for certain cases while for the rest the Court hears an appeal with its prior permission. ADVISORY JURISDICTION:

Exercises: In exercise of its advisory jurisdiction, the Court furnishes its opinion on a question of law of public importance referred to it by the President for consideration. Advisory Jurisdiction: It, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. The Supreme Court considers the question so referred and reports its opinion on the question to the President.

SEAT OF THE SUPREME COURT(SC): The permanent seat of the Supreme Court is at Islamabad, but it also runs circuits at Lahore, Karachi, Peshawar and Quetta. Transfer of Cases: The Supreme Court may, if it considers expedient to do so in the interest of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court. General: The practice and procedure of the Court is regulated by the rules made by the Court. All executive and judicial authorities throughout Pakistan are required to act in aid of the Supreme Court.

Any decision of the Supreme Court to the extent it decides a question of law or is based upon or enunciates a principle of law is binding on all courts in Pakistan. The Supreme Court has the power to review any judgments pronounced by it or any order made by it. (2) High Courts: There is a High Court in each of the four provinces. The Islamabad Capital Territory falls within the jurisdiction of the Lahore High Court of the Punjab. A High Court consists of a Chief Justice and so many other Judges as may be determined by law or as may be fixed by the President.

Appointment of High court Judges: A Judge of the High Court is appointed by the President after consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the High Court in which appointment is to be made. NO person is appointed as a Judge of the High Court unless he is a citizen of Pakistan having forty years of age and has been an advocate of the High Court or has held a judicial office for ten years and has for a klperiod of not less than three years, served as or exercised the functions of a District Judge in Pakistan.

A Judge of a High Court holds office until he attains the age of sixty-two years, unless he sooner resigns or is removed from office in accordance with the Constitution. SEAT OF THE HIGH COURT(HC): The principal seat of the Lahore High Court is at Lahore and it has three Benches at Bahawalpur, Multan and Rawalpindi. The principal seat of the High Court of Sindh is at Karachi with a Bench at Hyderabad and Sukkur. The principal set of Peshawar High Court is at Peshawar and it has two Benches at Abbott bad and Dera Ismail Khan.

The principal seat of High Court of Baluchistan is at Quetta with a Bench at Sibi. Each High Court may have more Benches at other places as the Governor on the advice of the Cabinet and in consultation with the Chief Justice of the High Court may determine. Jurisdiction (3) Federal Shariat Court The Federal Shariat Court of Pakistan consists of 8 Muslim judges including the Chief Justice. These Judges are appointed by the President of Pakistan choosing from amongst the serving or retired judges of the Supreme Court or a High Court or from amongst persons possessing the qualifications of judges of a High Court.

Justice Agha Rafiq A. Khan is the Chief Justice of FSC. Of the 8 judges, 3 are required to be Ulema who are well versed in Islamic law. The judges hold office for a period of 3 years, which may eventually be extended by the President. Exercises of Federal Shariat: If a certain provision of law is declared to be repugnant to the injunctions of Islam, the government is required to take necessary steps to amend the law so as to bring it in conformity with the injunctions of Islam.

Jurisdiction: The FSC, on its own motion or through petition by a citizen or a government (federal or provincial), has the power to examine and determine as to whether or not a certain provision of law is repugnant to the injunctions of Islam. Appeal against its decisions lie to the Shariat Appellate Bench of the Supreme Court, consisting of 3 Muslim judges of the Supreme Court and 2 Ulema, appointed by the President. The court also exercises revisional jurisdiction over the criminal courts, deciding Hudood Cases.

The decisions of the court are binding on the High Courts as well as subordinate judiciary. The court appoints its own staff and frames its own rules of procedure. Subject of Criticism: Ever since its establishment in 1980, the Federal Shariat Court has been the subject of criticism and controversy in the society. Created as an Islamisation measure by the military regime and subsequently protected under the controversial 8th Amendment, its opponents question the very rationale and utility of this institution.

It is stated that this court merely duplicates the functions of the existing superior courts and also operates as a check on the sovereignty of Parliament. The composition of the court, particularly the mode of appointment of its judges and the insecurity of their tenure, is taken exception to, and it is alleged, that this court does not fully meet the criterion prescribed for the independence of the judiciary. That is to say, it is not immune to pressures and influences from the Executive. In the past, this court was used as a refuge for the recalcitrant judges.

And whereas some of its judgments, particularly the ones which relying on the Islamic concept of equity, justice and fair play, expanded and enlarged the scope and contents of individual’s rights were commended, others that tend to restrict the rights of women, are severely criticized and deplored. In brief there is a need for a serious discussion on the status, utility and functions of this Court. (4) Subordinate Judiciary: The subordinate judiciary may be broadly divided into two classes; 1. Civil courts, established under the West Pakistan Civil Court Ordinance 1962 2.

Criminal courts, created under the Criminal Procedure Code 1898 In addition, there also exists, Other Courts and tribunals of civil and criminal nature, created under special laws and enactments. A judicial tribunal established to administer justice. An entity, in the government, to which the administration of justice is delegated. JURISDICTION: Their jurisdiction, powers and functions are specified in the statutes creating them. The decisions and judgments of such special courts are assailable before the superior judiciary (High Court and/or Supreme Court) through revision or appeal.

The civil courts may be classified as follows: (i) Civil & Criminal Courts: a) COURT OF DISTRICT JUDGE FOR CIVIL CASES: Courts of General Jurisdiction: In every district of a Province, there is a Court of District Judge which is the principal court of original jurisdiction in civil matters. Besides the Court of District Judge, there are courts of Civil Judges. Exercises: Civil Judges function under the superintendence and control of District Judge and all matters of civil nature originate in the courts of Judges.

The District Judge may, however, withdraw any case from any Civil Judge and try it himself. Appeal against Judgment of Civil Court: Appeals against the judgments and decrees passed by the Civil Judges in cases where the value of the suit does not exceed the specified amount lie to the District Judge. b) COURT OF SESSION JUDGE AND MAGISTRATES FOR CRIMINAL CASES: Court of Criminal Jurisdiction: In every district, there is a Court of Sessions Judge and Courts of Magistrates. The Court of a Sessions Judge is competent to pass any sentence authorized by law.

Exercises: Criminal cases punishable with death and cases arising out of the enforcement of laws relating to Hudood are tried by Sessions Judges. Offences not punishable with death are tried by Magistrates. Among the Magistrates there are Magistrates of 1st Class, 11th Class and 111th Class. Appeal against Judgment of Criminal Court: An appeal against the sentence passed by a Sessions Judge lies to the High Court and against the sentence passed by a Magistrate to the Sessions Judge if the term of sentence is up to four years, otherwise to the High

Court. (ii) Revenue Courts: Besides the civil courts, there exist revenue courts, operating under the West Pakistan Land Revenue Act 1967. The Revenue Courts may be classified as the Board of Revenue, the commissioner, the Collector, the Assistant Collector of the First Grade and Second Grade. The provincial government that exercises administration control over them appoints such officers. Law prescribes their powers and functions. (iii) Special Courts: To deal with specific types of cases Special Courts and Tribunals are constituted.

Accordingly, service tribunals, both at the centre and provincial level have been established and are functional. The members of these tribunals are appointed by the respective Government. Appeal against the decision of the Provincial Service Tribunal and the Federal Service Tribunals lies to the Supreme Court. These are; • Special Courts for Trial of Offences in Banks; • Special Courts for Recovery of Bank Loans; • Special courts under the Customs Act, • Special Traffic Courts; • Courts of Special Judges Anti- Corruption;

• Commercial Courts; • Drug Courts; Labour Courts; • Insurance Appellate Tribunal; • Income Tax Appellate Tribunal and • Services Tribunals • Anti Narcotics Courts • Anti terrorist Courts • Consumer Courts – drug courts Appeal against Special Court: Appeals from the Special Courts lie to the High Courts, except in case of Labour Courts and Special Traffic Courts, which have separate forums of appeal. Appeal against Tribunal Court: The Tribunals lie to the Supreme Court of Pakistan.

Speedy and Inexpensive Justice Steps have been taken to overcome the problems of inordinate delays in dispensing justice and enormous cost involved in litigation- a legacy of the past. The number of High court Judges, Additional Sessions Judges, Civil Judges and Magistrates has been increased. The Code of Criminal Procedure, 1898, has been amended to grant automatic concession of release on bail to the under-trial prisoners, if the continuous period of their detention exceeds one year in case of offences not punishable with death and two years in case of offences punishable with death.

It also made incumbent on the criminal courts to take into consideration the period of detention spent by the accused as an under-trial prisoner while awarding sentence. No fee is payable in criminal cases and for filing any petition before the Federal Shariat Court. Court fee in civil cases up to the value of Rs. 25, 000 has been abolished. iv) Juvenile Court: Section 4 of the JJSO authorizes the Provincial Government to establish one or more juvenile courts for any local area within its jurisdiction, in consultation with the Chief Justice of the high court.

Ten years have passed, and not a single such court has been established; and instead the High Courts have been conferring status of the juvenile courts on the existing courts. The High Courts cannot be doing this on their own, and must be instructed by the provincial governments to do so. In this era of independent judiciary, the High Courts should standup against the governments on this issue and refuse to confer powers on the already over-burdened courts and instead should insist upon establishing exclusive juvenile courts.

v) WAFAQI MOHTASIB (OMBUDSMAN): The Concept Mohtasib (Ombudsman) is an ancient Islamic concept and many Islamic States had established the office of Mohtasib to ensure that no wrong or injustice was done to the citizens. The Prophet of Islam (peace be upon him) introduced the system of `Hisab’ or accountability. He as well as his companions presented their public and private life and conduct for accountability. Thus a great institution emerged and spread across the globe.

In the 18th century when King Charles XII of Sweden was in exile in Turkey, it was there that the observed the working and efficacy of this institution in the Ottomon Caliphate. On regaining his throne, the King established a similar institution in Sweden. Later, in 1809 King Gustary set up this institution under its Swedish name i. e. Ombudsman. Gradually, other developed western countries also adopted this institution. Establishment in Pakistan: In Pakistan, the establishment of the institution of Ombudsman was advocated on several occasions.

It was Article 276 of the Interim constitution of 1972, which provided for the appointment of a Federal Ombudsman as well as Provincial Ombudsmen for the first time. Subsequently, the Constitution of 1973 included the Federal Ombudsman at item 13 of the Federal Legislative List in the Fourth Schedule. The Institution of Ombudsman was, however, actually brought into being through the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983. Tenure The Wafaqi Mohtasib, who is appointed by the President of Pakistan, holds office for a period of four years.

He is not eligible for any extension of tenure, or for re-appointment under any circumstances. He is assured of security of tenure and cannot be removed from office except on ground of misconduct or of physical or mental incapacity. Even these facts, at his request, can be determined by the Supreme Judicial Council. Further, his office is non-partisan and non-political. Jurisdiction: The chief purpose of the Wafaqi Mohtasib is to diagnose, investigate, redress and rectify any injustice done to a person through maladministration on the part of a Federal Agency or a Federal Government official.

The primary objective of the office is to institutionalize a system for enforcing administrative accountability. The term “maladministration” has been defined in the law governing the office of Mohtasib, to cover a very wide spectrum, encompassing every conceivable form of administrative practice. It includes a decision, process, recommendation, an act of omission or commission, which: (A) Is contrary to law, rules or regulations or is a departure from established practice or procedure;

(B) is perverse, arbitrary or unreasonable, unjust, biased, oppressive or discriminatory or is based on irrelevant grounds: or (c) involves the exercise of powers, or the failure, or refusal to do so, for corrupt or improper motives. It also includes neglect, inattention, delay, incompetence, inefficiency, ineptitude in the administration, or in the discharge of duties and responsibilities. The term “Agency” has been defined as a Ministry, Division, Department, commission, or Office of the Federal Government, or a statutory corporation, or any other institution established or controlled by the Federal Government.

Not included in this term is the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court. Currently, the number of Agencies falling within the Ombudsman’s functional ambit is 300. The Mohtasib jurisdiction is excluded from matters the Defence of Pakistan or with the laws governing the Army, Navy and Air Force, or are concerned with the personal grievance or service matters of a public servant or functionary.

Anonymous or pseudonymous complaints also cannot be entertained by him under the law. Powers – If the Mohtasib finds an element of maladministration in a matter, he can, after investigating the matter, ask the Agency concerned to consider the matter further, to modify or cancel its decision, to take disciplinary action against any public servant, to dispose of the cases within a specified time, or to improve the working of the Agency, or to take any other specified steps.

Failure on the part of an Agency to comply with the Ombudsman’s recommendation is treated as “Defiance of Recommendations” which may lead to reference of the matter to the President of Pakistan, who, in his discretion may direct the Agency to implement the recommendations. The Mohtasib is empowered to award compensation to an aggrieved person for any loss or damage suffered by that person on account of maladministration. But

if the complaint is found to be false, or frivolous, he can also award compensation to the Agency or the functionary against whom the complaint was made. The Mohtasib has the same powers as a civil court under the Civil Procedure Code for summoning and enforcing the attendance of any person, compelling production of documents and receiving evidence on affidavits. He has also powers identical to that of the Supreme Court of Pakistan to punish any person for contempt.

The most significant feature of the Ombudsman’s powers is that where the superior courts cannot take notice of orders of administrators which are in conformity with the law and rules-whosoever oppressive or unjust or arbitrary they may otherwise be-the Ombudsman can go into their equity aspect without any inhibition and recommend their withdrawal or modification if he so finds.

Similarly, where the law or rules empower an authority to exercise his discretion in deciding matter, no court can question that discretion except the Ombudsman who, if he is satisfied that the discretion has not been exercised judiciously, may upset the decision or have it amended in the manner he sees fit. This gives him extensive leverage to do well and to undo injustice and arbitrariness arising out of orders lawfully made. Performance Since the inception of this office on 8th August, 1983 up to 31st December, 1993 the number of complaints dealt with were 4, 01,897.

Out of these 66 per cent were the matters relating to Federal Agencies and remaining 34 per cent were the provincial matters and they were not in purview of the Ombudsman. From the complaints against Federal Agencies 50 per cent were admitted for thorough investigation and remaining were not entertained due to the reason that either they were subjudice/service matters/premature or no maladministration was found apparently. During this period 1, 19, 684 complaints were thoroughly investigated and 71 per cent were found to be genuine.

During the year 1993, the highest number of complaints, i. e. 20,934 out of 44,578 complaints, after scrutiny, were admitted for investigation and 79 per cent of them were disposed off resulting in relief to the aggrieved. In view of the fact that a very high percentage of complaints is lodged with the Wafaqi Mohtasib which are within the purview of the provincial agencies, there is an urgent need for establishing the office of Provincial Mohtasib in all the provinces without any further delay.

The Provincial Government of Sindh and the Government of Azad Jammu and Kashmir have already established the institution of Mohtasib within their jurisdiction. Achievements Apart from the pains taken to investigate and redress complaints, the Ombudsman’s Secretariat makes it a appoint to acknowledge each and every complaint, and to inform those members of the public whose complaints cannot be legally entertained. In any case, each and every complaint has to be read and examined from all points of view even if it has to be rejected at the very outset for any of the prescribed reasons.

Only the Mohtasib can dismiss or reject a complaint, even in liming, and only he can pass the final orders on it after investigation. Justice An important aspect of the Office of Mohtasib, in addition to dealing with individual complaints, is to initiate studies and research regarding maladministration in Agencies having extensive dealing with the public, so that systems and procedures can be improved for the benefit of the people dealing with these Agencies.

So far, seven in-depth studies have been conducted in Departments/Corporations of vital concern to the general public, while in numerous cases procedures and processes have been got simplified to obviate complaints form the public. Since its establishment, the most significant impact of this institution is that it has revived the concept of administrative accountability in Pakistan, which is both an Islamic tenet and a democratic obligation. The public servant has become more cautious while exercising his powers.

He knows that there is an authority who can question him about his acts of omission and commission, while the citizen has the assurance that if an agency or an officer continues to be obdurate