Judiciary of Pakistan

Last updated on 15 October 2017

The judiciary of Pakistan is a hierarchical system with two classes of courts: the superior (or higher) judiciary and the subordinate (or lower) judiciary. The superior judiciary is composed of the Supreme Court of Pakistan, the Federal Shariat Court and five High Courts, with the Supreme Court at the apex. There is a High Court for each of the four provinces as well as a High Court for the Islamabad Capital Territory. The Constitution of Pakistan entrusts the superior judiciary with the obligation to preserve, protect and defend the constitution.[1] Neither the Supreme Court nor a High Court may exercise jurisdiction in relation to Tribal Areas, except otherwise [2]provided for.[3] The disputed regions of Azad Kashmir and Gilgit–Baltistan have separate court systems.[4][5]

[6]Besides Supreme Court of Pakistan, there are areas that are not constitutional parts of Pakistan till now. They are Gilgit Baltistan and AJK. As per constitution of Pakistan, these both areas are not a part of Pakistan, rather they are being governed by Government of Pakistan on interim basis. Though Gilgit Baltistan declared its independence from Dogra/Maharaja Kashmir on 1 November 1948, that is said to be the independence day of Gilgit Baltistan. Likewise, the authority of Constitution of Pakistan is not held there, though through Presidential ordinances, and PM packages, they are governed and given an interim authority delegated by Federal Government of Pakistan.

As the Supreme Court of Pakistan doesn't have jurisdiction over Gilgit Baltistan, thus another form of APEX Court named Supreme Appellate Court for Gilgit Baltistan has been introduced, with designated powers as that of Supreme Court of Pakistan.

The subordinate judiciary consists of civil and criminal district courts, and numerous specialized courts covering banking, insurance, customs and excise, smuggling, drugs, terrorism, taxation, the environment, consumer protection, and corruption. The criminal courts were created under the Criminal Procedure Code 1898 and the civil courts were established by the West Pakistan Civil Court Ordinance 1964. There are also revenue courts that operate under the West Pakistan Land Revenue Act 1967. The government may also set up administrative courts and tribunals for exercising exclusive jurisdiction in specific matters.[1]

As of 2017, Pakistan’s judiciary is suffering from a backlog of two million cases, with lawsuits taking an average of nearly ten years to resolve.[7] According to some estimates, 90% of civil cases involve land disputes, owing to Pakistan’s lack of a proper land register.[7]

Superior Judiciary

Supreme Court of Pakistan

The Supreme Court (SCOP), established in 1956,[8] is the apex court in Pakistan's judicial hierarchy, the final arbiter of legal and constitutional disputes. The court consists of a Chief Justice and sixteen other judges. There is also provision for appointment of acting judges as well as ad hoc judges in the court. It has a permanent seat in Islamabad as well as branch registries in Lahore, Peshawar, Quetta and Karachi.

It has a number of de jure powers which are outlined in the constitution, including appellate and constitutional jurisdiction, and suo moto power to try Human Rights matters. Through several periods of military rule and constitutional suspensions, the court has also established itself as a de facto check on military power. The Supreme Court Judges are supervised by the Supreme Judicial Council.[1]

Federal Shariat Court of Pakistan

The Federal Shariat Court of Pakistan was established in 1980 to scrutinize all Pakistani laws and determine if they conform to Islamic values "as laid down in the Quran and the Sunnah".[9] If a law is found to be 'repugnant', the Court notifies the relevant government, specifying the reasons for its decision. The court also has appellate jurisdiction over penalties (hudud) arising under Islamic law, although these decisions can be reviewed by the Shariat Appellate Bench of the Supreme Court. 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.

The Court consists of 8 Muslim judges, appointed by the President of Pakistan, on the advice of a judicial committee of the Chief Justices of the Supreme Court and the Federal Shariat Court. The committee chooses from among-st serving or retired judges of the Supreme Court or the High Courts or from among-st persons possessing the qualifications of judges of a High Court. Of the eight judges, three are required to be Islamic Scholars/Ulema well versed in Islamic law. The judges serve terms of three years, subject to extension by the President. The current Chief Justice of the Federal Shariat Court is Riaz Ahmed Khan.

Supreme Appellate Court Gilgit Baltistan

Main article: Supreme Appellate Court Gilgit Baltistan

In light of a verdict by Supreme Court of Pakistan in the case filed by Wahab Al Kahiri, Late Justice Shehbaz Khan and others through Al-Jehad Trust Versus Federation of Pakistan, as per orders of Supreme Court of Pakistan, Government of Pakistan established Northern Areas Court of Appeals at Gilgit vide Gazette of Pakistan, extraordinary, part II dated 8 November 1999 with Appellate Jurisdiction, The Court started function on 27 September 2005, when the Chairman and members were appointed. On 15 December 2007 by virtue of amendments in the Northern Areas Governance order 1994, the nomenclature of the Court was re-designated as Northern Areas Supreme Appellate Court and its jurisdiction was also enlarged by conferring Original and Appellate jurisdiction. It was also given the Status equal to the Supreme Court of Azad Jammu and Kashmir.

On 9 September 2009, the Supreme Appellate Court was conferred the similar jurisdiction equal to the Supreme Court of Pakistan by promulgating Gilgit-Baltistan ( Empowerment and Self Governance Order) 2009. The Supreme Appellate Court is consisting of a Chief Judge and two Judges. The Permanent Seat of the Court is at Gilgit, but the Court also sits from time to time at Skardu Branch Registry.

Under Gilgit-Baltistan Empowerment and Self-Governance Order 2009 Gilgit-Baltistan Supreme Appellate Court was established with a Chief Justice and two other Judges. The chief judge and judges are appointed for a period of three years by the prime minister of Pakistan.

Presently, Rana Shamim has been honored as Chief justice of Appellate Court since Aug2015, while Justice Shehbaz Khan and Justice Javed Iqbal took oath of office on 17 March 2016. Justice Shehbaz Khan died of cardiac arrest on 19 September 2016. Now Supreme Appellate Court has only two Judges. The 3rd slot is still vacant and to be filled in .

Former Chief Judges were:

Mr.Justice Qazi Ehsanullah Qureshi (2005-2008)

Mr.Justice Muhammad Nawaz Abbasi (2009-2012)

Mr.Justice Rana Muhammad Arshad (2012-2015)

Former Judges were

Mr.Justice Altaf Hussain (2005-2008)

Mr. Justice Syed Tahir Ali Shah (2005-2008)

Mr. Justice Syed Jaffar Shah (2009-2012)

Mr.Justice Muhammad Yaqoob Khan (2009-2012)

Mr. Justice Raja Jalal-ud-Din (2013-2016)

Mr. Justice Muzaffar ALi (2013-2016)

Mr. Justice Shehbaz Khan(late) (15-3-16 to 20-9-2016)

High Courts

Lahorehighcourt.jpg
Lahore High Court

There is a High Court for the Islamabad Capital Territory and four provincial High Courts. A High Court is the principal court of its province.[1]

Subordinate Judiciary

District & Sessions Courts

District courts exist in every district of each province, and have civil and criminal jurisdiction. In each District Headquarters, there are numerous Additional District & Session Judges who usually preside the courts. District & Sessions Judge has executive and judicial power all over the district under his jurisdiction. The Sessions court is also a trial court for heinous offences such as Murder, Rape, Haraba offences (armed robbery where specific amount of gold and cash is involved), and is also appellate court for summary conviction offences and civil suits of lesser value. Each Town and city now has a court of Additional District & Sessions judge, which possess the equal authority over, under its jurisdiction. When hearing criminal cases, it is called the Sessions Court, and when it hears civil cases, the District Court. Executive matters are brought before the relevant District & Sessions Judge.

Court usually starts early in the morning, with the hearing of pre-arrest bail applications, followed by post-arrest bail applications and civil appeals from the orders of the Judicial Magistrates' Courts and civil Judges. Decisions are usually announced later in the day, once the Judge has had time to peruse the case files after the hearings. The rest of the day is allocated for the recording of the Evidence in sessions cases such as in offences murder, rape and robbery etc. Cases are usually allotted by administrative orders of District and Sessions Judges. The Court of the District & Sessions Judge usually hears administrative applications against lower courts orders.

Civil Judge Cum Judicial Magistrates' Courts

In every town and city, there are numerous Civil and Judicial Magistrates' Courts. A Magistrate with the powers of section 30 of Criminal Procedure Code (Cr.P.C.) has the jurisdiction to hear all criminal matters other than those which carry the death penalty (such as attempted murder, dacoity, robbery, extortion, etc.), but may only pass a sentence of up to seven years' imprisonment. If the court thinks accused deserves more punishment than seven years in jail, then it has to refer the matter to a higher court, with its recommendations to that effect. Every Magistrates' Court is allocated a local jurisdiction, usually encompassing one or more Police Stations in the area. Trial of all non bailable offences, including police remand notices, accused discharges, arrest and search warrants, and bail applications, are heard and decided by Magistrate Courts. Most Judicial Magistrates may hear civil suits as well. If they do so, they are usually called a Civil Judge Cum Judicial Magistrate. These Courts are also called as Senior Civil Judge Courts, who are empowered with the power of Judicial Magistrate as well.

Special Tribunals and Boards

There are numerous special tribunals such as;

  • Banking Courts
  • Custom Courts
  • Drug Courts
  • Federal Services Tribunal
  • Provincial Services Tribunals (one for each province)
  • Income Tax Tribunals
  • Anti Corruption Courts
  • Anti Terrorism Courts
  • Labour Courts
  • Labour Appellate Tribunal
  • Environmental Courts
  • Board of Revenue.
  • Special Magistrate courts
  • Control of Narcotic Substances (Special Courts)
  • Consumer Courts -
  • Intellectual Property Tribunal
  • Foreign Exchange Appellate Board

Almost all judges of above mentioned courts and tribunals except for Consumer Courts, are of District & sessions Judges or of having same qualifications. Besides, 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 exercise administrative control over them appoints such officers. Law prescribes their powers and functions.

Family Courts

The West Pakistan Family Courts Act 1964 governs the jurisdiction of Family Courts. These courts have exclusive jurisdiction over matters relating to personal status. Appeals from the Family Courts lie with the High Court, where the Family Court is presided by a District Judge, an Additional District Judge, or a person notified by the Government to be the rank and status of a District Judge or an Additional District Judge and to the District Court, in any other case. Every town and city or Tehsil has court of family judge. In some areas, where it is only Family Court but in most areas Civil Judge Courts have been granted the powers of Family Court Judges. According to section 17 of the Family Court Act, 1964, the provisions of C.P.C. (Civil Procedure Code) and Qanun-e-Shahdat Order (Evidence Law) are not applicable over to Family Court and the same are allowed to form or regulate its own procedure to decide case expeditiously, properly and in the best interest and convenience of lady litigants.

Juvenile Courts

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.

Section 6 of the JJSO prescribes special procedure for the juvenile courts which involves issues like not ordinarily taking up any other case on a day when the case of a child accused is fixed for evidence on such day; attendance of only specified persons in the court; and dispensing with the attendance of the child in the trial.

Appointments of Judges

Supreme Court of Pakistan

Prior to 18th Constitutional Amendments, appointments to the Supreme Court of Pakistan were made by the President of Pakistan, on the recommendation of the Chief Justice of the Supreme Court. This system bred many allegations of favoritism. Many judges who were appointed were relatives of other Judges or Government officials. However, following the Supreme Court's judgement in the Al-Jehad Trust case, the government's role in judicial appointments was curtailed. Under the terms of this judgement, the Government and the President's office were bound to act on the recommendations of the Chief Justice of Pakistan.

After passage of the 18th and 19th Constitutional Amendments, a new Judicial Commission (named Judicial Commission of Pakistan) and Parliamentary Committee were established for appointments. The Judicial Commission of Pakistan consists of a total of nine members: the Chief Justice of Pakistan, four senior judges of the Supreme Court, a former Chief Justice or judge of the Supreme Court nominated by the serving Chief Justice in consultation with the four serving judges of the Supreme Court aforementioned, the Attorney General of Pakistan, the Federal Minister for Law and Justice and, one senior advocate nominated by the Pakistan Bar Council. The Parliamentary Committee confirms or may not confirm the nominee of the Judicial Commission.All power of executive was curtailed by the judicial commission and president has no discretionary power but only to approve the nominees. Prime minister has only ministerial power regarding the appointment procedure.

High Courts

In Appointments to the High Courts, the same procedure as in Supreme Courts appointments is adopted Prior to 18th Constitutional Amendment, High Court appointments suffered much the same criticisms as those to the Supreme Court. Future appointments will be made in the same manner as those to the Supreme Court. But instead of 4 supreme court judges, 4 most senior high court judges, provincial law minister and a member of provincial bar councils (such as Punjab Bar Council) will sit the Judicial Commission of Pakistan considering the appointment of high court judges.

District & Sessions Judges

Additional District & Sessions Judges are appointed by the Provincial & federal High Courts, from a pool of Lawyers and subordinate judges. To be eligible for appointment, Lawyers must have ten years' experience as an advocate with good standing in the respective jurisdiction. They must also pass an examination conducted by the High Courts. Subordinate judges are also promoted from senior civil judges on a seniority basis.

Civil Judge Cum Judicial Magistrate

Civil Judge Cum Judicial Magistrates are also appointed by the Provincial High Courts, on the recommendation of provincial Public Service Commissions. These Commissions hold open competitive exams annually, which are advertised in national newspapers. The basic qualifications required are an LL.B from any recognized university, and two years' experience as an advocate in the jurisdiction in question. The exams include various compulsory papers. For example, the Punjab Public Service Commission sets compulsory papers on English Language & Essay, Urdu Language & Essay, Islamic Studies, Pakistan Studies, General Knowledge (objective test), Criminal Law, Civil Law 1 & 2, and General Law. All candidates who pass the examinations are given a psychological test. Those who pass both these stages are interviewed by members of Service Commissions, and recommendations are made to the respective High Courts for appointments. In sindh province, the appointments are made on the backdrop of a test conducted by National testing service (NTS) which is primarily based on English language and General knowledge. The candidates who manage to pass the first test then undertake another test by NTS after which the successful candidates are chosen for the interview which is conducted by the five most senior judges of high court including chief justice of sindh and candidate who manage to pass the interview are recommended for the post of civil judge and judicial magistrate who thereafter are appointed by the government of Sindh.

See also

References

  1. ^ a b c d Dr. Faqir Hussain (Registrar) (15 February 2011). "The Judicial System of Pakistan" (PDF). Supreme Court of Pakistan. Retrieved 24 December 2013.
  2. ^ "Gilgit-Baltistan: A question of autonomy". The Indian Express. 2009-09-21. Retrieved 2017-04-14.
  3. ^ "Constitution of the Islamic Republic of Pakistan". Pakistani.org. 1973. Retrieved 24 December 2013. |section= ignored (help)
  4. ^ "AJK Interim Constitution Act, 1974" (PDF). Government of Azad Kashmir. Retrieved 24 December 2013. |section= ignored (help)
  5. ^ Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Article 60 (Supreme Appellate Court) and Article 69 (Chief Court)
  6. ^ Studio, Mian Khurram Shahzad : Mark Web. "Home | Gilgit Baltistan Council" (PDF). gbcouncil.com. Retrieved 2017-04-14.
  7. ^ a b "Pakistan is “mainstreaming” misogynist tribal justice". The Economist. 13 October 2017.
  8. ^ Constitution of Pakistan (1956), Article 148
  9. ^ "Constitution (Amendment) Order, 1980". Gazette of Pakistan. 27 May 1980. Retrieved 24 December 2013.
  10. ^ High Courts (Establishment) Order, 1970 (P.O. No. 8 of 1970), Article 3(1)(b)
  11. ^ High Courts (Establishment) Order, 1970 (P.O. No. 8 of 1970), Article 3(1)(c); Baluchistan and Sind (High Courts) Order, 1976 (P.O. No. 6 of 1976), Article 3[(1)](b)
  12. ^ High Courts (Establishment) Order, 1970 (P.O. No. 8 of 1970), Article 3(1)(a)
  13. ^ Baluchistan and Sind (High Courts) Order, 1976 (P.O. No. 6 of 1976), Article 3[(1)](a)
  14. ^ Constitution (Eighteenth Amendment) Act, 2010 (Act No. X of 2010), Section 66 (Amendment of Article 175 of the Constitution); see also PLD 2009 SC 879, para. 22 vi

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