Judiciary of Pakistan

The judiciary of Pakistan (Urdu: پاکستان کی عدلیہ‎) 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]

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[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 1962. 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
Main article: 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 the subordinate judiciary. The court appoints its own staff and frames its own rules of procedure.

The court consists of eight 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 amongst serving or retired judges of the Supreme Court or the high courts or from amongst 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 Justice Sheikh Najam ul Hasan.

High courts
Main article: High courts of Pakistan
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 judiciary

District judiciary or district courts exist in every district of each province, and have civil and criminal jurisdiction ordinarily governed by Civil Procedure Code,1908 for civil cases and by Code of Criminal Procedure in criminal cases. The administrative head of district judiciary is the 'district and sessions judge'. In each district headquarters, there are a number of courts of additional district and sessions judges having same judicial powers like the court of district and sessions judge, including trial for offences shown in schedule II of Code of Criminal Procedure as exclusively triable by the Court of Session i.e. Qatl e Amd (culpable homicide), rape, defamation dacoity etc. These courts have also jurisdiction to try cases under the Hudood Laws of Pakistan, certain offences under Control of Narcotic Substances Act etc. These courts also work as ex officio Justice of Peace to entertain complaints against police officials. In civil jurisdiction these courts entertain the matters under Succession Act, Insolvency Act, suits for government, summary suits pertaining to negotiable instruments etc. These Courts are also civil appellate and criminal appellate courts. Civil and Family Appeals and Civil Revisions against the Judgements and orders of courts of senior civil judges, civil judges, rent controllers, and family courts are entertained by the court of district judge which transfers the same to additional district judges as well. All convictions awarded by judicial magistrates and convictions up to four years awarded by courts of assistant sessions judges or magistrates especially empowered under section 30 Cr.P.C. are appealable to a court of sessions judge which also transfer the criminal Appeals and criminal revisions to Additional Sessions Judges.

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 and 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. Normally in capacity of judicial magistrate these courts have the powers to try all offences other than those which are specifically triable by Court of Session but maximum limit for awarding sentence of improvement is not more than three years. However a judicial magistrate having special powers under section 30 of Code of Criminal Procedure can award all punishments except capital punishment. In civil capacity in the province of Sindh and Balochistan as a civil judge these courts have jurisdiction to entertain the claims of third-class suits having a pecuniary limit up to fifty thousand rupees. In other provinces civil judges have jurisdiction to entertain first- and second-class suits. Judicial magistrates possesses territorial jurisdiction police station wise as per notification issued by the Court of Session Judge. In magisterial functions judicial magistrates record statements on oath of witness, Judicial confession of accused, holds identification test parades, inquest proceedings of the prisoners. This court takes first cognizance of all offences of local laws, disposes of unclaimed properties or the movable properties suspected to be stolen.

Special tribunals and boards

There are numerous special tribunals such as;

  • Banking courts
  • Criminal 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 district and 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. As per schedule in the Act of 1964 family courts entertains the disputes of dissolution of marriage, recovery of maintenance of wives and minors, dower, dowery articles, guardian and wards disputes ie custody of minors, recovery of bridal gifts etc. All final decisions are appealable before the court of district judge while interim orders are not appealable but are challenged before high court through the constitutional jurisdiction.

Juvenile courts
Main article: Juvenile justice in Pakistan

The parliament has passed the Juvenile Justice System Act 2018. The law is applicable to the whole of Pakistan. It has repealed the Juvenile Justice System Ordinance 2000.

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.

Jurisdiction of juvenile courts was conferred to sessions judges and judicial magistrates in accordance with their original jurisdiction under Code of Criminal Procedure. Juvenile Justice System Act provides that every person below the age of 8 years is juvenile. The conclusive proof of age is Occification Test. The law warrants separate Camera trial of the juvenile providing all privileges to the juvenile accused as per the Act of 2018.

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. The age limit for the high court judge is minimum 45 years.

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.

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See also

References
  1. Dr. Faqir Hussain (Registrar) (15 February 2011). "The Judicial System of Pakistan" (PDF). Supreme Court of Pakistan. Archived from the original (PDF) on 6 February 2017. Retrieved 24 December 2013.
  2. "Gilgit-Baltistan: A question of autonomy". The Indian Express. 21 September 2009. Retrieved 14 April 2017.
  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. Archived from the original (PDF) on 13 October 2013. 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 14 April 2017.
  7. "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 Archived 17 May 2017 at the Wayback Machine, para. 22 vi
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