|
Law and
order are essential components of any civilized society. A country
cannot progress or function with the implementation of a proper judicial
system. Country like Pakistan is deprived for such an effective and
transparent judicial system that can punish the culprit irrespective of
his power and authority and save the innocent. Unfortunately, legal
system of Pakistan is highly biased and has many flaws that need to be
corrected to restore the faith of common man.
The Law of Pakistan
The Law of Pakistan is based on the legal system of the Islamic Republic
of Pakistan. The origin of Pakistani law is based upon the legal system
of old British India; incorporating the common law of England and Wales.
Amendments in the legal system of Pakistan came during the reign of
General Muhammad Zia-ul-Haq, when elements of Islamic Shariah law were
incorporated into Pakistani law. This led to the institution of a
Federal Shariah Court (FSC). In Federally Administered Tribal Areas
(FATA), a system of law employing traditional practices is persistent at
the local level. At this level, disputes are settled by a Jirga, a
council of tribal elders. Ministry of Law and Justice is an advisory
service organization providing services to all the offices of Federal
and Provincial Governments on legal, judicial and constitutional
matters.
The Judicial System of Pakistan
The Judiciary of Pakistan is a hierarchical system with two classes of
courts: the superior judiciary and the subordinate judiciary. The
superior judiciary is composed of the Supreme Court of Pakistan, the
Federal Shariah 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 delegate the superior judiciary with the obligation to
preserve, protect and defend the constitution. However, neither High
court nor Supreme Court can practice jurisdiction to tribal areas except
of the special case. The disputed regions of Azad Kashmir and Gilgit–Baltistan
have separate court systems.
Islam and the Legal System
The legal system of Pakistan is based on English common law and Islamic
law. Between 1947 and 1978, Islamic law was largely restricted to the
sphere of personal status issues, such as marriage, inheritance and
divorce. The Islamisation of the legal system began in earnest under
General Zia ul Haq (1977-1988). Through a series of presidential
decrees, Zia introduced far reaching changes in Pakistan’s criminal
justice system, regulated by the Pakistan Penal Code of 1860 and the
Code of Criminal Procedure (1898). He also created a parallel court
system, consisting of Shariat courts, and amended the country’s
anti-blasphemy laws. While most of the “Islamic” laws he instituted are
still on the statute, and some were reinforced by conservative
governments, Pakistan’s parliament has recently introduced legal changes
aimed at improving the status of women in the private and public
spheres.
Division of Courts
Supreme Court
The Supreme Court is the apex Court of the land, exercising original,
appellate and advisory jurisdiction. It is the Court of ultimate appeal
and therefore the final arbiter of law and the Constitution. Its
decisions are binding on all other courts. The Court consists of a Chief
Justice and other judges, appointed by the President as per procedure
laid down in the Constitution. An Act of Parliament has determined the
number of judges. The number fixed at the moment is Chief Justice and 16
judges. There is also provision for appointment of acting judges as well
as ad hoc judges in the court. A person with 5 years experience as a
Judge of a High Court or 15 years standing as an advocate of a High
Court is eligible to be appointed as judge of the Supreme Court.
High Courts
There is a High Court in each province and a High Court for the
Islamabad Capital Territory. Each High Court consists of a Chief Justice
and other judges. The strength of Lahore high Court is fixed at 60, High
Court of Sindh at 40, Peshawar High Court at 20, High Court of
Baluchistan at 11 and Islamabad High Court at 7. Qualifications
mentioned for the post of a Judge are, 10 years experience as an
advocate of a High Court or 10 years service as a civil servant
including 3 years experience as a District Judge or 10 years experience
in a judicial office.
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.
• The High Court of each province has appellate jurisdiction over the
lower courts.
• The Supreme Court has exclusive jurisdiction over disputes between and
among provincial governments, and appellate jurisdiction over High Court
decisions.
Federal Shariyat Court
The Court consists of 8 Muslim Judges including the Chief Justice
.Procedure for appointment of judges of Federal Shariah Court has been
changed after 18th and 19th amendments as previously such judges were
appointed by the President from amongst the serving or retired judges of
the Supreme Court or a High Court or from amongst persons possessing the
qualifications of a judge of the High Court.
At present, judges of Federal Shariat Court are also appointed through
Judicial Commission which comprises Chief Justice of Pakistan as
Chairperson, four senior most Judges of the Supreme Court, One former
Chief Justice or a retired judge of the Supreme Court appointed by the
Chairperson in consultation with the four member judges for a period of
two years, the Attorney General for Pakistan, the Federal Law Minister,
Chief Justice of Federal Shariat Court and most senior judge of the
Federal Shariat Court.
For appointment of Chief Justice, however, the most senior judge of the
Federal Shariat Court is excluded from the composition of the
Commission. Once the Judicial Commission approves a new name for
appointment as the judge of the Federal Shariat Court, it goes to an
Eight member Parliamentary Committee that has equal representation of
the government and the opposition as well as of two houses. This
Committee has two weeks to review the recommendation after which if the
recommendation is approved, it goes to the Prime Minister who forwards
the same to the President for appointment. The Parliamentary Committee,
for reasons to be recorded, may not confirm the recommendation by
three-fourth majority, in which instance the decision is forwarded to
the Commission through the Prime Minister and the Commission sends
another nomination.
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
• Labor Courts
• Labor Appellate Tribunal
• Environmental Courts
• Board of Revenue
• Special Magistrate courts
• Control of Narcotic Substances (Special Courts)
• Consumer Courts
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 forming or regulating 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 Court 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 stand up 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. |