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JUDICIARY


The Supreme Court Building Islamabad

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 The Supreme Court is at the apex of the judicial systems of Pakistan. It consists of a Chief Justice known as Chief Justice of Pakistan and such number of other judges as may be determined by the Act of Parliament. At present, besides the Chief Justice, there are thirteen other Judges in the Supreme Court. Appointment of Supreme Court Judges The Chief Justice of Pakistan is appointed by the President. Other Judges are also appointed by the President after consultation with the Chief Justice. A person is eligible to be appointed as a Judge of the Supreme Court if he is a citizen of Pakistan and has been a Judge of a High Court for five years or an advocate of a High Court for fifteen years. The Chief Justice and Judges of the Supreme Court hold office until the age of sixty-five. Jurisdiction

The Supreme Court has original, appellate and advisory jurisdiction. Original Jurisdiction.- The Supreme Court, to the exclusion of every other Court in Pakistan, has the jurisdiction to pronounce declaratory judgements in any dispute between the Federal Government or a provincial government or between any two or more provincial governments.

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.- The Supreme Court has jurisdiction to hear and determine appeals from judgements, 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.- 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 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 judgement pronounced bu it or any order made by it.


HIGH COURT


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 ohter Judges as may be determined by law or as may be fixed by the President. At present, the Lahore High Court of the Punjab, the High Court of Sindh, the Peshawar High Court of NWFP and High Court of Balochistan consist of fifty, twenty-eight, fifteen and six Judges including the Chief Justice, respectively. 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 ljudicial office for ten years and has for a klperiod of not less lthan 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.

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 abbottabad and Dera Ismail Khan. The principal seat of High Court of Balochistan 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

A High Court has original and appellate jurisdiction. Original Jurisdication.- A High Court has, under the Constitution, original jurisdiction to make an order:-

(i) directing a person within the territorial jurisdiction of the Court to refrain from doing anything he is not permitted by law or to do anything he is required by law.

(ii) declaring that any act done by a person without lawful authority is of no legal effect; or

(iii) directing that a person in custody be brought before it, so that the court may satisfy itself that he is not being held unlawfully;

(iv) giving such directions to any person or authority, for the enforcement of any of the fundamental rights conferred by the Constitution. Besides the original jurisdiction conferred by the Constitution, a High Court has original jurisdiction in many other matters conferred by or under various laws.

A High Court has the power to withdraw any civil or criminal case from a trial court and try it itself. Appellate Jurisdiction.- A High Court has extensive appellate jurisdiction against the judgements, decisions, decrees and sentences passed by the civil and criminal courts.

General.- A High Court has the power to make rules regulating its practice and procedure and of courts subordinate to it. Each High Court supervises and controls all courts subordinate to it and any decision of a High Court binds all courts subordinate to it. Shariat Court Federal Shariat Court comprises eight Muslim Judges including the Chief Justice to be appointed by the President. Of the Judges, four are the persons qualified to be the Judges of the High Courts, while three are Ulema (scholars well-versed in Islamic Law). Jurisdiction Federal Shariat Court has original and appellate jurisdiction.

Original Jurisdiction.- The Court may examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (Peace be upon him). If the Court decided that any law or provision of law is repugnant to the injunctions of Islam, it sets out the extent to which such law or provision of law is so repugnant, and specifies the day on which the decision shall take effect. Where any law is held to be repugnant to the injunctions of Islam, the President in the case of Federal law or the Governor in the case of a Provincial law is required to take steps to amend the law so as to bring it in conformity, with the injunctions of Islam; and such law ceases to have effect from the specified day.

Appellate Jurisdiction.- The Court has exclusive jurisdiction to hear appeals from the decison of criminal courts under any law relating to enforcement of Hudood Law i.e. laws pertaining to offences to intoxication, theft, Zina (unlawful sexual intercourse) and Qazf (false imputation of Zina). The principal seat of the Federal Shariat Court is at Islamabad, but it runs circuits at Lahore, Karachi, Peshawar and Quetta.

Other Courts Civil.- In every district of a Province, there is a Court of District Judge which is the principal court of original jurisdiction in civil matters. Courts of General Jurisdiction Besides the Court of District Judge, there are courts of Civil Judges. 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. Appeals against the judgements 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.

Criminal.- In every district, there is a Court of Sessions Judge and Courts of Magistrates. Criminal cases punishable with death and cases arising out of the enforcement of laws relating to Hudood are tried by Sessions Judges. The Court of a Sessions Judge is competent to pass any sentence authorised by law. Offences not punishable with death are tried by Magistrates. Among the Magistrates there are Magistrates of 1st Class, 11nd Class and 111rd Class. 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 sentice is upto four years, otherwise to the High Court.

Special Courts and Tribunals - To deal with specific types of cases Special Courts and Tribunals are constituted. 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 Juges Anti-Corruption; Commercial Courts; Drug Courts; Labour Courts; Insurance Appellate Tribunal; Income Tax Appellate Tribunal and Services Tribunals. 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. 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 upto the value of Rs.25,000 has been abolished.


ADMINISTRATION OF LAW AND JUSTICE



The Law and Justice Division is an advisory and consultative body to the Federal Government, Minstries, attached departments. Similarly, the Law Department in each province deals with provincial legal matters. Opinions During the period from January, 1993, to June, 1994, opinions on 6,556 cases were recorded; and the Law and Justice Division was called upon, from time to time,to tender advice on various important and controversial constitutional and legal issues. Legislative Drafting Drafting of Ordinances and Bills is a major function and responsibility of the Law and Justice Division which is looked after by the Drafting Wing. From January 1993 to June 1994, 1,957 cases for vetting of the drafts of various legislative measures, statutory rules, orders and notifications were received and dealt with in the Law and Justice Division. Litigation The other major function and responsibility of the Division is to look after the litigation on behalf of the Government of Pakistan. Administration of the Federal Courts/ Tribunals The Law and Justice Division is also involved in the appointment of Law Officers including Attorney General, Deputy Attorney General and Standing Councels. It also approves the appointment of legal advisers for which purpose there is a committee comprising the Attorney General, Law and Justice Minister and the Law and Justice Secretary. Judicial Academy The Federal Judicial Academy was set up by the Law and Justice Ministry in September, 1988 for the adequate training of Judges, Government law officers, police officers and doctors dealing with medical legal cases.


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 acountability. 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 smiliar 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 lbrought into being through the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983. Temure 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 extention 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 institutionalise 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 are 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's jurisdiction is excluded from matters which are subjudice in courts, relate to the foreign affairs of Pakistan, or connected with 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 good and to undo injustice and arbitrariness arising out of orders lawfully made. Performance Since the inception of this office on 8th August, 1983 upto 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 apoint 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 limine, 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 numberous 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 and inaccessible, he can go to the Mohtasib with his problem and get relief. The Mohtasib`s institution has emerged as a poor man`s court and an effective check on the excesses of the bureaucracy. It has made the bureaucracy responsive to popular aspirations, thereby helping to bridge the yawning gap which had earlier characterised the relationship between the administrator and the citizen. As a democratic instrument of Federal Government, it has helped improve administrative processes and procedures in line with modern days requirements, which have gone a long way in reducing red-tapism and misuse of discretionary powers by the bureaucracy. The all out support extended to the insititution by the press and the general public and the decision in principle to extend the scope of accountability at the provincial level, testifies the success story of the institution and the increasing confidence reposed in it.

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