What is Law?
Law is a system of rules that are enforced through social institutions to govern
behavior. Laws can be made by legislatures through legislation (resulting in
statutes), the executive through decrees and regulations, or judges through
binding precedent (normally in common law jurisdictions).
Purpose of Law
There may be numerous purposes of law, some important are as follows:
• Satisfaction for victims (i.e. revenge).
• Deterrent to discourage others from acting in a way considered detrimental to
society.
• To prevent vigilantism and mob justice, often targeting innocent third
parties.
The Law of Pakistan
The Law of Pakistan is the law and legal system existing in the Islamic Republic
of Pakistan. Pakistani law is based upon the legal system of British India; thus
ultimately on the common law of England and Wales. Pakistan as an Islamic
republic also has been influenced by Islamic Sharia law.
The Judicial System of Pakistan
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
administration. 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 organizing courts’ structure and
hierarchy, and adopting 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 flavor and national color.
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 increasing number of people
are making.
The Judicial System of Pakistan resort to the courts for the resolution of their
conflicts/disputes indicates that the system enjoys a degree of legitimacy and
acceptance.
Islam and the Legal System
The legal system in 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
Islamization 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.
For the appointment of Judges of High Courts, the practice used to be that
initially the Chief Justice of the concerned High Court prepared list of
candidates which was submitted to the President through the Governor of the
province and Chief Justice of Pakistan. The President finally used to select
judges from the said list. The recommendation of the Chief Justice of Pakistan
and Chief Justice of the High Court were binding on the President, except for
sound reasons to the contrary. The most senior judge would have legitimate
expectancy of being appointed as the Chief Justice except for concrete and valid
reasons, to be recorded by the President.
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 Shariat Court
The Court consists of 8 Muslim Judges including the Chief Justice .Procedure for
appointment of judges of Federal Shariat 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
Almost all judges of above mentioned courts and tribunals except last one 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 exercises 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
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.
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 judgment in the Al-Jehad Trust case, the
government's role in judicial appointments was curtailed. Under the terms of
this judgment, the Government and the President's office were bound to act on
the recommendations of the Chief Justice of Pakistan.
After passage of the 19th Constitutional Amendment in 2010, a new Judicial
Commission and Parliamentary Committee were established for appointments. The
Judicial Commission 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.
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.
District & Sessions Judges
Additional District & Sessions Judges are appointed by the Provincial 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 promoted from senior civil
judges on a seniority basis.