Supreme
Court
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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