Administration Of Justice

ADMINISTRATION OF JUSTICE ADMINISTRATION OF JUSTICE [Address to the course participants of the National Defence College, Rawalpindi on 31st October, 1993.] By Mr. Justice Dr. Nasim Hasan Shah, Chief Justice of Pakistan The rule of law has now become a universal obligation of every civilised society. It means supremacy of law as opposed to the arbitrary authority of the Government. This supremacy according to Dicey comprises of at least three concepts i.e. absence of arbitrary power, equality before law and the right of every citizen to be aware of his rights and obligations. In a country governed by the rule of law men are free to pursue their vocations and to enjoy their legal rights consistent with their obligations to their fellow citizens, free from arbitrariness from any quarter. They are subject only to law as opposed to being subject to the whim of one or mote persons. The three concepts of the `rule of law' propounded by Dicey the famous professor of Constitutional Law of England, have also undergone considerable change owing primarily to the multifarious activities of a modern State and have been subjected to severe criticism by the modern lawyers. According to them, the scope of the rule of law should not be confined within narrow limits. On the other hand, the rule of law should be equated with domocracy as understood by the liberal tradition. The powers of the Executive should not only be derived from the law, but also limited by it. Every political authority should be subject to considerable limitations: The concept of the rule of law has always been in the minds of the members of a civilised society and framers of the Constitution. Thus, many modern Constitutions, including our own, incorporate certain `fundamental rights', though usually restricted by words such as `public order', `due process of law'. The American Declaration of Independence, 1776 states that all men are created equal, and among their inalienable rights are life, liberty and the pursuit of happiness. A declaration of rights of man was pre‑fixed to the French Constitution of 1791 and confirmed by the preambles to the Constitutions of 1946 and 1958. Similarly, the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948 and the European. Convention for the Protection of Human Rights and Fundamental Freedoms, drawn up in Rome in 1950 and came into force in 1953, are steps for the preservation of the `rule of law'. The most recent efforts for the development and upholding of the `rule of law' and making the world community aware of it has been undertaken by the International Commission of Jurists. This independent organisation affiliated to UNESCO has attempted to give material content to `the rule of law' One of the Commission's achievement is the Declaration of Delhi 1959. It was attended by more than 50 countries. The questionnaire made the basis of the Declaration was circulated to 75,000 lawyers. Respect for the supreme value of human personality was stated to be the basis of all law. The `rule of law' according to the declaration of Delhi relates to (i) the legislature: that there is a right to representative and responsible Government, and there are certain minimum standards or principles of the law, including those contained m the Universal Declaration and European Convention, in particular, freedom of religious belief, assembly and association and the absence of retroatice law; (ii) the executive, especially, that delegated legislation should be subject to independent judicial control, and that a citizen who is wronged should have a remedy against the State or Government; (iii) the criminal process; a `fair trial' should be provided to the accused. It involves such elements as certainty of criminal law, the presumption of innocence, reasonable rules relating to arrest, accusation and detention pending trial, the giving of notice and provision for legal advice, public trial, right of appeal, and absence of cruel and unusual punishments; (iv) the judiciary and the legal profession: This requires the independence of the judiciary, and proper grounds and procedure for the removal of judges and imposes a responsibility on an organised and autonomous legal profession. Thus, the concept of `the rule of law' as originally understood has since undergone a large development and elaboration. ENFORCEMENT OF LAW BY JUDICIARY The duty of seeing that the rule of law is observed and actually enforced falls in practice upon the judicial department of the State. It is the judiciary on which devolves the task of determining if any transgression of the law has occurred and if so, to prescribe the necessary remedial action for correcting the wrong done. It is also the duty of the judiciary, in a State governed by a written Constitution, to review legislative or administrative action with the view to ascertaining that the legislative measures that have been enacted or the administrative action taken which a citizen claims to have injured any of his legal rights, have been enacted or taken in conformity with the Constitution and the law. On account of this position, the judicial arm of a State not only acts as an arbiter between, the State and the citizens but also acts as a watchdog over the acts of the legislature and the executive. It is 'in this sense superior to the two other organs of the State. "There is no better test of the excellence of a Government" wrote Lord Bryce, "than the efficiency of its judicial system, for nothing more nearly touches the welfare and security of the average citizen than his sense that he can rely on the certain and prompt administration of justice". CONCEPT OF JUSTICE IN ISLAM Islam attaches great importance to the administration of justice. In fact "Justice" in Islam is considered to be a divine attribute and the administration of justice regarded as a religious duty and an act of piety. The following verses from Holy Qur'an explain the concept of justice in Islam: "He has set up the balance (of justice). In order that ye may not transgress (due) balance. So establish weight with justice and fall not short in the balance." "O, ye who believe: Stand out firmly for God, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety: and fear God, for God is well acquainted with all that ye do." The principles underlying the administration of justice in Islam are mainly three viz. Adl (Justice), Ihsan (Grace) and Musawat (equality). The principle of Adl assures fairness in all affairs of life, while Musawat requires that even in placing of burden of obligations both equality and capacity shall be kept in view. Ishan, on the other. hand tapers the severity of law, ennobles human existence and strengthens the bonds of friendship. These principles are the ideals to which we in Pakistan aspire. DEVELOPMENT IN THE JUDICIAL SYSTEM AFTER ESTABLISHMENT OF PAKISTAN On the August 14, 1947, the Indo‑Pakistan Sub‑continent was partitioned and an Independent Dominion of Pakistan came into being. As provided in the Indian Independence Act, 1947, the new Dominion was to be governed as early as possible in accordance with the Government of India Act, 1935 whereunder administration of British India was earlier being carried out. Of course, the laws of British India existing immediately before the date of Independence continued with necessary adaptations and modifications as the laws of Pakistan. In this way no vacuum was created in the rule of law. Just as there occurred no break in the drain of legal continuity, the pattern of judicial authority, too, remained the same. HIERARCHY OF COURTS Pakistan has thus inherited the British‑Indian Judicial structure. At the apex of the pyramid of this judicial structure is the Supreme Court which acts as the final guardian of the Constitution. It is also the final Court of Appeal in matters arising out of cases decided by the High Courts, and in this capacity, it replaces the Judicial Committee of the Privy Council, sitting in London. Next in the gradation are the four High Courts in the Provinces exercising general control over the administration of justice in their respective territorial limits. Under the High Courts are the District and Sessions Judges and Additional District and Sessions Judges with jurisdiction in both civil and criminal matters. Below the District and Sessions Judges, there are on the civil side, Civil Judges of different grades. On the criminal side, there are District Magistrates, Additional District Magistrates and other Magistrates exercising various powers. In addition, there are several Special Judges for trying specific types of cases and likewise there are Special Courts and Tribunals with jurisdiction conferred on them in specified fields only. The hierarchy of the Courts as explained above may be illustrated by means of a diagram, as follows: Supreme Court Pb.High court Sindh High Court N.W.F.P High Court Balochistan High Court District Court District Court District Court District Court Civil Court Criminal Court Civil Court Criminal Court Civil Court Criminal Court Civil Court Criminal Court From the above diagram, it is evident that the judicial system of Pakistan is like a pyramid, with the Supreme Court at the apex. However, in addition to the regular Courts, referred to above, several special tribunals have also been established to deal with specified matters such as the Income Tax Tribunal, Labour Courts, Banking Courts, the Family Courts; the Rent Tribunals etc. etc. whose powers and jurisdiction are specked in the statutes creating them. However, though these Courts and Tribunals are not subordinate to the Provincial High Courts, their decisions can be scrutinised in exercise of its Constitutional jurisdiction whenever these Courts or tribunals are found to contravene the law under which they are acting or exceed their jurisdiction. Similarly, the decisions of Service Tribunals established to deal with cases relating the terms and conditions of persons in the service of Pakistan, can be brought for examination before the Supreme Court, which may grant leave to appeal against their decisions, if the case involves a substantial question of law of public importance. Again the decisions of the Federal Shariat Court which has been established to examine and decide the question whether or not any provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Prophet (peace be upon him) can also be made the subject‑matter of appeal before the Supreme Court. In this way, every decision whether of an ordinary Court or of a special Court or tribunal can be taken for scrutiny to the apex of the pyramid of the judicial structure in the country, namely, the Supreme Court either by the process of appeal and revision before the normal Courts in the ordinary way or by the exercise of the extraordinary Constitutional jurisdiction of the High Courts where the decision has been given by a Special Court or Tribunal. A few words more about the Supreme Court may, therefore, be in order. THE SUPREME COURT The Constitution as pointed out already, plates the Supreme Court at the apex of the judicial system of our country. It is a Court of ultimate appeal in matters civil and criminal and has original jurisdiction not only in its capacity as the final arbiter of any dispute which might arise amongst the four federated provinces of Pakistan but also in its capacity as the guardian of the Constitution. The law declared by the Supreme Court is binding on all Courts in Pakistan and all the executive and judicial authorities throughout Pakistan are directed to act in its aid. The Chief Justice and Judges of the Supreme Court are appointed by the President from amongst persons possessing the necessary qualifications prescribed by the Constitution, that is, having been a Judge of a High Court for not less than five years or having been an advocate for not less than fifteen years. The retireing age is 65 years. Being a superior Court of record, it has also the inherent powers and jurisdiction of such a Court in addition to those specified by the Constitution such as, power to punish for its own contempt and the power to make its own rules of procedure. The original jurisdiction empowers it to hear and determine disputes between the four Provincial Governments and or the Central Government. Under its advisory jurisdiction, the Court may give its opinion on a reference haring been made to it by the President on a question of law. In its appellate capacity it hears and determines appeals against the judgments delivered by the four Provincial High Courts, the Federal Shariat Court and the Service Tribunals, subject to its being persuaded to grant leave to appeal against the judgments of the said Courts or Tribunals, being impugned before it. IMPLEMENTATION OF SHARIAH AND SHARIAT COURTS Ever since the creation of Pakistan demands were made for bringing the existing laws in the country in conformity with the Holy Qur'an and Sunnah and for administering justice in accordance with the dictates of Islam. In 1949, the Constituent Assembly of Pakistan accepted the famous Objectives Resolution where it was inter alia resolved to include in the proposed Constitution such provisions as shall enable the Muslims to order their lives in the individual and collective spheres, in accordance with the teachings and requirements of Islam, as set out in the Holy Qur'an and the Sunnah. Accordingly, in the 1956 Constitution, that was adopted by the Constituent Assembly of Pakistan in 1956, the country was named as the "Islamic" Republic of Pakistan and it was provided in Article 198 thereof that "no law shall be enacted which is repugnant to the injunctions of Islam as laid down in the Holy Qur'an and Sunnah". A Commission was also to be set up to make recommendations for bringing the existing laws in conformity with the injunctions of Islam. Not much progress was made in this connection in the short period during which this Constitution remained in force and until its abrogation in October, 1958 and the imposition of Martial Law. Again in 1962, when Field Martial Muhammad Ayub Khan promulgated his Constitution, a provision was made therein for the creation of an Advisory Council of Islamic Ideology and by the First. (Constitution) Amendment Act, 1963, the said Council was also made responsible to examine all laws then in force with a view to bringing them into conformity with the teachings and requirements of Islam. In addition, in the First Principle of Policy which was also introduced by the said amendment in the Constitution, it was provided that "no law shall be made which is repugnant to the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah and all existing laws shall be brought in conformity with the Holy Qur'an and Sunnah" By Article 6(1), however, the responsibility for deciding whether a proposed law was violative of or was not in accordance with the said principle was placed upon the legislature concerned. Consequently, neither the High Courts nor the Supreme Court had any responsibility in the matter of determining whether any law violated or was otherwise not in conformity with the Holy Qur'an and Sunnah, as such the provisions contained in 1962 Constitution were more in the nature of a manifesto for the law‑makers rather than binding obligations enforceable by Court of law. Even these pious hopes suffered a set‑back in 1969 with the imposition of Martial Law and the abrogation of the Constitution of 1962. It was only with the enactment of the Constitution of 1973 by the National Assembly of Pakistan that attention was again drawn to this matter and a provision was inserted therein to the effect that "all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and that no law shall be enacted which is repugnant to such injunctions". However, as in the 1962 Constitution, the implementation of this objective was made the responsibility of the legislature (vide Article 227) and no power was conferred for its enforcement on the superior Judiciary. HUDOOD LAWS An important step towards Islamisation of the laws was taken on the 12th of Rabi‑ul‑Awwal, 1399 A.H. (10th February, 1979) when five Ordinances were promulgated by the President of Pakistan whereby the existing Penal Code of Pakistan was amended in significant respects. Under these Ordinances both the conceptual nature of the acts which were considered to be offences under the said Penal Code as also the quantum of punishment and the mode of punishment prescribed therein, affecting property of persons and affecting the moral and social order of the society were radically altered with a view to bringing the law on these questions in conformity with the Holy Qur'an and Sunnah. It may be pointed out at this stage that Islamic Penal Laws are based on two notions of crime i.e. Hadd and Tazir. By Hadd (plural of which is Hudood) is meant punishment fixed by the Qur'an for an offence, whereas by Tazir (plural of which is Tazirat) is meant penalty or punishment fixed by the State. Traditional Islamic Criminal Law, therefore, consists of both Hudood and Tazirat. In Pakistan for the first time steps were taken to Islamize the Penal Code by repealing the existing provisions relating to offences of theft, robbery, dacoity, abduction, rape, fornication, adultery, false accusation of adultery, drunkenness etc. and replacing them by Hudood and Tazirat Laws. In this process the entire Penal Code has not been recast but it has been amended through the promulgation of several new Orders and Ordinances which came into force on February 10, 1979. ISLAMIZATION OF LAWS In addition to the promulgation of the Hudood Laws, the Council of Islamic Ideology has examined the laws enacted during the British rule as also several other Acts promulgated thereafter with a view to ascertaining whether the provisions of the laws contained therein conflicted with the injunctions of Islam and submitted recommendations to bring them into conformity with the Injunctions of Islam or to re‑enact them, after repealing the existing law. The Evidence Act, 11372 was repealed, in accordance with its recommendations and the Qanun‑e‑Shahadat, 1984 promulgated to replace it. Similarly the Federal Shariat Court has scrutinised a large number of laws and found that some of them contained provisions repugnant to the Constitution. The laws which were found to contain provisions repugnant to the Injunctions of Islam included the Civil Servants Act (LXXI of 1973) particularly section 13 thereof which empowered the Central Government to retire a public servant after he had completed 25 years qualifying service, on the ground that it conferred arbitrary powers to the Central Government which was not consistent with the Islamic notions of justice, the Security of Pakistan Act (XXXV of 1952) and the West Pakistan Press and Publications Ordinance (XXX of 1963). Riba or interest was found impermissible in Islam and all laws authoritising were declared invalid. Some account of how the Federal Shariat Court came into existence and its role would be appropriate here. FEDERAL SHARIAT COURT The President of Pakistan alongwith the promulgation of the Hudood Laws also promulgated on the same day, a Constitution (Amendment) Order, 1979 to take effect on the 12th of Rabi‑ul‑Awwal, 1939 A.H./10th February, 1979. According to this Order Shariat Benches were constituted in the country i.e. each High Court was to have a Shariat Bench while an Appellate Shariat Bench was to be constituted in the Supreme Court at Rawalpindi/Islamabad. These Shariat Benches were empowered to strike down existing as well as future laws, with the exception of the Constitution, Muslim Personal Law, any law relating to the procedure of any Court or tribunal or until the expiration of three years from the commencement of the Constitution (Amendment) Order, 1979, later extended to 10 years, any fiscal law or any law relating to the collection of taxes and fees or banking or insurance practice and procedure, if they were repugnant to the Injunctions of Islam. While doing so the Shariat Benches apart from declaring any existing or future law to be Islamic or un Islamic, could also suggest how best the law declared to be un‑Islamic could be re‑shaped in order to bring it in conformity with the relevant injunctions of Islam and Sunnah for implementation by the Government. On May 27, 1980 the four Shariat Benches constituted in the High Courts were, however, replaced by establishing a Federal Shariat Court at the Capital of Pakistan, Islamabad to be composed of five Judges and three Ulema, well‑versed in Islamic Law. The Federal Shariat Court could examine and decide the question whether/or not any law or provision of law was repugnant to the Injunctions of Islam. It was also conferred the powers of hearing appeals or revisions against the decision passed by any criminal Court in relation to any law relating to the enforcement of Hudood. Recently, the Government has increased the powers of the Federal Shariaf Court so that it can undertake the examination of any law suo motu with a view to seeing whether or not it is in conformity with the Holy Qur'an and Sunaah. It has also been provided that the law declared by the Federal Shariat Court will be binding on the High Courts and the Courts subordinate thereto. APPEAL TO THE SUPREME COURT An appeal can be filed before the Supreme Court of Pakistan against the judgment passed by the Federal Shariat Court and is heard by a Special Bench of the Supreme Court called the Shariat Appellate Bench of the Supreme Court. This Bench shall consist of three Muslim Judges of the said Court alongwith two Ulema Judges. FUTURE OF THE JUDICIARY IN PAKISTAN: REFLECTIONS A civilised society in modern time, is inconceivable without an Independent Judiciary. Pakistan so far has, by and large, been blessed with an independent judiciary. The existing judicial system in Pakistan is at present under considerable cirticism and also in the process of transformation. In addition to the traditional Courts, a Federal Shariat Court and an Appellate Shariat Bench in the Supreme Court have already been set up which have started to function. The Courts for speedy trials and the Supreme Appellate Court have also been established. But, notwithstanding these changes, the fact remains that the basic structure and system of administration of justice has not been redically altered. Indeed the new system of Courts cannot be envisioned to have set up a parallel system of Courts to the one that is functioning at present. Instead, the new Courts either supplement the existing Courts or in some cases partially replaced them. Integration is still achieved through the apex Supreme Court of Pakistan which has the final appellate powers both against the decisions of the traditional Courts and also of the Shariat Courts. Thus at the apex, the two systems converge. As for the criticism with regard to the present system, public confidence in the judiciary is mainly undermined by delay in providing justice. Efforts are being made to remove this defect. With increasing consciousness in the people of their rights, urbanisation and increase of literacy, litigation has greatly increased but there has been no corresponding improvement either in the size of the judiciary or in the facilities available to it. However, despite this handicap and despite the recommendations of various Law Commissions in this regard, which have largely remained unimplemented I am glad to say that the judiciary continues to function fairly satisfactorily and has acquitted itself with considerable credit. Indeed some of its recent decisions have been acclaimed throughout the world as profiles in courage and juristic learning. I, therefore, consider it my good fortune to be heading the Judiciary of Pakistan at this important juncture of our history.