Judiciary In Pakistan: An Overview

JUDICIARY IN PAKISTAN: AN OVERVIEW JUDICIARY IN PAKISTAN: AN OVERVIEW [Speech delivered at National Defence College, Islamabad to the Senior Cadre Officers of the Armed Forces of Pakistan and Friendly Countries in Asia, Africa, Europe and North America.] By Mr. Justice Saiduzzaman Siddiqui, Chief Justice of Pakistan [18‑12‑1999] I am thankful to Lieutenant‑General, Salahuddin Tirmizi, Commandant, National Defence College, Islamabad for inviting me to speak to you on the subject of Judicial Administration in Pakistan. I feel privileged to be amongst you‑‑senior cadre officers from the Armed Forces and civil bureaucracy in Pakistan. I am equally happy to know that some senior officers from the Armed Forces of friendly countries in Asia, Africa, Europe and North America are also attending this course. I am glad to know, and do appreciate the fact, that the National Defence College has the facilities and resources for such an undertaking. I trust that the trainees will make full advantage of the training programme and do hope that our foreign guests will enjoy their sojourn in Pakistan. I conveyed my consent for this lecture couple of month ago. Since then we have been over‑taken by political events, which could not have been visualized then. Nothwithstanding the change in the political scenario, and despite the fact that the legality and validity of the action of 12th October is under examination by the judiciary. I chose to keep my appointment with you; because you being fairly senior and Mature officers, I could have an academic and candid discourse with you. Gentlemen! Pakistan was created as a sovereign and independent State on 14th of August, 1947. The creation of Pakistan was indeed the culmination of a long, arduous and somewhat bloody, but thoroughly Constitutional struggle, by the Muslims of the Indian subcontinent for a separate homeland. Since the struggle for Pakistan was grounded in legal and Constitutional norms, and the means employed were peaceful, the country ultimately had a legal birth. It was the Indian Independence Act, 1947 which pronounced the creation of Pakistan as an independent State. The country was to be governed under an interim Constitution called, the Government of India Act, 1935. This Act was adopted as Provisional Constitution till such time that a permanent Constitution was drafted. As a consequence, the legal system and the system of judicial administration of the British colonial period continued‑‑but of course, subject to necessary adaptations and modifications to suit the prevalent conditions and national requirements. Thus, no breakdown occurred nor was any vacuum created. The subordinate Courts remained functional under the existing laws and procedures. The Lahore High Court continued to function and so did the other Courts namely, the Sindh Chief Court and Court of Judicial Commissioner in the N.‑W.F.P. and Balochistan. The Federal Court, which was the predecessor of the present Supreme Court, was established a year later i.e. 1948. I should clarify here that the judicial system that we practise today has not been‑‑contrary to popular belief‑‑a legacy of the British. Laws existed and Courts were functional much before the arrival of British on the scene. The roots of our judicial system indeed stretch back to the medieval period, and even before. The system has passed through several epochs covering the Hindu period, Muslim rule including Mughal dynasty and British colonial period. Time constraint prevents me from narrating a detailed historical count of the growth and evolution of our judicial system. Suffice it to say that the system has incorporated influences from indigenous sources including Islamic law and local traditions. It maintained a steady growth and a gradual advance towards consolidation and improvement. Pakistan has had 52 years of existence. Since independence, there have been several ups and downs in the life of this nation. The process of political evolution and constitutional rule was not consistent. There occurred frequent interruptions of the democratic process. There occurred 4 breakdowns in which the constitutions were either abrogated or suspended, The judiciary of Pakistan played an active role in the political developments and through its rulings and judgments, sought to build bridges, so as to bring the country back to democratic dispensation and constitutional rule. The Supreme Court frequently examined the vires of successive changes brought about through extra‑constitutional measures. In its judgments, the Court evolved some new doctrines and principles. Its reports on the subject are quite educative and instructive for the students of law and political science. I am afraid that time constraint would prevent me from giving you a detailed account of each event, its causal factors and findings of the Supreme Court on the issue. I will therefore, explain such events in a chronological order but have to be brief. The first disruption in the political process occurred in 1954, when the then Governor‑General Mr. Ghulam Muhammad, having developed differences with the Constituent Assembly, dissolved this body. The then President of the Constituent Assembly, Maulvi Tamizuddin Khan, challenged the action of Governor‑General in a 'Writ petition filed before the Chief Court of Sindh under section 223‑A of Government of India Act, which was inserted through Government of India (Amendment) Act, 1954 passed by Constituent Assembly on 6th July, 1954. The Sindh Chief Court accepted the petition and issued the writ prayed for. The Federal Government challenged the above judgment of Sindh Chief Court before the Federal Court which recalled the writ issued by the Sindh Chief Court on the ground that the Sindh Chief Court could not issue any writ under section 223‑A, which was not a valid law as the Government of India (Amendment) Act, 1954 through which section 223‑A was inserted, was not assented to by the Governor- General as required under section 8 of the Indian Independence Act, 1947. (Federation of Pakistan v. Maulvi Tamizuddin Khan PLD 1955 FC 240). The Federal Court thus ruled that the Constitutional Amendment was not properly enacted; hence, the exercise of jurisdiction by the Sindh Chief Court was improper. The judgment of the Federal Court in Moulvi Tamizuddin's case confronted the Government with a dilemma as all Acts and legislations passed by the Constituent Assembly were rendered invalid in the absence of the assent of Governor‑General. To overcome this difficulty, the Governor‑General sought to validate all such laws by indicating his assents, with retrospective effect, by promulgating an Ordinance (Emergency Power Ordinance IX of 1955) in purported exercise of his powers under section 42 of the Government of India Act, 1935. The Federal Court, however, in Usif Patel's case PLD 1955 FC 387 declared that the Acts mentioned in the Schedule to the Ordinance could not be validated under section 42 of the Government of India Act, 1935, nor retrospective operation could be given to them. The Constituent Assembly having already stood dissolved under the orders of Governor‑General, there was no Legislature to validate these laws. The Governor‑General, therefore, made a reference to the Federal Court under section 213 of Government of India Act, 1935 seeing opinion whether there was any provision in the Act or any rule of law applicable to such a situation. The Federal Court by a majority decision for the first time evolved the theory of State necessity tan the maximum salus populi suprema lex and held that all laws validated through Emergency Power Ordinance, 1955, wilt remain operative from the date they were enacted until their validation is decided by the Constituent Assembly. The Federal Court simultaneously recommended the reconstitution of a new Constituent Assembly in order to validate the laws and to frame a new Constitution for the country. The Federal Court emphasised upon the Governor‑General to institute such new Constituent Assembly on the principle of representation. The advice was duly adhered to. (Reference by H.E. Governor‑General, PLD 1955 FC 435). The second Constituent Assembly was thus constituted and it was successful in framing a new Constitution, which came into force on 23rd March, 1956. The political instability, however, continued and there occurred frequent changes of Government. In the brief period of two and a half years, since the promulgation of the new Constitution, there occurred 4 changes of Governments. Taking advantage of prevailing discontentment amongst the people on account of extremely fragile political situation, the President of Pakistan through a proclamation of October 7, 1958, abrogated the Constitution of 1956, dismissed the Central and Provincial Cabinets, dissolved the National and Provincial Assemblies and declared Martial Law throughout the country. The Commander‑in‑Chief of the Pakistan Army was appointed as the Chief Martial Law Administrator. The vires of this action came up for consideration before the Supreme Court in case of State v. Dosso PLD 1958 SC (Pak.) 533. The Court upheld the action on the theory of "legal positivism" expounded by Professor Kelsen. The theory is explained in Kelsen's book entitled "General theory of Law and State". The Court relied on the author's theory of "revolutionary legality" and upheld the action on account of its success and acceptance by the people. The Chief Martial Law Administrator, later assumed the office of President on 14‑2‑1960 as a result of referendum and enacted the Constitution of 1962. The Constitution of 1962 was based on Presidential system in contradistinction to the parliamentary democracy envisaged by the previous Constitution of 1956. Thereafter, elections were held and Federal and Provincial Governments were constituted. The President renewed his mandate again in 1965. Towards the end of 1968, however, a political movement started against his Government, which became widespread and forced the President to resign. The President, however, instead of handing over power to the Speaker of National Assembly in terms of Article `16 of the Constitution of 1962, abdicated in favour of Commander‑in‑Chief of Pakistan Army, General Yahya Khan. On assuming power on 25th March, 1969, General Yahya Khan abrogated the Constitution of 1962 and promulgated Martial Law in the country for the 2nd time. His rule lasted until December, 1971. The imposition of Martial Law in the country on 25th March, 1969 came up for review before the Supreme Court in the famous case of Asma Jilani v. Government of the Punjab PLD 1 72 SC 139. In its judgment, the Supreme Court unanimously overruled the Dosso's precedent and rejected the Kelsen's theory of "revolutionary legality". The Court observed that on the resignation of the President, the Constitutional course should have been followed and the Speaker of the National Assembly should have taken over as the acting President and held the elections within the specified period. The Court therefore ruled that General Yahya Khan's action of abrogating the Constitution and promulgating Martial Law was un‑Constitutional. The Court however, gave validity to some of his actions beneficial for the society including the holding of election in 1970, as a result of which a new Government had already come into existence. As an aftermath of imposition of the 2nd Martial Law, the country was dismembered and a new State of Bangladesh emerged in the erstwhile territory of East Pakistan. The former province of West Pakistan became Pakistan. A new Constitution was then enacted which came into force in 1973. This Constitution was the consensus document of all the political parties of west Pakistan which were elected in the general elections of 1970. The Constitution of 1973 remained in operation until 1977, when another Martial Law was promulgated and the Constitution was held in abeyance. This action also came for consideration before the Supreme Court. The Supreme Court examined the issue in the light of objective conditions prevailing in the country and came to the conclusion that the action was necessary on the basis of "doctrine of necessity", to save the State and Society from disintegration. The Court gave this ruling in a famous case called Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 657. The Court summarised its conclusions as under: (i) The Constitution of 1973 is still the Supreme Law of the land, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity. (ii) The President and the superior Courts continue to function under the Constitution. (iii) The C.M.L.A. having validly assumed power in the interest of State and for the welfare of the people, is entitled to perform all such acts and promulgate all such legislative measures under the Constitution, including the power to amend it, as falling within the scope of the law of necessity; and (iv) The superior Courts continue to have the power of judicial review and can judge any act or action of the Martial Law Authorities in the light of the principles underlying the law of necessity. Their power under Article 199 of the Constitution thus remains available to the full extent and may be exercised heretofore, notwithstanding anything to the contrary contained in the Martial Law Regulations or Orders. The said Martial Law lasted until 1985, when fresh elections were held in the country for Parliament and Provincial Assembles. After elections, the Constitution was restored with some amendments. Since then, there occurred some other political changes, in which the President dissolved the Assemblies and dismissed the Governments. All in all there were 4 dissolutions of Assemblies and consequential dismissals of Governments. Every such action came up before the Supreme Court. I am afraid the limited time at my disposal prevents me from going into a detailed examination of the Supreme Court rulings. What is significant to remember though, is that the Constitution remained operational. Elections were held and new Governments were constituted. This brings me to the latest episode in our political history, which happened on the 12th of October, 1999. Since this action has been challenged and is currently being examined by some High Courts and the Supreme Court of Pakistan, therefore, being a sub judice matter, you will excuse me if I do not comment upon it. Having narrated the history of Constitutional evolution and political developments, I now come to the second part of my presentation, which is to talk about the administration of justice, its organisation and functions. The administration of justice in Pakistan may be broadly divided into two classes: one, the superior judiciary comprising of the Supreme Court, Federal Shariat Court and High Courts; and two, subordinate judiciary comprising of the Civil and Criminal Courts as well as Administrative and Special Courts performing functions under the control and supervision of the High Courts. The Constitution deals with superior judiciary in a very comprehensive manner. It contains very detailed provisions on the composition, jurisdiction and powers of the Courts. This is perhaps the only institution that has been dealt with in such a comprehensive manner. It is obvious that the Constitution envisages the judiciary to remain independent, impartial and strong enough to resistant pressure or temptation from outside. The Constitution provides for the separation of Judiciary from the Executive (Article 175) and guarantees its independence (Article 2A). It entrusts the superior Courts within an obligation to "preserve, protect and defend" the Constitution (Articles 178 and 198 read with 3rd Schedule). Such provisions have been interpreted and clarified by the Supreme Court. The Court in the case of State v. Ziaur Rehman PLD 1973 SC 49 upheld the view that the Constitution of Pakistan envisages the trichotomy of power among the State organs, namely, the Executive, the Legislature and the Judiciary. The Court observed that the Constitution defines the composition of each organ and specifies its powers and further places limits on the exercise of such powers. This way, the Constitution lays down the system of checks and balances so that each organ is able to function fully and effectively by remaining in its own sphere and does not interfere in the domain of another. Let me quote the relevant extract from the Supreme Court's judgment. The Court stated: "The Constitution contains a scheme for the distribution of powers between various organs and authorities of the State, and to the superior judiciary is allotted the very responsible though delicate duty of containing all other authorities within their jurisdiction, by investing the former with powers to intervene whenever any person exceeds his lawful authority. Legal issues of the character raised in this case could only be resolved in case of doubt or dispute by the superior Courts exercising judicial review functions, assigned to them by the Fundamental Law of the Land, viz., the Constitution which must override all other sub‑Constitutional laws. The Judges of the High Court and of this Court are under a solemn oath to 'preserve, protect and defend the Constitution' and in the performance of this onerous duty they may be constrained to pass upon the actions of other authorities of the State within the limits set down in the Constitution, not because they arrogate to themselves any claim of infallibility but because the Constitution itself charges them with this necessary function, in the interests of collective security and stability. In this process, extreme and anxious care is invariably taken by the Judges to avoid encroachment on the Constitutional preserves of other functionaries of the State and they are guided by the fullest and keenest sense of responsibility while adjudicating on such a matter". And the Court went on to observe "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean even if that particular provision is a provision seeking to oust the jurisdiction of this Court." The Constitution under its Article 175, provided progressive separation of judiciary from the executive and the original provision fixed the period of 3 years for completing this process. The Constitution (Fifth Amendment) Act (LXII of 1976), dated 5‑9‑1976 enhanced this period to 5 years. Later during the Martial Law through P.0.14 of 1985, this period was enhanced to 14 years. In spite of expiry of the period fixed in the Constitution, no steps were taken by the Government for separation of judiciary from the executive. This led to the filing of petition in the High Court of Sindh by the members of the Bar. The Sindh High Court in the case of Sharaf Faridi v. Government of Sindh issued direction for separation of judiciary from executive as provided in Article 175 of the Constitution. The Sindh Government challenged the above decision before Supreme Court. The Supreme Court rendered its land marked judgment in the case of Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 and ruled that separation must be effected at the lower level of subordinate judiciary, by separating the executive and judicial functions of Magistracy and placing the Judicial Magistrates under the control of the High Courts. In its judgment the Court also emphasised that to make the independence of the judiciary meaningful, it is necessary that financial independence be given to it. The ruling of the Court has since been implemented and the Judicial Magistrates now stand transferred under the control of the High Courts. Furthermore, the Chief Justice of the Supreme Court and Chief Justices of High Courts have been authorised to make reappropriation of funds within the budgetary allocation, without the approval of the Finance Ministry. The Constitution, in order to secure the independence of judiciary, prescribed detailed procedure for appointment of judges and their requisite qualifications. Despite clear provision in the Constitution relating to the appointment of Judges of the superior Courts, the executive interference with such appointment continued which caused concern amongst the members of the bar and the general public. The issue of appointment of Judges as well as Chief Justices came up for consideration before the Supreme Court under public interest litigation in two cases, firstly a case popularly called "Judges appointment case" (Al‑Jehad Trust v. Federation of Pakistan PLD 1996 SC 324) and again, (the case of Asad Ali v. Federation PLD 1998 SC 161). The Court through elaborate and authoritative rulings clarified the requisite qualifications and prescribed procedure and time limit for processing the cases for appointment of Judges to the High Courts and Supreme Court and elevation of a Judge as the Chief Justice. In these rulings, the Court clarified the provisions of the Constitution, so as to minimise the Executive's interference in judicial appointments and the Courts became truly independent and effective in their functions. A perusal of judgments rendered by the Supreme Court in the past code of years would reveal that this Court has been playing an active role in upholding the law and enforcing the Fundamental Rights of citizens. In the process, the Court considerably expanded the scope and ambit of Fundamental Rights. Again, time constraint would prevent me from rendering a detailed account of all such cases. But if I could just mention a few, it includes the case of Benazir Bhutto v. Federation PLD 1988 SC 416, whereunder certain amendments made in the Political Parties Act, 1961 were found to be violative of the Constitution, hence annulled; Darshan Masih v. State PLD 1990 SC 513, whereunder bonded labour was prohibited and directions were issued to the Government to make legislation for the purpose, which the Government did through the adoption of Bonded Labour System (Abolition) Act, 1991; Shela Zia v. Federation PLD 1993 SC 693, whereunder directions were issued with regard to preventing pollution of the environment by prohibiting the construction of electric grid stations closer to a residential colony; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341, whereunder the Court ruled that by virtue of Articles 9, 25 and 175, the citizens have a Fundamental Right of access to justice to be dispensed by free, impartial and independent Court. The Court demonstrated its independence and impartiality by giving rulings in support of the rights of citizens and Constitutional guarantees, even though at times, such rulings were disliked by the incumbent Government. Such judgments include the case of Mehram Ali v. Federation PLD 1998 SC 1445, whereunder certain provisions of the Anti‑Terrorism Act, 1997 were struck down, being violative of the Fundamental Rights; Farooq Ahmed Leghari v. Federation PLD 1999 SC 57, whereunder the proclamation of emergency was upheld but the order of suspension o1 Fundamental Rights was struck down; Jalal Mahmood Shah v. Federation PLD 1999 SC 395, lifting restrictions on the legislative functions of the Provincial Assembly of Sindh, Sheikh Liaquat Hussain v. Federation PLD 1999 SC 504, whereunder the law providing for establishment of Military Courts was struck down and guidelines issued to the Government for handling the terrorist cases, etc. Such Guidelines were followed and the performance of the Courts, dealing with terrorist cases immensely enhanced creating a beneficial effect on the law and order situation in the country. This brings me to the concluding part of my presentation. I would like to say a few words about the accountability of judges. The Constitution provides the grounds as well as procedure for the removal of judges of the superior Courts. Under Article 209, the Supreme Judicial Council is established and entrusted with the responsibility of deciding References received from the President with regard to a charge of misconduct against a Judge of the Supreme Court or a High Court. On Reference received, the Supreme Judicial Council examines the matter and forwards its opinion to the President. In case the council finds the judge guilty, it so reports to the President, who tray remove such judge from office. As regards the accountability of the subordinate judiciary, Rules of Conduct have been formulated for the purpose. The subordinate Courts are supervised and controlled by the respective High Court. Disciplinary actions are initiated, enquired into and decided by the Chief Justice. The Pakistan Law Commission responsible for reform and modernisation of laws, administration of justice and legal education, of which I have the honour of being the Chairman, is currently considering a Model Code of Conduct for the Judges of the Subordinate Courts. The Commission is also deliberating upon the issue of making the Supreme Judicial Council becoming more effective and efficient. The draft after approval will be forwarded to the relevant bodies for implementation. In conclusion, I should state that the performance of judiciary might not be ideal. I know there are complaints against the Courts, particularly the delays caused in disposal of cases. But we have to understand the fact that the Courts, particularly subordinate Courts, have to operate under dismal conditions. There is a chronic shortage of judicial officers, ministerial staff; equipment and books. Consequently, there are huge arrears that have accumulated over the years. The result obviously is delay in decisions. Inadequate budgetary allocation prevented successive Governments from increasing the number of judges, as per the case load. In the circumstances, we have to make every effort to make the best possible use of the available resources, both manpower and material. We are emphasising on judicial training of judges and the ministerial staff. We are also trying to simplify the procedure. I have had the opportunity of attending the Conference of the Chief Justices of Asia and Pacific Region at Seoul, South Korea, in October this year. There has been re‑thinking amongst the jurists, law‑men and the members of the judiciary all over the world, to bring about changes in the present culture of litigation. The delay in concluding the trial of cases in Courts was one of the main topic in that Conference. There has been strong feeling to improve the present system of litigation by introducing pre‑trial procedures and resort to alternate dispute resolution process to reduce the work load in Courts. The discussion in the Conference was very enlightening and inspiring. These matters have been considered in a meeting of Law Commission. The Pakistan Law Commission is busy in reforming the Civil Procedure Code with a view to ensure fair and quick disposal of cases. The Commission is also considering to devise a system, whereunder at the pretrial hearing an effort is made to eliminate frivolous cases, avoid unnecessary delays in preparing the case for trial and to encourage and persuade the parties to reach an amicable settlement of their disputes through alternative means of disputes resolution, namely, arbitration, conciliation and mediation etc. I am sure that with the passage of time the situation will improve. In my capacity as the head of the institution of judiciary, I am committed and determined to introduce necessary reforms in the system with a view to improving its performance so that it acquires its rightful place and earns the confidence of the public. With these words I conclude. You may have queries to make and clarifications to seek, and I should be happy to respond to it.