Judiciary

Constitution makes it the exclusive power / responsibility of judiciary to ensure sustenance of system of 'separation of power' based on checks and balances

Such is a legal obligation assigned to Judiciary and it is called upon to enforce Constitution and safeguard Fundamental Rights and freedom of individuals.

Courts must be conscious of the vital limits on judicial authority and the Constitution's design to leave certain matters to other branches of government

Courts must observe the constitutional limits of their authority

Judiciary should not interfere in the processes of other branches of government unless to do so was mandated by the Constitution, therefore it was not for the Court to prescribe to Parliament what structures or measures to establish or employ respectively in order to fulfill responsibilities primarily entrusted to it

Courts ought not to blink at the thought of asserting their authority, whenever it was constitutionally permissible to do so, irrespective of the issues or who was involved

At the same time, and mindful of the vital strictures of their powers, courts must be on high alert against impermissible encroachment on the powers of the other arms of government.

Election Commission vide impugned order allowed runner up for a National Assembly seat to apply to the Returning Officer of the constituency to seek public inspection of the election record under S.44 of the Representation of the People Act, 1976

Legality

Returning Officer in question who conducted the election was the Presiding Officer in the court of Additional Sessions Judge

Participation of district judiciary in the conduct of the General Election, 2013 in the province was an exceptional step taken in the public interest on the request of the Chief Election Commissioner

Such participation was not contemplated in the Constitution and the law; it was rendered in pursuance of a one-time relaxation of the National Judicial Policy, 2009

Notification by the Election Commission dated 26-12-2013 under S.7 of Representation of the People Act, 1976 directed successors-in-office of the Returning Officers to perform all post-election activities under the law

High Court observed that whether the Election Commission considered that a judicial officer should perform the duty of conducting public inspection of election record under S. 44 of Representation of the People Act, 1976, as was the meaning attributed by the runner up candidate to the impugned order, such view should, consistently with Election Commission's stand taken before the court, first be shared with the Court for comment and, if so, acceptance; that on the other hand, if the Election Commission was inclined in terms of S.7(1) of Representation of the People Act, 1976 to designate, inter alia, an officer of the Federal Government or Provincial Government for conducting the inspection under S.44 of Representation of the People Act, 1976, then, the prayer by runner up candidate for inspection of election record, may be implemented by such designated authority; that runner up candidate also had a lawful and express remedy under S.45 of Representation of the People Act, 1976, which empowered an Election Tribunal to direct inspection of the election record

High court returned the impugned order to the Election Commission for elaboration as to its meaning and effect in light of the applicable law

Constitutional petition was disposed of accordingly.

Supervision and control over the subordinate judiciary vested in the High Court under Art.203 of the Constitution, keeping in view Art.175 of the Constitution, is exclusive in nature, comprehensive in extent and effective in operation

Such supervision comprehends the administrative power as to the working of the subordinate courts and disciplinary jurisdiction over the subordinate judicial officers

Any provision in an Act or any rule or a notification empowering any executive functionary to have administrative supervision and control over the subordinate judiciary will be violative of Art.203 of the Constitution and militate against the concept of separation and independence of judiciary as envisaged by Art.175 of the Constitution and the Objectives Resolution.

Disparity in terms and conditions in Judicial Service is a social evil which could only be possible if equality in terms and conditions in judicial service was brought into uniform terms and conditions with similar emoluments in services were provided to all the categories of the persons placed in similar position; namely, judicial officers, servants and employees of the establishment of the District Judiciary in the Province of Sindh were provided similar terms and conditions of service including facilities and salaries and retiring benefits as were provided to their counterparts in the other provinces of the country

Judicial officers in District Judiciary and courts and Tribunal and the staff attached thereto perform one and the same functions in all the Provinces of the country and it was not that the judiciary in one Province performed any different functions; therefore, the judiciary anywhere in the country as a whole is a class in itself.

Disparity in the terms and conditions including emoluments of the members of Judicial Service in the Province of Sindh as compared to other Provinces is clear negation to the recommendations of National Judicial (Policy Making) Committee

Low pay is one of the main reasons of corruption and malpractice.

Constitution does not contemplate a batch of unconnected courts but a judiciary composed of superior courts and subordinate courts

Subordinate courts are therefore integral part of the judicial system of Pakistan

Constitution does not draw any distinction between superior or subordinate judiciary.

If the judiciary of a country is stripped of its powers, the country would cease to exist as a free nation.

Constitution Judiciary - Supreme Court; creature of Constitution-Can neither claim nor has the right to strike down any provision of Constitution-Court does claim, however, the right to interpret the Constitution even if provision in Constitution is a provision seeking to oust jurisdiction of the Court.