|
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
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.
|
|
