PAKISTAN LEGAL SYSTEM
General
1.The expression ‘Pakistan legal system’ contains the entire framework of the law of Pakistan, the manner of its legislation, the procedure of applying it, the court structure, the method of interpreting it, procedure of amending the law, and many other matters. The knowledge of Pakistan legal system provides a general understanding needed by an effective accountant, businessmen and other individuals. Aim
2.To briefly discuss the Legal Frame Work of Pakistan.
Scope
3.The scope of the subject is as under:-
a.Part – ILaw Making Aqeel Ahmed Awanb.Part – IIDelegated LegislationAsher Uz Zaman
c.Part – IIIThe Judicial System Of Pakistan Ayyaz Nasir
PART-1
LAW MAKING
4.Introduction. Legislating or making laws is one of the main functions of the Legislature or the Parliament, other functions being representation of constituents and oversight of the government administration, policies and expenditure. A proposed law, before it is passed by the Parliament, is called a Bill. Once a Bill has been voted into an Act of Parliament, it becomes part of the domestic law. The judiciary then applies and interprets it. National laws are those laws that everyone in the country must follow. Laws made by individual provinces are only valid in that province. The Bills relating to the Federal Legislative List or Concurrent List can originate in either House of the Federal Parliament i.e. the National Assembly and the Senate1. 5.Bill Types.A Bill can be moved in the Assembly by a private member (not a Minister or Parliamentary Secretary), or by the government. The Bills are of two types: a. The Bill moved by a ‘private member’ (an ordinary member of the assembly of any party who does not hold a ministerial position) is called a Private Member’s Bill. b. The Bill introduced by the government is called a ‘Government Bill’. 6.Every Bill goes through four
broad stages before it becomes a law or an Act of Parliament: a. Introduction
b. Publication
c. Consideration
d. Passage
7.Introduction of Bills2
a. Private Members’ Bills.A private member can introduce a Bill after giving fifteen days written notice of the Bill to the Secretary of the Assembly. The Speaker can admit a Bill at a shorter notice. The notice is accompanied by a copy of the Bill and a statement of objects and reasons, signed by the member. If a Bill requires consent of the government or previous sanction of the President for its introduction, the notice has to be accompanied by a request for such consent or sanction to be obtained. A detailed list of the laws not to be altered, repealed or amended without the previous sanction of the President is given in the Sixth Schedule of the Constitution. Similarly, a Money Bill cannot be moved without the consent of the government. If a Bill is accompanied by such request, the Secretary sends a copy to the concerned department for obtaining orders of the President or the government as the case may be. On receipt of such orders, the secretary communicates the same to the member concerned. If there is disagreement on whether a Bill or an amendment of a Bill requires the consent of the government or previous sanction of the President, the question is decided by the Speaker. The Speaker may disallow a bill if in his/her opinion it cannot be introduced in the Assembly or is otherwise not in order.
After a Bill has been admitted by the Speaker, the motion for leave to introduce that Bill is set down in the List of the Business for a day meant for private members’ business. If leave is granted, the member-in-charge moves to introduce the Bill. b. Government Bills.A Minister may introduce a Bill after giving to the Secretary a written notice of his/her intention to do so. The introduction of a Bill is ordinarily included in the List of Business for a day meant for government business. On that particular day the member-in-charge moves to introduce the Bill. Once the motion has been made the Bill stands introduced. 8.Publication of Bills. The Secretary gets the introduced Bill published in the Gazette as early as possible. The Speaker may, however, order the publication in the Gazette of any bill with the reasons before its introduction. 9.Consideration of Bills
a. Upon introduction, a Bill is referred by the Assembly Speaker (or the Chairman in the case of Senate) to the appropriate Standing Committee with directions to submit its report by a specified date. The member-in-charge of the Bill may move that the requirements of this rule be dispensed with. If the motion is carried, the Speaker may order the consideration of the Bill without referring it to the Standing Committee.
b. The Standing Committee studies the Bill and then issues a report. After the report of the Standing Committee on the Bill has been presented to the House, the Secretary supplies the copies of the Bill to each member; and puts the Bill on the List of the Business for a day meant for government business or for the private members’ business. c. On the day appointed for consideration of the Bill, the member-in-charge may make motion regarding the bill. d. After a motion for consideration of the Bill has been made and before the discussion of the principles of the Bill starts, a member may move that the Bill be referred to the Council of Islamic Ideology for advice whether or not the Bill or parts of it are repugnant to the injunctions of Islam. If two-fifths of the total membership of the Assembly support and vote for the motion the question is referred to the Council of Islamic Ideology for advice.
The Assembly may, however, at any time, proceed with the Bill, if it considers that in the public interest the passage of the Bill should not be postponed until the advice from the Council is furnished. If the Council advises that the referred law is repugnant to the injunctions of Islam, the Assembly has to revisit the law. e. First Reading.At this stage only the principles of the Bill and its general provisions are discussed. f. Second Reading.When a motion that a Bill be taken into consideration has been carried, the Speaker submits the Bill or any part of the Bill, to the House clause by clause. The Speaker refers to each clause separately, and when the amendments relating to it have been dealt with, he puts the question: “That this clause do stand part of the Bill?” g. Approval of Schedule.Once the clauses have been considered one by one, the House moves on to discuss schedule(s). New schedules if any are dealt with once original schedules have been considered. The Speaker then puts the question:
“That this schedule does stand part of the Bill?”
h. Clause One, Preamble and Title of the Bill.The Speaker then puts the question: “That clause one, or the preamble or the title does stand part of the Bill.” 10.Passage of Bills3.When a motion that a Bill be taken into consideration has been carried and the Bill has been considered clause by clause, the member-in-charge may at once move that the Bill be passed. If the House passes the Bill through majority vote it is transmitted to the other House. If the other House passes the Bill without amendment, it goes to the President for assent. If the Bill transmitted to the other House is not passed within ninety days or rejected or amended, it is considered in a joint sitting summoned by the President on the request of the House in which the Bill originated. If the Bill is passed in the joint sitting, with or without amendments, by the votes of majority of the total members of the two Houses, it again goes to the President for assent. If the Bill is thus presented to the President for assent, s/he is required to assent to the Bill in no later than thirty days.
If it is not a Money Bill, the President may return the Bill to the Parliament with a message requesting that the Bill be reconsidered and/or that an amendment specified in the message be considered. The Parliament reconsiders the Bill in a joint sitting. If the Bill is passed again, with or without amendment, it is presented to the President and then the President cannot withhold assent. 11.Bill to Amend the Constitution4. A Bill to amend the Constitution can originate in either House of the Federal Parliament. If it is passed by two-thirds majority, it is transmitted to the other House. If the other House passes it without amendment by two-thirds majority, it is presented to the President for assent. If the Bill is passed with amendment by the votes of not less than two-thirds of the total membership of the House to which it is transmitted, it is reconsidered in the House in which it had originated. If the Bill as amended by former House is passed by the later by the votes of no less than two-thirds of its total membership, it is presented to the President for assent. Both the Houses are required to pass the Bill separately with the two-thirds majority of each house. 12.Money Bill.A Money Bill originates in the National Assembly and after it has been passed by the Assembly is presented directly to the President for assent.
The decision of the Speaker is final in case any dispute arises as to whether a Bill is a Money Bill or not. Every Money Bill when presented to President for assent is certified by the Speaker to be a Money Bill. 13.Ordinances.The President has the power to make and promulgate Ordinances when the National Assembly is not in session. Such an Ordinance stands repealed after four months. An Ordinance promulgated by the President has the same force and effect as an Act of Parliament. The Ordinance is laid only before the National Assembly if it falls within the ambit of Money Bill. Other types of Ordinances are laid before both the Houses. The President may withdraw an Ordinance any time. An Ordinance laid before the National Assembly is treated as a Bill introduced in the National Assembly.
PART -2
DELEGATED LEGISLATION
General
14.Delegated Legislation is that which proceeds from any authority is other than sovereign legislation power, and is therefore; depend for its existence or validity on some superior or supreme legislative authority. It comes from a delegated legislation or any authority and is subject to repealing or other sanctioning control of a superior legislation. In Pakistan all forms of legislative activity recognized by law other than the power of Parliament are delegated and subject to parliamentary control. According to the Interpretation of ACT 1978 SECTION 21 (1), the order in the council, orders, rules , regulations, schemes, warrants, bye laws and other instruments made or to be made under an act. For example: Only created by statutory authority.
There must be a ‘parent Act’ (Enabling Act). Using mobile phones whilst driving is banned by Statutory Instrument No 2695 – The Road Vehicles (Construction and Use) (Amendment) (No 4) Regulations 2003. Which was made by the Minister of Transport under the Road Traffic Act 1988. Similarly The Traffic Signs Regulations and General Directions 2002, the Transport Minister used sections 64, 65 and 85(2) of the Road Traffic Regulation Act 1984 and section 36(5) of the Road Traffic Act 1988. 15.The enabling act provides a broad framework; Statutory Instruments (SIs) are used to provide the necessary detail that would be considered too complex to include in the body of an Act. Delegated legislation can also be used to amend, update or enforce existing primary legislation. Types Of Delegated Legislation
16.The chief forms or types of delegated legislation are:-
a. Executive Legislation. Though the main function of executive is to enforce laws, but in certain cases, the power of making rules is delegated to the various dependent of the government, which is called delegated legislation. b. Judicial Legislation.It means rules of procedure made by superior courts for their own guidance under authority delegated to them for the purpose. In other words the superior courts have the power of making rules for the regulation of their own procedures. c. Municipal Legislation. Sometimes municipal authorities are provided with the power of establishing special laws for the district under their control. They are allowed to make BYE-LAWS for limited purpose within their areas. These are legislation of local bodies such as municipal or corporations. d. Autonomous Legislation. It is the process of law making by person not by the state for their own guidance. Legislation thus made by private persons and the law created may be distinguished as autonomic view. There are autonomous bodies like municipal councils, universities etc. The Chief Regulatory Authorities In Pakistan
4.The chief Regulatory Authorities in Pakistan are as under:- a. Oil & Gas Regulatory Authority
(1)Oil and Gas Regulatory Authority (OGRA) has been set up under the Oil and Gas Regulatory Authority Ordinance dated 28th March 2002 to foster competition, increase private investment and ownership in the midstream and downstream petroleum industry, protect the public interest while respecting individual rights and provide effective and efficient regulations. As laid down in the Ordinance, the Authority comprises one Chairman and three members. To create a working environment where the interests of all stakeholders namely the Consumer, Investor & the Government is protected through Independent & Fair Regulatory practices. (2)Consequent upon the establishment of OGRA on 28th March, 2002 the Natural Gas Regulatory Authority (NGRA) was subsumed by the OGRA. All properties and works done by the NGRA were transferred to and protected under the OGRA Ordinance.
OGRA was, therefore, in a position to start its functions in respect to natural gas immediately upon its establishment. (3)The Federal Government has now w.e.f. March 15, 2003 assigned functions for the regulation of activities relating to LPG (Liquefied Petroleum Gas) and CNG (Compressed Natural Gas) sectors in the country to the Oil and Gas Regulatory Authority and has designated the OGRA as an Authority in place of the Director General (Gas) of the Ministry of Petroleum and Natural Resources. Any Corporation or person interested in getting licence for the LPG and CNG activities may apply to the OGRA on the prescribed format available on the Website. For this purpose, the OGRA has also set up a one-window facility, which will work from 9 a.m. to 12 noon on all working days to provide any assistance and information in this regard to the interested parties, general public and the existing LPG and CNG licensees. b.Public Procurement Regulatory Authority Pakistan.
The Public Procurement Regulatory Authority is an autonomous body endowed with the responsibility of prescribing regulations and procedures for public procurements by Federal Government owned public sector organizations with a view to improve governance, management, transparency, accountability and quality of public procurement of goods, works and services. It is also endowed with the responsibility of monitoring procurement by public sector agencies/organizations and has been delegated necessary powers under the Public Procurement Regulatory Authority Ordinance 2002. c.Pakistan Electronic Media Regulatory Authority. PEMRA has been established under PEMRA Ordinance 2002 to facilitate and regulate the private electronic media. It has mandate to improve the standards of information, education and entertainment and to enlarge the choice available to the people of Pakistan Including news, current affairs, religious knowledge, art and culture as well as science and technology. d.State Bank of Pakistan (SBP)
(1)State bank of Pakistan was established under the state bank of Pakistan Act No. XXXIII of 1956 AN ACT TO PROVIDE FOR THE ESTABLISHMENT OF THE STATE BANK OF PAKISTAN WHEREAS it is necessary to provide for the constitution of a State Bank to regulate the monetary and credit system of Pakistan and to foster its Growth in the best national interest with a view to securing monetary stability and fuller utilization of the country’s productive
resources. (2) Main Functions of The State Bank Of Pakistan
(a)State Bank of Pakistan is the Central Bank of the country. While its constitution, as originally laid down in the State Bank of Pakistan Order 1948, remained basically unchanged until 1st January 1974 when the Bank was nationalized, the scope of its functions was considerably enlarged. The State Bank of Pakistan Act 1956, with subsequent amendments, forms the basis of its operations today. (b)Under the State Bank of Pakistan Order 1948, the Bank was charged with the duty to “regulate the issue of Bank notes and keeping of reserves with a view to securing monetary stability in Pakistan and generally to operate the currency and credit system of the country to its advantage”. The scope of the Bank’s operations was considerably widened in the State Bank of Pakistan Act 1956, which required the Bank to “regulate the monetary and credit system of Pakistan and to foster its growth in the best national interest with a view to securing monetary stability and fuller utilization of the country’s productive resources”. (c)Under financial sector reforms, the State Bank of Pakistan was granted autonomy in February 1994.
On 21st January, 1997, this autonomy was further strengthened by issuing three Amendment Ordinances (which were approved by the Parliament in May, 1997) namely, State Bank of Pakistan Act, 1956, Banking Companies Ordinance, 1962 and Banks Nationalization Act, 1974. The changes in the State Bank Act gave full and exclusive authority to the State Bank to regulate the banking sector, to conduct an independent monetary policy and to set limit on government borrowings from the State Bank of Pakistan. (d)The amendments in Banks Nationalization Act abolished the Pakistan Banking Council (an institution established to look after the affairs of NCBs) and institutionalized the process of appointment of the Chief Executives and Boards of the nationalized commercial banks (NCBs) and development finance institutions (DFIs), with the State Bank having a role in their appointment and removal. The amendments also increased the autonomy and accountability of the Chief Executives and the Boards of Directors of banks and DFIs. (e)Like a Central Bank in any developing country, State Bank of Pakistan performs both the traditional and developmental functions to achieve macro-economic goals. The traditional functions, which are generally performed by central banks almost all over the world, may be classified into two groups: (f) The primary functions including issue of notes, regulation and supervision of the financial system, bankers’ bank, lender of the last resort, banker to Government, and conduct of monetary policy, and (b) the secondary functions including the agency functions like management of public debt, management of foreign exchange, etc., and other functions like advising the government on policy matters and maintaining close relationships with international financial institutions. (g)The non-traditional or promotional functions, performed by the State Bank include development of financial framework, institutionalization of savings and investment, provision of training facilities to bankers, and provision of credit to priority sectors. The State Bank also has been playing an active part in the process of Islamization of the banking system. The main functions and responsibilities of the State Bank can be broadly categorized as under.
e.Securities and Exchange Commission of Pakistan (SECP)
(1)The Securities and Exchange Commission of Pakistan (SECP) is the successor of the erstwhile Corporate Law Authority (CLA), which was an attached department of the Ministry of Finance. The process of structuring the CLA was initiated in 1997 under the Capital Market Development Plan of the Asian Development Bank (ADB). A Securities and Exchange Commission of Pakistan Act was passed by the Parliament and promulgated in December 1997. In pursuance of this Act, the SECP, having autonomous status, became operational on January 1 1999. [2] The Act gave the organization the administrative authority and financial independence to carry out the reform program of Pakistan’s capital market. (2)The scope of the authority of the SECP has been extensively widened since its creation. The insurance sector, non-banking financial companies, and pension funds have been added to the purview of the Commission. Now the SECP’s mandate includes investment financial services, leasing companies, housing finance services, venture capital investment, discounting services, investment advisory services, real estate investment trust] and asset management services, etc. The SECP also regulates various external service providers that are linked to the corporate sector, like chartered accountants, rating agencies, corporate secretaries and others. f.Karachi Stock Exchange (KSE)
(1) Karachi stock exchange was established on September 18 1948. Incorporated 10th March 1949.The premier stock exchange of the country started five companies with paid-up capital of Rs. 37 illion. Trading was done through open – out-cry system. The first index was KSE 50 index. (2) KSE Mission
(a)To strive to provide the quality and value added services to capital market in an efficient, transparent and orderly manner, compatible with International standards and best practices. (b)To provide state of the art technology and automated trading operations driven by a team of professionals in accordance with good corporate governance. (c) To protect and safeguard the interests of all of its stakeholders, i.e., members, listed companies, employees and investors at large. (d)To reflect the country’s economic health and behavior and play its role for the growth, development and prosperity of Pakistan. g.Higher Education Commission (HEC)
(a) The Higher Education commission formerly university grants commission is institute of great repute in Pakistan. (b)Striving to support research based higher education in the country. (c)Produced high quality intellectuals in the country.
(d)Regulate the education standard nationwide.
ADVANTAGES
DISADVANTAGES
Used because:
Saves limited time in Parliament;
Allow rapid change;
MPs lack detailed or technical knowledge. E.g. Specific details in Abortion Act, Road Traffic detail Quick response to new developments, e.g. Foot and Mouth outbreaks. The Prevention of Terrorism (Temporary Provisions) Act allows the quick addition of new prohibited groups. Enables minor changes to statutes, e.g. Variations in sentences, approval of motor vehicle changes. Judicial review may be sought, by parties with locus standi, (i.e. Persons sufficiently affected by the legislation), so time is not wasted by Parliament considering them all. Model bylaws available from Whitehall.
Withdrawal or amendment easy.
Using delegated Legislation
implies that Parliament has insufficient time to scrutinize it. Parliament is not reviewing legislation properly. Sub-delegation of powers a further problem (although not for EU statutory instruments), which causes complexity and confusion. Sheer volume causes complexity – it is impossible for anyone to keep abreast of all delegated legislation. Lack of publicity, not known about by the public (and often lawyers). It is undemocratic as most regulations are made by civil servant or other unelected people, except for local authority bylaws made by elected councilors Henry VIII clauses can give power to delegated legislation or amend or repeal Acts of Parliament
PART III
THE JUDICIAL SYSTEM OF PAKISTAN
General
1.The judicial system that we practice today commenced with the birth of Pakistan which is based on indigenous norms/practices and on laws codified by British India Government. We have adopted most of laws, say, the Contract Act 1872, Transfer of Property Act 1882, Negotiable Instruments Act 1881, the Partnership Act 1932, enacted during the British Government and are still in force in Pakistan. Some of the laws we have re-enacted e.g. Qanoon-e-Shahdat Order 1984 replacing Evidence Act and the Companies Ordinance 1984 which replaced the Companies Act 1913. We have also enacted a few laws such as Financial Institutions (Recovery of Finances) Ordinance 2001 and Anti-Money Laundering Act 2010. Often judgments of superior courts of UK and other Commonwealth countries are taken as precedent and used as persuasive argument. 2.Normal Hierarchy
Federal – Supreme Court
Special Enactment Court
Provincial – High Court
Federal Shariat Court
District – District & Sessions Court
Appeal to Supreme Court Shariat Bench
City – City Court
Banking Court
Labour Courts/National Accountability Court
Supreme Court
3.The Supreme Court is the apex Court of the land, exercising original, appellate and advisory jurisdiction. It is the Court of ultimate appeal and therefore the final arbiter of law and the Constitution. Its decisions are binding on all other courts. The Court consists of a Chief Justice and other judges, appointed by the President as per procedure laid down in the Constitution. An Act of Parliament has determined the number of judges. The number fixed at the moment is Chief Justice and 16 judges. There is also provision for appointment of acting judges as well as ad hoc judges in the court. A person with 5 years’ experience as a Judge of a High Court or 15 years standing as an advocate of a High Court is eligible to be appointed as judge of the Supreme Court. 4.Appointment of Judges. In the light of 18th and 19th amendments, judges of Supreme Court are appointed through the Judicial Commission which consists of Chief Justice of Pakistan as Chairman, four senior most judges of the Supreme Court, one former Chief Justice or judge of the Supreme Court, nominated by the Chairman in consultation with the four member judges for a period of two years, the Attorney General for Pakistan, the Federal Law Minister and a senior advocate, Supreme Court, nominated by the Pakistan Bar Council. Once the Judicial Commission approves a new name for appointment as the judge of the Supreme Court, it goes to an eight member Parliamentary Committee that has equal representation of the government and the opposition as well as of two houses i.e. National Assembly and Senate.
This committee has two weeks to consider the nomination. If approved, the name is forwarded to the President through the Prime Minister, for appointment. The Parliamentary Committee, for reasons to be recorded, may not confirm the recommendation by three-fourth majority, in which instance, the decision is forwarded to the Commission through the Prime Minister and the Commission sends another nomination. 5.Formation of Benches. To facilitate the litigant public and ensure prompt disposal of cases, the Court, except in very important cases, generally operates through benches. Benches have been constituted, and are functional, almost round the year. Besides its Principal Seat at Islamabad, there are 4 Branch Registries, one at each provincial metropolis. 6.Jurisdiction of Supreme Court
a.The Court exercises original jurisdiction in inter-governmental disputes, be that dispute between the Federal Government and a provincial government or among provincial governments. The Court also exercises original jurisdiction (concurrently with High Courts) for the enforcement of fundamental rights incl suo moto power, where a question of ‘public importance’ is involved. The Court has appellate jurisdiction in civil and criminal matters. The Court also hears appeals from the judgments against the Federal Shariat Court, Service Tribunals and some special courts. Furthermore, the Court has advisory jurisdiction in giving opinion to the Government on a question of law. Cases are also heard in its Branch Registries in the provincial capitals of Lahore, Peshawer, Quetta and Karachi. High Courts
7.There is a High Court in each province and a High Court for the Islamabad Capital Territory. Each High Court consists of a Chief Justice and other judges. The strength of Lahore high Court is fixed at 60, High Court of Sindh at 40, Peshawar High Court at 20, High Court of Baluchistan at 11 and Islamabad High Court at 7. Qualifications mentioned for the post of a Judge are, 10 years’ experience as an advocate of a High Court or 10 years’ service as a civil servant including 3 years’ experience as a District Judge or 10 years’ experience in a judicial office. 8.Appointment of Judges.As per 18th and 19th amendments, as the judges of High Courts are duly appointed by the Judicial Commission which consists of Chief Justice of Pakistan as Chairperson, four senior most judges of the Supreme Court, One former Chief Justice or a retired judge of the Supreme Court appointed in consultation with the four member judges for a period of two years, the Attorney General ,the Federal Law Minister, Chief Justice of the High Court to which appointment is being made, most senior judge of that High Court, Provincial Minister for Law and an Advocate having not less than fifteen years standing to be nominated by the respective Bar Council for the period of two years. The Court supervises and controls all the courts subordinate to it. It appoints its own staff and frames rules of procedure for itself as well as courts subordinate to it. As per 18th amendment, a judge of a High Court cannot be transferred without his consent and consultation by the President with the Chief Justice of Pakistan and Chief Justices of both High Courts. Formation of Benches
9.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. 10.Jurisdiction. A High Court has original and appellate jurisdiction. a.Original Jurisdiction. 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. b.A High Court has the power to withdraw any civil or criminal case from a trial court and try it itself. c.Appellate Jurisdiction.- A High Court has extensive appellate jurisdiction against the judgments, decisions, decrees and sentences passed by the civil and criminal courts. Federal Shariat Court
11.The Court consists of 8 Muslim Judges including the Chief Justice. At present, judges of Federal Shariat Court are also appointed through Judicial Commission which comprises Chief Justice of Pakistan as Chairperson, four senior most Judges of the Supreme Court, One former Chief Justice or a retired judge of the Supreme Court appointed by the Chairperson in consultation with the four member judges for a period of two years, the Attorney General for Pakistan, the Federal Law Minister, Chief Justice of Federal Shariat Court and most senior judge of the Federal Shariat Court. For appointment of Chief Justice, however, the most senior judge of the Federal Shariat Court is excluded from the composition of the Commission. Once the Judicial Commission approves a new name for appointment as the judge of the Federal Shariat Court, it goes to an eight member Parliamentary Committee that has equal representation of the government and the opposition as well as of two houses. This Committee has two weeks to review the recommendation after which if the recommendation is approved, it goes to the Prime Minister who forwards the same to the President for appointment.
The Parliamentary Committee, for reasons to be recorded, may not confirm the recommendation by three-fourth majority, in which instance the decision is forwarded to the Commission through the Prime Minister and the Commission sends another nomination. 12.Of the 8 Judges, 3 are required to be Ulema who are well versed in Islamic law. The Judges hold office for a period of 3 years and the President may further extend such period. The Court, on its own motion or through petition by a citizen or a government (Federal or provincial), may examine and determine as to whether or not a certain provision of law is repugnant to the injunctions of Islam. Appeal against its decision lies to the Shariat Appellate Bench of the Supreme Court, consisting of 3 Muslim judges of the Supreme Court and not more than 2 Ulema, appointed by the President. If a certain provision of law is declared to be repugnant to the injunctions of Islam, the Government is required to take necessary steps to amend the law so as to bring it in conformity with the injunctions of Islam. The Court also exercises appellate and revisional jurisdiction over the criminal courts, deciding Hudood cases. The decisions of the Court are binding on the High Courts as well as subordinate judiciary. District and Session Courts
13.Exist in every district of each province, and have civil and criminal jurisdiction. In each District Headquarters, there are numerous Additional District & Session Judges who usually preside the courts. District & Sessions Judge has executive and judicial power all over the district under his jurisdiction. The Sessions court is also a trial court for heinous offences such as Murder, Rape (Zina), Haraba offences (armed robbery where specific amount of gold and cash is involved), and is also appellate court for summary conviction offences and civil suits of lesser value. Each Town and city now has a court of Additional District & Sessions judge, which possess the equal authority over, under its jurisdiction. When hearing criminal cases, it is called the Sessions Court, and when it hears civil cases, the District Court. Executive matters are brought before the relevant District & Sessions Judge. Special Courts and Tribunals
14.The Constitution authorises the federal legislature to establish administrative courts and tribunals for dealing with federal subjects. Consequently, several special courts/tribunals have been created which operate under the administrative control of the Federal Government. Most of these courts function under the Ministry of Law & Justice, however, certain courts also operate under other Ministries / departments. Such courts/tribunals include: Special Courts (Control of Narcotics Substances), Banking Courts (Recovery of Financess), Special Courts (Offences in Banks), Special Courts (Customs, Taxation & Anti-Smuggling), Income Tax Appellate Tribunal, Environment Appellate Tribunal , Insurance Appellate Tribunal, Customs, Excise & Sales Tax Appellate Tribunal, Drugs Courts, Anti- Terrorism Courts, Accountability Courts. Similarly, the provincial governments have their own special courts/tribunals, established under statutes. Such provincial courts/tribunals include Labour Courts, Consumer Protection Courts, Anti –Terrorism Courts and Anti-Corruption Courts. Service Tribunals
15.Under Article 212 of the Constitution, the government is authorised to set up administrative courts and tribunals for exercising exclusive jurisdiction in matters, relating to the terms and conditions of service of civil servants. Accordingly, service tribunals, both at the centre and provincial level have been established and are functional. Appeal against the decision of the Federal/Provincial Service Tribunals lies to the Supreme Court.A further feature of the judicial system is the offices of Wafaqi Mohtasib and Banking Mohtasib, (Ombudsmen). The former deals with alleged wrongs done to citizen – a system for enforcing administrative accountability – and the latter deals with complaints emanating from public against banks operating in Pakistan. 16.Miscellaneous Terminologies
a. Adversarial Opinion System. In this system, a case is argued by two opposing sides who have the primary responsibility for finding and presenting facts. The prosecutor tries to prove the defendant is guilty, and the defendant’s attorney argues for the defendant’s acquittal. The case is then decided by a judge (or a jury) who does not investigate the facts but acts as an umpire. b. Quasi-Judicial Body. It is an entity such as an arbitrator or tribunal board, generally of a public administrative agency, which has powers and procedures resembling those of a court of law or judge, and which is obligated to objectively determine facts and draw conclusions from them so as to provide the basis of an official action. Such actions are able to remedy a situation or impose legal penalties, and may affect the legal rights, duties or privileges of specific parties.
State Bank of Pakistan
Securities & Exchange Commission of Pakistan
Competition Commission of Pakistan
Federal Board of Revenue
c. Precedent. The historical source of law, consisting of decisions made in the court, is case law, which is judge made law passed on the underlying principle of consistency. Once a legal or equitable principle is decided by an appropriate court it is a judicial precedent. HISTORY
Common law in 10th Century
Morman Conquest
(1066)
Magna Carta in 12th Century
King John
(1215)
Equity Law in 14th Century
Lord Chancellors
LAW REPORTS
Title
Carlill V Carbolic
Smoke Ball Co Year (1893) Volume 41 AER-402
Contents:
Earlier case cited
Previous history of the litigation
Facts
Verbatim text of the judgment
PRINCIPLE FOR JUDICIAL PRECEDENT
Question of law
Question of facts
It must form part of the
Ratio deciding the case
The preceding court must have had a superior status to the later court
d. Alternative Dispute Resolution.The term ‘alternative dispute resolution’ (ADR) is generic term which refers to a wide array of practices. Its purpose is to manage expeditious resolution of disputes at less expense and with as little adverse impact as possible on business and other relationships. ADR as the word states is an alternative to full-scale court process. It may be described as negotiation, conciliation, mediation or arbitration system. Negotiation systems create a structure to encourage and facilitate direct negotiation between parties to a dispute without the intervention of a third party. Mediation and conciliation systems are very similar in that they interject a third party between the disputants either to mediate a specific dispute or to reconcile their relationship. The various forms of ADR are discussed as under:- (1) Negotiation.It is voluntary and non-binding process, unless it is recorded and signed. This provides flexible procedure which allows disputants to evaluate their differences and compromise in order to control the process of resolution and reach amicable solutions with or without the intervention of a third party.
(2) Mediation . This is achieved with the help of neutral third party trained in providing mediatory services between the parties to dispute. ADR by mediation is a voluntary and non-binding collaborative process where parties to the suit identify issues, explore alternatives, evaluate options and contrive a consensual resolution. Consensus by mediation may be broader than that derived from negotiation. It may range from total agreement to partial agreement. Outcome of successful mediation is an agreement signed by both the parties, endorsed by the mediator and enforceable in the court of law like any other contract. Success under this kind of mediation may greatly depend on the degree of satisfaction of the parties and impartiality of the mediator. A mediator neither provides legal advice nor adjudicates on any matter but only plays a role of a facilitator. (3) Arbitration. This is most widely used form of ADR. Either both parties agree to an arbitrator of each party selects one arbitrator and then the two arbitrators elect the third. Arbitration is supervised by a qualified third party, the decision arrived at by arbitrator(s) is known as ‘award’. It is final and binding. e. Pecuniary.Pecuniary refers to a something related to money, such as a monetary interest or award. If a statute provides for pecuniary punishment for violators, they are subject to being fined rather than face jail time. The Pecuniary jurisdiction of Islamabad High Court has been raised from Rs.10 Million to Rs.100 Million. Therefore, any civil suit which is valued less than Rs.100 Million cannot be filed in Islamabad High Court. The pecuniary jurisdiction was raised effective from 05th Jan, 2012
