Structure or Organization of the Judiciary
The organization of the judiciary varies across states to meet the unique judicial needs of each state. The structure of the judiciary is extensive in every state, comprising a network of courts with varying jurisdictions and judicial powers to ensure justice for the general public. In certain states, the judicial system operates as a distinct and autonomous entity, while in others, it is somewhat linked with the executive branch.
In federal states, there are two structures: one for the central government and another for the provincial units, similar to the federal system in the United States. Nevertheless, the judiciary system typically varies between parliamentary and presidential forms of government, as well as between federal and unitary systems. Despite these differences, there are some limited similarities across various systems.
Generally, judicial organizations and structures tend to be similar across different states, with the exception of one particular user. No judicial organization is ever truly final, as it can be subject to change at any given time. In Pakistan, there is one organization that operates within the federal system of government and follows similar principles to other organizations in the modern world.
Judicial System of Pakistan
The Judiciary of Pakistan operates as a hierarchical system consisting of two classes of courts: the superior judiciary and the subordinate judiciary. The superior judiciary in Pakistan consists of the Supreme Court, the Federal Shariah Court, and five High Courts, with the Supreme Court being the highest authority. Each of the four provinces has its own High Court and a High Court for the Islamabad Capital Territory.
The Constitution of Pakistan gives the superior judiciary the responsibility of defending and safeguarding the constitution. However, the High Court and the Supreme Court, before the merger of FATA in KP, did not have jurisdiction over tribal areas except for special cases. The disputed regions of Azad Kashmir and Gilgit-Baltistan have distinct court systems.
The Law of Pakistan
The legal system of the Islamic Republic of Pakistan forms the basis of the Law of Pakistan. The foundation of Pakistani law is rooted in the legal system of old British India, which encompasses the common law of England and Wales. Changes in the legal system of Pakistan occurred during the rule of General Muhammad Zia-ul-Haq, when certain aspects of Islamic Shariah law were integrated into Pakistani law.
As a result, a Federal Shariah Court (FSC) was established. In the Federally Administered Tribal Areas (FATA), a system of law that relies on traditional practices continues to be prevalent at the local level. At this level, disputes are resolved through a Jirga, which consists of a council of tribal elders. The Ministry of Law and Justice is a dedicated organization that offers advisory services to all levels of government on legal, judicial, and constitutional matters.
Islam and the Legal System
Pakistan’s legal system is a combination of English common law and Islamic law. From 1947 to 1978, Islamic law primarily focused on personal status matters, including marriage, inheritance, and divorce. The process of Islamisation of the legal system gained momentum during the tenure of General Zia ul Haq (1977-1988). Through a series of presidential decrees, Zia implemented significant changes in Pakistan’s criminal justice system, which is governed by the Pakistan Penal Code of 1860 and the Code of Criminal Procedure (1898).
In addition, he established a parallel court system, which included Shariat courts, and made revisions to the nation’s anti-blasphemy laws. Although many of the laws he implemented are still in effect, and some have been strengthened by conservative governments. Pakistan’s parliament has recently implemented legal reforms to enhance the rights and standing of women in both private and public domains.
Division of Courts in Pakistan
The judicial system of Pakistan is divided in different courts which are discussed bellow;
Supreme Court
The Supreme Court, which has original, appellate, and advisory jurisdiction, is the highest court in the nation. It is the last adjudicator of law and the Constitution since it is the Court of Final Appeals. All other courts must abide by its rulings. The Chief Justice and other judges make up the Court; the President selects them by the Constitutional process. A Parliamentary Act sets the number of judges.
The Chief Justice and sixteen justices make up the current set number. Ad hoc and acting judges may also be appointed to the court under certain circumstances. A candidate for appointment to the Supreme Court must have served as a High Court judge for five years or as an advocate for fifteen years.
High Courts
Every province has a High Court, including the Capital Territory of Islamabad. The members of each High Court are the Chief Justice and additional judges. The Lahore High Court has sixty members, the Sindh High Court forty, the Peshawar High Court twenty, the Baluchistan High Court eleven, and the Islamabad High Court seven. The following qualifications are listed for the position of judge: ten years of experience as a High Court lawyer, ten years of civil service with three years of experience as a District Judge, or ten years of experience in a judicial office.
District & Sessions Courts
Every district in each province has district courts that handle both civil and criminal cases. Each District Headquarters is home to several Additional District & Session Judges who typically preside over the courts. The District & Sessions Judge possesses both executive and judicial authority throughout the district within their jurisdiction.
The Sessions Court serves as a trial court for serious crimes like Murder, Rape, and Haraba offenses (armed robbery involving a specific amount of gold and cash). Additionally, it acts as an appellate court for summary conviction offenses and civil suits of lesser value.
Nowadays, a court of Additional District & Sessions judges preside over each town and city and has equal authority over its jurisdiction. When criminal cases are being heard, it is referred to as the Sessions Court, while civil cases are heard in the District Court. Relevant district and session judges handle executive matters.
- Each province’s High Court has the authority to review decisions made by lower courts.
- The Supreme Court has the sole authority to settle disputes between provincial governments, and can also review decisions made by the High Courts.
Federal Shariyat Court
The Court is composed of 8 Muslim judges, with the Chief Justice. The procedure for appointing judges of the Federal Shariah Court has been modified following the 18th and 19th amendments. Previously, these judges were selected by the President from the pool of serving or retired judges of the Supreme Court or a High Court or individuals who met the qualifications of a High Court judge.
Currently, the appointment of judges for the Federal Shariat Court is done through the Judicial Commission. This commission is made up of the Chief Justice of Pakistan as the Chairperson, along with four senior judges from the Supreme Court. Additionally, there is one former Chief Justice or retired judge of the Supreme Court appointed by the Chairperson in consultation with the four-member judges for a two-year term. The Attorney General for Pakistan, the Federal Law Minister, Chief Justice of Federal Shariat Court, and the most senior judge of the Federal Shariat Court are also part of this commission.
When it comes to appointing the Chief Justice, it’s worth noting that the Commission does not include the most senior judge of the Federal Shariat Court. After the Judicial Commission gives its approval for a new name to be appointed as the judge of the Federal Shariat Court, it is then reviewed by an Eight-member Parliamentary Committee. This committee consists of equal representation from both the government and the opposition, as well as from both houses.
The Committee has a two-week window to review the recommendation. If approved, it will be sent to the Prime Minister, who will forward it to the President for appointment. The Parliamentary Committee, for reasons to be recorded, may choose not to confirm the recommendation by a three-fourth majority, in which case the decision is then sent to the Commission through the Prime Minister, and the Commission provides another nomination.
Special Tribunals and Boards
There are various special tribunals such as;
Custom Courts, Federal Services Tribunals, Drug Courts, Provincial Services Tribunals (one for each province), Income Tax Tribunals, Banking Courts, Anti-Terrorism Courts, Anti-Corruption Courts, Board of Revenue, Labor Courts, Labor Appellate Tribunals, Special Magistrate courts, Environmental Courts, Consumer Courts, Control of Narcotic Substances (Special Courts).
Family Courts
The jurisdiction of Family Courts is governed by the West Pakistan Family Courts Act 1964. These courts have sole authority over matters concerning personal status. The Family Courts handle appeals that are brought before the High Court. These appeals are overseen by a District Judge, an Additional District Judge, or someone designated by the Government with the same rank and status as a District Judge or an Additional District Judge. In all other cases, appeals are directed to the District Court.
Every city or Tehsil has a family judge’s court. In certain regions, there are instances where only Family Court exists, while in most areas, Civil Judge Courts have been given the authority of Family Court Judges. In accordance with section 17 of the Family Court Act of 1964, the Family Court is not bound by the provisions of the C.P.C. (Civil Procedure Code) and Qanun-e-Shahdat Order (Evidence Law). Instead, the Family Court has the authority to establish its own procedures in order to efficiently and effectively handle cases, with a particular focus on the well-being and convenience of female litigants.
Juvenile Courts
Section 4 of the Juvenile Justice System Ordinance, 2000 grants the Provincial Government the power to establish juvenile courts in specific local areas in consultation with the Chief Justice of the high court. It’s been a decade, and no progress has been made in establishing the much-needed courts. Instead, the existing courts have been given the responsibility of handling juvenile cases by the High Courts.
However, it’s important to note that the High Courts can only take such actions if instructed by the provincial governments. In this era of a balanced judicial system, it is crucial for the High Courts to take a firm stance against the governments on this matter. They should resist granting additional powers to the already overwhelmed courts and instead advocate for the establishment of dedicated juvenile courts.
Section 6 of the JJSO outlines specific procedures for juvenile courts. These procedures include not scheduling any other cases on a day when a child’s case is set for evidence, limiting the attendance in court to specified individuals, and allowing the child to be excused from attending the trial.
Types of Courts: According to Nature of Cases
There are following types of courts that are found in different systems.
Civil Courts
Civil courts handle cases involving civil matters, such as when one person’s rights are violated by another person.
Criminal Courts
The cause of action results from a violation of state laws committed by someone or a group of people, such as acts of violence towards someone’s life or property, and so on.
Special Courts
Special courts are created to handle specific cases that are not within the jurisdiction of regular courts. These specialized courts are typically established for various sectors such as the industrial, military, labor, taxation, and customs.
Administrative Courts
Administrative courts are specialized courts that are set up specifically to handle cases involving public servants and state functions in accordance with special administrative laws.
