24/11/2022
ROLE OF JUDICIARY AND JUDICIAL ACCOUNTABILITY IN PAKISTAN
The judiciary of Pakistan is a hierarchical system with two classes of courts: the superior (or higher) judiciary and the subordinate (or lower) judiciary. The superior judiciary is composed of the Supreme Court of Pakistan, the Federal Shariat Court, and five High Courts, with the Supreme Court at the apex. There is a High Court for each of the four provinces as well as a High Court for the Islamabad Capital Territory. The Constitution of Pakistan entrusts the superior judiciary with the obligation to preserve, protect and defend the constitution. The disputed regions of Azad Kashmir and Gilgit–Baltistan have separate court systems. The independence of the Pakistani judiciary has changed over time. Whereas the judiciary used to defer to the Pakistani military, which is a dominant actor in Pakistan's politics, the judiciary has increasingly competed with and confronted the military.
As the Supreme Court of Pakistan doesn't have jurisdiction over Gilgit Baltistan, thus another form of APEX Court named Supreme Appellate Court for Gilgit Baltistan has been introduced, with designated powers as that of the Supreme Court of Pakistan.
The subordinate judiciary consists of civil and criminal district courts, and numerous specialized courts covering banking, insurance, customs and excise, smuggling, drugs, terrorism, taxation, the environment, consumer protection, and corruption. The criminal courts were created under the Criminal Procedure Code 1898 and the civil courts were established by the West Pakistan Civil Court Ordinance 1962. There are also revenue courts that operate under the West Pakistan Land Revenue Act 1967. The government may also set up administrative courts and tribunals for exercising exclusive jurisdiction in specific matters.
As of 2017, Pakistan's judiciary is suffering from a backlog of two million cases, with lawsuits taking an average of nearly ten years to resolve. According to some estimates, 90% of civil cases involve land disputes, owing to Pakistan's lack of a proper land register.
Superior Judiciary
Supreme Court of Pakistan
The Supreme Court, established in 1956, is the apex court in Pakistan's judicial hierarchy, the final arbiter of legal and constitutional disputes. The court consists of a Chief Justice and sixteen other judges. There is also a provision for the appointment of acting judges as well as ad hoc judges in the court. It has a permanent seat in Islamabad as well as branch registries in Lahore, Peshawar, Quetta, and Karachi.
It has several de jure powers which are outlined in the constitution, including appellate and constitutional jurisdiction, and suo moto power to try human rights matters under article 184(3). Through several periods of military rule and constitutional suspensions, the court has also established itself as a de facto check on military power. The Supreme Court Judges are supervised by the Supreme Judicial Council. Supreme Court exercise the following powers:
Art 184(1) Original jurisdiction in inter-governmental disputes, issues declaratory judgments;
Art 184(3) Enforcement of Fundamental Rights involving an issue of public importance;
Art 185(2) Appeal from judgment/order of High Court in criminal cases, tried in original and/or
appellate capacity and having imposed the death penalty or life imprisonment;
Art 185(2) Appeal in civil cases when the value of claim exceeds fifty thousand rupees;
Art 185(2) Appeal when High Court certifies that the case involves interpretation of the Constitution;
Art 185(3) Appeal (subject to grant of leave) from High Court judgment/order;
Art 186 Advisory jurisdiction on any question of law involving public importance referred by the President;
Art 187 To issue directions/orders for doing complete justice in a pending case/matter;
Art 188 To review any of its own judgment/order;
Art 204 To punish for its contempt;
Art 212 Appeal from Administrative courts/tribunals; and
Art 203F Its Shariat Appellate Bench hears appeals from judgments/orders of Federal Shariat Court
Federal Shariat Court of Pakistan
The Federal Shariat Court of Pakistan was established in 1980 to scrutinize all Pakistani laws and determine if they conform to Islamic values "as laid down in the Quran and the Sunnah". If a law is found to be 'repugnant', the Court notifies the relevant government, specifying the reasons for its decision. The court also has appellate jurisdiction over penalties (hudud) arising under Islamic law, although these decisions can be reviewed by the Shariat Appellate Bench of the Supreme Court. The decisions of the court are binding on the high courts as well as the subordinate judiciary. The court appoints its own staff and frames its own rules of procedure.
The court consists of eight Muslim judges, appointed by the President of Pakistan, on the advice of a judicial committee of the chief justices of the Supreme Court and the Federal Shariat Court. The committee chooses from amongst serving or retired judges of the Supreme Court or the high courts or from amongst persons possessing the qualifications of judges of a high court. Of the eight judges, three are required to be Islamic Scholars/Ulema well versed in Islamic law. The judges serve terms of three years, subject to extension by the President. Constitution of Pakistan give following provisions:
Art 203-D To determine whether a provision of law is repugnant to the Injunctions of Islam;
Art 203 DD Revisional Jurisdiction in cases under Hudood laws;
Art 203 E To review its judgment/order;
Art 203 E To punish for its contempt
High courts
There is a high court for the Islamabad Capital Territory and four provincial high courts. A high court is the principal court of its province.
Lahore High Court, Lahore, Punjab
Sindh High Court, Karachi, Sindh
Peshawar High Court, Peshawar, Khyber Pakhtunkhwa
Balochistan High Court, Quetta, Baluchistan
Islamabad High Court, Islamabad, ICT
Following are some powers of High Courts:
Art 199(1) to issue 5 writs namely mandamus, prohibition, certiorari, habeas corpus, certiorari and quo warranto;
Art 199(2) Enforcement of Fundamental Rights;
Art 203: To supervise/control subordinate courts;
Art 204: To punish for its contempt;
To hear appeal under S.100 of CPC;
To decide reference under S.100 of CPC;
Power of review under S.114 of CPC;
Power of revision under S.115 of CPC;
Appeals under S.410 of Cr.P.C;
Appeals against acquittal under S.417 of CPC;
Appeals against judgment/decree/order of tribunals under special laws;
To issue directions of the nature of habeas corpus under S.491 of Cr.P.C;
Inter-Court appeal at Lahore High Court and High Court of Sindh
Subordinate judiciary
District judiciary
District judiciary or district courts exist in every district of each province, and have civil and criminal jurisdiction ordinarily governed by Civil Procedure Code,1908 for civil cases and by Code of Criminal Procedure,1898 in criminal cases. The administrative head of district judiciary is the 'District and Sessions Judge'. In each district headquarters, there are a number of courts of additional district and sessions judges having same judicial powers like the court of district and sessions judge, including trial for offenses shown in schedule II of Code of Criminal Procedure,1898 as exclusively triable by the Court of Sessions i.e. Qatl e Amd, r**e, defamation, and dacoity etc. These courts have also jurisdiction to try cases under the Hudood Laws of Pakistan, certain offences under Control of Narcotics Substance Act,1997 etc. These courts also work as ex officio Justice of Peace to entertain complaints against police officials. In civil jurisdiction these courts entertain the matters under Succession Act 1925, Insolvency Act 1920, suits for government, summary suits pertaining to negotiable instruments etc. These Courts are also civil appellate and criminal appellate courts. Civil and Family Appeals and Civil Revisions against the Judgments and orders of courts of senior civil judges, civil judges, rent controllers, and family courts are entertained by the court of district judge which transfers the same to additional district judges as well.
Cases are usually allotted by administrative orders of district and sessions judges. The court of the district and sessions judge usually hears administrative applications against lower courts orders.
Civil judge cm judicial magistrates' courts
Every town and city has numerous civil and judicial magistrates' courts. According to section 6 of Code of Criminal Procedure,1898, Court of Magistrate is classified as following:
Magistrate 1st Class
Magistrate 2nd Class
Magistrate 3rd Class
Similarly, a notification issued by High Court classify civil judges as following:
Civil judge Class I
Civil judge Class II
Civil judge Class III
Special Tribunals and Boards
There are numerous special tribunals such as;
Banking courts
Criminal courts
Custom courts
Drug courts
Federal Services Tribunal
Provincial services tribunals (one for each province)
Income tax tribunals
Accountability courts
Anti-terrorism courts
Labour courts
Labour Appellate Tribunal
Environmental courts
Board of Revenue
Special magistrate courts
Control of Narcotic Substances (special courts)
Consumer courts -
Intellectual Property Tribunal
Foreign Exchange Appellate Board
Almost all judges of above-mentioned courts and tribunals except for consumer courts are district and sessions judges or of having same qualifications. Besides, there exist revenue courts, operating under the West Pakistan Land Revenue Act 1967.
Family Courts
The West Pakistan Family Courts Act 1964 governs the jurisdiction of Family Courts. As per schedule in the Act of 1964 family courts entertains the disputes of dissolution of marriage, recovery of maintenance of wives and minors, dower, dowry articles, guardian and wards disputes i.e. custody of minors, and matters arising through Nikah Nama etc.
Juvenile courts
The parliament has passed the Juvenile Justice System Act 2018. The law is applicable to the whole of Pakistan. It has repealed the Juvenile Justice System Ordinance 2000.
Section 4 of the JJSA authorizes the Provincial Government to establish one or more Juvenile Courts for any local area within its jurisdiction, in consultation with the Chief Justice of the High Court. Jurisdiction of juvenile courts was conferred to sessions judges and judicial magistrates in accordance with their original jurisdiction under Code of Criminal Procedure, 1898.
Judicial Accountability
Support without accountability leads to moral weakness. Accountability without support is a form of cruelty.
-- Stan Basler
Oklahoma Conference of Churches
The word ‘accountable’ as defined in the Oxford Dictionary means ‘responsible for your own decisions or actions and expected to explain them when you are asked’.
The word accountability suggests taking responsibility by a person or a body or country for its action for punishment avoidance or by giving valid reasons. Judicial accountability can be described as the judges’ view where they should be held accountable for their work. This could be in different ways, like being accountable to the public or being accountable to some political body like the legislature or governor. Several countries have judicial answer-ability and accountability of the judges in their constitutions. This is done so there that power is not concentrated in one hand, especially in countries the activism of the judicial body invades the domain of other organs.
To whom are individual judges and the judiciary accountable?
Four forms of accountability are considered:
Internal accountability to more senior judges or courts by way of (a) the system of appeals against judicial decisions, and (b) procedures for dealing with complaints about the conduct of judges,
External accountability to the public by way of amenability to scrutiny in particular by the media, but more widely by civil society,
Accountability to the executive branch of the state (the Government), and
Accountability to the legislative branch of the state (Parliament).
These forms of accountability overlap. For instance, the appeal and complaints processes provide both internal accountability and accountability to the public, and the giving of evidence to legislative committees provides direct accountability to Parliament and indirect accountability to the public.
Need for Judicial Accountability
To avoid any disastrous situation in the democratic system, there is a necessity for the individual enjoying the ‘democratic republic’ power to be accountable for it. There should be comprehensive accountability to include the judges, bureaucrats, and others vested with power, not only politicians. The judicial system looks after the administration of justice by the courts’ agency.
The discharge of the duties of the judges is revered, but there are many cases in which the judges’ decisions led to frustration in getting justice, and people tend to lose faith in the judiciary. Sometimes to get justice, people tend to take it into their own hands. This is not a wanted situation; therefore, judiciary accountability is done.
The judiciary body should have independence so that the judge can act according to his oath to be fearless and not hold emotions such as ill will, affection and favour in the court and uphold the country’s law and constitution.
The Constitution of Pakistan,1973 has put in Article 203 to have accountability as an aspect of independence. Through this article, the High Court can have ‘control’ over the subordinate judiciary to put forth their accountability.
Ethics Code for a Judge
Certain ethics are a must for a judge to maintain. Some of them are stated below.
Ethical decision: The judicial decision has to be honest and fair. This is very important because the public’s confidence lies in the judges. The opinion of judges has to be according to their proficient facts and law.
Administer Justice: The main motto of the judge should be not to fear anything while administering justice. Judges must not fear to administer justice. “Fiat justitia, ruat caelum” that is “let justice be done though the heavens fall” should be followed as a motto by a Judge.
Maintaining distance from relatives: The judge needs to distance himself from the disputing parties and their lawyers during the trial conduct. A close connection with judges is often utilized to win over a case, which is unethical.
Equal Opportunity: Both the parties disputing should be equally treated by the principles of law and equity. The judge should be above any bias on group, caste, section or division. There should be equal opportunities given to the parties during the trial. The judge should not be affected by anyone’s personality. The judge cannot disregard the presence of law and equity in terms of fairness while discharging his duties.
No man can be judged in his/her cause: This principle of ethics applies to the case where the judge is convicted as a party and in cases that can have the judges’ interest. The impartiality of the judges is one prime aspect. The Supreme Court manifests this.
Media Publicity be avoided: As far as possible a Judge should keep off the media. He should refrain from expressing his views in media on matters either pending before him or likely to appear for judicial consideration. Else he may be accused of prejudging the issue and his neutrality may be questioned thereby. Lord Widgery, Lord Chief Justice of England since 1971 to 1980, said that “the best judge is the man who should not court publicity and should work in such a way that they don’t catch the eyes of the newsmen”. Lord Hailsham said that the “best judges are those who do not find their names in the The Daily Mail and still, who abhor it”.
Judicial accountability cases are done if any judiciary member breaks these ethical codes.
Judicial accountability in Pakistan
“The real threats to independence of judiciary are from within — stemming from the personality of the judge himself”. — Justice Asif Saeed Khosa.
An interesting aspect of media and political narrative is the virtual consensus among the media and political elite on the solution to the problem of corruption and accountability. The messiah, when it comes to the issue of corruption, is an exercise in accountability overseen by the higher judiciary I.e the high courts and the Supreme Court. But this confidence in the higher judiciary is based on the premise that the higher judiciary itself is not corrupt, that it is beyond influence and acting in a transparent manner.
But the issue of the non-corruptibility of the higher judiciary is critically linked to the system of self-accountability of the higher judiciary itself. So, is the higher judiciary itself accountable within any system? Is that system of judicial self-accountability transparent? Does that system of judicial self-accountability deliver in actual practice? The focus here, of course, is on judicial corruption through money, or influence, or bias/ prejudice for personal benefit and not on other aspects of judicial misconduct, for example incompetence.
Accountability only in theory: The system of accountability of the judges of the high court and Supreme Court has the following key aspects.
Firstly, under Article 209 of the Constitution, judges of the higher judiciary can only be removed as judges by the Supreme Judicial Council.
Secondly, the Supreme Judicial Council is composed of specified judges of the Supreme Court and specified chief justices of the high court. In other words, it is a system of internal accountability as opposed to external accountability by the legislature or the executive.
Thirdly, the role of the Supreme Judicial Council is limited only to recommending the removal of the judge, or dismissal of the complaint or allegation.
Fourthly, no proceedings for corruption can be initiated against a sitting judge of the higher judiciary under the NAB law in view of the Supreme Court judgement in the Khan Asfandyar Wali case.
In view of the troubled history of the Pakistani judiciary with repeated interference in judicial independence by the military and political elites, such a system of self-accountability is good in theory to protect the court’s independence. But a system which seems ideal in theory has failed when it comes to actual practice.
Consider just one fact: since the enactment of Article 209 in 1973, no judge of the High Court and Supreme Court has been removed from office. Are we to believe that there has been, or is, no judge of the higher judiciary who has been, or is, guilty of corruption? Sadly, the potential threat to judicial independence by state and societal vested interests has become an excuse to put on hold judicial accountability — an absolute necessity.
Secretive System: The high courts and the Supreme Court have in numerous judgments declared that the true essence of good governance is transparency in procedure and process and this higher judiciary examines other institutions and officials of the state on grounds of transparency. It is, therefore, surprising that there is absolutely no public record of how many complaints have been filed against judges of the higher judiciary and what has happened to these complaints.
Such judicial accountability has all the hallmarks of a secretive system, which is publicly justified on the grounds that judges will be scandalized because of frivolous complaints. But what about genuine complaints of corruption into which the Supreme Judicial Council decides to conduct an inquiry? How will a judge be scandalized because of limited disclosures of such inquiries? How will judges be scandalized if it is publicly disclosed how many complaints were filed, what were these complaints and how many of these were frivolous complaints?
Even Rule 13 of The Supreme Judicial Council Procedure of Inquiry, 2005, requires all findings to be reported and also gives the Supreme Judicial Council the option to publicly report the proceedings themselves. Also, Rule 14 of the same procedure gives power to the Supreme Judicial Council to act against frivolous complaints. Sadly, the potential threat to judicial independence has become an excuse to keep back transparency in judicial accountability.
Kinship and justice: “Your wealth and children are surely meant as trial for you” (At-Taghabun, 64:15) warns the Quran. Not heeding this warning of the Quran and despite the tremendous contributions of Iftikhar Chaudhry to judicial independence and towards providing access to justice for the powerless, the events relating to his son, Arsalan, and property tycoon Malik Riaz, severely damaged the credibility of the higher judiciary. It is precisely for this reason that Justice Khilji Arif of the Supreme Court in the Arsalan case had perceptively warned that family members of judges should exercise “extreme caution and discretion in their private and public dealings and conduct”.
It is again troubling and disheartening to note that allegations of a resort to favouritism in order to further the legal careers of the kin of sitting judges are presently being heard in the corridors of justice and among lawyers. It is irrelevant whether this alleged favouritism is intentional or not; the public perception of it damages judicial credibility.
It is in this connection that Article IV of the Code of Conduct for Judges of the Supreme Court and the High Courts directs that a judge must “decline resolutely” to act in a case in which there is a personal interest or connection, even a connection with the lawyer or law firm appearing before him, to “ensure that justice is not only done but is also seen to be done”.
The purpose here is not to condemn the higher judiciary, nor to suggest theoretical solutions. It is to make the point that if we are to honour the tremendous sacrifices of lawyers, judges, political and civil society activists for judicial independence then the judiciary must embrace, and not fear, transparent judicial accountability.
The only real protection against military and political interference in judicial independence is public legitimacy and support, and not merely constitutional protections for judges. And I fear that in the next attack on judicial independence, the people and lawyers will only save a judiciary which is accountable.
Supreme Judicial Council of Pakistan
The Supreme Judicial Council of Pakistan is a body of judges empowered under Article 209 of the constitution of Pakistan to hear cases of misconduct against judges.
Constitutional Composition of SJCP
The composition of the Council is set out in the constitution as:
The Chief Justice
The two next most senior judges of the Supreme Court of Pakistan
The two most senior Chief Justices of the provincial High Courts
Where the council is investigating a member of the council he is replaced by the next most senior judge.
Powers of SJCP
No judge of any of the five High Courts or of the Supreme Court of Pakistan may be dismissed except by the President on the report of the Supreme Judicial Council. The Council may start proceedings against a judge either by its own initiative or by reference from the President of Pakistan.
If the Council concludes that the judge is guilty of misconduct and should be removed from office they can recommend this to the President.
A judge of a court or tribunal subordinate to a High Court may be dismissed by the High Court concerned.
List of judges referenced to Supreme Judicial Council
Name Court Reasons Result
Iftikhar Muhammad Chaudhry Supreme Court of Pakistan Acquitted
Shaukat Aziz Siddiqui Islamabad High Court Speech against military and ISI Removed
Qazi Faez Isa Supreme Court of Pakistan Purchase price of one property not cited Acquitted
Muhammad Farrukh Irfan Khan Lahore High Court Offshore company reported in Panama Papers Resigned
Muhammad Anwar Khan Kasi Islamabad High Court Acquitted
Sayyed Muhammad Mazahar Ali Akbar Naqvi Lahore High Court Acquitted
Mazhar Iqbal Sidhu Lahore High Court Resigned
Common Problems in Choosing Accountability Strategies
Confusing Community Safety Strategies and Accountability Strategies. From a restorative justice perspective, punishment or restrictions on freedom are not forms of accountability because they do not involve an offender's accepting responsibility or taking direct action to repair harm. Restrictions on freedom may serve community safety goals, but they do not contribute to accepting responsibility, increasing understanding of the human harm, or making amends.
Deciding on Strategies To Repair Harm Without Offering Opportunity for Input From Victims. Accountability should focus on repairing the harm of the incident. If victims wish to participate, they are in the best position to define the harm of the crime and suggest possible reparation. Absent victim input, strategies for reparation may be inappropriate.
Having Only the Justice System Determine Accountability Sanctions Without Stakeholder Involvement. Answering to the community and to the victim puts a human face on the crime and is a more powerful form of accountability than just answering to the system. Without community and victim involvement, an opportunity for a more personal message to the offender is lost. Community involvement also increases the possibility for ultimate reintegration of the juvenile offender.
Key recommendations
Limited immunity for actions relating to judicial duties should be in place. This allows judges to make their decisions free from fear of civil suit; though immunity should not apply in corruption (or other criminal)cases.
Disciplinary rules should ensure that the judiciary carries out initial rigorous investigations of all allegations. An independent body must investigate complaints against judges and give reasons for its decisions. Strict and exacting standards should apply to the removal of a judge. Removal mechanisms for judges of all levels must be clear, transparent and fair, and reasons need to be given for decisions. If there is a finding of corruption, a judge is liable to prosecution. A judge should have the right to a fair hearing, legal representation and an appeal in any disciplinary matter.
A code of judicial conduct serves as a guide to and measure of judicial conduct, and should be developed and implemented by the judiciary. Breaches of the code must be investigated and sanctioned by a judicial body. A confidential and rigorous formal complaints procedure is vital so that lawyers, court users, prosecutors, police, media and civil society organizations can report suspected or actual breaches of the code of conduct, or corruption by judges, court administrators or lawyers. An independent judges association, elected by judges, should represent them in their interactions with the state and its other organs. It should be accessible to all judges; support individual judges on ethical matters; and provide a safe point of reference for judges who fear that they may have been compromised in some way.
Critique
It is not suggested that the Judiciary should take over the functions of the legislature or the executive. Right to information has been held to be a fundamental right by our Courts, and the Supreme Court could initiate action suo moto or on the petition of a citizen requiring the concerned branch of the executive to place all the relevant information or data including documents on a matter of public importance (perhaps in any of the areas mentioned earlier) and, if not satisfied with the material and information placed on record and coming to the conclusion that the executive had not
discharged its responsibility under the Constitution or the law, the Court may then give directions to the executive to take such steps as may be required to fulfil their
responsibility under the Constitution or the law.
Individual judges are subject to a strong system of internal accountability in respect of legal errors and personal conduct, but outside the judiciary these are often not understood in terms of accountability. Individual judges are accountable to the public in the sense that in general their decisions are in and are discussed, often critically, in the media and by interest groups and sections of the public affected by them. The judiciary is similarly institutionally accountable in respect ofthe first instance and appellate decisions.
Neither individual judges nor the judiciary is, nor should they be, accountable to the executive branch of the state because that is inimical to judicial independence which is a necessary requirement for the discharge by judges of their core responsibility to resolve disputes fairly and impartially.
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