The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Saleem Akhtar, J.

(a) Constitution of Pakistan(1973),Articles 9, 25, 175, 203

It aims at an independent judiciary which is an important organ of the State within the Constitutional sphere. The Constitutional provides for progressive separation of the judiciary and had fixed a time limit for such separation. It expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or not, judiciary stands separated and does not and should not seek aid of executive authorities for its separation. Separation of judiciary is the corner stone of independence of judiciary and unless judiciary is independent, the fundamental right of access of justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the executive Officers. This is merely a semblance of establishing Courts which are authorized to decide cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution. [p. 369]X

Separation of judiciary from executive is essential for its independence. The judiciary though an important pillar of the Constitution does not have the purse and power. The administrative mechanism devised is such that the judiciary is made dependent in matters of finances, development and its Establishment. This aspect was considered in Sharaf Faridi’s case PLD 1989 Kar. 404. While referring to Article 175 of the Constitution it was observed:-

“—-the separation of the judiciary as contemplated in Article 175 of the Constitution and independence of the judiciary as envisaged in the Objectives Resolution (Article 2A) cannot be achieved without having independent annual budget for the judiciary. In other words, the judiciary should generate its own annual income according to its annual requirements. This may not be practicable. The requirements of Article 175 will be met if the judiciary has effective say in formulation of its annual demands. To put it differently, the executive should place annual funds as per requirements at the disposal of the judiciary for operating it without being interfered with by any agency of the Executive.

This observation in effect finds support from Articles 81, 82, 121 and 122. The first two Articles relate to remuneration payable to the Judges of the Supreme Court and the administrative expenses including the remuneration payable to officers or servants of the Supreme Court. The expenditure are charged on the Federal Consolidated Fund which under Article 82 “may be discussed in, but shall not be submitted to the vote of the National Assembly”. The same provisions have been made in respect of High Court Judges and administrative expenses of the High Court. The financial requirements of the Supreme Court and the High Court should be assessed by the Courts and after meaningful consultation with such Courts annual funds as per requirement be allocated and placed at the disposal of the Courts. All remuneration’s, expenses and disbursements relating to the judiciary should be made without any interference by any department which are usually technical in nature requiring compliance with certain rules and practice of other departments of the Government. In case of any objection, if approval of the Chief Justice concerned is given, it should stand waived and set aside. Such steps should be taken to avoid financial dependence of judiciary on the executive. Article 175 envisages separation and independence of judiciary which includes the lower judiciary as well. The lower judiciary is a part of the judicial hierarchy in Pakistan. Its separation and independence is to be equally secured and preserved as that of the superior judicairy. The lower judiciary is more dependent and prone to financial dependence and harassment at the hands of the executive. In practice and effect the separation of judiciary is the main problem of the lower judiciary which under several enactment’s and rules is practically under the control and supervision of the executive. Articles 175 and 203 lay down that the judiciary including lower judiciary shall be separate from the executive and “High Court shall supervise and control all Courts subordinate to it”. Such control and supervision can be achieved only when the judiciary is administratively and financially separate from the executive. Separation of Magistracy is the first step towards separation and independence. The next step should be taken to device proper scheme and frame rules dealing with financial problems within the framework of the Constitution. So long financial independence is not achieved, it will be difficult to improve the working conditions, accommodation, building and expansion to meet the growing needs of the people.[p.369]AA

The mandate and command of Article 175 must be obeyed and implemented, any laxity in this regard will amount to violation of Constitutional provisions and perhaps the judicial orders passed by the functionaries under the control and superintendence of the executive may be challenged, which will create embarrassing situation for the Government and the administration of justice shall be seriously jeopardized. In view of the fact that more than reasonable time has passed without any action being taken by be appellant to comply with Article 175, the request of the learned Advocate-General to grant sufficient time for introducing reforms cannot be acceded to.[p.373]CC
(b) Constitution of Pakistan(1973), Article 203

For a proper appreciation of the background of separation of subordinate judiciary reference can be made to Hamoodur Rehman’s Report in connection with the Law Reforms Commission (1967-70). In Sharaf Faridi’s case known as “Judiciary case ” Ajmal Mian C.J. (as he then was) referring to Hamoodur Rehman’s Report observed that it —–

“—- has thoroughly dilated upon historical background on the question of separation of judicial and executive functions and pointed out that originally the above functions were combined and were to be performed by the same person. In the last quarter of the 18th century the then Governor-Genera, Lord Cornwallis introduced the first change whereby the Revenue Collectors were debarred from trying revenue cases on the ground that the same officers who assessed the revenue should not hear complaints against their own assessment as it was against the basic principle of justice that one should not be a Judge in one’s own cause. In 1831 civil judicial functions but the Magistracy remained combined. A number of Committees and Scheme were prepared to separate judicial and executive functions, reference to which has been made in detail in the above report. In the above report it has been pointed out that in erstwhile East Pakistan the Provincial Assembly passed Code of Criminal Procedure (East Pakistan Amendment) Bill, 1956 effecting a complete separation by creating two classes of Magistrates, Executive Magistrates and Judicial Magistrates. The Executive Magistrates were placed under the District Magistrates whereas the Judicial Magistrates were placed under the High Court through the District and Sessions Judges and they were to be appointed in consultation with the High Court like other judicial officers. In conclusion it was suggested that there should be complete separation of judiciary from the executive and that the pattern envisaged by the Code of Criminal Procedure (East Pakistan Amendment) Act, 1957 should be adopted in West Pakistan, in respect of Magistracy.

In pursuance of the above Law Commission Report, Law Reforms Ordinance, 1972 (Ordinance No.XII of 1972), (hereinafter referred to as the Ordinance No.XII of 1972), was promulgated on 14-4-1972 providing various amendments in the various enactment’s including the Pakistan Penal Code, Criminal Procedure Code, Evidence Act etc. Subsection (2) to section, 1 of the above Ordinance provided that it shall come into force at one, except the provisions of the Schedule relating to amendments in the Code of Criminal Procedure, 1898 which shall come into force in any province with effect from such date not later than the first day of January, 1973 as the Provincial Government may by notification in the official Gazette specify in this behalf. The above target date 1-1-1973 was amended and no time limit within which the Provincial Government was to enforce the provisions of the Cr.P.C., remained in the field. The above Ordinance XII of 1972 provided creation of two categories of the Magistrates, namely Special Judicial and Executive Magistrates. Amended section 14, Cr.P.C. contemplated that the Provincial Government may on the recommendation of the High Court confer upon any person all or any of the powers conferred or conformable by or under this Code of a Judicial Magistrate in respect of particular cases or to a particular class or particular classes of cases. It further provided that the Provincial Government may appoint Executive Magistrates for particular areas or for performance of particular functions and confer upon them all or any of the powers conferred or conformable by or under the Code on an Executive Magistrate, whereas substituted subsections (1) and (2) of section 17 of the Cr.P.C. envisaged that all Judicial Magistrates appointed under sections 12, 13, and 14 shall be subordinate to the Sessions Judges who may from time to time make rules or give special orders consistent with the Code and any rule framed thereunder, whereas the Executive Magistrates were to be subordinate to District Magistrate. The necessary amendments in the other provisions of the Cr.P.C. were also made in order to facilitate the separation of the judicial Magistrates from the Executive Magistrates. In the above Ordinance XII of 1972, two other amendments which are worth mentioning, are, one relating to empowering a Sessions Judge to transfer cases from the file of a Magistrate to another Magistrate, namely, section 528 and the incorporation of section 439-A conferring revisional power on the Sessions Judges. The provisions of the above Ordinance were not enforced in the Province of Sindh by issuing requisite Notification as was contemplated under subsection (2) of section 1 of the said Ordinance. It appears that Ordinance 14 of 1975 was promulgated by the Federal Government converted into Law Reforms (Amendment) Act, 1976 which was made applicable to whole of Pakistan which inter alia incorporated clause (1-C) in section 528 providing that “any Sessions Judge may withdrawn any case from, or recall any case which he has made over to any Magistrate subordinate to him, and may refer it for inquiry or trial to any other such Magistrate competent to enquiry into or try the same. It may also be stated that explanation to newly-added clause provided that ‘all Magistrates shall be deemed to be subordinate to the Sessions Judge for the purposes of this subsection’.”

The basic structure for separation of judiciary is available and it needs certain notifications to be issued by the Provincial Governments. Two days after the promulgation of Ordinance XII of 1972, the Sindh Government issued notification under section 1(2) of Ordinance XII of 1972 on 23-12-1975 “enforcing the provisions mentioned therein relating to Cr.P.C. which inter alia included section 439-A, Cr.P.C. empowering the Sessions Judge to exercise revisional jurisdiction over the Magistrates. However, the provisions relating to the establishment of Judicial and Executive Magistrates separately were not included in the above Notification nor they have been enforced till today. It will not be out of context to mention that in 1952 Justice (retired) Din Muhammad, who was the then Governor of Sindh converted all posts of City Magistrates, Additional City Magistrates and Resident Magistrates in Sindh into posts of Civil Judges and 1st Class Magistrates and brought the incumbents in the cadre of Civil Judges and placed them under direct control of the District Judge and of the High Court. In other words in the interior of Sindh Civil Judges exercise the power of 1st Class Magistrates but unfortunately there are still Magistrates in the interior of Sindh exercising executive and judicial powers jointly”. The structure and its implementation and proper functioning is available and should not pose any problem to other provinces. If in Sindh the Ordinance could be implemented within tow days of the promulgation of the Ordinance XII of 1972, why it has not seen the light of the day in other provinces for the last more than twenty years.[p.370,371,372,373]BB