1. What What is Law? Law? Introduction Law is a system of rules that are enforced through social institutions to govern behavior. Laws can be made by legislatures through legislation (resulting in statutes), the executive through decrees and regulations, or judges through through binding binding precedent precedent (normally (normally in common law law jurisdictions). jurisdictions). 2. Purp Purpos ose e of of Law Law There may be be numerous purposes of law, some important important are are as follows: !atisfaction for victims (i.e. revenge). "eterrent to discourage others from acting in a way considered detrimental to society. To prevent vigilantism and mob justice, often targeting innocent third parties.
3. The Law Law of Pakis Pakistan tan The Law of #a$istan #a$istan is the the law and legal legal system existing existing in the %slamic %slamic &epublic of #a$istan. #a$istani law is based upon the legal system of 'ritish %ndia thus ultimately on the common law of ngland and *ales.
#a$istan as an %slamic republic also has been in+uenced by %slamic !haria law. . The Judicial System of Pakistan The roots of the current judicial system of #a$istan stretch bac$ to the medieval period and even before. The judicial system that we practice today has evolved over a long period of time, spanning roughly over a whole millennium. The system has passed through several epochs covering the -indu era, uslim period including the ughal dynasty, 'ritish colonial period and post/independence period. 0otwithstanding the successive changes i.e. one rule1dynasty substituted by the other, which naturally resulted in the socio/economic and political transformation of the %ndian society, the judicial system generally maintained a steady growth and gradual advance towards consolidation and improvement1re2nement, without indeed, having to undergo any major disruption or substantial change. 3ll in all, the system experienced and passed through 4 distinct stages of historical development, namely, -indu 5ingdom, uslim &ule and 'ritish 6olonial administration. The th and current era, commenced with the partition of %ndia and the establishment of #a$istan as a sovereign and independent !tate. The system, thus, has evolved through a process of reform and development. This conclusion enjoys near unanimity among historians and commentators of %ndian legal history. "uring this process of evolution and growth, the judicial system did receive in+uences and inspirations from foreign doctrines1notions and indigenous norms1practices, both in terms of organi7ing courts8 structure and hierarchy, and adopting procedures1practices in reaching decisions. Therefore, the present judicial system is not an entirely foreign transplant, as is commonly alleged, but has ac9uired an indigenous +avor and national color. 3nd whereas the system may not fully suit the genius of our people or meet the local conditions, its continued application and practice has made it intelligible to the common man. The very fact that increasing number of people are ma$ing. The udicial !ystem of #a$istan resort to the courts for the resolution of their con+icts1disputes indicates that the system enjoys a degree of legitimacy and acceptance.
slam and the Le!al System The legal system in #a$istan is based on nglish common law and %slamic law. 'etween ;<= and ;<=>, %slamic law was largely restricted to the sphere of personal status issues, such as marriage, inheritance and divorce. The %slami7ation of the legal system began in earnest under ?eneral @ia ul -a9 (;<==/;<>>). Through a series of presidential decrees, @ia introduced far reaching changes in #a$istan8s criminal justice system, regulated by the #a$istan #enal 6ode of ;>AB and the 6ode of 6riminal #rocedure (;><>). -e also created a parallel court system, consisting of !hariat courts, and amended the country8s anti/blasphemy laws. *hile most of the C%slamicD laws he instituted are still on the statute, and some were reinforced by conservative governments, #a$istan8s parliament has
recently introduced legal changes aimed at improving the status of women in the private and public spheres.
"i#ision of $ourts Supreme $ourt The !upreme 6ourt is the apex 6ourt of the land, exercising original, appellate and advisory jurisdiction. %t is the 6ourt of ultimate appeal and therefore the 2nal arbiter of law and the 6onstitution. %ts decisions are binding on all other courts. The 6ourt consists of a 6hief ustice and other judges, appointed by the #resident as per procedure laid down in the 6onstitution. 3n 3ct of #arliament has determined the number of judges. The number 2xed at the moment is 6hief ustice and ;A judges. There is also provision for appointment of acting judges as well as ad hoc judges in the court. 3 person with E years experience as a udge of a -igh 6ourt or ;E years standing as an advocate of a -igh 6ourt is eligible to be appointed as judge of the !upreme 6ourt. %i!h $ourts There is a -igh 6ourt in each province and a -igh 6ourt for the %slamabad 6apital Territory. ach -igh 6ourt consists of a 6hief ustice and other judges. The strength of Lahore high 6ourt is 2xed at AB, -igh 6ourt of !indh at B, #eshawar -igh 6ourt at FB, -igh 6ourt of 'aluchistan at ;; and %slamabad -igh 6ourt at =. Guali2cations mentioned for the post of a udge are, ;B years experience as an advocate of a -igh 6ourt or ;B years service as a civil servant including 4 years experience as a "istrict udge or ;B years experience in a judicial oHce. Ior the appointment of udges of -igh 6ourts, the practice used to be that initially the 6hief ustice of the concerned -igh 6ourt prepared list of candidates which was submitted to the #resident through the ?overnor of the province and 6hief ustice of #a$istan. The #resident 2nally used to select judges from the said list. The recommendation of the 6hief ustice of #a$istan and 6hief ustice of the -igh 6ourt were binding on the #resident, except for sound reasons to the contrary. The most senior judge would have legitimate expectancy of being appointed as the 6hief ustice except for concrete and valid reasons, to be recorded by the #resident.
"istrict & Sessions $ourts "istrict courts exist in every district of each province, and have civil and criminal jurisdiction. %n each "istrict -ead9uarters, there are numerous 3dditional "istrict J !ession udges who usually preside the courts. "istrict J !essions udge has executive and judicial power all over the district under his jurisdiction. The !essions court is also a trial court for heinous oKences such as urder, &ape, -araba oKences (armed robbery where speci2c amount of gold and cash is involved), and is also appellate court for summary conviction oKences and civil suits of lesser value. ach Town and city now has a court of 3dditional "istrict J !essions judge, which possess the e9ual authority over, under its jurisdiction. *hen hearing criminal cases, it is called the !essions 6ourt, and when it hears civil cases, the "istrict 6ourt. xecutive matters are brought before the relevant "istrict J !essions udge.
The -igh 6ourt of each province has appellate jurisdiction over the lower courts. The !upreme 6ourt has exclusive jurisdiction over disputes between and among provincial governments, and appellate jurisdiction over -igh 6ourt decisions.
'ederal Shariat $ourt The 6ourt consists of > uslim udges including the 6hief ustice .#rocedure for appointment of judges of Iederal !hariat 6ourt has been changed after ;>th and ;
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one are of "istrict J sessions udges or of having same 9uali2cations. 'esides, there exist revenue courts, operating under the *est #a$istan Land &evenue 3ct ;
'amily $ourts The *est #a$istan Iamily 6ourts 3ct ;
Ju#enile $ourts !ection of the ! authori7es the #rovincial ?overnment to establish one or more juvenile courts for any local area within its jurisdiction, in consultation with the 6hief ustice of the high court. Ten years have passed, and not a single such court has been established and instead the -igh 6ourts have been conferring status of the juvenile courts on the existing courts. The -igh 6ourt cannot be doing this on their own, and must be instructed by the provincial governments to do so. %n this era of independent judiciary, the -igh 6ourts should stand up against the governments on this issue and refuse to confer powers on the already over/burdened courts and instead should insist upon establishing exclusive juvenile courts. !ection A of the ! prescribes special procedure for the juvenile courts which involves issues li$e not ordinarily ta$ing up any other case on a day when the case of a child accused is 2xed for evidence on such day attendance of only speci2ed persons in the court and dispensing with the attendance of the child in the trial.
(ppointments of Jud!es Supreme $ourt of Pakistan #rior to ;>th 6onstitutional 3mendments, appointments to the !upreme 6ourt of #a$istan were made by the #resident of #a$istan, on the recommendation of the 6hief ustice of the !upreme 6ourt. This system bred many allegations of favoritism. any judges who were appointed
were relatives of other udges or ?overnment oHcials. -owever, following the !upreme 6ourtMs judgment in the 3l/ehad Trust case, the governmentMs role in judicial appointments was curtailed. Nnder the terms of this judgment, the ?overnment and the #residentMs oHce were bound to act on the recommendations of the 6hief ustice of #a$istan. 3fter passage of the ; |
%i!h $ourts %n 3ppointments to the -igh 6ourts, the same procedure as in !upreme 6ourts appointments is adopted #rior to ;>th 6onstitutional 3mendment, -igh 6ourt appointments suKered much the same criticisms as those to the !upreme 6ourt. Iuture appointments will be made in the same manner as those to the !upreme 6ourt. "istrict & Sessions Jud!es 3dditional "istrict J !essions udges are appointed by the #rovincial -igh 6ourts, from a pool of Lawyers and subordinate judges. To be eligible for appointment, Lawyers must have ten yearsM experience as an advocate with good standing in the respective jurisdiction. They must also pass an examination conducted by the -igh 6ourts. !ubordinate judges are promoted from senior civil judges on a seniority basis.
