Judiciary PDF

# Judiciary ## Supreme Court The Supreme Court is at the apex of the judicial systems of Pakistan. It consists of a Chief Justice known as Chief Justice of Pakistan and such number of other judges as may be determined by the Act of Parliament (Article 176). Supreme Court exercises original, appell...

# Judiciary ## Supreme Court The Supreme Court is at the apex of the judicial systems of Pakistan. It consists of a Chief Justice known as Chief Justice of Pakistan and such number of other judges as may be determined by the Act of Parliament (Article 176). Supreme Court exercises original, appellate and advisory jurisdiction (Articles 184, 185 and 186). ### Appointment and qualifications of a Supreme Court Judge 18th and 19th amendments have amended the procedure of appointments of Judges of Supreme Court, High Courts and Federal Shariat Court by insertion of new article 175A as follows: 175A. Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court.- 1. There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided. 2. For appointment of Judges of the Supreme Court, the Commission shall consist of: * Chairman: Chief Justice of Pakistan * Members: Four most senior Judges of the Supreme Court * Member: A former Chief Justice or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the four member Judges, for a period of two years * Member: Federal Minister for Law and Justice * Member: Attorney-General for Pakistan * Member: A Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years 3. Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan. 4. The Commission may make rules regulating its procedure. 5. For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely: * Member: Chief Justice of the High Court to which the appointment is being made * Member: The most senior Judge of that High Court * Member: Provincial Minister for Law * Member: An advocate having not less than fifteen years practice in the High Court to be nominated by the concerned Bar Council for a term of two years: * Provided that for appointment of the Chief Justice of a High Court the most Senior Judge mentioned in paragraph (ii) shall not be member of the Commission * Provided further that if for any reason the Chief Justice of a High Court is not available, he shall be substituted by a former Chief Justice or former Judge of that Court, to be nominated by the Chief Justice of Pakistan in consultation with the four member Judges of the Commission mentioned in paragraph (ii) of clause (2). 6. For appointment of Judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely: * Member: Chief Justice of the Islamabad High Court * Member: The most senior Judge of that High Court * Provided that for initial appointment of the Judges of the Islamabad High Court, the Chief Justice and the Chief Justices of the four Provincial High Courts shall also be members of the Commission * Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply. 7. For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its members: * Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos to clause (5) shall, mutatis mutandis, apply. 8. The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be. 9. The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely: * Four members from the Senate * Four members from the National Assembly * Provided that when the National Assembly is dissolved, the total membership of the Parliamentary Committee shall consist of the members of the Senate only mentioned in paragraph (i) and the provisions of this Article shall, mutatis mutandis apply. 10. Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition. 11. Secretary, Senate shall act as the Secretary of the Committee. 12. The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed: * Provided that the Committee, for reasons to be recorded, may not confirm the nomination by three-fourth majority of its total membership within the said period: * Provided further that if a nomination is not confirmed by the Committee it shall forward its decision with reasons so recorded to the Commission through the Prime Minister: * Provided further that if a nomination is not confirmed, the Commission shall send another nomination. 13. The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment. 14. No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof. 15. The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained. 16. The provisions of Article 68 shall not apply to the proceedings of the Committee. 17. The Committee may make rules for regulating its procedure. ## Parliamentary Committee Under new inserted Article 213 (2A) and (2B), procedure of the formation of Parliamentary committee is provided. ### Article 213 "(2A) The Prime Minister shall in consultation with the Leader of the Opposition in the National Assembly, forward three names for appointment of the Commissioner to a Parliamentary Committee for hearing and confirmation of any one person. (2B) The Parliamentary Committee to be constituted by the Speaker shall comprise fifty percent members from the Treasury Branches and fifty percent from the Opposition Parties, based on their strength in Majlis-e-Shoora (Parliament), to be nominated by the respective Parliamentary Leaders: *Provided that in case there is no consensus between the Prime Minister and the Leader of the Opposition, each shall forward separate lists to the Parliamentary Committee for consideration which may confirm any one name: *Provided further that the total strength of the Parliamentary Committee shall be twelve members out of which one-third shall be from the Senate. **Provided also that when the National Assembly is dissolved and a vacancy occurs in the office of the Chief Election Commissioner, the "total membership of the Parliamentary Committee shall consist of the members from the Senate only and the foregoing provisions of this clause shall, mutatis mutandis, apply."** ## Supreme Judicial Council-Removal of Judges Article 209 provides for the formation of Supreme Judicial Council. 1. There shall be a Supreme Judicial Council of Pakistan 2. The Council shall consist of: * The Chief Justice of Pakistan * The two next most senior Judges of the Supreme Court * The two most senior Chief Justices of High Courts. * **Explanation:** For the purpose of this clause, the inter se seniority of the Chief Justices of the High Courts shall be determined with reference to their dates of appointment as Chief Justice [2] otherwise than as acting Chief Justice], and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of any of the High Courts. 3. If at any time the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then: * If such member is a Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2), and * If such member is the Chief Justice of a High Court; the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, shall act as a member of the Council in his place. 4. If, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority. 5. If, on information from any source, the Council or the President is of the opinion that a Judge of the Supreme Court or of a High Court: * May be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or * May have been guilty of misconduct, the President shall direct the Council to, or the Council may, on its own motion, inquire into the matter. 6. If, after inquiring into the matter, the Council reports tothe President that it is of the opinion: * That the Judge is incapable of performing the duties of his office or has been guilty of misconduct, and * That he should be removed from office, the President may remove the Judge from office. 7. A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article. 8. The Council shall issue a code of conduct to be observed by Judges of the Supreme Court and of the High Courts. ## Jurisdiction The Court exercises original jurisdiction in inter-governmental disputes, be that dispute between the Federal Government and a provincial government or among provincial governments (Article 184)(1). The Court also exercises original jurisdiction (concurrently with High Courts) for the enforcement of fundamental rights, where a question of 'public importance' is involved. (184)(3). The Court has appellate jurisdiction in civil and criminal matters (Article 185). Furthermore, the Court has advisory jurisdiction in giving opinion to the Government on a question of law (Article 186). Besides entertaining civil and criminal appeals from the High Courts, the Court also hears appeals from the judgments against the Federal Shariat Court, Service Tribunals and some special courts. The Court also entertains cases of violation of Fundamental Rights under its original jurisdiction (Art 184(3). Besides being deputed to act as special court/tribunal, the judges are also engaged as members of enquiry commissions. The Supreme Court and High Courts have been established under the Constitution and other Courts have been established by or under the Acts of Parliament or Acts of Provincial Assemblies. The Supreme Court, if it considers that a question of public importance, with reference to the enforcement of any of the Fundamental Rights ensured by the Constitution of Pakistan is involved, it has the power to make any appropriate order for the enforcement of fundamental rights. ## Appellate Jurisdiction The Supreme Court has jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences passed by a High Court, the Federal Shariat Court and the Services Appellate Tribunals. An appeal to the Supreme Court can be made as a matter of right for certain cases while for the rest the Court hears an appeal with its prior permission (Article 185). ## Advisory Jurisdiction If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. The Supreme Court considers the question so referred and reports its opinion on the question to the President (Article 186). ## Seat of the Supreme Court Seat of the Supreme Court The permanent seat of the Supreme Court is at Islamabad, but it also runs circuits at Lahore, Karachi, Peshawar, Quetta and Islamabad. ## Transfer of cases The Supreme Court may, if it considers expedient to do so in the interest of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court. ## Practice and Procedure The practice and procedure of the Court is regulated by the rules made by the Court. All executive and judicial authorities throughout Pakistan are required to act in aid of the Supreme Court. Any decision of the Supreme Court to the extent it decides a question of law or is based upon or enunciates a principle of law is binding on all courts in Pakistan. The Supreme Court has the power to review any judgment pronounced by it or any order made by it (Article 188). ## Decisions binding on all Courts Any decision of the Supreme Court on the question of law or one which is based upon or enunciates law is binding on all courts of law in Pakistan (Article 189) ## Supreme Court Jurisdiction: * 184(1): Original jurisdiction in inter-governmental disputes, issues declaratory judgments; * 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 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 judgement/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; * Art 203F: Its Shariat Appellate Bench hears appeals from judgements/orders of Federal Shariat Court.