A Legal Research Guide to Pakistan
by SAS-Sialvi
Table of Contents
Introduction
Pakistan emerged as an independent State on 14 August 1947. Pakistan is divided into four provinces, namely, North West Frontier Province (NWFP), Punjab, Sindh and Balochistan. The tribal belt adjoining NWFP is managed by the Federal Government and is named FATA i.e., Federally Administered Tribal Areas. Azad Kashmir and Northern Areas have their own respective political and administrative machinery, yet certain of their subjects are taken care of by the Federal Government through the Ministry of Kashmir Affairs and Northern Areas. Islamabad is the federal capital. Over 97 per cent of the country's population is Muslim.
Location
Located in South Asia, Pakistan shares an eastern border with India and north-eastern border with China. Iran makes up the country’s south-west border, and Afghanistan runs along its western and northern edge. The Arabian Sea is Pakistan’s southern boundary with 1,064 km of coastline.
The country has a total area of 796,095 sq km and is nearly four times the size of the United Kingdom. From Gwadar Bay in its south-eastern corner, the country extends more than 1,800 km to the Khunjerab Pass on China’s border.
Constitutional Development
Since its creation in 1947 Pakistan has had three constitutions, adopted in 1956, 1962, and 1973. The 1973 constitution was the result of a consensus among the political parties then represented in parliament.
The Constitution of Pakistan 1973 was enacted by the National Assembly on April 10, 1973. The Constitution was held in abeyance by the Proclamation of Martial Law issued by General M. Zia-ul-Haq on July 5, 1977. The Revival of the Constitution of 1973 Order, 1985 (President's Order No. 14 of 1985) and the Constitution (Eighth Amendment) Act, 1985, (XVIII of 1985) brought about major amendments to the Constitution. The Constitution was revived in 1985 through the Enforcement of Constitution Order on March 10, 1985
The whole of Pakistan once again came under the control of the Armed Forces of Pakistan on October 12, 1999, by virtue of the Proclamation of Emergency issued by General Pervez Musharraf, Chairman Joint Chiefs of Staff Committee and Chief of Army Staff, on October 14, 1999. By virtue of the said Proclamation Pervez Musharraf also assumed the office of Chief Executive of the Islamic Republic of Pakistan.
The Constitution was again held in abeyance by the Provisional Constitution Order No. 1 of 1999, issued by the Chief Executive on October 14, 1999. However, the said Order provided, in Art. 2 thereof, that notwithstanding the abeyance of the Constitution, Pakistan shall, subject to the said Order and any other Order made by the Chief Executive, be governed, as nearly as may be, in accordance with the Constitution.
The Constitution (Seventeenth Amendment) Act, 2003 has now validated and affirmed all the amendments made in the Constitution by the Legal Framework Order, 2002.
A comprehensive article on the history of the Constitution can be found here.
Constitutional Status of Islamic Law
Article 1 of the 1973 Constitution declares that Pakistan’s official name shall be the Islamic Republic of Pakistan, and Article 2 declares Islam the state religion. The Objectives Resolution of the preamble of the Constitution was made a part of its substantive provisions by the insertion of Article 2A in 1985, thereby requiring all laws to be brought into consonance with the Quran and Sunnah. Chapter 3A establishes the Federal Shariat Court. Part IX of the Constitution is entitled “Islamic Provisions” and provides for the eventual Islamization of all existing laws, reaffirming that no laws repugnant to the injunctions of Islam are to be enacted.
A comprehensive article on the Islamic influence on the provisions of the Constitution can be foundhere.
Government
Federal Parliamentary System: The Constitution of the Islamic Republic of Pakistan provides for a Federal Parliamentary System of government, with the President as the Head of State and the popularly elected Prime Minister as Head of government. The Federal Legislature is a bicameral Majlis-e-Shoora (Parliament), composed of the National Assembly and the Senate.
Provinces: Pakistan is divided into four provinces. These are, Balochistan, the North-West Frontier Province (NWFP), Punjab, and Sindh. Governors are appointed by the President to head each Province. Each Province has a directly elected Provincial Assembly headed by a Chief Minister. The Provincial Governments may legislate in certain areas for example health, education, agriculture, municipal planning and roads.
National Assembly: Members of the National Assembly are elected by universal adult suffrage (over eighteen years of age in Pakistan). Seats are allocated to each of the four Provinces, the Federally Administered Tribal Areas, and Islamabad Capital Territory on the basis of population. National Assembly members serve for the parliamentary term, which is five years, unless they die or resign sooner, or unless the National Assembly is dissolved. Although the vast majority of the members are Muslim, about 5 percent of the seats are reserved for minorities, including Christians, Hindus, and Sikhs. Elections for minority seats are held on the basis of separate electorates at the same time as the polls for Muslim seats during the general elections.
Senate: The Senate is a permanent legislative body with equal representation from each of the four Provinces, elected by the members of their respective Provincial Assemblies. There are representatives from the Federally Administered Tribal Areas and from Islamabad Capital Territory. The Chairman of the Senate, under the Constitution, is next in line to act as President should the office become vacant and until such time as a new President can be formally elected.
Prime Minister and Cabinet: The majority of members in the National Assembly nominate a member as Prime Minister from amongst themselves. That individual is then appointed as Prime Minister by the President from among the members of the National Assembly. The Prime Minister is assisted by the Federal Cabinet, a council of ministers whose members are appointed by the President on the advice of the Prime Minister.
President of Pakistan: The President of Pakistan is Pakistan's Head of State. It is the majority party in the National Assembly which usually is instrumental in nominating and electing a person as the President. At various times in history, changes in the Constitution of Pakistan have altered the powers and privileges associated with the office of the President. At present, Pakistan has a semi-presidential system of government. (The semi-presidential system is a system of government that features both a prime minister and a president who are active participants in the day to day functioning of government.)
Process of Law Making
The Constitution sets out the procedure to be followed for promulgating a statute. Broadly, this requires a Bill to be passed by both Houses of Parliament – the National Assembly and the Senate. Upon a Bill’s passage through both Houses, it is presented to the President of Pakistan for assent and becomes an Act of Parliament upon receiving such assent. In the absence of the National Assembly, statutes are promulgated by the President pursuant to Article 89(1) of the Constitution. Under this Article, the President may, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance. Such Ordinances have the same force and effect as an Act of Parliament. A similar power is bestowed upon Provincial Governors by Article 128(1) of the Constitution in respect of matters falling within provincial legislative authority.
Administration of Law and Justice
The Law and Justice Division is an advisory and consultative body to the Federal Government. There is a Law Department operating under the supervision and control of the Law and Justice Division in each province.
The Law and Justice Division is generally called upon, from time to time, to tender advice on various important and controversial constitutional and legal issues.
Legislative Drafting: Drafting of Ordinances and Bills is a major function and responsibility of the Law and Justice Division which is looked after by the Drafting Wing.
Litigation: The other major function and responsibility of the Division is to look after the litigation on behalf of the Government of Pakistan.
Administration of the Federal Courts/ Tribunals: The Law and Justice Division is also involved in the appointment of Law Officers including Attorney General, Deputy Attorney General and Standing Counsel. It also approves the appointment of legal advisers for which purpose there is a committee comprising the Attorney General, Law and Justice Minister and the Law and Justice Secretary.
Judicial Academy: The Federal Judicial Academy was set up by the Law and Justice Ministry in September, 1988 for the adequate training of Judges, Government law officers, police officers and doctors dealing with medical legal cases.
The Court System
There is a Supreme Court in Pakistan and a High Court in each province, and other courts exercising civil and criminal jurisdiction. 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.
Supreme Court of Pakistan
Structure: 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. The Chief Justice of Pakistan is appointed by the President. Other Judges are also appointed by the President after consultation with the Chief Justice.
Jurisdiction: The Supreme Court has original, appellate and advisory jurisdiction.
Original Jurisdiction: The Supreme Court, to the exclusion of every other Court in Pakistan, has the jurisdiction to pronounce declaratory judgments in any dispute between the Federal Government or a provincial government or between any two or more provincial governments. 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.
Advisory Jurisdiction: It, 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.
Seat of the Supreme Court: The permanent seat of the Supreme Court is at Islamabad, but it also runs circuits at Lahore, Karachi, Peshawar and Quetta.
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.
General: 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.
High Courts of Pakistan
There is a High Court in each of the four provinces of Pakistan. The Islamabad Capital Territory falls within the jurisdiction of the Lahore High Court of the Punjab. A High Court consists of a Chief Justice and as many other Judges as may be determined by law or as may be fixed by the President.
Jurisdiction: A High Court has original and appellate jurisdiction.
Original Jurisdiction: A High Court has, under the Constitution, original jurisdiction to make an order:
(i) directing a person within the territorial jurisdiction of the Court to refrain from doing anything he is not permitted by law or to do anything he is required by law;
(ii) declaring that any act done by a person without lawful authority is of no legal effect;
(iii) directing that a person in custody be brought before it, so that the court may satisfy itself that he is not being held unlawfully;
(iv) giving such directions to any person or authority, for the enforcement of any of the fundamental rights conferred by the Constitution. Besides the original jurisdiction conferred by the Constitution, a High Court has original jurisdiction in many other matters conferred by or under various laws.
Appellate Jurisdiction: A High Court has extensive appellate jurisdiction against the judgments, decisions, decrees and sentences passed by the civil and criminal courts.
General: A High Court has the power to make rules regulating its practice and procedure and of courts subordinate to it. Each High Court supervises and controls all courts subordinate to it and any decision of a High Court binds all courts subordinate to it.
Shariat Court
Federal Shariat Court comprises eight Muslim Judges including the Chief Justice to be appointed by the President. Of the Judges, four are the persons qualified to be the Judges of the High Courts, while three are Ulema (scholars well-versed in Islamic Law).
Jurisdiction: Federal Shariat Court has original and appellate jurisdiction.
Original Jurisdiction: The Court may examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet. If the Court decides that any law or provision of law is repugnant to the injunctions of Islam, it sets out the extent to which such law or provision of law is so repugnant, and specifies the day on which the decision shall take effect. Where any law is held to be repugnant to the injunctions of Islam, the President in the case of Federal law or the Governor in the case of a Provincial law is required to take steps to amend the law so as to bring it in conformity with the injunctions of Islam, and such law ceases to have effect from the specified day.
Appellate Jurisdiction: The Court has exclusive jurisdiction to hear appeals from the decision of criminal courts under any law relating to enforcement of Hudood Law i.e. laws pertaining to offences to intoxication, theft, Zina (unlawful sexual intercourse) and Qazf (false imputation of Zina).
Civil Courts
In every district of a Province, there is a Court of District Judge which is the principal court of original jurisdiction in civil matters.
Besides the Court of District Judge, there are courts of Civil Judges. Civil Judges function under the supervision and control of District Judge and all matters of civil nature originate in the courts of Judges. The District Judge may, however, withdraw any case from any Civil Judge and try it himself. Appeals against the judgments and decrees passed by the Civil Judges in cases where the value of the suit does not exceed the specified amount lie to the District Judge.
Criminal Courts
In every district, there is a Court of Sessions Judge and Courts of Magistrates.
Criminal cases punishable with death and cases arising out of the enforcement of laws relating to Hudood are tried by Sessions Judges. The Court of a Sessions Judge is competent to pass any sentence authorised by law. Offences not punishable with death are tried by Magistrates. Among the Magistrates there are Magistrates of 1st Class, 2nd Class and 3rd Class. An appeal against the sentence passed by a Sessions Judge lies to the High Court and against the sentence passed by a Magistrate to the Sessions Judge if the term of sentence is up to four years, otherwise to the High Court.
Special Courts and Tribunals
To deal with specific types of cases, Special Courts and Tribunals are constituted. These are: Special Courts for Trial of Offences in Banks, Special Courts for Recovery of Bank Loans, Special Courts under the Customs Act, Special Traffic Courts, Courts of Special Judges Anti-Corruption, Commercial Courts, Drug Courts, Labour Courts, Insurance Appellate Tribunal, Income Tax Appellate Tribunal, Accountability Courts, Anti-Terrorism Courts and Services Tribunals. Appeals from the Special Courts lie to the High Courts, except in case of Labour Courts and Special Traffic Courts, which have separate forums of appeal.
The Ombudsman (Wafaqi Mohtasib)
The Concept Mohtasib (Ombudsman) is an ancient Islamic concept and many Islamic States have established the office of Mohtasib to ensure that no wrong or injustice is done to the citizens. In the 18th century, when King Charles XII of Sweden was in exile in Turkey, he observed the working and efficacy of this institution in the Ottomon Caliphate. On regaining his throne, the King established a similar institution in Sweden. Gradually, other developed western countries also adopted this institution.
Establishment in Pakistan: In Pakistan, the establishment of the institution of Ombudsman was advocated on several occasions. It was Article 276 of the Interim constitution of 1972, which provided for the appointment of a Federal Ombudsman as well as Provincial Ombudsmen for the first time. Subsequently, the Constitution of 1973 included the Federal Ombudsman at item 13 of the Federal Legislative List in the Fourth Schedule.
The Institution of Ombudsman was, however, actually brought into being through the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983. The Wafaqi Mohtasib is appointed by the President of Pakistan and holds office for a period of four years. He is assured of security of tenure and cannot be removed from office except on ground of misconduct or of physical or mental incapacity.
Jurisdiction: The chief purpose of the Wafaqi Mohtasib is to diagnose, investigate, redress and rectify any injustice done to a person through maladministration on the part of a Federal Agency or a Federal Government official. The primary objective of the office is to institutionalise a system for enforcing administrative accountability.
The term "maladministration" has been defined in the law governing the office of Mohtasib, to cover a very wide spectrum, encompassing every conceivable form of administrative practice. It includes a decision, process, recommendation, an act of omission or commission, which:
(a) is contrary to law, rules or regulations or is a departure from established practice or procedure;
(b) is perverse, arbitrary or unreasonable, unjust, biased, oppressive or discriminatory or is based on irrelevant grounds;
(c) involves the exercise of powers, or the failure, or refusal to do so, for corrupt or improper motives.
It also includes neglect, inattention, delay, incompetence, inefficiency, ineptitude in the administration, or in the discharge of duties and responsibilities. The term "Agency" has been defined as a Ministry, Division, Department, commission, or Office of the Federal Government, or a Statutory corporation, or any other institution established or controlled by the Federal Government.
Powers: If the Mohtasib finds an element of bad administration in a matter, he can, after investigating the matter, ask the Agency concerned to consider the matter further, to modify or cancel its decision, to take disciplinary action against any public servant, to dispose of the cases within a specified time, or to improve the working of the Agency, or to take any other specified steps. Failure on the part of an Agency to comply with the Ombudsman's recommendation is treated as "Defiance of Recommendations" which may lead to reference of the matter to the President of Pakistan, who, in his discretion may direct the Agency to implement the recommendations.
The Mohtasib is empowered to award compensation to an aggrieved person for any loss or damage suffered by that person on account of maladministration. But if the complaint is found to be false, or frivolous, he can also award compensation to the Agency or the functionary against whom the complaint was made.
Jirga
Jirga, a Persian word, means a gathering, or a consultation. Tribes had recourse to jirga to solve their multifarious problems and hence it is now common known as the tribal justice system. These problems covered a broad spectrum of subjects from an informal, community-based body that was meant to settle small claims, the ‘jirga’, or council of tribal elders, has in Pakistan been allowed to emerge as a powerful force protecting the interests of the powerful. A recent report by the Human Rights Commission of Pakistan (HRCP) on jirgas traces their history, citing several published sources according to which a British officer, Lt Sandeman, introduced this system of resolving disputes among the Baloch tribes, although it already existed in the Peshawar area.
On April 24, 2004, the Sindh High Court imposed a ban on holding jirgas in the province, but government functionaries, ranging from chief ministers to union council nazims, continue to participate in these meetings, according to the list compiled from newspaper reports by the HRCP.
Legal Research
The Federal Laws of Pakistan are published by the Government in a document called the Gazette of Pakistan. The well known law reporters, like the Pakistan Legal Decisions (PLD) and the Pakistan Law Journal (PLJ), also contain the statutes in their statutes sections. The major compilation for statutes, however, is the Pakistan Code. The current code is spread over twenty-one (21) volumes dating from the year 1836 C.E. Volume twenty-one, the last published volume, contains the laws made up to the year 1988. Code volumes for the years after 1988 are yet to be published and made available. The Ministry of Justice, Law and Parliamentary affairs does publish individual Acts when these are updated in the light of amendments, but this is done through the Official Gazette. This means that the published Code may not contain the updated law, and for the updated version one has to wait for the new edition of the Code. The latest versions of the laws are available from the government documents (Official Gazette) outlets and bookstores. The Acts sold by the bookstores are usually, but not always, the exact copies of the laws published officially. Thus, in many cases, the Acts available from the market do not contain the official notes added by the Ministry.
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