Islamabad: Faculty Members National School of Public Policy;
Course Participants of the National Management Course;
Ladies and Gentlemen;
It is a pleasure to welcome all of you to the Supreme Court of Pakistan and brief you about the judicial system of Pakistan in general, and the functioning and the goals of the Supreme Court of Pakistan in particular.
I am pleased to know that the 96th National Management Course, being organized for the Senior Civil Officers from various groups since 20th February, 2012, aims at building the capacity of senior officers of the Federal and Provincial Civil Services, armed forces and senior executives from the private sector to help formulate and to implement public policy for continuous improvement of governance at national and provincial levels.
I am confident that the participants will fully avail the current training opportunity, equip themselves with the necessary skills and knowhow and perform their functions and responsibilities in the public interest to the best of their abilities efficiently and diligently.
Ladies and Gentlemen:
The Constitution of any state is its supreme law. It creates and defines the State organs, their composition, functions, powers and duties. It lays down the basic structure of governance and harmonizes the relations of the State organs inter se. The Constitution of Pakistan characterizes a blend of Islamic, democratic and socialist thoughts.
The Preamble of the Constitution, inter alia, lays down that sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust wherein the State shall exercise its powers and authority through chosen representatives of the people.
The Constitution of Pakistan envisages a federal republic with a dual system of governance at the Federal and Provincial levels. The trichotomy of powers, i.e. the division of authority and powers among the Executive, Legislature and Judiciary is reflected in our Constitution.
The legislature is to enact the laws, the judiciary is to interpret the laws and the executive is to implement and execute the laws, as made and interpreted by the former two organs of the State. These organs have been separated from each other and each one has to perform its functions within its allotted sphere. None of organs is permitted to go beyond its limitations and enter into the sphere of the other.
The Constitution, inter alia, mandates the State to ensure inexpensive and expeditious justice to the masses. To achieve this objective, the Constitution has made provisions in Part VII titled “The Judicature” to ensure administration of justice in the country. Chapter 1 of the sad Part deals with the establishment and jurisdiction of courts generally, and appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court. Chapter 2 governs the constitution of the Supreme Court, oath of office, retiring age, various jurisdictions, i.e. original jurisdiction, appellate jurisdiction, advisory and review jurisdictions.
The next two Chapters are devoted to the High Courts and Federal Shariat C and Chapter 4 lays down general provisions relating to the Judicature, i.e. contempt of court, remuneration and resignation of Judges, etc. It also provides for establishment of Administrative Courts and Tribunals.
The Supreme Court of Pakistan is placed at the apex of the judicial hierarchy and is the Court of ultimate jurisdiction. It exercises appellate jurisdiction over the decisions of the Federal Shariat Court, High Courts, Administrative Courts and Tribunals. The High Courts exercise control and superintendence over the District Courts in the respective Provinces.
The Supreme Court was created under the first Constitution of 1956. It succeeded the Federal Court of Pakistan, which was set up in 1948, which was again the successor of Federal Court of India established in 1937 under the Government of India Act, 1935.
The Constitution of 1962 maintained the functions and name of the Court, as provided by the 1956 Constitution. The Interim Constitution of 1972 as well as permanent Constitution of 1973 again maintained the same jurisdiction and functions of the Court. As provided by law, the Supreme Court consists of the Chief Justice of Pakistan and sixteen Judges.
Supreme Court is the final arbiter of the law and the Constitution. The Constitution contains elaborate provisions on the composition jurisdictions, powers and functions of the Court, the qualifications, mode of appointment and the age of retirement of judges. Similarly, the grounds and procedure for removal and the terms and conditions of service of judges are elaborately prescribed by the Constitution.
The Supreme Court is vested with exclusive original jurisdiction for the settlement of intergovernmental (Federal/Provincial) disputes. It exercises original jurisdiction with respect to settling inter-governmental disputes and for the enforcement of fundamental rights, if the case involves a question of public importance. Under its appellate jurisdiction, the Court entertains appeals against orders and decisions of High Court and other special tribunals and courts.
The Court exercises advisory jurisdiction where under the President may obtain its opinion on a question of law. While in review jurisdiction the Supreme Court is empowered to review its previous judicial pronouncements. The orders/decisions of the Supreme Court are binding on all other courts in the country. All executive and judicial authorities are bound to act in aid of the Supreme Court.
For the appointment of Chief Justices and Judges in the superior courts, new scheme has been introduced in Article 175A under eighteenth and nineteenth amendments in the Constitution, which provide for the constitution of Judicial Commission of Pakistan and Parliamentary Committee.
The Commission by its majority of its total membership recommends and forwards the name of a person to the Parliamentary Committee, who confirms the nominee by majority and forwards the name to the President through Prime Minister for appointment.
The Constitution provides a mechanism of accountability and removal of judges of the superior courts by means of Supreme Judicial Council, comprising the Chief Justice of Pakistan, two senior most Judges of the Supreme Court and two senior most Chief Justices of the High Courts.
The Council has prescribed a Code of Conduct of the Judges. The Council may on its own motion, or on a reference from the President, inquire into the conduct of a judge. After inquiry the Council reports to the President that the Judge is incapable of performing the duties or has been guilty of misconduct whereafter the President may remove the Judge from office.
The Constitution of Pakistan provides for checks and balances between the organs of the state. The superior judiciary has been assigned the power of judicial review of legislative and executive actions.
The Courts have laid down in many judgments that if any action is taken or power is exercised without any authority or beyond the power conferred, arbitrarily, or for any extraneous considerations, such an action as a whole would be without lawful authority.
The power of judicial review also extends to legislative instruments when it is found to be in conflict with provisions of Constitution or where the legislature fails to keep itself within the constitutional limits. Under Article 184(3) Supreme Court decides many public interest litigation involving enforcement of fundamental rights of the citizen, arbitrary exercise of power, eradication of corruption, protection of environment, safeguarding the national assets, etc.
Impartial and independent judiciary leads in reshaping the rule of law, strengthening democracy, improving socio-economic well being, peace, security and tolerance. With active struggle of the Bench and the Bar and support, struggle and sacrifices of the people of this country, the judiciary has gained independence. The judiciary is striving to perform its duties according to law and the Constitution.
This is in line with the public aspirations and expectations. The judicial statistics has shown tremendous increase in the institution of new cases. In order to address this issue a National Judicial Policy was launched in the year 2009 in consultation with all stakeholders of the justice sector.
The Policy has been regularly reformed and revised from time to time after extensive deliberation and consultation according to the changing needs. The main objectives of the Policy include the expeditious disposal of cases, delay reduction, enhancing the capacity of judicial officers and court personnel, elimination of corruption from the judicial institution and strengthening the fabric of independence of judiciary.
Through effective mechanism of implementation and the unconditional support from all the stakeholders, particularly from the lawyers, who are part and parcel of the system of administration of justice, the District Judiciary in particular has achieved the targets set for it in the Policy. The District Judiciary is the backbone of the judicial system, therefore, special attention is to be paid to improve the justice delivery system at that level.
Ladies and Gentlemen!
The Constitution guarantees rights of the citizens, which should be extended to them. You protect others rights, no one protects your rights. We came across many cases wherein civil servants were made to run from pillar to post for their rights. This is not happening in judiciary or defence but why within the executive?
The Court judgments aim at establishing a policy based on rule of law and supremacy of the Constitution. In the recent past, the Supreme Court in Tariq Aziz-ud-Din’s case dealt with the appointments/promotions to BPS-22 posts.
It was held that in absence of any rules for promotion to such posts, reliance has to be placed on Section 9(2)(a)(b) of Civil Servants Act, 1973, according to which, in case of a selection post, selection has to be made on the basis of merit, and in case of non-selection post, on the basis of seniority-cum- fitness.
Promotion to posts in Basic Scales-20 and 21 and equivalent, under Section 9(2) of Civil Servants Act, 1973 has to be made on the recommendations of Selection Board. As regards promotion to selection post of Grade-22, the competent authority may exercise discretion, but such discretion has to be structured in view of the principles laid down in judge made law by full application of mind. It was held that an action must be based on fair, open and just consideration to decide matters, more particularly when such powers are to be exercised by the competent authority in his discretion.
Arbitrariness in any manner is to be avoided to ensure that action based on discretion is fair and transparent. Thus, discretion is to be exercised rationally, which means that there should be a finding of primary facts, based on good evidence; and decisions about those facts be made for reasons, which serve the purpose of statute in an intelligible and reasonable manner.
Actions which do not meet these threshold requirements are considered arbitrary and misuse of power. All judicial, quasi-judicial and administrative authorities must exercise power in a reasonable manner and also must ensure justice as per spirit of law and instruments regarding exercise of discretion.
The obligation to act fairly on the part of administrative authority has been evolved to ensure rule of law and to prevent failure of justice. Before I conclude, I should warn the participants of the training course, who are Senior Civil Officers that a heavy responsibility lies on their shoulders to improve the governance system and make it responsive to the needs and aspirations of its beneficiaries, the masses, the general public and, especially the weak, downtrodden and the have-nots.
The senior officers have to be role models for the junior officers. The Civil Service is the backbone of the governance apparatus of the country. The welfare of the citizens must be the prime consideration of all institutions and functionaries.
Your sole aim should be to serve Pakistan and its people without any fear or favour and not any individual or political group. The civil servants have a key role to perform to enforce law and policies. Their role is not easy – it is indeed difficult. We should strengthen all the institutions by removing weaknesses. No sooner these weaknesses are removed, our country will flourish.
For more information, contact:
Shahid Hussain Kamboyo
Public Relations Officer
Supreme Court of Pakistan
Tel: +9251 920 4184
Fax: +9251 920 1001