Constitutional Provisions Necessitating Change: Proposals for Reform in the Constitution of Pakistan Concerning Judiciary.

 
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Byline: Usman Quddus and Muhammad Arif Khan

Introduction

The laws in pre-partition India were promulgated to serve the interests of dominion of England. Post partition, India and Pakistan were required to do away with colonial traditions of slavery and enact new laws that benefited people of both countries and enlarged their freedom. However, both the nations continued with the vestiges of the past which has made people at large of India and Pakistan virtually still a dependent of various institutions.An impartial judiciary is the cornerstone and one of the fundamental pillars of an independent and sovereign state in all legal systems. It is true that the judiciary keeps a check on the executive and the legislature but at the same time a check on the powers exercised by the judiciary is absolutely necessary so that judiciary is not seen as an autocratic institution that is not subject to accountability.

The consequences of a reformed superior judiciary will trickle down towards inferior court's which in effect will also work properly to the satisfaction of masses. Thus the issues in the lower judiciary can be easily remedied through reforms in the superior judiciary.New traditions must replace the old in this part of the world so that world sees the light of justice also coming from this part of the world.The paper aims to propose constitutional reforms pertaining to judiciary in the interest of people of Pakistan. It calls for changes to the constitution concerning judiciary that are absolutely necessary to ensure effective administration of justice. The study is primarily focused on the study of constitution and doesn't undertake a comprehensive comparative analysis. It proposes stepwise constitutional reforms. It is being proposed and recommended as follows:

1. It is proposed that Article 199(3) and (5) of the Constitution of Pakistan should be referred to Parliament for the repeal of said Articles so that army and judiciary do not enjoy a higher status than other organs of state as it is not the mandate of judiciary to make redundant the provisions of the constitution. Article 199(3) excludes army from the purview of writ jurisdiction, while, 199(5) excludes superior judiciary. It is imperative in the light of recent developments in the case law relating to judicial immunity.i In the recent case of Chaudhry Muhammad Akram vs Islamabad High Court, Supreme Court of Pakistan held, that the exclusion under article 199(5) pertaining to superior judiciary only extended to judicial orders and not to the administrative orders while enforcing fundamental rights as enshrined under article 18 of the constitution of Pakistan on popular demand.ii

The language of 199(5) was wide enough to exclude interalia the administrative orders, however, the Supreme Court of Pakistan choose to exclude only the judicial orders from the purview of Article 199(5). It is proposed that other provision of Constitution be also reformed which elevate army and judiciary to a higher pedestal particularly the provisions relating to freedom of speech. The vide meanings should be curtailed so that meaning of legislation is clear and not everyone can be dragged within the mischief of such provisions e.g. freedom of speech provisions may be amended to clarify as to what are the limitation to such speech and subjective wordings like interest of Islam, contempt of court, defense of Pakistan and morality/decency etc may be clarified further so that their exact scope is clear to the people of Pakistan.

2. It is recommended that Article 68 of the Constitution of Pakistan restricting discussion in Parliament with respect to the conduct of any Judge of High Court and Supreme Court may be repealed keeping in view Islamic traditions, international instruments on freedom of speech and democratic values of sovereignty of people in a functional democracy. The sovereign may dismiss any judge who appears to him to be incapable of performing his duties; or even a judge who is in every respect capable, if he can find one still more capable in Islamic dispensation of justice.3 Sovereign is also authorized to appoint and dismiss judges which inter-alia also implies that in present times the authority to appoint and dismiss judges should lie with parliament being the sovereign in parliamentarian democracies.4

Justice Dost Muhammad Khan...

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