Name : Bisma Malik

Department : Law
Roll num : 51926
Semester : 2nd
Subject : Legal system of Pakistan
Teacher Name : Saira Khan

Institute Name : Hazara University, Mansehra

Judiciary: The judiciary (also known as the judicial system, judicature, judicial

branch or court system) is the system of courts that interprets and applies the law in the name of
the state. The judiciary can also be thought of as the mechanism for the resolution of disputes.
Under the doctrine of the separation of powers, the judiciary generally does not make statutory
law (which is the responsibility of the legislature) or enforce law (which is the responsibility of
the executive), but rather interprets law and applies it to the facts of each case. However, in some
countries the judiciary does make common law, setting precedent for other courts to follow. This
branch of the state is often tasked with ensuring equal justice under law.

 Cardozo, Benjamin N. (1998). The Nature of the Judicial Process. New Haven: Yale University Press.

Functions of Judiciary and Its Importance:

1. To Give Justice to the people:
The first and foremost function of the judiciary is to give justice to the people, whenever they

may approach it. It awards punishment to those who after trial are found guilty of violating the
laws of the state or the rights of the people.
2. Interpretation and Application of Laws:
One of the major functions of the judiciary is to interpret and apply laws to specific cases. In the

course of deciding the disputes that come before it, the judges interpret and apply laws. Every

law needs a proper interpretation for getting applied to every specific case. This function is
performed by the judges. The law means what the judges interpret it to mean.

3. Role in Law-making:
The judiciary also plays a role in law-making. The decisions given by the courts really determine

the meaning, nature and scope of the laws passed by the legislature. The interpretation of laws by
the judiciary amounts to law-making as it is these interpretations which really define the laws.

Moreover, ‘the judgements delivered by the higher courts, which are the Courts of Records, are

binding upon lower courts. The latter can decide the cases before them on the basis of the
decisions made by the higher courts. Judicial decisions constitute a source of law.

4. Equity Legislation:
Where a law is silent or ambiguous, or appears to be inconsistent with some other law of the

land, the judges depend upon their sense of justice, fairness, impartiality, honesty and wisdom

for deciding the cases. Such decisions always involve law-making. It is usually termed as equity
legislation.

5. Protection of Rights:
The judiciary has the supreme responsibility to safeguard the rights of the people. A citizen has

the right to seek the protection of the judiciary in case his rights are violated or threatened to be

violated by the government or by private organizations or fellow citizens. In all such cases, it
becomes the responsibility of the judiciary to protect his rights of the people.

6. Guardian of the Constitution:

The judiciary acts as the guardian of the Constitution. The Constitution is the supreme law of the

land and it is the responsibility of the judiciary to interpret and protect it. For this purpose the

judiciary can conduct judicial review over any law for determining as to whether or not it is in

accordance with the letter and spirit of the constitution. In case any law is found ultra vires

(unconstitutional), it is rejected by the judiciary and it becomes invalid for future. This power of
the court is called the power of judicial review.

Importance of Independent Judiciary:

In the life of the citizens of a state, Judiciary is a source of confidence and fearlessness. The

common man depends upon judiciary for getting justice. Without a security of rights and

freedom guaranteed by the judiciary, they cannot really hope to carry out their jobs and enjoy

their living. They are more dependent upon judiciary than the legislature and the executive.

Without judicial protection, their lives can become miserable. From citizens point of view
Judiciary is the most important organ of the government.

Judiciary enjoys a big importance in the eyes of

the people because it acts as:

(1) The dispenser of Justice.

(2) Protector of the rights of the people.

(3) Guardian protector of the Constitution of the State.

(4) Arbiter of center-state disputes.

(5) Safeguard against Legislative and executive excesses.

(6) Check against arbitrary exercise of powers by the power-holders.

(7) Guardian of Rule of Law and Justice.

An independent judiciary is always considered to be the most essential part of

every democratic government worth its name. A government without
judiciary is almost inconceivable. A government without independent
judiciary is always held to be an authoritarian government.

Garner highlights this view when he observes, “A society without legislature is conceivable, and

indeed, legislative organs did not make their appearance in the state until modern times, but a
civilised state without a judicial organ and machinery is hardly conceivable.”

Independence of Judiciary: An Essential Quality:

The chief quality which helps the judiciary to faithfully administer justice and to perform its

functions efficiently is judicial independence. It is only when the judiciary works independently

without any interference of the other two organs of the government that it can carry out its high
responsibilities.

“The independence of judiciary,” writes Dr. P. Sharan, “is a corner stone of every democratic
government and upon it is built the structure of civil liberty.” Judiciary can perform its functions

only when it is free to administer justice according to law. Without being well-organised and

independent it can never serve its purpose. Therefore, Judiciary must be organised in such a way
as can enable the judges to give their judgements without any fear or favour.

Role in Judiciary in Law making in Pakistan

Today, Pakistan is passing through a period of acute crisis. A culture of intolerance seems to have taken
the whole country into its grip. Sectarian feelings have added a new dimension to this deplorable
situation. Islam which unified the Muslims for more than thirteen centuries has been distorted by
sectarianism into a divisive factor. Different religious denominations have not only given different
interpretations of Islam but have also started insisting on their particular interpretation as the only valid
and legitimate interpretation of the faith. These difficulties have been further accentuated by the injustices
being done to the Muslims around the globe. Western powers have adopted double standards; one for
dealing with Muslims and the other, for dealing with non-Muslims. Every such policy further reassures
the Muslim masses that the present world order has been conceived, developed and adopted only to curb
and control Muslims and to ensure that their ideals and aspirations are frustrated. A common Muslim fails
to understand why the champions of human rights refuse to appreciate the miseries and plight of the
people of Palestine. It is difficult for a Muslim to justify prompt action on behalf of the western powers to
obtain the right of self-determination for the non-Muslim population of East Timor while a similar right,
has never been acknowledged by the world powers for the people of Kashmir, Mindanao, Chechnya and
Daghestan. Similarly, an ordinary Pakistani feels insulted when he notices that India is acknowledged as a
nuclear power while Pakistan is not. These injustices create a feeling of deprivation, indignity and
frustration. Frustration always gives rise to hatred against those who are perceived to be the cause and
source of it. It is unfortunate, that the dimensions of these frustrations are continuing to increase with the
passage of time, mostly because of the situation in and outside the country.

http://www.supremecourt.gov.pk/ijc/Articles/9/5.pdf

New Procedure for Appointment Following

the adoption of Constitutional (18th & 19th) Amendments Acts 2011, new process/procedure was
prescribed for appointment of judges to the superior judiciary. The 18th Amendment was aimed at
strengthening the parliamentary system and transferring additional subjects to the provinces. The
Parliament also prescribed a new fora and procedure for the appointment of judges. Cases of appointment
in superior courts i.e. Supreme Court, Federal Shariat Court, High Courts are to be processed through two
forums i.e. Judicial Commission of 20 Ibid, p 115 21 PLD 1996 SC 324 22 PLD 1998 SC 33 The Judicial
System of Pakistan 8 Pakistan and Parliamentary Committee. The Judicial Commission is headed by the
Chief Justice of Pakistan and comprises senior judges of Supreme Court, Chief Justice and senior puisne
judges of High Court, Attorney General for Pakistan, Federal and Provincial Law Ministers,
representatives of the Federal and Provincial Bar Councils, etc. The Commission nominates names for
each vacancy and forwards it to the Parliamentary Committee for confirmation. The Parliamentary
Committee comprises eight members: four from National Assembly and four from Senate. The
Committee scrutinizes the nominations and names confirmed are forwarded to the President, through the
Prime Minister, for appointment. The 18th Amendment was challenged in the Supreme Court and
examined by a 17-member bench, which decided to send a reference to the Parliament with certain
recommendations to improve the process and procedure of appointment of judges. The Parliament
graciously considered the reference and approved many a recommendations through the adoption of
Constitution (19th Amendment) Act 2010. In the light of 18th and 19th amendments, judges of Supreme
Court are appointed through the Judicial Commission which consists of Chief Justice of Pakistan as
Chairman and four senior judges of the Supreme Court, one former Chief Justice or judge of the Supreme
Court, nominated by the Chairman, in consultation with the four member judges, as members. The
remaining members are, the Attorney General for Pakistan, Federal Minister for Law and Justice and a
senior advocate, Supreme Court, nominated by the Pakistan Bar Council. Once the Judicial Commission
approves a new name for appointment as judge of the Supreme Court, it goes to the eight-member
Parliamentary Committee that has equal representation of the Government and the Opposition as well as
of the two houses i.e. National Assembly and Senate. This Committee has two weeks to consider the
nomination. If approved, the name is forwarded to the President, through the Prime Minister, for
appointment. The Parliamentary Committee, for reasons to be recorded, may not confirm the
recommendation by three-fourth majority, in which instance, the decision is forwarded to the Commission
through the Prime Minister; and in that eventuality, the Commission is required 23 to send another
nomination. Notwithstanding the procedure provided in Article 175A, the President has to appoint the
most senior judge of the Supreme Court as the Chief Justice of Pakistan. As per opinion of the Supreme
Court, on a Reference received from the President, the Government is not authorized to decide inter 24 se
seniority of the judges. The issue was resolved by another verdict of the Supreme Court, wherein it was
held that the inter se sonority of judges of High Court shall reckon from the date of their appointment as
Additional Judge of High Court; however if appointed on the same day, then it shall 25 reckon from their
seniority in age. 23 Art 175A 24 Reference No.1 of 2012 25 Muhammad Aslam Awan v Federation, 2014
SCMR 1289 The Judicial System of Pakistan 9 For appointment of Chief Justice and judges of Federal
Shariat Court, the Chief Justice and most senior judge of the said court are added to the composition of
the Judicial Commission, provided that for appointment of the Chief Justice, the most senior judge is
excluded from such composition. Similarly, for appointment of Chief Justices and judges of High Courts,
the Chief Justice and senior most judge of the respective High Court, provincial minister for law and an
advocate of High Court (15 years standing), as nominee of the provincial bar council, are added to the
composition of the Commission. However, for appointment of Chief Justice, the senior most judge is
excluded from such composition. Just like appointments in the Supreme Court, the Chief Justices and
judges of the Federal Shariat Court and High Courts are appointed by the President through their
nomination by the Judicial Commission and confirmation by the Parliamentary Committee.
Thank you!!