CHAPTER NO-1 LEGAL SYSTEM OF PAKISTAN

These notes are simplified version of two books CL ICMA STUDY TEXT
and KMC BOOK

1. Need for Laws

Laws are essential for regulating human behavior in society. Since humans live in groups, we need rules
to ensure that people interact with each other peacefully and fairly. Laws help in controlling the use of
limited resources and ensure that everyone follows a system of order.

• Laws vs. Morality: Laws are official rules made by the government that can be enforced in
courts, while morality refers to the unwritten rules of right and wrong that evolve within society.
For example, breaking the law might lead to punishment, but immoral actions might only result
in social disapproval.

• Laws as a Social Science: Law develops as societies grow and change. When new issues arise,
the law adapts to deal with them. For instance, modern technology may bring up legal issues,
and the law changes to address these new concerns.

• Definition of Law: Law can be seen as a set of rules that control both human actions (like traffic
laws) and natural occurrences (like the law of gravity). Different philosophers have defined law in
various ways, but its purpose is to maintain order and justice in society.

2. Sources of Law

Sources of law refer to where the laws come from or how they are created. These sources can be divided
into two main categories:

• Formal Sources: These are the authorities or bodies that have the power to create laws. For
example, in Pakistan, laws are made by Parliament.

• Material Sources: These are the ideas or principles from which laws are derived. They don't give
laws their power but help shape what the laws are about. There are two types:

1. Historical Sources: These are where the first ideas of legal rules appeared, often in non-
official forms (like old customs or practices).

2. Legal Sources: These are the official sources, like the government (legislation) or
customs, from which valid laws are made.

There are several types of law, such as:

• Enacted Law: Laws made by legislation (like Parliament passing a law).

• Case Law: Laws made based on decisions from previous court cases (also called precedent).

• Customary Law: Laws based on traditions and customs.

 • Conventional Law: Laws created by agreements between parties (like contracts).

• Equity: A type of law that aims to provide fairness in situations where the strict application of
the law might lead to unjust results.

• Juristic Law: Opinions of legal experts that influence lawmaking.

3. Pakistan’s Law-Making Authority

Pakistan, like other countries, has three main branches of government: the Legislature, the Executive,
and the Judiciary. Each branch plays a different role in creating and enforcing laws.

• Legislature (Law-Making): This is the branch responsible for making laws. In Pakistan, this is
done by Parliament, which consists of two houses: the National Assembly and the Senate.

o The National Assembly is made up of representatives elected by the public.

o The Senate represents all provinces equally, with senators elected by provincial
assemblies. Laws made by Parliament are known as Statute Laws.

• Executive (Law Enforcement): This branch implements laws and manages the government. In
Pakistan, ministers and the cabinet are in charge of the executive branch, ensuring that laws are
followed.

• Judiciary (Interpreting Laws): This branch resolves legal disputes and explains what the laws
mean. In Pakistan, the Supreme Court is the highest court, and it makes decisions that become
part of the law (known as Case Laws).

4. Legislation Process Under Pakistan’s Constitution

The process of making laws in Pakistan follows the Constitution of 1973. Here’s how it works:

• Role of Parliament: The two houses of Parliament—National Assembly and Senate—work

together to make laws.

o Bills (proposed laws) can come from either house. If one house passes the bill, it is sent
to the other house for approval.

o If the bill is approved without changes, it is sent to the President for approval.

o If the second house makes changes or rejects the bill, a joint meeting of both houses is
held to agree on the final version of the bill.

• President’s Role: The President has several options when a bill reaches them:

o They can approve it, making it a law (an Act).

o If they don’t approve it, the bill goes back to Parliament for further discussion. If
Parliament passes the bill again, the President must approve it. If they don’t approve it
within ten days, the bill automatically becomes law.
 • Money Bills (such as the budget) are special because they can only start in the National
Assembly. The Senate can suggest changes, but the National Assembly doesn’t have to follow
these suggestions.

5. Presidential Power to Issue Ordinance

Under Article 89 of the Constitution, if Parliament is not in session and urgent action is needed, the
President can issue an Ordinance, which has the same effect as a law passed by Parliament. However:

• The Ordinance must be presented to Parliament within 120 days for approval. If Parliament
doesn’t approve it, the Ordinance is automatically repealed (canceled).

• If Parliament accepts the Ordinance, it becomes a law.

Even after an Ordinance expires, if Parliament accepts it later through an amendment, it remains in
effect (for example, Companies Ordinance 1984).

4. Court Structure in Pakistan

4.1 The Constitution and the Judiciary

The Constitution of Pakistan provides a detailed framework for the country’s superior judiciary,
addressing its composition, jurisdiction, powers, and functions. It guarantees the separation of the
judiciary from the executive and ensures the independence of the judiciary, with the responsibility of
protecting and defending the Constitution. The qualifications for judges, their appointment procedures,
and their service conditions, including salaries and pensions, are set out in the Constitution. Judges’
remuneration and administrative expenses of the superior courts are drawn from the Federal/Provincial
Consolidated Fund, meaning they cannot be debated or voted upon in the legislature.

4.2 Judicial System

Under Article 175 of the Constitution, the judicial system consists of a Supreme Court and High Courts in
each of the four provinces (Punjab, Sindh, Balochistan, and Khyber Pakhtunkhwa), as well as a newly
established High Court for Islamabad Capital Territory. The Constitution also allows for the creation of
other courts through legislation, such as Civil Courts and Criminal Courts established under the Civil
Courts Ordinance 1962 and the Code of Criminal Procedure 1898. Article 227 establishes the Federal
Shariah Court.

4.3 Supreme Court

The Supreme Court of Pakistan is the highest court, with original, appellate, and advisory jurisdiction. It
serves as the final court of appeal and the ultimate interpreter of the law and Constitution. The Court’s
decisions are binding on all other courts. It consists of the Chief Justice and other judges, appointed by
the President per the Constitution's procedures. The number of judges in the Supreme Court is fixed at
17, comprising the Chief Justice and 16 other judges. Judges can also be appointed as acting judges or ad
hoc judges. A person is eligible for appointment as a judge if they have five years of experience as a
High Court judge or 15 years of practice as a High Court advocate.

The Supreme Court exercises original jurisdiction in inter-governmental disputes, such as those between
the Federal Government and provincial governments or among provinces. It also shares original
jurisdiction with High Courts to enforce Fundamental Rights in cases of public importance. The Court has
appellate jurisdiction over civil and criminal matters and provides advisory opinions to the Government
on questions of law.

4.4 High Courts

Each province and the Islamabad Capital Territory have their own High Courts, which consist of a Chief
Justice and other judges. The Lahore High Court has 60 judges, Sindh High Court has 40, Peshawar High
Court has 20, Balochistan High Court has 11, and the Islamabad High Court has 7. Judges of the High
Courts are appointed based on 10 years of experience as a High Court advocate or service as a civil
servant, including judicial roles.

The High Courts have supervisory authority over subordinate courts and are responsible for the
appointment of court staff and the formulation of rules for their operations.

4.5 Federal Shariat Court

The Federal Shariat Court consists of 8 Muslim judges, including the Chief Justice. After the 18th and
19th amendments, the method of appointing judges to the Federal Shariat Court was changed. Judges
are now appointed through the Judicial Commission, which consists of several senior judicial and
government officials. The appointments are reviewed by an 8-member Parliamentary Committee, which
has equal representation from the Government and Opposition.

4.6 Subordinate Courts

The Subordinate Judiciary includes civil courts (under the Civil Courts Ordinance 1962) and criminal
courts (under the Code of Criminal Procedure 1898), alongside other specialized courts and tribunals.
These courts operate under the administrative control of the High Courts and are funded by the
provincial governments. Civil courts are organized into different levels, including District Judge,
Additional District Judge, and Senior Civil Judge, while criminal courts consist of Sessions Judge,
Additional Sessions Judge, and Judicial Magistrates.

Appeals from the decisions of subordinate civil courts are directed to the District Judge and the High
Court when the value of the suit exceeds a specified amount. In criminal matters, appeals are directed to
the Sessions Judge or High Court, depending on the nature of the case.

4.7 Special Courts and Administrative Tribunals

The Constitution allows the establishment of special courts and administrative tribunals for specific
federal matters. Several such courts, operating under the administrative control of the Federal
Government, include Banking Courts, Anti-terrorism Courts, Accountability Courts, and Special Courts
for Narcotics, among others. Similarly, provincial governments have established their own special courts
or tribunals, such as Labour Courts, Consumer Protection Courts, and Anti-corruption Courts. Judges of
these special courts are often appointed from the provincial judicial cadre.

4.8 Service Tribunals

Service tribunals are established under Article 212 of the Constitution to hear matters related to the
terms and conditions of civil servants' service. Both federal and provincial service tribunals exist, and
decisions can be appealed to the Supreme Court.
5. Sources of Law

5.1 Historical Sources

Pakistan's legal system blends its Islamic heritage with the British colonial legal structure. The Common
Law system, principles of English law, and Islamic jurisprudence all contribute to the current legal
framework.

5.1.1 Common Law

Common law is based on customary principles that have been enforced by courts since the Norman
Conquest of 1066. English court decisions during the medieval and early modern periods were adopted
by the British rulers in colonial regions, including Pakistan.

5.1.2 Equity

Equity complements the common law by offering remedies beyond financial compensation. It includes
injunctions to prevent wrongful actions and the specific performance of contracts, which common law
courts lacked.

5.1.3 Quran and Sunnah

Islamic sources, primarily the Quran and the Sunnah (traditions of the Prophet Muhammad), are
fundamental to Pakistan’s legal framework. The Quran offers divine guidance on legal matters, while the
Sunnah provides interpretations and practical applications of the Quranic texts.

5.1.4 Ijma (Consensus)

Ijma refers to the consensus of Islamic scholars on legal issues. It serves as a source of law when neither
the Quran nor the Sunnah addresses a specific matter.

5.1.5 Qiyas (Analogy)

When no specific guidance is found in the Quran, Sunnah, or Ijma, legal rulings can be derived through
Qiyas, or analogy, applying existing laws to new situations.

5.1.6 Customs

Traditions and customs play a key role, particularly in matters not covered by statute or case law. While
the importance of customs has diminished with formal legal systems, they remain a source of law in
areas like e-commerce and international trade.

5.1.7 Precedents
Legal precedents serve as authoritative rules for future cases. Courts follow binding precedents from
higher courts and may be persuaded by persuasive precedents from other jurisdictions.