Regulatory/Administrative Authorities of the Supreme Court and High Courts:
Supreme Court is the final court of appeal and has the final decision in all legal matters pertaining to common law. It also has the power of judicial review.
The Constitution of Pakistan awards certain internal administrative and regulatory authorities to the Supreme Court and High Courts to guarantee the successful working of the legal framework. Article 188 assigns powers to Supreme Court to review its own judgments and orders. Article 189 is of the binding nature of the Supreme Court's decisions on all other Pakistani Courts. Article 190 bound all executive and judicial authorities in Pakistan to support the judicial verdicts of the Supreme Court. Article 202 enables the High Courts to create rules for directing their possess method and the method of subordinate courts.
The administrative and regulatory authorities of the Supreme Court and High Courts basically relate to things such as the (internal) arrangement and exchange of judges, court staff, and, administration of court operations. These powers are worked out through the particular Chief Judges/Justices and Registrars of the courts, who are capable of the day-to-day organization and operations.
Judicial Mandate vs. Executive Authority:
Whereas the Supreme Court and High Courts have administrative authorities, it is basic to get the refinement between their judicial mandate and Executive authority. The judicial mandate of the courts spins around the translation and application of the law, rendering judgments, and giving lawful cures. Their essential part is to maintain the run of the business of law and guarantee equity is served.
On the other hand, Executive authority rests with the state's Official Head, regularly the President or the Prime Minister, and the individual official bodies. The Executive Head is responsible for the usage and execution of laws, approaches, and regulatory capacities of the state. The division of powers within the Pakistani constitution points to preserving an adjustment between the legal, official, and administrative branches.
Relationship of the Judiciary with the State's Executive Head:
The administrative and regulatory powers of the Supreme Court and High Courts in Pakistan are separated from the Executive. Whereas the courts work out control over their internal regulatory things, they don't have the control to direct or meddled with the authorities of the state's Executive Head or the official departments. The courts are autonomous bodies with a particular order to guarantee equity and maintain the run of the judicial businesses. Their powers and activities are to be worked out inside the system of the constitution and its lawful provisions.
In short, the Supreme Court and High Courts of Pakistan have regulatory authorities fundamentally for the internal administration and proceeding of legal functions (Intra-Institution). In any case, these authoritative powers don't expand to managing or interferometer with the state's Official Head or the other official departments. The division of powers guideline cherished within the Pakistani constitution points to preserving a fragile adjustment between the legal and the official, guaranteeing the freedom and autonomy of both branches. Understanding the parts and restrictions of the Supreme Court and High Courts in authoritative things is basic for maintaining the astuteness and adequacy of the Pakistani real framework.
Now the question arises, how could a balance be maintained between the higher Judiciary and Executive in Pakistan from the perspective of the Constitution of Pakistan?
So, maintaining a delicate balance between the higher judiciary and the executive branch is crucial for the stability and effective functioning of the legal system in Pakistan. This scholarly analysis explores the constitutional provisions and mechanisms that facilitate the balance between the judiciary and the executive in Pakistan, highlighting the principles of separation of powers, judicial independence, and checks and balances.
Constitutional Provisions:
The Constitution of Pakistan, adopted in 1973, establishes a framework for the relationship between the judiciary and the executive branch. Several provisions promote the balance of power between these two entities. Article 175 grants the Supreme Court and High Courts the authority to exercise judicial review over legislative and executive actions. It ensures the independence of the judiciary by prohibiting the discussion of a judge's conduct in Parliament, safeguarding their tenure, and providing mechanisms for their appointment, transfer, and removal.
Separation of Powers:
The principle of separation of powers, inherent in the Constitution of Pakistan, plays a significant role in maintaining the balance between the higher judiciary and the executive. It distributes powers among three branches of government: the judiciary, the executive, and the legislature. Each branch operates independently, ensuring a system of checks and balances to prevent the concentration of power.
Judicial Independence:
Judicial independence is a cornerstone of the balance between the higher judiciary and the executive in Pakistan. The Constitution establishes safeguards to protect judicial independence, such as security of tenure, financial autonomy, and immunity from external influence. These provisions empower judges to make impartial decisions without fear of undue pressure or interference from the executive branch.
Appointment and Removal Mechanisms:
The appointment and removal mechanisms for judges in Pakistan contribute to maintaining the balance between the judiciary and the executive. The Constitution outlines a transparent and consultative process for judicial appointments. The Judicial Commission, comprising members from the judiciary, the executive, and the legal profession, plays a vital role in recommending candidates for judicial positions. The requirement of parliamentary approval for the appointment of judges ensures a system of checks and balances.
Checks and Balances:
The Constitution of Pakistan establishes checks and balances to prevent any one branch from exerting undue influence over the others. The higher judiciary has the power of judicial review, enabling it to examine the constitutional validity of executive actions. At the same time, the executive branch, through the President and Prime Minister, retains certain powers, such as the appointment of judges and the implementation of laws. The legislature acts as a check on both the judiciary and the executive through its lawmaking authority and oversight functions.
In short, maintaining a balance between the higher judiciary and the executive in Pakistan is crucial for upholding democratic principles, the rule of law, and good governance. The Constitution of Pakistan provides a framework that ensures separation of powers, judicial independence, and checks and balances. By adhering to these constitutional provisions, Pakistan can strive for a harmonious relationship between the judiciary and the executive, enhancing the stability and integrity of the legal system.
And as I have already expressed in an earlier blog that the constitution of Pakistan needs further improvements with respect to its chapters and clauses as per the current/contemporary socio-political, legal, and administrative scenario of the country.
The insights and opinions presented in our above thoughts are based on the following references and could also be further understood directly to consult them.
Bhutta, F. S. (2014). Constitutional Structure and Separation of Powers: A Comparative Perspective. Lahore Journal of Policy Studies, 2(1), 31-46.
Bhutta, F. S. (2017). Constitutional Structure and Separation of Powers: A Comparative Perspective. Lahore Journal of Policy Studies, 12(1), 17-38.
Chaudhry, S. A. (2008). Judicial Activism in Pakistan: A Comparative Study of Judicial Role and Constitutional Interpretation. Lahore Law Review, 3(2), 59-78.
Cheema, M. I., & Sattar, A. A. (2016). Separation of Powers: An Analysis of the Doctrine in Pakistan. Pakistan Journal of Social Sciences (PJSS), 36(2), 921-938.
Constitution of the Islamic Republic of Pakistan, 1973.
Gul, H. (2011). Judicial Independence in Pakistan: Myth or Reality? Northwestern Journal of International Human Rights, 10(2), 1-34.
Khan, M. M., & Abbasi, A. H. (2018). Judicial Independence in Pakistan: An Empirical Analysis. European Journal of Law and Political Sciences, 3(1), 1-18.
Mahmood, M. T. (2019). Judicial Independence in Pakistan: An Empirical Analysis. Pakistan Journal of Legal Studies, 4(1), 49-68.
Malik, M. M. (2005). Judicialization of Politics and Politicization of Judiciary in Pakistan. Journal of Political Studies, 12(1), 1-22.
Rashid, Z. (2010). Judicial Activism and Constitutional Politics in Pakistan. The Journal of Comparative Law, 5(1), 127-147.
Shahbaz, Q. (2018). Separation of Powers in Pakistan: A Historical Perspective. Journal of Law and Politics, 2(1), 77-97.
Wahab, A., & Munir, M. (2017). Separation of Powers in Pakistan: An Appraisal of Judicial Activism. Lahore Journal of Policy Studies, 5(1), 1-21.
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