ISLAMABAD (PTI): Pakistan’s Supreme Court has directed the Punjab and Sindh governments to separate the judiciary from the executive by March 23, next year but no precise date for this purpose was fixed for the North West Frontier Province (NWFP) and Balochistan.

Dismissing three appeals moved by the federal and Sindh governments, challenging a Sindh high court verdict in this regard, a five judge bench directed the Punjab and Sindh administration to issue notifications for bifurcating the Magistracy into judicial and executive magistrates and to place all judicial magistrates under the control of the high courts.

The bench was headed by chief justice Afzal Zullah, who has since retired, and comprised justice Nasim Hasan Shah, the present chief justice Abdul Qadir Chaudhry, Justice Muhammad Afzal lone and Justice Wali Muhammad Khan, The full judgment on the appeals was released on Oct.28.

In a separate note, Justice Wali Muhammad Khan, while agreeing with the majority view, observed that any laxity on the part of the executive would not only ‘amount to violation of the constitution but the order passed by magistrates in judicial matters might have to be struck down by the high courts, which would lead to chaos in the judicial field.

The hearing of the case had started about. A year ago when Justice Afzal Zullah was head of the apex judiciary.

The Sindh high court had held that the governments had failed to comply with their constitutional obligation to effect separation of judiciary from the executive despite the expiry of the period prescribed under the constitution.

The federal and the provincial governments contended before the apex court that the time frame of six months, which expired on March 23 this year, for making the judiciary separate from the executive, as directed by the high court, could not be accepted.

‘The supreme court noted that the position regarding the efforts in this regard in Balochistan and the NWFP was vague.

The NWFP counsel told the court that on account of existing circumstances in the province, speedy separation of the judiciary from the executive was not possible.

Dr.Nasim Hasan Shah noted under article 175 of the constitution, as originally enacted, it was provided that the judiciary would not be a part of the executive within three years after the constitution came into force on Aug.14, 1993.

However, the period during which the judiciary was to be separated from executive was enlarged under various extensions up to Aug.14, 1987. However, the mandate of the constitution was not carried into effect, even by the extended date.

According to the Supreme Court, financial independence of the judiciary could be secured if the funds allocated to the apex court and the high courts were allowed to be disbursed within the limits of the sanctioned budget by the respective chief justices of the courts without any interference from the executive.

 

Article extracted from this publication >>  November 12, 1993