Explain judiciary and the rule of law, organization of judiciary, its function and power.
Judiciary is the third organ of the government which is responsible for the administration of justice according, to the law of the .land enacted by the executive and made by the legislature. The concept of the welfare state is directly linked with social justice with impartiality and expeditiousness. An efficient judiciary is necessary for a good governance as it protects the individual rights of people in their public life. An efficient administration of justice maximizes the responsibility of a citizen in a state. It there is no effective judicial system, then there will he no law at all and the principle of “Might is right” will prevail. Severity of punishment does not but certainty of punishment does compel the offenders to abide by law. In ancient times, the executive and judicial function were combined in the monarch and he was considered as the fountain head to justice, but the overall result of this concept was absolute tyranny. Today’s modern and welfare state is conceivable only with the separation, independence and impartiality the judicial system so that it may protect the citizens from the excesses of the executive Judiciary is entrusted with the function of doing justice to all in the light of the universal principles of justice with equal protection to everyone and equal penalty for all those w m violate it. Punishment protest society from criminals. Historically, the status of judiciary has always been very high even .in tribal societies. Social structure of a society cannot be maintained without peace and harmony which is possible only with the enforcement of rule of law. An ideal social order is impossible without an independent impartial judiciary which guarantees equal protection of law to all. Excellent judicial performance and is dependent on good and equitable laws made by legislature and interpreted by an hone x and impartial judiciary. In democratic states, judiciary protects citizens’ rights and freedoms. It interprets laws and written constitutions and also plays an advisory role to the executive. In this way, it makes case laws in the form of judicial precedents and fills illegal flaws by interpretation. In dictatorships, the independence of judiciary is shackled and it only legalizes the orders of the autocratic rulers.
Read more about: Salient Feature of the 1973 Constitution of Pakistan
The Rule of Law:
The Rule of Law is a very important legal principle universally recognised by all modern democratic states which declares the supremacy of law and equality before law amongst the citizens of a state. It guarantee the right to be dealt in accordance with common laws of the land by providing a chance of fair trial by proper hearing and rights of defence in a court of law as well as the right to appeal. No arbitrary action of any authority should infringe upon the inherent rights of the citizens. The dictates of law should be followed rather than the will of the government or if some individual ruler. The concept of public interest and state interest is subject to this fundamental principle of common law. Any excesses done by the state functionaries are subject to the scrutiny by the courts of law. This controls the arbitrary attitude and behaviour of the government officials and provides a system of checks and balances by making them responsible and answerable before the ordinary courts of law. It ensures liberty and security to all citizens of a state on the basis of legal equality irrespective of their social status. Though the rule of Law is a fundamental principle of English Constitution and law, it also provides and fulfills the requirements of natural justice according to universal human values. The true spirit of democracy may only be demonstrated by the actual application of this principle everywhere in the world. The general will of the people can prevail only in the presence of such a principle of natural justice. If otherwise, it will be tempered and biased and reflect only the opinion of a particular class of people.
“The Rule of Law” A.V. Dicey gave there different meanings to this term in his book namely “The Law of the Constitution” which are as under:-
– “It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government. Englishmen are ruled by the law and by the law alone; a man may, be punished for a breach of the law, but he can be punished for nothing else.”
“It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.”
‘The Rule of Law’, lastly may he used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign country naturally form part of the constitutional code, are not the sources, but the consequences of the rights of individuals, as defined and enforced by the courts, It means the main principles of the constitution such as the right
of personal liberty or of public meeting, have been set up on the foundation : the old common law and not as thing derived from any general constitutions theory.”
A deep study of explanation of the Rule of Law reveals how influenced the English constitution which is based on common principles of law and the judicial decisions during the passage of time.
– The Rule of Law has its limitations as well. With the gradual progress t democratic system of government and with the ever increasing state intervention in individual life in the present day changed socio-political environment, application of that rule of law has been restricted. The skeleton legislation by the parliaments or legislature has to some extent, manipulated the rule of law negatively, because minute details of that law fall within the discretionary power of the executive or administration. However, on violation of the rule of law is not possible even through discretionary powers or delegate legislation. During the implementation state, the administrative authorities make decision without following the Rule of Law and the procedure prescribed for judicial decisions although they make judicial decisions but without interviewing or according, hearing t the party concerned while their decisions have judicial authority. At times even the right to appeal is not granted. Some immunities and special privileges granted to authoritic as well as active restrictions imposed against challenging some illegal actions, have all impaired the validity of the rule of law. Penalty on citizens if they fait to prove ill w 1 on the part of a public authority or prohibition on discussion of the conduct of judges arc relevant examples in this regard. Social and economic barriers also stand in the way f equal access to the courts of law. The result is non-redressal of poor people’s grievance- as due to their poverty they cannot pay heavy fees of legal experts and advise^. Administrative Courts in some democratic stats which try their state functionaries and public authorities for breach of law on their part, are also deviation from the rule out as the same provide a separate system of legal trial.
Organization of the Judiciary:
Organization of the judiciary is different in different states according to judicial requirements of each state. The structure of judiciary is very vast in each state consisting of a network of courts with differing jurisdictions and judicial powers to administer justice for common people. Judicial is totally separate and independent in some states while in some other it is combined to some extent with the executive. In federal state „ there are two structures i.e. one for the federation or the central government and the other for the units or provinces, such as the U.S. judicial system. However, judicial systems ordinarily differ in parliamentary and presidential forms of government as well as in federal and unitary systems; hut still there are limited similarities indifferent systems. Mostly judicial organisations and structures are different in different countries with basic variations but the functions of the judicial organisation are similar in all states except the former USSR. Nowhere judicial organisation is final but it is subject to change by statutory provisions for reforming the systems from time to time. The British judicial system is based on customary law generally known as the English Common Law, consisting of common law, statute law, equality and case law: but recently a new source of law, namely the community law based on common laws for the entire European Community has been added. American judicial organisation is unique in nature and is the first ever federal judicial system, based on the principles of separation of powers, judicial supremacy and judicial review. In America, there are two establishments of the judicial system i.e. Federal Courts and State Courts; but constitutionally the federal courts are superior to state courts. In Pakistan, there is single judicial organisation despite federal system of government. The judicial systems adhere to similar principles for their organizations in the modern world. There systems are based on lower courts or the courts of first instance- at the bottom with limited powers and jurisdiction but the courts of appeal or high and supreme courts at the top with exclusive jurisdiction to decide all matters at appellate level and of constitutional nature. The courts of the following types are found in different systems:
– Civil Courts;
– Criminal Courts;
– Special Courts;
– Administrative Courts
Civil Courts are those courts which deal with litigation in civil matters i.e. when civil rights of a citizen are infringed upon by another citizen or sometimes the state. But in criminal cases, the cause of action arises from the breach or violation of state laws by individual or a body of individuals e.g. breach of peace, violence against life or property of a person etc. At lower level civil cases are tried by civil judges or other judges but criminal cases are tried by Magistrates or criminal courts of first instance. But appellate and final courts have jurisdictions in both civil and criminal cases.
Special courts are established for special and particular matters which are excluded from ordinary courts. In some cases they follow a different procedure. These special courts are generally set up for military, industrial sector, taxation, labour, customs and excise etc.
Administrative Courts are also special courts in nature which are established for trial of public servants and state functionaries according to special administrative laws. Courts are also classified as Constitutional and Legislative courts. Constitutional courts are generally established in such states whose systems are governed by written constitutions providing for the creation of such courts with particular jurisdiction and powers e.g. American Supreme Court and’ Supreme and High Courts of Pakistan etc. These courts have powers to interpret constitutions. Legislative Courts are the creation of various statutes/ acts of legislatures. These courts are completely regulated by legislative and statutory provisions.
Functions and Powers of the Judiciary:
The main purpose of the judicial organization is the administration of justice, and settlement of disputes either between citizens/individuals or between citizens and state. It fulfills the requirements of justice by open, impartial and fair trial of the persons accused under various charges. Courts sort out and investigate the facts and punish those persons who have violated the state laws and also declare and determine the rights in civil matters. In modern states, courts perform numerous functions but their important functions and powers are as under:-
– Administration of justice;
– Settlement of disputes;
– Interpretation of Constitution and statutes;
– Judicial Reviews;
– Advisory Jurisdiction;
– Preventive justice
– Safeguarding fundamental rights;
– Administrative Functions;
– Misc. and non-judicial functions.
The first and foremost function of the judiciary is to administer justice in the state because “There is no better test of the excellence of a government than the efficiency of its judicial system, for nothing more nearly touches the welfare and security of the average citizen.” as written by Lord Bryce. Thus Administration of justice is the basic duty of the judicial organization and without it chaos will be the over all result. Judiciary settles disputes between individuals as well as between individuals and the state according to the state laws. It protects the innocent from usurpers and evil elements through process of laws. In cases of ambiguity and authority flaws, the judiciary interprets laws according to the intentions of the law-makers by fair and equitable use of discretion in interpretation. These are judicial precedents commonly known as judge-made laws or case-laws which have the force of law for all subordinate courts. Interpretation of constitutions in case of written constitutions is also an important function of the judiciary which decides disputes of constitutional nature. Judicial review is the power judiciary had acquired through constitutional interpretations while implementing constitutional provisions. The judiciary controls the legislature and the executive through judicial review and declares ultra vires and unconstitutional such orders and laws which are considered beyond constitutional limits. Advisory jurisdiction is also provided in some constitutions for the smooth running of administrative affairs by consulting the supreme courts for guidance of the executive on points of law in cases of ambiguity. Preventive justice is beneficial to the citizens in cases of threat of breach of law and violations of rights. Courts may issue directions on writs and record restraining orders or injunctions where necessary and desirable. In modern constitutions, judiciary is the guardian and guarantor of fundamental rights of citizens against personal or state excessed or against any other threat to these rights. It also performs miscellaneous functions of judicial and non-judicial nature which are not clearly defined, such as appointments of receivers, guardians and administrators etc.
Administrative affairs of judicial departments” are also controlled by the superior courts. The terms and conditions of service, appointments, cases of misconduct and corruption and removal from service of subordinate judicial officers and magistrates are also handled by judiciary itself. Such administrative control protects the subordinate judiciary from the interference and influence of the executive & thus secures its independence and separation. In Pakistan, provincial High Courts are responsible for such Administrative functions.