ISLAMABAD: The Islamabad High Court (IHC) has restrained executive magistrates from exercising judicial powers, as only courts can exercise judicial powers in the capital territory under the Constitution.

IHC Justice Arbab Mohammad Tahir issued the judgement in response to a petition, which said the magistrates were using judicial powers against the spirit and mandate of the Constitution, particularly, Article 175 (3).

The petition highlighted that officers of the Islamabad Capital Territory Administration, while exercising judicial powers, did not follow the rules of procedure framed by the high court under Article 202 of the Constitution and that they were outside the supervisory jurisdiction of the high court, contrary to Article 203 of the Constitution.

The assistant attorney general, however, argued that the judicial system of Pakistan was choked with hundreds and thousands of cases and it did not appeal to a prudent mind to burden it further.

Court tells federal govt to issue notification to provide legal cover to magistrates

The state counsel argued that executive magistracy had been acknowledged and recognised by the Supreme Court, adding that the executive magistracy did not encroach upon the judicial sphere.

The counsel referred to various provisions of the Law Reforms Ordinance 1972, Legal Reforms Acts of 1996 and 1997 wherein the executive magistracy had been vested with powers to try multiple offences.

The lawyer argued the executive magistracy exercised powers conferred upon them as had not been entirely abolished to the extent of the Islamabad Capital Territory.

The judge concluded that “the conferment of judicial powers upon the executive magistrates under CrPC i.e., inter alia, under sections 28, 29, and 37 thereof, their ouster from the supervisory jurisdiction of this court and handing over their administrative control and supervision to the executive is contrary to Articles 175 (3), 202 and 203 of the Constitution and the judgements of the Supreme Court referred to above, the same is, therefore, held to be unconstitutional.

The legislature has already performed its role by promulgating the 1st Amendment Ordinance; however, it has delegated the authority to the federal government to designate the date on which its provisions shall come into force through the 2nd Amendment Ordinance.

More than 20 years have passed since the promulgation of the two ordinances, but the government still failed to issue the requisite notification.

The judge noted that despite filing a comprehensive report, the Ministry of Law and Justice failed to explain the delay in issuing the requisite notification.

The court declared that the period of fourteen years stipulated in Article 175 (3) of the Constitution had lapsed in 1987. It is held that the delay occasioned in complying with the referred provision of the Constitution beyond the permissible period was unconstitutional, let alone extending further time to any organ of the state to take measures for separating the judiciary from the executive. The government has been directed to issue the notification in this regard, the judge directed.

The judge restrained the executive magistrates from passing final judgements/orders until a notification was issued by the federal government.

After enforcement of the provisions of the 1st Amendment Ordinance, the material/files relating to criminal trials should be transmitted by the executive magistrates to the respective sessions judges which shall accordingly be entrusted to competent judicial magistrates for further proceedings, read the order.

The court declared that “within the Islamabad Capital Territory, judicial power can only be exercised by courts in accordance with the provisions of Articles 175 (3), 202 and 203 of the Constitution and other enabling constitutional provisions and the exercise of judicial power in contravention of such constitutional provisions would be unconstitutional and nullity in the eye of law.”

Published in Dawn, September 29th, 2024