THE LEGAL SYSTEM

• Pakistani Law, like Indian Law, borrows

heavily from English Law
• Pakistan is a common law country
• Legal systems in countries around the
world generally fall into one of two
categories
– Common law systems and
– Civil law systems
• The main difference between the two
systems is that in common law countries
case law – in the form of published
judicial opinions – is of primary
importance
• In civil law systems codified statutes
predominate
• Many countries use a mix of the systems
and the division is usually not as clear
cut
 COMMON LAW
• Uncodified law
• Largely based on precedent i.e. judicial
decisions passed in similar cases
• Available in case records and documented
caselaw in the form of law journals e.g. the
SCMR, PLJ, PLR etc.
• What precedents are applied to what case are
largely dependent on the presiding judge -
Judges have more flexibility to fashion an
appropriate remedy and hence, shape law
• Lawyers play an active role in legal
proceedings
• E.g. USA, India, England, Pakistan
 CIVIL LAW
•Largely codified – comprehensive,
continuously updated legal codes that specify
all matters capable of being brought before a
court, the applicable procedure and the
appropriate punishment for each offense
•Judges take the lead in proceedings
•Lawyers still represent clients in court but have
a less central role – importance of oral
arguments, in court presentations and active
lawyering is lower
•Preparation and drafting of contracts may be
left to quasi-legal professionals
•E.g. France, Japan, China, Germany
 SOURCES OF LAW

• Three main sources of law:

– Customs
– Precedent
– Statute
 CUSTOMS
• General practice (traditions) of a community goes on to be
accepted as law
• May be written or un-written
• A traditional common rule or practice that becomes an
intrinsic part of the accepted, and expected, conduct in a
community, profession or trade
• Test: whether the actions of the wrong-doer have
conformed to expectations which other parties had
reasonably formed based on everyday practices/conduct
of a particular community
• In order to become customary law, a rule must be:
– Known to the community
– Followed by the community
– Enforced by the community
• Examples:
– Panchayat: a village council – respected elders
chosen and accepted by the community or local
body;
– Jirga: a council of tribal leaders that make decisions
by consensus. Prevalent in afghans and pashtuns
– The rule that the oldest son inherits rule of the
family property
• Some customary laws have been codified
– The Black Administration Act, 1927 which gave the
Gov-Gen of South Africa the right to banish a
tribe/native from one area to another whenever he
deemed it to be in general interest;
– The Recognition of Customary Marriages Act which
recognizes customary marriages in South Africa
• Some statutes recognize the importance of such
customs e.g. the Contract Act, 1972 provides in
section 1 “…nothing contained herein shall affect
any usage or custom of trade.”
 PRECEDENT
• Based on the latin maxim ‘stare decisis et non
quieta movere’ i.e. stand by what has been
decided and do not unsettle the established
• Particular decisions by particular judges
concerning particular parties to particular cases
can be used in the determination of general rules
• Example: 3 men commit murder. One is
sentenced to life imprisonment, one to lifetime
charity work and one to death penalty. What is
wrong with this?
• Three types of precedent:
1) Binding precedent
• Reasoning in preceding cases act not only as
a guide but may be binding on courts
• Decisions of the higher courts are binding on
equal and lower courts e.g. a decision of the
Supreme Court will be binding on the High
Court
• This creates a degree of certainty in law
• Like cases are decided in like manner
2) Persuasive precedent
• Decisions of the lower courts may be
followed by courts higher up in the hierarchy
 • Decisions from other countries may also
influence the Pakistani Courts in deciding a
case in a particular manner e.g. a great deal
of case law sees Pakistani judges borrowing
from Indian precedent or English precedent
where Pakistani law is lacking
3) Original precedent
Where the presiding judge sets a new
precedent in a case where precedent or law
may be silent e.g. a man with a superpower to
kill by looking at a person
 STATUTE
• An act of a legislature that declares, prescribes,
or commands something i.e. written law passed
by a legislature on the state or federal level.
• Statutes set forth general propositions of law that
courts apply to specific situations.
• A statute may forbid a certain act, direct a certain
act, make a declaration, or set forth governmental
mechanisms to aid society
• In Pakistan the Parliament is the federal/supreme
legislative body.
• Article 50 of the Constitution: the Parliament or
Majlis-e-Shoora consists of the President + 2
houses i.e. the National Assembly (NA) & the
Senate
• NA: members elected during national elections.
Each Province has seats according to population -
some have greater representation than the other
(See: Article 51 of the Constitution)
• Senate: consists of equal representation from each
province (See: Article 59)
 The Legislative Procedure
(Article 70)
1) Introduction of a Bill: A Bill is proposed or
sponsored by a Legislator (note: a bill may
originate in either house)
2) First reading: the member who introduced the
Bill explains his reasons for doing so
3) Reference to Committee: the Bill is scrutinized
by a Committee which has expertise in the matter
4) Second reading: there is a detailed, clause by
clause discussion of the Bill before the entire
house
5) Third reading: final reading of the Bill
after which it is transmitted to the other
house for approval. The Bill will undergo
the same process in the other house.
6) Presidential assent: once the Bill is passed
by both houses without amendment, the
Bill is presented to the President for
assent. Once assent is received the Bill
becomes statute or law.
• Note:
– Passing of a bill means approved by a majority vote
– Where one house suggests an amendment the bill is
sent back to the house where it originated to be passed
again
– Bills have to be passed within 90 days
– Money bills will be passed only by the NA and the
President
– Matters on provincial legislative lists are dealt with by
the Provincial Assemblies
– If any house of parliament is not in session the
President can promulgate an Ordinance. The ordinance
shall stand repealed after 120 days if it is not presented
or passed by the Parliament (see article 89)
HIERARCHY OF COURTS
 SUPREME COURT

•Part VII Chap 2

•Court of ultimate jurisdiction
•It has three types of jurisdiction
– Original Jurisdiction
• Dispute between two governments (federal and/or
provincial)
• Issue of public importance with reference to the
enforcement of fundamental rights
– Appellate jurisdiction (Art 185)
• where there is a substantial question of law
on the interpretation of constitution
• Where the HC has on appeal reversed an
order of acquittal of an accused person
• Where the HC has imposed punishment for
contempt of the HC
– Advisory jurisdiction: if the president requires
the opinion of the SC on a question of law of
public importance
 HIGH COURT
• Part VII Chap 3
• Article 199 deals with the jurisdiction of
the HC
• E.g. Sec 7 of the Companies
Ordinance, 1984 gives the HC original
jurisdiction in most matters
FEDERAL SHARIAT COURT
• Chapter 3 A
• Art 227
• Conformity of laws with the injunctions of
islam
• This court is entrusted with the
responsibility to examine and decide on
whether a law or provision of law is
repugnant to the injunctions of islam
• Given suo moto powers where repugnancy
exists (Suo Moto: where an authority acts on
its own motion or initiative)
• Appellate jurisdiction in HUDOOD cases
(Hudood law: a body of law that seeks to
establish an Islamic system of justice
enforcing punishments in the Quran and
sunnah) Confirm or pass any other order
about a hadd punishment
• Exercise revisional powers on any case
decided by a criminal court under a law
relating to the enforcement of hudood