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French political scientist Montesquieu in his treatises recommended for division of sovereign power into three organs, those are Legislature, Executive and Judiciary. He recommended for strict compartmentalization. His theory was as such implemented in his homeland while drafting the Constitution of first republic. The Constitution lasted for only one year due to the friction created amongst the state institutions by the strict separation. Americans got inspired by the ideas of Montesquieu but they created due checks and balances, in their system. Even their courts never insisted upon complete separation and respected the Article I Courts/tribunals.

In India, during the reign of Sher Shah Suri office of Faujdar was created. The office was responsible for dispensation of criminal justice, revenue collection and general administration of the district. This system survived till the time British Rule set in India. The colonial rulers retained that system and changed the nomenclature from Faujdar to Deputy Commissioner. The Deputy Commissioner was ex-officio District Magistrate and he was assisted by Sub Divisional Magistrates and Area Magistrates. Magistrates under the Raj were drawn from the provincial services and central services and this practice continued even after independence.Magistrates were used to conduct the pre-trial proceedings, barring bails in the cases which were to be tried by the Sessions Court, in all the Criminal Cases. Besides that, they were the courts of original jurisdiction for all the magisterial trials. Of course, they represented the coercive arm of the state. During the struggle of freedom, there were complaints that the government misused those officers to curb the freedom movement. With the spread of modern knowledge and ideas there was a demand for separation of judiciary from executive.

However, while framing the Constitution of India, the demand to separate judiciary from executive was made part of the principles of policy in the shape of Article 50-meaning thereby it is neither mandatory nor justiciable. The reason was that the framers of the Indian Constitution were aware of the judicial pronouncements of the American Supreme Court and the jurisprudence developed based on the difference between Article I(Administrative Courts) and Article III courts(Judicature Branch). They were so scared from the anticipated judicial interventions that they did not imbibe the due process of law clause and coined in accordance with law clause, to avoid the judicial review of law on the ground of unchartered territory of due process of law. Later on, Justice Bhagwati, read in accordance with law clause equivalent to due process of law in AIR 1978 SC 597(Maneka Ganhi's case) and before that their Supreme Court coined the Basic Structure theory in 1973.

The framers of the Constitution of Islamic Republic of Pakistan, 1973 provided in the Article 175 to separate judiciary from executive within 3 years from the date of the commencement of the Constitution viz. 14-08-1973. The period of three years was, however, extended to 5 years by the Constitution (Vth Amendment) Act 1976 and then to 14 years by the Revival of the Constitution 1973 Order (P.O.14 of 1985). Thus, under the various extensions within which the judiciary ought to be separated from the Executive; the last date was to be the 14th of August 1987.

Shortly prior to the introduction of Constitution of 1973, the Law Reforms Ordinance 1972 was promulgated on the recommendations of the Justice Hammood Ur Rehman Report. The ordinance created two classes of Magistrates, namely Executive Magistrate under control of District Magistrate and Judicial Magistrates under Session Judge. The law was to take effect subject to the notification which was to be issued in this regard by the Government. Due to the Constitutional extensions/protections, the notification of separation of magistracy were not issued, by the respective provincial governments.

After the lapse of the Constitutional period, Mr. Sharaf Faridi, a prominent lawyer from Karachi, filed a constitutional petition and sought implementation of the Constitutional mandate of separation of judiciary, as enshrined in the Article 175. The petition was allowed by the Honourable Sindh High Court, through PLD 1989 Khi 404. The matter reached the Honourable Supreme Court and was finally put to rest by the Honourable Apex Court through the judgment cited as PLD 1994 SC 105. Through this judgment the separation of Executive Magistrates from Judicial Magistrates on the model of the Law Reforms Ordinance 1972 was approved. It was also declared that the Constitutional mandate of separation has been fulfilled.

It is worth mentioning here that during the pendency of this matter in the Supreme Court a somewhat similar petition arising out of Baluchistan was decided by the Honourable Supreme Court, cited as PLD 1993 SC 314 in the following terms: "...Paragraph 17... (i) to issue necessary notification in terms of subsection (2) of section 1 of Ordinance XII of 1972 for enforcing the aforesaid Ordinance by creating posts of and separately appointing Judicial Magistrates and Executive Magistrates and to place Judicial Magistrates under the administrative control of the High Court within a period of three months;"

Later on, HCJ Mr. Justice Sajjad Ali Shah while speaking for the Honourable Apex Court in Al-Jehad Trust' case PLD 1996 SC 324 upheld the arrangement.

Thereafter, in the judgments of Mehram Ali PLD 1998 SC 1445 and Sheikh Liaqat Hussain PLD 1999 SC504 the judgments of Sharaf Faridi and Al-Jehad were quoted and relied by August Apex Court and the afore-quoted pronouncements were neither recalled nor varied nor dissented.

The next sea change on the legislative canvass came with the promulgation of the Code of Criminal Procedure (Amendment) Ordinance (XXXVII of 2001). Through, this legislative fiat the Executive Magistracy was abolished. This instrument was protected by the 17th Constitutional Amendment. Although, there was no compulsion flowing out of the judicial verdicts, but it was an edict issued by the dictator which brought end to the institution of Executive Magistracy. The ordinance of 2001 cannot be accorded the same credence as compared to a statute passed by Parliament, guidance may be solicited from PLD 2015 SC 401 and PLD 1997 SC 426.

After few years, the need of the Executive Magistracy was felt and through an Amendment Act 0f 2006, Section 14-A was introduced in the Criminal Procedure Code.

Raison d'eteat behind the promulgation of the Act of 2006 was that the judicial officers cannot be saddled to perform the daily functions of district administration of price checking. Even otherwise strict separation was not workable and was adversely affecting public good. For instance, a traffic police officer while issuing ticket decides the question of guilt and imposes a fine and payment of that fine is compulsory. He decides a civil right and imposes a punishment. But it will be highly inconvenient to invest judiciary the function to impose traffic fines.

Precisely somewhat similar question came up before Lahore High Court, through a writ petition powers of the food safety officer, to impose fine and seal the premises, under the food laws were assailed. Mrs. Justice Ayesha A. Malik while speaking for the Lahore High Court through PLD 2017 Lahore 545, declared the law intra vires the constitution while applying precautionary principle of law and refused to set-aside the law on the ground of fair trial for the reason that the public health and food cannot be discounted for the rights of the few businesses.

The successive governments have desired to bring in the executive Magistracy to ensure better implementation of laws. It is true that the major trials of the criminal law, cannot be given to the Executive Magistrates. Having said so, the executive officers can be invested with the powers to implement and enforce the local and special laws, like municipal, public health, planning laws. Because judicial officers have the issue of mobility and they don't come out of their judicial protocols and don't leave the courtroom. The executive Magistrates are mobile and can effectively enforce laws at the spot.

A fortiori, this will augment the enforcement on the one hand and on the other hand it will decrease the workload of the overburdened courts and police, allowing them to focus on heinous criminal cases, like theft, robbery etc., which are suffering from low rate of conviction. Moreover, this will reduce the cost per case being incurred out of the public exchequer, because at present a case under minor laws takes full round of criminal procedure and results in plead guilty in 99.9% cases and if instead of launching a criminal case a fine or sentence is imposed at the spot it will be hassle free for the government agency responsible for enforcement of particular minor law, judiciary, police and the citizen as well. This will surely enhance and further the cause of good governance, if applied bona-fidely and remains subject to the judicial scrutiny.Last but not the least, the strong and responsive regulator furthers the interest of trade and protects the posterity whereas the weak regulator creates noting but chaos.

Ch. Sultan Mahmood

Ch. Sultan Mahmood, Advocate Supreme Court of Pakistan, he is a practicing lawyer. He can be reached at [email protected]