It is a constitutional obligation of the government vide Article 37 of the Constitution to promote social justice and eradicate social evils, it is also obligatory on the government to ensure inexpensive and expeditious justice vide Article 37 (d) and promote social and economic well-being of the people vide Article 38 of the Constitution of the Islamic Republic of Pakistan, 1973. Article 175 of the Constitution relates to the judicature on the establishment and jurisdiction of courts. Under Article 177, there shall be a Supreme Court of Pakistan. A High Court for each Province and such other courts as may be established by law.
Hence, it is crystal clear that besides the Supreme Court of Pakistan and High Courts, other courts may be established through enactment under the Constitution by the government. Therefore, the establishment of Federal Court under the Federal Court Act. 2004 is in accordance with all the requirements under the law.
As every step taken by the government has some reasoning; hence, the establishment of Federal Court is not an arbitrary step but seems to be a rational decision which is a result of deep thinking by the concerned quarters to meet the requirements of the society for rapid economic development of the country and industrial advancement in the country.
The corporate, commercial, intellectual property, taxation and all other business-related matters cannot be placed in a juxtaposition with criminal, civil and land revenue matters forever and obviously to bring the judicial system in consonance with the international standards, it was inevitable to establish separate courts like the Federal Court.
Inexpensive and expeditious justice is no doubt a constitutional obligation of the government. The inordinate delays in commercial matters not only hamper the smooth running of the business community but badly affect the economic development of the country. Therefore, the establishment of the Federal Court will prove to be a turning point in the judicial history of the country.
It is an era of specialisation and professionalism in all spheres of life. The success and development depend on the sound professional and specialised knowledge and skill. It is obviously required in the judicial system as well. Therefore, the establishment of the Federal Court will the requirements of the judicial system.
The establishment of Federal Court indicates that commercial and allied matters are going to be adjudicated in future by the judges well versed in corporate, tax, commercial, intellectual property, banking, financial and all other allied matters.
It was being observed since long that in the High Courts of Pakistan the judges have been appointed from the panel of renowned advocates who are generally experienced either in civil or criminal practice. The majority of judges of the High Courts are experienced and have command over the civil or criminal laws but very few have experience and command of corporate, tax, financial and technical laws, etc.
There are some instances that the advocates having background of corporate and taxation laws have been appointed who have strong command and knowledge of corporate, tax and commercial matters but little experience of civil or criminal matters.
Till the establishment of Federal Court, the high courts are adjudicating all types of legal issues whatsoever but now the establishment of Federal Court is obviously a first step towards specialisation in providing expeditious and speedy justice based on the principle of specialisation to the business community of the country by the judiciary with the help of judges having specialised skill and knowledge of business and technical matters.
The establishment of the Federal Court clearly indicates that, it is a step to meet with and face the future challenges expected due to WTO Charter and the anticipated competition of the business community of our country with the entire world to meet the future challenges. Not only the fiscal and monetary policies of the country should be at par with the developed countries but judicial system of out country should be at par with the advanced countries. At the same time, we cannot ignore the Islamic business principles and ethics in our judicial system as we claim to be a prominent and leading Islamic country and Muslim nation.
The establishment of Federal Court is in hot debate now-a-days. A cursory look at the Federal Court Act 2004 indicates that the Federal Court will be almost at par with the High Courts. An appeal against the a judgement, decree or order shall lie with the Supreme Court of Pakistan. Similarly an appeal against the judgement, decree or order of the High Court lies with the Supreme Court of Pakistan.
The original jurisdiction of the Federal Court has been specified vide Section 9 of the Schedule-II as following:
SCHEDULE-II ORIGINAL JURISDICTION OF THE FEDERAL COURT
1. The Chartered Accountants Ordinance. 1961.
2. The Companies Ordinance, 1984.
3. The Insurance Ordinance, 2000
4. The Privatisation Commission Ordinance, 2000
5. The Non-performing Assets and Rehabilitation of Industrial Undertakings Legal Proceedings Ordinance, 2000
6. The Patents Ordinance; 2000
7. The Financial Institutions(Recovery of Finances) Ordinance, 2001 The appellate and reference jurisdiction of the Federal Court under Section 10 of the Act as per Schedule-III is as following:
SCHEDULE III LIST OF LAWS UNDER WHICH APPEALS AND REFERENCES SHALL LIE WITH THE FEDERAL COURT
1. The Works of Defence Act 1903
2. The Charitable and Religious Trusts Act, 1920
3. The Cantonments (House Accommodation) Act 1923
4. The Foreign Exchange Regulation Act 1947
5. The Imports and Exports (Control) Act, 1950
6. The House Building Finance Corporation Act 1952
7. The Chartered Accountants Ordinance, 1961
8. The Copy Rights Ordinance, 1962
9. The Customs Act 1969
10. The Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970
11. The Drugs Act, 1976
12. The Emigration Ordinance, 1979
13. The Modaraba companies and Modaraba (Floatation and Control) Ordinance, 1980
14. The companies Ordinance, 1984
15. The Sales Tax Act 1990
16. The Islamabad Consumers Protection Act, 1995
17. The Pakistan Telecommunication (Re-organisation) Act 1996
18. The Pakistan Environmental Protection Act, 1997
19. The Insurance Ordinance, 2000
20. The Registered Designs Ordinance, 2000
21. The Registered Layout-Designs of Integrated Circuits Ordinance, 2000
22. The Privatisation Commission Ordinance, 2000
23. The Non-performing Assets and Rehabilitation of Industrial Undertaking (Legal Proceedings) Ordinance, 2000
24. The Patents Ordinance. 2000
25. The Financial Institutions (Recovery of Finances) Ordinance, 2001
26. The Income Tax Ordinance, 2001
27. The Oil and Gas Regulatory Authority Ordinance, 2002
28. The Electronic Transitions Ordinance, 2002
29. The Industrial Relations Ordinance, 2002
It is worth mentioning and needs a serious consideration that there is a contradiction in certain laws as somewhere the appeal lies and somewhere the reference lies with the High Court (after amendments in future to the Federal Court). For example the Sales Tax Act, 1990 provides appeal, whereas the Income Tax Ordinance, 2001 provides reference to the High Court. It will be most appropriate, if, in all relevant laws a right of appeal to Federal Court is mentioned instead of a reference is provided and in this regard the required amendments are introduced accordingly. This will provide uniformity in the statutes.
Most of the relevant laws have been brought into the jurisdiction of the Federal Court but the Trade Marks Ordinance, 2001 has been ignored, whereas all other intellectual property laws have been listed. Obviously, the Trader Marks Ordinance, 2001 being a commercial law should be-within the jurisdiction of the Federal Court.
Further an important law being the need of the time is also required to be legislated and listed under this Federal Court Act, 2004, which should be named as Business Names Act.
Appointment of Judges: As per Section 5 of the Federal Court Act, 2004, the Chief Judge and other Judges shall be appointed by the President after inviting a panel from the Chief Justice of Pakistan and Professional Bodies, including public organisations as the Federal Government may deem fit a person;
1. who is eligible to be a Judge of the High Court ; or
2. Serving in a public organisation in BPS 21 or above or equivalent and has suitable professional qualification and experience in commercial, economic or financial matters for a period of not less than 15 years; or
3. who is a retired Judge of a High Court or the Supreme Court or a retired member or Judge of a Tribunal or a Court establish under the Federal Law and has the experience in commercial, economic or financial matters.
As regards the first category, the persons eligible to be a judge of the High Court need no comment and this provision is quite as per law to provide justice.
As regards the second category, to accommodate CSP Officers of BPS 21 or above or equivalent, it is evident that the bureaucracy has kept open a gate of entry for themselves. This concept can be equated with the Lay Magistrate of the UK court structure. The law Magistrate Courts are a part of UK judicial system besides the District Judges, the Crown Courts, House of Lords, High Courts, Queen's Division Bench, Chancellery Division etc. In UK, lay magistrates (known as justice of peace) are people without, a legal qualification. These magistrates have a limited civil function.
The Federal Court will not only have jurisdiction of trial of cases as a court of first instance but also have reference and appellate jurisdiction whereby questions of law will be adjudicated upon. A question of law is obviously quite different from a question of fact. The question of law can only be decided by a judge on merit judiciously, who:
a) has legal qualification and experience (advocate eligible to be a Judge of High Court);
b) is well familiar with the rules of interpretation of law;
c) possess a strong grip on jurisprudence;
d) is well versed with the philosophy of law.
Obviously CSP Officers do not fulfil the above criteria. For discussion sake, if this door is opened to the Officers of BPS 21 or above or equivalent, why this door be shut for Officers of Armed Forces, who are also well qualified, do have experience as required for 15 years and they have experience of legal matters. They deal with Contract Act regarding procurement of supplies, try the cases of court martial and they administer the matters under the Acts pertaining to the Armed Forces. The question is, if the Officers of the Armed Forces can be inducted in all other organisations of the federal and provincial governments, why they cannot be inducted in Federal Court like Officers of Civil Service.
As regards the third category of retired Judges and Tribunal Members, there seems no logic to appoint a retired judge of the Supreme Court or a High Court after retirement. It seems that the retirement age under Section 7 of the Federal Court Act, 2004 has been provided as 68 years, which is in conflict with the Supreme Court and the High Courts. Obviously, this provision is to accommodate the favourite retired judges in the Federal Court and this aspect can hardly be appreciated.
The establishment of Federal Court is a revolutionary step in the history of judiciary of the Islamic Republic of Pakistan. The hue and cry raised against the establishment of the Federal Court by the legal professionals is not justified as they anticipate the loss of share of their practice from the High Courts due to the change of jurisdiction of all the case listed in Schedule-II and III from the High Courts to the Federal Court. Further, there are rare chances of their elevation in the Federal Court as majority of them is engaged in the practice of Civil and Criminal Laws only. A very few are engaged in corporate, commercial and tax matters.
Therefore, the establishment of the Federal Court may not hamper, rather the government should take immediate and appropriate steps for the establishment of the Federal Court. The Federal Court will not only provide expeditious and speedy justice in cases relating to accountancy, companies, insurance, privatisation, rehabilitation of industrial undertakings, patents, financial, works of defence, charitable and religious trusts, cantonments, foreign exchange, imports and exports, house financing, copy rights, customs, monopolies and restrictive trade practices, drugs, emigration, modaraba companies, sales tax, consumers protection, designs, income tax, oil and gas regulations, electronic transitions and industrial relations etc. but will prove to be a milestone in the revival of the economy and industrial development of the country to meet the future challenges as we are also a part of global village.
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