Learning from our own history
To illustrate the model in simpler words, if a neighbour illegally encroaches upon one’s land, the victim in the present system would have to bribe the police and wait for his turn to be awarded justice, but a simple application written to the District Magistrate would have sufficed in Executive Magistracy
Provision of easy access to justice is every citizen’s fundamental right and an incumbent obligation on state and its institutions. Civil governments are ostensibly existent and purportedly functional in this regard but have generally been unable to extend speedy and inexpensive justice to common man. The efficiency of the system in operation may be gauged through a simple observation of the time it takes for a complainant to be listened to; sometimes it takes several years and in other cases it costs them their entire lives. There has hardly been an example where a plaintiff was addressed by courts of Pakistan within a time span deemed reasonable and sane enough by the masses.
Election campaigns run by different political parties are enchanted with vows and promises of making available immediate and inexpensive justice to their subjects and serving them in best possible manner, but all these ethereal troths vaporise and are repeatedly condoned by those very leaders once they get elected as legislators. Their attitudes change and so do their priorities. The very people before whom the candidates implore for votes are later eyed as beggars by parliamentarians. This definitely accounts for loss of people’s faith in their lawmakers which, in turn, gives rise to several societal evils and crimes as a direct consequence of the frustration caused over unavailability of justice at first place.
If viewed closely, the current situation of provision of justice in Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa is highly deplorable as it leaves no other choice for people except to circumambulate police stations and courts. Having said that, Executive Magistracy is one such system through which public can be partially warranted, if not fully guaranteed, the availability of justice as the setup offers the feature of adjudging and finishing several cases on daily basis, an observation not commonly noticed in Pakistan.
Executive Magistracy, an institution considered to have been abolished in 2001, is a magisterial system which is executive in nature as implied by the term itself. The judiciary was, in fact, completely separated from executive through Law Reforms Act, 1997 read with Law Reforms Ordinance, 1972 which together formed the basis of Article 175(3) of 1973 Constitution of Pakistan. Prior to 1996, there was a single magistrate who used to deal with all the crimes up to three years along with a magistrate having the powers of section 30 of Criminal Procedure Code who had the jurisdiction to hear all criminal matters other than those which carry death penalty. After separation, however, magistracy was divided into judicial and executive branches, with the former dealing with crimes only and the latter with issue pertaining to public service delivery, watch and ward over police and other law enforcing agencies, consumer rights and regulatory functions of the state.
The sprout of good governance hinges on a pedestal supported by district administration because policies chalked out at federal and provincial levels have to be eventually implemented at district and sub-divisional (tehsil) levels. Given the absence of a well-equipped district administrative setup, even the extensively thought-out policies fail to make a positive impression. The fact that our district administrative setup is not a product of colonial era is indispensable and an important key to realising that its roots stretch back to the times of yore when concept of city states was being evolved in Indian subcontinent. All the Englishmen did was to change the nomenclature of the offices after legislating upon this system. The system delivered well and proved to be a vital one-stop office for public grievance redressal, giving District Magistrate the status of ‘mai baap’, i.e. the sole deliverer at the district level. However, despite all the aforementioned perks, the setup had had a topsy-turvy drive till 1996 owing to the transfer of several of its functions to Judiciary in the name of Constitution obligation of Article 175(3).
What remained after the separation were plenty of regulatory tasks both executive as well as quasi-judicial in nature. The setup of colonial era’s magistracy was replaced by the one wherein a District Magistrate was no longer a judicial officer but just an administrative office bound to deliver service to common man through approximately eight hundred local and special laws and regulatory functions. This system was given accent by Supreme Court of Pakistan in its landmark judgments of 1996/97. Withal, the newly formed office of District Magistrate was soon abolished in 2001 and District Magistrate was made District Coordination Officer whose responsibility was to coordinate with different district officers instead of providing service delivery. The office was redesigned as Deputy Commissioner after the promulgation of Civil Administration Ordinance of 2016 which was regulatory in nature and directed district officers to perform regulatory tasks, such as negotiating with protestors, apprehending quakes, and checking drug stores, eateries and smuggled items, without any legal authority. Consequently, officers of district administration are left with no choice but to commiserate in courts.
The present government carried out consultations in 2015 with fellow political parties in order to achieve the target of putting in place such a system as District Magistracy that could enable the executive side of the government to adjudicate and punish diehard criminals. Resultantly, the Parliament passed the Pakistan Army Act of 1952 and the 21st Amendment in order to establish military courts after the 2014 Peshawar school massacre that claimed at least 150 lives. The executions of six militants through these special courts were, however, suspended by an apex court that declared the amendment and trials of the accused by these courts “illegal and unconstitutional”. Justice Jawwad S. Khawaja had stated in his dissenting verdict that parliament is not a sovereign or supreme body and “the limitations on the parliament are not only political but are borne out from the constitution itself”. Later, after giving a nod to the establishment of military courts, the Supreme Court subjected all its decisions to judicial review.
The setup of Executive Magistracy is still functional in Gilgit-Baltistan where locals are given justice without hiring lawyers and going through mischief of miscreants. To illustrate the model in simpler words, if a neighbour illegally encroaches upon one’s land, the victim in the present system would have to bribe the police and wait for his turn to be awarded justice, but a simple application written to the District Magistrate would have sufficed in Executive Magistracy as the magistrate himself would have to report to the higher authorities about the progress of the case. Another example is that of the 2104 Model Town tragedy in Lahore which would have not occurred at all had the system of Executive Magistracy been operating in the area because no Station House Officer or any other police official could shoot at people without the written approval of the District Magistrate.
The system has not been entirely forgotten. Nonetheless, the powers of magistrates now reside with judges who have not been permitted to go in field and perform the duties of a regular magistrate. All that needs to be done is to study history and revive the offices of District Magistrate along with Executive Magistracy that existed prior to 2001 so that the blinded Lady Justitia could provide speedy, inexpensive and incessant justice to the people of Pakistan.
