AMID the National Judicial Committee's resolve to completely separate the judiciary from the executive, the federal and provincial governments are mulling revival of executive magistracy abolished in August 2001 as part of administrative reforms. Is the revival of the executive magistracy in order?

The local government system introduced by the Gen Musharraf regime in 2001 introduced some drastic changes in the administrative system. Prior to that, the commissioner and the deputy commissioner (DC) were the administrative head of a division and a district respectively. The DC was also vested with judicial powers and was called district magistrate (DM). The 2001 reforms abolished divisions as administrative units together with the office of the commissioner. The district nazim was made the head of the district government.

The office of the DC was replaced with that of district coordination officer (DCO), though the latter was stripped of many of the powers exercised by the former including the judicial powers. Those administrative changes, as well as the devolution scheme, were however not applied to the capital territory of Islamabad, which continues to have the (chief) commissioner and the DC as its divisional and district administrative heads respectively.

The office of the DC/DM was a relic of colonialism created by the British rulers of India to subjugate the local population. Initially, the DC was called collector, his basic duty being to collect revenue. The British also set up the magistracy system consisting of executive officers exercising judicial powers. At the district level, the office of district magistrate was created and the collector was given those powers. It was under the DM that magistrates worked in matters both judicial and administrative. The magistrates exercised enormous powers including the power to issue search warrants, get public property vacated, supervise police investigations, prevent commission of crime and try and sentence accused persons.

Though British colonialism came to an end on August 14, 1947, the colonial psyche persisted and the magistrates, responsible to the executive, continued to wield their pre-independence powers. Special mention may be made of the powers of the DM, which he exercised under the criminal procedure code (CrPC). For instance, he was authorized to detain any person under the Maintenance of Public Order Ordinance (MPO). The district police officer was answerable to him and he (DC) was empowered to detain any person during police investigations. He was also empowered to cancel bonds and ban congregations.

In the wake of amendment to the CrPC in 2001, judicial powers of the executive magistracy have come to be vested in the judiciary i.e. judicial magistrates. The accused persons are tried by judicial officers rather than executive-cum-judicial officers. The judicial powers of the DM have been transferred to the session judge, while the power to impose section 144 is vested in the office of the nazim.

These changes cut to size the district management group (DMG) of the central superior services and provincial civil service (executive group), who occupied senior positions in divisional and district administration. With their judicial powers gone and their executive powers attenuated, they have been clamouring that the devolution system and the concomitant administrative changes have proved an abject failure and therefore the old system needs to be revived. Partly because of the efforts of these two groups, who dominate the provincial bureaucracy, and partly because these changes were introduced by the “previous” government, the office of the commissioner has been revived in three out of four provinces and now it seems to be the turn of the restoration of the DC/DM office.

This write-up is not concerned with the merits or demerits of the devolution scheme. The question before us is whether the system of executive magistracy should be revived. To begin with, the restoration of executive magistracy is linked to the principle of the separation of the judiciary from the executive, which is enjoined by the constitution and directed by superior courts (the Supreme Court and high courts) from time to time. This principle is also a prerequisite of a democratic polity, where the judiciary protects the rights of the citizens both against other citizens and the government and ensures the supremacy of the law and the constitution. The judiciary can perform these important functions in a proper way only if it is independent of other two organs—the legislature and the executive. In particular, if the judiciary is not independent of the executive, it will be under a lot of political pressure and the judges will not be able to act freely without fear or favour.

One of the safest ways to ensure the independence of the judiciary is to separate it from the executive. This implies that the executive should not be in control of the judiciary. Nor should the former meddle into the affairs of the latter. It further implies that the same person should not have both executive and judicial powers. He should not be at once the judge and the persecutor.

Recognizing this principle, the 1973 constitution directs the separation of the judiciary from the executive. Article 175 (3) states “The judiciary shall be separated from the executive progressively within fourteen years from the commencing day”. Originally, the constitution provided for a period of five years for the separation but later the period was enhanced to fourteen years through constitutional amendments.

Hence, going by the constitution, the judiciary should have been separated from the executive by the year 1987. However, that was not done until 2001. Prior to that, the judiciary was only partly separated from the executive. The superior courts and the sessions courts were separate from the executive. The civil courts were also independent of the executive. However, at the courts of the district magistrate and those of first, second and third class magistrates, the judiciary and the executive were not separate. The same person performed both the judicial and executive functions. He executed laws as well as settle disputes.

Lack of separation of the judiciary from the executive was replete with serious shortcomings. First, it impaired the independence of the judiciary. Take the case of the office of the DC. On the one hand, the DC was the head of the district administration. It was his responsibility to maintain law and order in the district. In his capacity as DM, he settled disputes in criminal cases. Though he exercised both judicial and executive powers, he was essentially an executive officer and his services were at the disposal of the provincial government. It frequently happened that when a top government functionary was involved in a case and the same came up for hearing before the DM, that person would always be in a position to influence the DM who as DC was his subordinate. The same was true of subordinate magistrates. They performed judicial functions but the terms and conditions of their service were those applicable to executive officers.

All those officers because of their vulnerable position were susceptible to the pressure of the executive and thus liable to make a departure from justice. Hence, not surprisingly, magistrates often made decisions favourable to the administration. Secondly, lack of separation of the judiciary from the executive leads to concentration of power. Now, power has a strong tendency to corrupt and the greater the concentration of power, the stronger is the tendency towards corruption. Third, it resulted in miscarriage of justice. An administration official issues an order and executes a law. But if as a judicial officer he is called upon to review his order or the way he implemented it, in all probability his verdict will be in favour of the order passed by him or the manner in which he executed it. But the grievances of the petitioner will persist.

Finally, the dispensation of justice is delayed. Take the example of DC/DM. His executive duties were multifarious. Apart from being the chief administrator of the district, he was the chief revenue officer and member of many development committees/boards. Besides, he had protocol duties to perform. This badly affected his duties as judicial officer. Hundreds of cases kept pending as he could not attend to them for want of time. Justice delayed is justice denied. Hence, lack of separation of the judiciary from the executive obstructs justice.

One may argue that revival of executive magistracy will not much obstruct justice since the upper judiciary will remain separate from the executive. However, to this one may reply that it is the lower judiciary with which the ordinary man comes into contact for most of the time and it is here that justice is often denied.

The advocates of the restoration of executive magistracy may also argue that the judiciary is already burdened with work and trial of local offences is a low priority area for it. No doubt, the lower judiciary has a lot of work to dispose of, which delays dispensation of justice. But the solution to the problem consists not in revival of executive magistracy but partly in raising the number of judges, partly in increasing the pace at which cases are disposed of and partly in recalling judicial officers holding executive offices back to the bench (as recently announced by the National Judicial Committee). Another argument is that the DC/DM was the one person responsible for maintenance of law and order in the district, which ensured administrative 'efficiency'. Assuming that the old system ensured administrative efficiency, why does an executive officer need to have judicial powers to do justice to his work?

To conclude, the abolition of executive magistracy was a right decision, as the combination of administrative and judicial powers in one office violated the principle of the separation of the judiciary from the executive as enshrined in the constitution. The revival of the old system will serve little good.

E-mail hussainhzaidi@gmail.com