3. JUDICIAL STRUCTURE AND REMUNERATION

- INTERNATIONAL EXPERIENCE

INDIA :

3.1 By nationality we are Indians, but by legal tradition, we are generally still British. Our judicial system was English in origin. We have adopted the English model.

Supreme Court :

3.2 Chapter IV of Part V of the Constitution of India provides for Union Judiciary. It consists of Articles 124 to 147 providing for establishment and constitution of Supreme Court, appointment of judges and Chief Justice. The Supreme Court stands as a head of the judicial pyramid. The Chief Justice is called the Chief Justice of India and the other judges are termed as judges of the Supreme Court. They cannot be removed save by impeachment for proved misconduct or incapacity. They retire at the age of 65 years.

3.3 The Supreme Court has original jurisdiction to the exclusion of any other Court in any dispute between the Government of India and one or more States or between the States inter-se. It has appellate jurisdiction from the judgments and decrees of the High Courts in certain cases, both in civil and criminal proceedings. It has got absolute discretion to grant special leave to appeal from any judgment, decree, determination, sentence or order passed or made by any Court or Tribunal in the country. It has also advisory jurisdiction or consultative function. The power is conferred on the President of India to consult the Supreme Court if it appears to him that the question of law or fact has arisen or is likely to arise is of such public importance. The opinion pronounced by the Supreme Court in its advisory jurisdiction is not a judicial pronouncement in the sense it is not binding on the party unless the party has agreed that it would be binding. However, it has a great persuasive force. The Supreme Court is free to pass executable decrees or to pass any order as may be necessary for "doing complete justice in the cause".

3.4 The decision given by the Supreme Court has binding force. All Courts in India are bound to follow the decision of the Supreme Court. While a judgment of a Court normally binds only the parties to litigation before it, the law declared by the Supreme Court shall be binding on all Courts within the territory of India . All authorities, Civil and Judicial, in the territory of India shall act in aid of the Supreme Court.

3.5 The Supreme Court is the guardian of the Constitution. It has power to issue directions or orders or writs or any writ for the enforcement of the fundamental rights guaranteed to the citizens and it is open to any person to move the Supreme Court by appropriate proceedings for the enforcement of his fundamental rights.

3.6 The Supreme Court, by its own judge-made law and procedure, has become one of the most powerful Institutions. It is not a Court of limited jurisdiction of only dispute settling like the Supreme Court as we know in any democracy. Almost from the beginning, the Supreme Court has been a law maker, albeit, in Homes' Expression "interstitial" law maker. Besides the role of dispute settling and interstitial law making, the Court is a problem-solver in the nebulous areas1. It also steps in as an intervener where the executive fails to perform its obligations.

3.7 Even in regard to appointment of judges of the Supreme Court, the Government has no freedom of choice of candidates. The Government is bound to act upon the recommendation of the Chief Justice of India, which is supported by the majority view of four senior-most puisne judges of the Supreme Court2. In no other country, the opinion of the Apex Court has been given such primacy in the matter of appointment of judges.

____________________________________________________________

1. K. Veeraswami Vs. Union of India (1991) 3 SCC 655 at 708.

2. Special Reference No.1 of 1998: (1998) 7 SCC 739.

3.8 The judges sit on panel which is constituted by the Chief Justice. The Chief Justice of India is also a participatory functionary in matters of appointment of judges of the Supreme Court and the High Courts.

3.9 As on to-day, the Supreme Court judge draws the fixed salary of Rs.30,000/- per month in addition to periodical Dearness Allowance. He is entitled to Sumptuary Allowance of Rs.3,000/- and House Rent Allowance of Rs.10,000/- per month, if Government quarters is not provided. Both the allowances are free from Income Tax. The Chief Justice is entitled to the salary of Rs.33,000/- per month and Sumptuary Allowance of Rs.4,000/-. The Sumptuary Allowance is free from Income Tax. He is provided with rent-free furnished quarters.

3.10 Under the provision of Part I of the Supreme Court Judges (Conditions of Service) Act, 1958 as amended by the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 1998, the Chief Justice and other Judges of the Supreme Court, who have completed not less than seven years of service as a Judge in India would get pension. The maximum pension allowed to the Chief Justice is Rs.16,500/- per month and to other Judges is Rs.15,000/- per month.

3.11 A Judge who is not eligible to receive pension under the above provision will get pension of Rs.64,030/- per annum.

High Court :

3.12 Chapter V of Part VI provides for the High Courts in the States. It consists of Articles 214 to 231 providing, inter alia, for appointment and conditions of service of the Chief Justice, judges of the High Court, and transfer from one High Court to another. At the apex of the judicial pyramid is the High Court in every State. It has variety of jurisdictions. It has power to issue writs and orders for the enforcement of any of the fundamental rights and for any other purpose. It has the power of superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. It has absolute administrative and judicial control over the subordinate Courts. The judges of the High Court are liable for transfer from one High Court to another High Court. They cannot be removed save for proved misconduct or incapacity by the procedure prescribed for removal of Supreme Court judges. They retire at the age of 62 years.

3.13 They are entitled to a fixed salary of Rs.26,000/- per month with usual Dearness Allowance and other perquisites like tax-free Sumptuary Allowance of Rs.2,000/- and House Rent Allowance of Rs.10,000/-, if not availed of Government quarters. Chief Justice of the High Court is entitled to a salary of Rs.30,000/- per month and Sumptuary Allowance of Rs.3,000/-. The Sumptuary Allowance is free from Income Tax. He is provided with rent-free furnished quarters.

3.14 Under the provision of Part I of the High Court Judges (Conditions of Service) Act, 1954 as amended by the High Court and Supreme Court Judges (Salaries & Conditions of Service) Amendment Act, 1998, a Judge who has completed not less than seven years of service is eligible to receive pension at Rs.14,630/- per annum for each completed year of service as Chief Justice and at Rs.11,150/- per annum for each completed year of service as Judge.

3.15 A Judge who has completed 14 years of service including not less than six years of service as Chief Justice in one or more of the High Courts is entitled for maximum pension of Rs.15,000/- per month.

3.16 A Judge who is not eligible to receive pension under the above provision will get pension of Rs.51,190/- per annum.

Subordinate Courts :

3.17 The Constitution of India also contains a group of Articles 233 to 237 in Chapter VI of Part VI under the heading "Subordinate Courts". Article 233 provides for appointment of District Judges by the Governor of the State in consultation with the High Court. The Constitution also provides for direct appointment of District Judges from the Advocates or Pleaders who have not less than seven years of practice, provided they are recommended by the High Court for appointment. Normally, 1/3rd of the cadre of the District Judge is directly appointed by this method in each State and the rest are appointed by promotion from the cadre of Civil Judges (Senior Division).

3.18 There are Courts of different categories, like District Courts, Courts of Civil Judges (Senior Division) and Courts of Civil Judges (Junior Division). On the Criminal side, there are the Courts of Sessions, Judicial Magistrates of the First Class in Districts. Metropolitan Magistrates in Metropolitan areas. They are exclusively professional people for trying cases depending upon the gravity of the offences and punishment to be awarded. But in some States, there are Special Judicial Magistrates of the First Class and Second Class for trying some specified cases in any local area. They need not be professional people with the legal background though it is a desirable qualification.

3.19 There are labour Courts dealing exclusively with the Labour litigations. Likewise, there are Sales Tax Tribunals, Motor Vehicles Accident Claims Tribunals etc., presided over by District Judges.

3.20 In some Metropolitan cities like Mumbai, Ahmedabad, Hyderabad , Calcutta , Chennai and Bangalore , there are City Civil Courts consisting of District Judges and Civil Judges (Senior Division), established by special statutes.

3.21 In some States, the Subordinate Courts have got unlimited Ordinary Original Civil Jurisdiction, while in some other States, they have got limited such jurisdiction. In such States, the respective High Courts have got unlimited pecuniary jurisdiction. The High Courts of Mumbai, Madras , Calcutta , Delhi , Himachal Pradesh and Jammu & Kashmir have Ordinary Original Civil Jurisdiction. The rest of the High Courts do not have such jurisdiction.

3.22 These subordinate Courts entertain cases arising under the State laws and also under the Central laws. They follow adversary system with common law tradition.

3.23 The District Judges are eligible for appointment as High Court Judges. The High Court Judges are eligible for appointment as Supreme Court Judges. The Constitution specifically provides for such appointment. Under the law made by each State, the Civil Judge (Junior Division) is eligible for promotion as Civil Judge (Senior Division) and further on to the cadre of District Judges.

3.24 The judiciary is thus a cadre system with the ladder of promotion just like any other Civil service. All the judges of the subordinate Courts retire at the age of 60 years.

3.25 The States have no executive or legislative powers in respect of the constitution, organisation, jurisdiction and powers of the Supreme Court. Neither, the State has power over the constitution and organisation of the High Court. These matters fall under the Union List and the Central Government alone is competent to deal such aspects. The State, however, has power in respect of matters relating to Officers and Servants of its High Court. It is of importance to note that the administration of justice, constitution and organisation of the Subordinate Courts have been included in the Concurrent List, which means, both the Central and State Governments have power to legislate in respect of those matters, subject to the recognised norms and limitations.

3.26 Though the Supreme Court is at the apex, it has no administrative control over the High Courts or on the Courts subordinate to the High Court. The High Court in each State is independent with full powers of administration over all other Courts and Tribunals.

3.27 The Independence of judiciary is a basic structure of the Constitution3. The judiciary is independent of the Executive and Legislature though there is no clear demarcation and separation of powers of the Judiciary, Executive and Legislature.

3.28 The pay structure of Subordinate Judiciary varies from State to State. Some of the States have adopted the pay scales of the Central Government and other States have got their own independent pay structure.

3.29 The following are the States which have adopted Central pay scales: (1) Maharashtra; (2) Gujarat; (3) Delhi; (4) Madhya Pradesh; (5) Goa; (6) Tamil Nadu; (7) Lakshadweep; (8) Haryana; (9) Pondicherry; and (10) Rajasthan.

3.30 However, even here, inter-State pay diffferentials do exist as far as allocation of pay scales of the Central Government are concerned. Two of the States have extended I.A.S. pay scales to the members of the Higher Judicial Service, viz., West Bengal and Madhya Pradesh.

3.31 The State Governments which have not adopted Central pay scales of 1996, have evolved their own pay structure. They are different from State to State as seen in the table below:

 

Cadre

State

Pay Scales (in Rs.)

I.

a) District & Sessions Judge, Grade-I

Andhra Pradesh

8140-280-10380

Bihar

5900-200-6700

Karnataka

5825-175-6000-200-6800

Kerala

5900-6700

Orissa

5900-200-6700

Uttar Pradesh

5900-200-6700

 

(b) District & Sessions Judge, Grade-II/ Addl. Dist. & Sessions Judge.

Andhra Pradesh

7070-230-7300-280-10100

Bihar

3700-125-4700-150-5000

Karnataka

4700-150-5300-175-6000-200-6400

Kerala

5100-5700

Orissa

3200-100-3700-125-4700

Uttar Pradesh

4500-150-5700

II.

Civil Judges (Senior)

Andhra Pradesh

5040-160-5200-190-6150-230-7300-280-8700

Bihar

3000-100-3500-125-4500

Karnataka

3825-125-4700-150-5300-175-5825

Kerala

3900-5075

Orissa

2800-100-3600-EB-125-4350

Uttar Pradesh

3000-4500

III.

Civil Judges

Andhra Pradesh

3880-130-4400-160-5200-190-6150-230-7300-280-8140

Bihar

2425-75-2800-100-4000

Karnataka

2375-75-2900-100-3700-125-4450

Kerala

2500-4000

Orissa

2200-75-2800-EB-100-4000

Uttar Pradesh

2200-4000

____________________________________________________________

3. S.P. Gupta v. Union of India (1981) Supp. SCC 87, 408.

Kumar Padma Prasad v. Union of India (1992) (2) SCC 428.

Union of India v. Pratibha Bonnerjee (1995) (6) SCC 765.

 

AUSTRALIA :4

3.32 The Australian judiciary comprises three distinct jurisdictions - Federal, State and Territorial. Federal Courts derive their existence from Common-wealth legislation enacted pursuant to Section 71 of the Commonwealth Constitution, the State Courts from State legislation, and Territory Courts from Commonwealth legislation enacted under Section 122 of the Commonwealth Constitution. The High Court in Australia is the Apex Court mandated by Section 71 of the Commonwealth Constitution.

3.33 The determination of judicial remuneration in Australia has passed through three stages during the twentieth century. The first period was the longest, running from the turn of the century or earlier until the early 1950s. In most Australian jurisdictions, a salary increase was awarded in 1947 or 1948, with a further increase in 1950 or 1951. Thus, the annual salary of a puisne justice of the High Court remained constant (£ 3000) from that Court’s inception in 1903 until 1947, when it increased to £ 4000, rising to £ 4500 in 1950. The salary of puisne judges of the State Supreme Courts reflected the similar pattern following the Commonwealth’s lead. The position was similar in the New South Wales District Court, the salary of the puisne judge remained the same (£ 1500) from 1883 to 1948, when it was increased to £ 1800, rising to £ 2000 in 1951.

3.34 The second period of judicial remuneration covers from the early 1950s until the introduction of judicial remuneration tribunals, commencing with the Commonwealth in 1973. The trend was followed shortly by Western Australia (1975) and New South Wales (1976), and later by Queensland (1980) and South Australia (1985). During this period, judicial remuneration was fixed by statute, with amendments raising salary being passed with increasing frequency - almost annually towards the end of the period in order to keep up with inflation.

3.35 In 1950s, some States in Australia experimented with automatic adjustment or "indexation" in the line with changes in the ‘basic wage’ or ‘the cost of living’.

____________________________________________________________

4. Extract from the Report of Judicial Remuneration of Australia 1997.

It is, however, not clear that why such automatic adjustment was abandoned. Such indexation was probably considered unsatisfactory because variations in the basic wage or the Consumer Price Index is only one factor in judicial remuneration; other factors include the earnings of senior barristers, changes in the jurisdiction and work-load of Courts and relative with similar Courts in other jurisdictions.

3.36 Over-all, the 1950s and 1960s in Australia have witnessed continued decline in the relative financial position of judiciary.

3.37 The Third period may be considered as the current period in which there have been independent remuneration tribunals for determining the remuneration payable to judges and magistrates, as well as to parliamentarians and holders of senior executive positions. The decisions of these tribunals have no binding force except in South Australia . But in the Commonwealth (since 1989), New South Wales, Queensland and Western Australia, the decisions of such tribunals have been given binding effect subject to disallowance by either House of Parliament. The position in the various jurisdictions may now be examined briefly.

The Commonwealth :

3.38 The Commonwealth Remuneration Tribunal was established pursuant to the Remuneration Tribunals Act, 1973. The Act establishes a Tribunal of three part-time members appointed for a term of not more than five years, but eligible for reappointment. One of the members is to be appointed Chairman by the Governor-General in Council. That person originally had to be either a judge or retired judge of a State Court or qualified to be appointed as such.5 The first two Chairmen were sitting judges, namely, W.B. (later Sir Walter) Campbell of the Supreme Court of Queensland (1974-82) and Dennis Mahoney of the New South Wales Court of Appeal (1982-92). The requirement for a judicially qualified

____________________________________________________________

5. Remuneration Tribunals Act 1973 (Cth) Sec. 4 (6).

Chairman came to be removed in 1992 since that position was not requiring any special legal skills.6

3.39 The Tribunal was required to determine annually the remuneration payable to Members of Parliament and senior public servants subject to disallowance by either House of Parliament. The Tribunal, however, was only to "inquire into, and report to the Minister" on judicial remuneration and ministerial salaries. This was intended perhaps to overcome the constitutional barriers, which preclude the Tribunal from making determinations relating to remuneration of judges and salaries of Ministers.

3.40 Whether or not constitutional concerns really underlay the limitation on the powers of the Tribunal regarding ministerial and judicial salaries, the Commonwealth Parliament changed its position regarding the latter in 1989, and now requires the Tribunal to determine judicial (but still not ministerial) remuneration as well.

3.41 The effective determination of judicial remuneration by the Remuneration Tribunal appears to have operated reasonably satisfactorily until the mid 1980s. But thereafter, it has faltered for various reasons and consequently judicial salaries had fallen and senior barristers were refusing to accept appointment and in some cases, judges began to resign from the Bench to private practice.

3.42 In May 1988, the Hawks Government decided to alter the manner of determining the salaries of Chief Executive Officers of Government Business Enterprises (G.B.Es) to enable them to compete against the private sector for the best candidates. Their salaries would no longer be linked to those of senior public servants, but would be determined by G.B.E. boards after consultation

____________________________________________________________

6. Remuneration and Allowances Legislation Amendment Act 1992 (Cth) Sec.20.

 

with the Remuneration Tribunal. The result was an epochal report of 18 November 1988, which was to have such detrimental repercussions for the relationship between the Commonwealth Government and the federal judiciary that it is doubtful whether the resulting judicial bitterness has yet dissipated.

3.43 We will now briefly refer to the judicial remuneration in the States and Territories:

States and Territories :7

3.44 Judicial remuneration is determined by an independent statutory tribunal in six of the eight States and self-governing Territories, and de facto for Supreme Court judges in another ( Tasmania ). The remuneration of Australian Capital Territory judges and Magistrates is determined by the Commonwealth Remuneration Tribunal, the remuneration of A.C.T. Supreme Court judges being the same as that of Federal Court judges. New South Wales , Queensland , South Australia , Western Australia and the Northern Territory have their own Tribunals.

Western Australia :

3.45 The earliest of these was the Western Australian Salaries and Allowances Tribunal, established in 1975, just two years after the Commonwealth Remuneration Tribunal. It consists of three members, including a Chairman, appointed by the Governor in Council for a term of three years (renewable). No special qualification is stipulated, but persons holding offices within the Tribunal’s jurisdiction are (appropriately) expressly disqualified. The Tribunal determines the remuneration of a wide range of public officers as well as judges and magistrates; the State Governor, Ministers, Members and Officers of Parliament, senior public servants, and also the entitlements of former premiers, Ministers and Members of Parliament.

____________________________________________________________

7. Extracts taken from the compilation of the judicial remuneration in Australia .

3.46 Judicial remuneration must be determined at least once each year. Since 1992 the term "remuneration" has included non-pecuniary "benefits", such as cars. Reduction in remuneration is not prohibited. Determinations are binding, subject to disallowance by either House of Parliament, a power which Parliament has never exercised. Nevertheless, judges have not always regarded the Tribunal’s work favourably , and have occasionally complained to it in private. The heads of the various courts also address formal submissions to the Tribunal on behalf of their courts. The Chairmen of the Tribunal have included two former senior public servants (an Under Treasurer and a Genera Manager of the Public Service Board), a former Chief Commissioner of the State Industrial Commission, and a former Commonwealth Minister. Members have included a Managing Director of a bank, lawyers, an accountant, a former Member of Parliament, and a retired public servant.

3.47 The Tribunal is not legally required to have regard to current wage-fixing principles, but has taken account of wage restraint principles. Its reports have echoed the concern of the Commonwealth Remuneration Tribunal, seeking to balance general wage restraint with the need to raise judicial remuneration to reduce the "unacceptably large" gap between judicial salaries and earnings of senior practitioners, which (as elsewhere) has led to difficulty in recruiting judges to both the Supreme Court and the District Court. The Commonwealth Government’s failure to implement the November 1988 recommendations of the Commonwealth Remuneration Tribunal, whose report the Western Australian Tribunal has generally endorsed, has meant that it has followed the proposal to fix the remuneration of Supreme Court judges at about 85% of that of High Court justices only with considerable misgiving and over widespread judicial opposition.

New South Wales :

3.48 A few months after Western Australia , New South Wales established a Statutory and Other Offices Remuneration Tribunal to determine the remuneration of judges and statutory officers. The Tribunal must determine remuneration not later than 31 August each year or whenever the Minister so directs, and may alter a previous determination in order to apply a wages decision by the State’s Industrial Commission. However, judicial remuneration may not be reduced, Tribunal determinations are binding, subject to disallowance by either House of Parliament. A determination was annulled in 1982, but that was accomplished by legislation, not by disallowance on the ground that the increased remuneration awarded was unacceptable in the then existing economic climate.

3.49 The relativity of the salaries between judges of the Federal Court and their Supreme Court colleagues was a matter of some concern in New South Wales . Judicial remuneration was discussed at a Premiers’ Conference on 28 June 1990, at which the Prime Minister and Premiers agreed jointly to address issues such as disparities between salaries and "leap-frogging". Consequently, the Chairman of the Commonwealth Remuneration Tribunal met with representatives from State and Territory Remuneration Tribunals and the Victorian Government on three occasions between August 1990 and July 1991 and thereafter on several occasions, and reached consensus that provided the remuneration of High Court justices was set at an "acceptable level" and regard was had to major differences in benefits, the salaries of Federal Court and State Supreme Court judges should not exceed 85% of that of a High Court justice. They also agreed to consult informally before determining judicial remuneration, which should occur at around the same time each year in order to avoid "leap frogging"8. New South Wales has followed this consensus since-then and the Tribunal has generally fixed the remuneration of a Supreme Court judge at the salary of a Federal Court judge, (i.e. 85% of that of a High Court justice) plus $ 10,362.

 

____________________________________________________________

8. N.S.W. Statutory and Other Offices Remuneration Tribunal, Report on the

Salaries of Judges . . . . . . . . (28 November 1991), para, 3.

3.50 However, Federal Court judges' salaries generally exceed those of the Victorian, South Australian and Tasmanian Supreme Courts, leading to concerns of federal "poaching" of State judges in those States. Since Federal Court salaries are set at 85% of High Court salaries, nationwide adoption of the 85% standard for Supreme Court judges would ensure parity in remuneration between them and the Federal Court.

3.51 In its determination of 31 August 1996, the Tribunal increased the remuneration of a Supreme Court Judge by 4.25 percent to $ 1,77,488 thus preserving the relationship with the salary of a Federal Court Judge. The amount of $ 10,362 which takes into account the difference in conditions of Federal Court Judges and Supreme Court Judges was added, making a total remuneration of $ 1,87,850 per annum.

3.52 The Tribunal, after considering the views of the Assessors, determines that the base rate of remuneration for a Supreme Court Judge should be increased on and from 1 October 1997 by 5 percent from $ 1,77,488 to $ 1,86,362 per annum. The Tribunal also determines that the amount to be added to take into account of the difference in conditions of Supreme Court Judges and Federal Court Judges should remain at $ 10,363 thus making the total remuneration of a Supreme Court Judge $ 1,96,725 per annum.

3.53 A spokeswoman for Attorney-General Jan Wade has promised that the report of the Commission was being considered as reported in "HERALD SUN (MELB)" 1st Edition, 17 September, 1997 p. 15.

Queensland :

3.54 The next State Tribunal was Queensland ’s Salaries and Allowances Tribunal, established in 1980. It determines the salary and allowances of judges, but not the allowances of Magistrates since 1991. The determination of judicial remuneration is its sole function. Its determinations, which must occur at least once each year, are legally binding, subject to disallowance by the Legislative Assembly. But that power was exercised only once in 1993 to set aside a determination which was considered legally flawed.9

3.55 The Tribunal is not specifically required to take account of Wage Determination Principles or variations in the cost of living, but is required to consider the equity of Queensland judicial remuneration in the light of such remuneration elsewhere in Australia .

South Australia :

3.56 South Australia established its Remuneration Tribunal in 1985. But it did not determine judicial salaries until 1988. Until then, judicial salaries were set pursuant to a legislative formula which essentially fixed Supreme Court salaries at 95% of the average in the other mainland States, and District Court salaries at 85% of the Supreme Court’s, with subsequent increases to follow wage determinations of the State Industrial Commission; the Remuneration Tribunal had power only to fix judicial allowances, not salary. Since 1988, the Tribunal determines both salary and allowances.

3.57 The Tribunal must determine judicial remuneration at least once in each year. Their determinations are binding, and not subject to parliamentary disallowance, although they could, of course, be overturned by legislation. But that has never happened.

3.58 In determining remuneration, the Tribunal is required to "have due regard to" and "may apply and give effect to", any principles enunciated by the (Full) State Industrial Commission, which itself is required to pay similar regard to the

____________________________________________________________

9. See Queensland Parliamentary Debates, 19 November 1993, 6096-6102, disallowing Queensland Salaries and Allowances Tribunal, Fourteenth Report (31 August 1993).

decisions and declarations of the Commonwealth Industrial Relations Commission. Moreover, the Tribunal is (and, again, uniquely in Australia ) specifically directed to "have regard to the constitutional principle of judicial independence".

3.59 The South Australian Remuneration Tribunal appears to have performed well. The Tribunal has acted responsibly and independently, without governmental interference.

Northern Territory :

3.60 Judicial remuneration in the Northern Territory is determined from time to time by the Administrator, but cannot be reduced during a judge’s term of office. The Remuneration Tribunal was established in 1981. The Tribunal only makes "recommendations" on judicial remuneration; but its recommendations have always been followed. In fact, the terms and conditions of Northern Territory judges provide for their remuneration at rates not less than those payable to judges of the Federal Court and the Tribunal has always recommended remuneration equivalent to that of the Federal Court.

Tasmania :

3.61 Tasmania and Victoria do not constitute Tribunals to determine judicial remuneration. Tasmania relies indirectly on determinations of the South Australian and Western Australian Tribunals to fix Supreme Court judges salaries. The Chief Justice of Tasmania’s salary is the average of the salaries of the Chief Justices of those States and puisne judges receive 90% of that figure. The salaries of Supreme Court Masters and Magistrates are fixed by reference to the salary of the Permanent Head of a government department: 92%for the former, and 81.25% for the latter. Tasmania has no intermediate Court.

Victoria :

3.62 Since 1980, the remuneration of Victorian judges and Magistrates has been determined by the Attorney-General. Until 1987, it was determined in response to wage increases awarded by the Australian Conciliation and Arbitration Commission and thereafter, following a recommendation of the Robinson Inquiry in 1986, determinations follow upon increases awarded by the Commonwealth Remuneration Tribunal.

3.63 Victorian judicial remuneration is to be reviewed in accordance with current wage fixing principles at least once every five years by a person the Attorney-General considers suitably qualified to carry out such a review.

3.64 It has been now felt that Victoria should change its method of determining judicial remuneration to a system closely resembling South Australia ’s. That system is yet to be implemented.

3.65 Judicial remuneration in Australia is presently in a state of uncertainty, with important reviews in progress in the Commonwealth and Victoria, Australian judges bear a strong sense of grievance and consider themselves seriously underpaid, as evidenced by the Commonwealth Remuneration Tribunal’s report of November 1988. They have reluctantly accepted wage injustice; as they see it, because they acknowledged the arguments for wage restraint which depressed the wages of the general work-force during the Recession, expecting the "injustice" to be righted once the economy recovers. Now that economic recovery has begun.

 

3.66 The salary structure of various categories in different States are set out in the following Table:

SUPREME COURTS

 

YEAR

HC

FED.CT AND ACT.

N.S.W.

VIC.

QLD.

S.A.

W.A.

TAS.

MONEY WAGE

1990

 

 

5200

5000

4000

3400

2800

2400

146

1910

6000

 

5200

5000

4000

3400

3400

2400

174

1920

6000

 

5200

5000

4000

3400

3400

3000

302

1930

6000

 

5200

5000

4000

4000

4000

3000

422

1940

6000

 

5200

5000

4000

4000

4000

3000

429

1950

9000

8000

6200

7000

6200

5000

5200

4000

873

1955

13000

11000

9450

8500

9050

8000

7000

7000

1579

1960

17000

14000

11100

12300

9800

11000

9200

9200

1992

1965

21000

17000

17000

15700

13500

13700

12400

12400

2435

1970

27000

23000

22475

21350

17700

21000

19200

16650

3397

1975

43500

36750

42720

40500

42940

39000

28800

34155

6925

1980

73350

61800

62838

54230

62600

51087

51350

51401

11706

1985

110246

93507

100137

89311

95850

84604

93342

86600

 

1990

154991

131734

135000

131734

139000

134000

135000

123719

 

1994

177604

150955

158357

150372

143500

147995

148864

146601

 

 

ENGLAND :

3.67 By long usage, the expression "the superior judges" or simply "the judges" usually means, the judges of the High Court, Court of Appeal and the Law Lords. It is these judges who are the centre of interest when people think of Courts. Before 1971, there was a system of County Court, but other Courts below the High Court were fragmented and largely governed by piece-meal legislation.

3.68 But the Courts Act 197110 restructured and rationalised the lower judiciary. Below High Court there are (i) Circuit Judges; (ii) District Judges; (iii) Recorders and Assistant Recorders and (iv) Magistrates.

Circuit Judges :

3.69 Circuit Judges sit in the Crown Court to try all but the most serious criminal cases and in the County Courts where they handle most types of civil cases. Much of the work they do is on a par with work done by High Court Judges and indeed they are deputising for High Court Judges more and more often.

District Judges :

3.70 District Judges are handling minor judicial work which is not thought to need the expertise of a Circuit Judge.

Recorders and Assistant Recorders :

3.71 Recorders sit for between 20 and 50 days a year. Assistant Recorder is required to sit for a minimum of 20 days per year. The Assistant Recorder’s work will be assessed, and ‘it is expected that he or she will have progressed to a full Recordship after three to five years’. If not, the Assistant Recorder is not given a second chance.

____________________________________________________________

10. Joshua Rozenberg. "The Search For Justice" (1994) p. 47-49.

Magistrates :

3.72 Magistrates consist of part-time lay magistrates (also called Justices of the Peace) together with some full-time legally qualified stipendiaries.

3.73 All the senior judges11 (that is the judges of the House of Lords, the Court of Appeal and the High Court), Circuit Judges and Recorders are appointed by the Crown on the recommendation of the Lord Chancellor. The Prime Minister nominates the Lords Justices of Appeal, the Lord Chief Justice, the Master of the Rolls and the President of the Family Division (although it is commonly assumed that the Prime Minister is guided by the Lord Chancellor). In the old days when judicial posts were few in number and the Lord Chancellor could personally assess the field for every post himself, he acted largely on the basis of what he himself had heard. With increasing numbers of appointments, people began to wonder how he managed , and there were dark rumors about secret files, blacklists, and so forth. To dispel the sense of mystery, in 1986 the Lord Chancellor’s Department published a booklet entitled ‘Judicial Appointment’ which is available for all to read. From this we learn that within the Lord Chancellor’s Department there is a body of officials called the Judicial Appointments Group. Potential appointees come to their notice either because they write in and say they are interested in a judicial appointment, or because their names are mentioned by judges and ‘senior members of the profession’ with whom the senior officials in the Judicial Appointment Group regularly consult. Files are opened on these candidates - and remain open when they have obtained a position. Into this file will go factual information about the candidate, and opinions which have been expressed about him. At some point, a person under consideration for appointment is likely to be interviewed, and this will put more information about him on file. The part of the information which is purely factual is open for the candidate to see, but the opinions

____________________________________________________________

11. The information has been extracted from " Jackson ’s Machinery of Justice" by J.R. Spencer.

 

which have been expressed about him are usually given in strict confidence, and these he is never shown. However, the Lord Chancellor or the senior members of the Judicial Appointments Group are usually willing to give judges and would be judges general advice about their prospects, and this is likely to show an applicant in what standing he is held.

3.74 For centuries it was the case that there was no regular system of promotion. The Court of Appeal and the House of Lords were filled by promotions from below, but there was little movement from the lower judiciary to the High Court, and an appointment to the County Court bench - and more recently to a Circuit Judgeship - was regarded as the end of the road. In the last ten years, this has greatly changed. The Lord Chancellor’s Department has made it plain that it expects the people who are appointed Recorders to have proved themselves as Assistant Recorders, and Circuit Judges to have proved their worth as Recorders or Assistant Recorders. Whilst the majority of appointments to the High Court Bench are still made from persons eminent in practice at the Bar, most of them have been new-style Recorders, and there are a number of High Court Judges in office who have been promoted from the Circuit Bench. There are signs that the judiciary is developing a career structure with a promotional ladder, like other areas of public service; although no one puts his foot on the first rung until he has reached his middle age.

3.75 The Lord Chancellor, who is nominated by the Prime Minister, occupies an anomalous position. For some purposes he is the head of the judiciary and his powers are extensive. Not only is he in charge of judicial appointments, but he sits as a Law Lord in the House of Lords to hear cases and determine cases in so far as his other official duties permit. Yet he is invariably a member of the cabinet. As a cabinet minister, the Lord Chancellor holds office upon the usual political terms, which means that ordinarily he will vacate office if the government changes.

3.76 The position of the Lord Chancellor has, however, been the subject of comment and indeed treated as being unsatisfactory in a lecture of great distinction given recently by Lord Steven12.

3.77 But Lord Woolf13 thinks otherwise. He states that the Lord Chancellor of the day can act as a safety valve avoiding undue tension between the judiciary and the Government and possibly between the judiciary and Parliament as well. As a member of the Cabinet, he can act as an advocate on behalf of the courts and the justice system. He can explain to his colleagues in the Cabinet the proper significance of a decision which they regard as being distasteful in consequence of an application for judicial review. He can, as a member of the Government, ensure that the courts are properly resourced. On the other hand, on behalf of the Government, he can explain to the judiciary the realities of the political situation and the constraints on resources which they must inevitably accept. As long as the Lord Chancellor is punctilious in keeping his separate roles distinct, the separation of powers is not undermined and the justice system benefits immeasurably. The justice system is better served by having the head of the judiciary at the centre of government than it would be by having its interests represented by a Minister of Justice who would lack these other roles.

3.78 The Circuit Judge must be a barrister of at least ten years’ standing or a Recorder who has held that office for at least five years. A Recorder must be a barrister or solicitor of at least ten years’ standing. A puisne judge of the High Court must be a barrister of at least ten years’ standing. A barrister of at least fifteen years’ standing, or an existing High Court Judge, qualifies for appointment as a Lord Justice of Appeal (i.e. a judge of the Court of Appeal). The qualifications

____________________________________________________________

  1. The Rt Hon. Lord Stevn, "The Weakest and Least Dagerous Department

of Government" (997) P.L.

13. Lord Woolf (1998) , 114 Law Quarterly Review, p.579.

for appointment as a Lord Justice of Appeal also qualify for appointment as Lord Chief Justice, Master of the Rolls, or President of the Family Division. The Lords of Appeal in Ordinary (the Law Lords) must be appointed from barristers or advocates of fifteen years’ standing or from persons who have held high judicial office in England , Scotland or Northern Ireland for two years. Since most barristers begin to practice when they are still young, and judges are never appointed from those under forty and quite often from those over fifty, the requisite standing at the Bar is usually attained many years before there is any chance of judicial appointment.

3.79 There is a substantial difference in the terms upon which the superior judges hold office and the terms applicable to Circuit Judges and Recorders. All the superior judges other than the Lord Chancellor hold office ‘during good behaviour sujbect to a power of removal by Her Majesty on an address presented to Her Majesty by both Houses of Parliament’, this being the provision of the Supreme Court Act, 1981 which ultimately derives from the Act of Settlement 1701.

3.80 Circuit Judges and Recorders have no such security of tenure. The Courts Act, 1971 provides that ‘The Lord Chancellor may, if he thinks fit, remove a Circuit Judge from office on the ground of incapacity or misbehaviour ‘, and also for failure to comply with the requirements of his appointment as to when he would be available to sit in Court. The retirement age was at 75 years by the Judicial Pensions Act, 1959. But Sec. 26 (1) of the Judicial Pensions and Retirement Act 1993 lowered the retirement age to 70 (but only for judges appointed after the Act came into force).14 Section 26(5) of the Act says the Lord Chancellor can allow Circuit judges and other minor judicial figures to stay on until they are 75 if he ‘considers it desirable in the public interest’.15

____________________________________________________________

14. Joshua Rozenberg. "The Search for Justice" (1994) p. 94.

15. Joshua Rozenberg. "The Search for Justice" (1994) p. 367.

3.81 Perhaps the greatest responsibility of all in the hands of the Lord Chancellor is to choose the judges. He himself appoints the lower judicial officers, and most magistrates. He also advises the Queen on appointments to the High Court, which means that the Queen has to accept the names he puts forward. But appointments to the Court of Appeal and above are different. These are made by the Queen on the advice of the prime minister.

3.82 At first sight this may seem one of those meaningless formalities designed to buttress the status of senior judges. But the reality is very different. It is nothing less than naked political control over appointments to the most senior levels in the judiciary - the Lord Chief Justice, the Master of the Rolls and the appeal judges.

3.83 Potential candidates for these posts are first selected by the Lord Chancellor. That process is itself questionable (and indeed it will be questionable in chapter 2). But with the system as it is one might assume that the Lord Chancellor would simply pick a name and then send it round to 10 Downing Street so that the prime minister could redirect it to Buckingham Palace . Not so.

3.84 The former Lord Chancellor, Lord Hailsham, generally gave the prime minister a shortlist of two or three names. But he always put them in order of merit, giving reasons, and indicated why he thought any rival candidates would have been unsuitable. Even so, on one occasion the prime minister picked Lord Hailsham’s second choice."16

3.85 A guiding principle of the Lord Chancellor’s approach is that, as far as possible, no one person’s view about a candidate, whether positive or negative, should be regarded as decisive in itself. The independent view of a spread of observers and colleagues in a position to assess the candidate’s work and

____________________________________________________________

16. Joshua Rozenberg. "The Search for Justice" (1994) p. 9.

personality over a sufficiently long time is treated as having great weight. This approach is applied extensively in relation to the appointments of High Court and Circuit Judges and their associated part time appointments. In addition, as far as possible, candidates are appointed to permanent judicial posts only when they have successfully prepared and proved themselves by experience in an associated part-time capacity. This is already fully applied to the Circuit Benches and to most lower judicial and tribunal appointments. To enable the Lord Chancellor to apply these principles, the Permanent Secretary and Deputy Secretaries undertake continuous consultations with judges and senior members of the profession.

3.86 High Court salaries had been set at £ 5,000 in 1832 while the County Court salaries had been raised to £ 2.000 in 1937. The County Court judges in their meeting in February 1946 raised objection and voted that the ratio between the remuneration of County Court and High Court judges needs reconsideration. They argued that the County Court judge is the permanent representative of the judiciary in the eyes of the ordinary citizen. From this point of view, it is important that his status and prestige, which depend to a considerable extent on his salary, should not be conspicuously below that of a High Court judge. The County Court judges continued to complain about their salaries and the differential with the High Court. By spring 1949, there were threats that some judges will take some individual steps to ventilate their grievances publicly.

3.87 During the period of 1951-1964, the salaries of County Court judges were raised to £ 2,800. This increase became law in the Judicial Officers (salaries) Act. It was further increased in 1957 to £ 3,750. It is important to note that the Judicial Officers (Salaries and Pensions) Act, 1957 authorised the Government to raise the County Court salaries by delegated legislation, subject to Parliamentary resolution. In June 1963, the High Court Judges salaries were proposed to be raised to £ 8,000. This proposal was, however, justified on the plea that "there was no intention of making judges wealthy men", but to satisfy their need to maintain a modest but dignified way of life suited to the gravity, and indeed the majesty, of the duty they discharge. Finally, it got the Royal assent on 14 April 1954.

3.88 In July 1965, the Labour Government kept the pledge made by its predecessor and announced its intention of raising all the salaries of the senior judges by an average of 25 per cent. The Judges’ Remuneration Act, 1965 was enacted by the Labour Government. The Judges’ Remuneration Act provided for increase by 25% for High Court Judges and accordingly it was raised from £ 8,000 to £ 10,000 and for the judges of the Court of Appeal from £ 9,000 to £ 11,250.

3.89 It is interesting to note that until the 1930s a High Court salary was four times as large as a County Court salary; but by 1965 a County Court judge was paid almost two thirds the salary of a High Court judge. It should also be mentioned that the judges’ salaries remained at £ 5,000 per annum from 1852 until 1954, and at £ 8,000 until 1965, senior civil service salaries showed the following change: in 1871 the most senior of the Permanent Secretaries in a government department received a salary of £ 2,000 per annum. It was not until 1929 that the salary reached £ 3,000 per annum. By 1950 it had crept upto £ 3,500 and by 1954 to £ 4,500. In 1963 Permanent Secretary of the ordinary department was paid £ 8,200 while the two most senior received £ 8,800 per annum. The figures were raised to £ 8,600 and £ 9,200 in 1966.

3.90 Much of the social history of this period was tied up in the intricacies of pay and wage control and the meaning of relativities. There was still friction between the civil service and the High Court bench with respect to salaries. During 1960s Permanent Secretaries finally pulled ahead of the High Court judge. In 1961, the High Court judges earned £ 8,000 and the Ordinary Permanent Secretary £ 7,000 (three earned more). Then in 1970, the Permanent Secretaries were to receive £ 11,900 and High Court Judges £ 11,500. By 1971, the High Court judges were still at £ 11,500; Permanent Secretaries had reached £ 14,000.

 

3.91 In May 1971, the Conservative Government appointed a permanent body called "Top Salaries Review Body" to advise the Prime Minister on the remuneration of the higher judiciary, Senior Civil Servants etc.. In its second report in 1972, it recommended that both High Court judges and Permanent Secretaries be paid at £ 15,750. The Committee on Top Salaries became the protector of judicial salaries and thus of independence. Until the rejection of its advice by the Major Government in 1992, its recommendations had always been accepted.

3.92 It would be fascinating to set out a few observation on salary relativities from the Review Body on Top Salaries. In Report No.6, 1994, it was stated thus:

"No formal evaluation of relative responsibilities within the judicial structure seems to have been attempted previously nor can any principle of external comparability be applied.

"The (Advisory Group on the judiciary) saw no special merit in principle in the present equivalence between the salaries of a High Court Judge and of a Permanent Secretary in the Higher Civil Service; but they considered that it would be wrong in practice for the pay of a High Court judge to fall behind that of the Permanent Secretary and therefore regarded the maintenance of at least the existing parity as a safeguard. They also felt that bar earnings (net of expenses) provided a valuable independent means of checking whether judicial salaries were likely to prove sufficient to maintain satisfactory levels of recruitment.

"We have examined the history of judicial salaries since the Eighteenth Century, but we have looked in vain for any well established principles to guide us in this field except the need to maintain the status and dignity of the judicial office as an essential element of the constitution." (Ibid.29)

3.93 The relative salary relationship of High Court Judges and Circuit Judges - the nearest equivalent to County Court judges after the Courts Act, 1971 is 5 : 3. By 1979, the Lord Justice earned £ 27,799. High Court judges £ 25,886 - the same figure as Permanent Secretaries; Judges of the Court of Session £ 24,786; circuit Judges earned £ 18,415.

3.94 In 1985, the Review Body again considered judicial salary relativities. The Circuit Judges made a strong case to have their salaries come closer to those of the High Court judges. This claim, however, was ultimately rejected by the Judicial Sub-Committee. Nevertheless, the recommendation was that their salary be raised from £ 33,000 to £ 40,000 per annum. The Senior Circuit Judges went from £ 35,000 to £ 44,500.

3.95 In 1992, a 19% increase far ahead of inflation was recommended in the 15th Report of the Committee. It was understandable. " The notion of comparability of salaries is an art, not a science, and it is arguable that the Review Body on Top Salaries has been forced to rely on intuition rather than principle. It has simply assumed that Judicial salaries should bear some comparison with those of leaders in industry and leaders at the bar."

3.96 By 1992, the salary figures were £ 97,000 for Lords of Appeal, £ 93,000 for Lords of Justice of Appeal, £ 84,250 for High Court Judges, (£ 82,780 for Permanent Secretaries), Circuit Court judges were paid £ 59,900 and Senior Circuit Court Judges £ 66,500.

3.97 The arrival of Top Salaries Committee led the judges to outface inflation. By 1997, the salary figures were £ 140,665 for the Lord High Chancellor, £ 140,008 for Lord Chief Justice of England, £ 131,034 for Lord of Appeal in Ordinary, £ 131,034 for the Master of the rolls, £ 124,551 for Lord Justice of Appeal, £ 124,551 for Vice Chancellor, £ 124,551 for President, Family Division, £ 112,011 for Judge of Chancery Division, £ 112,011 for Judge of Queen’s Bench Division, £ 112,011 for Judge, Family Division, £ 92,378 for Senior Circuit Judge, £ 83,586 for Circuit Judge, £ 67,358 for Stipendiary Magistrate.17

____________________________________________________________

17. Law Courts and Offices - Whitakers, 1997.

MALAYSIA :

3.98 Before independence, Malayan judges used to hold office at the pleasure of the Crown. In theory they could be dismissed for any or no reason, but after independence they no longer hold office at the pleasure of the Crown. The Constitution contains express provisions to secure independence of the judiciary from control or interference by the executive and the legislature.

3.99 The independence of judiciary is guaranteed by way of, first, the judges of Superior Courts may be removed from office by His Majesty only on the ground of misbehaviour or of inability from infirmity of body or mind or any other cause, properly to discharge the functions of their office and upon the recommendation of a tribunal consisting of five judges. They cannot be removed from office in any other way. Second, a judge’s remuneration and other terms of office including pension rights may not be altered to his disadvantage after his appointment. Third, his remuneration is charged on the Consolidated Fund. Fourth, the conduct of a judge may not be discussed in either House of Parliament except on a substantive motion of which notice has been given by at least one fourth of the members of that House, and may not be discussed in the State Assembly at all. Fifth, a judge, since 1963, is "entitled" to his pension, unlike civil servants who are only "eligible" for their pension.

3.100 In 1970 the separate Ministry of Justice was abolished on the ground that its existence was inconsistent with the independence of the judiciary. Responsibility in Cabinet and Parliament for the machinery of justice was transferred to the Prime Minister. There are two schools of thought about this development. One view is that the executive should have no say in the running of courts and their staff which should be the sole responsibility of the head of the judiciary. The other view is that the head of the judiciary and his fellow judges should be free to concentrate exclusively on judicial work, and they should not be troubled by matters that are best handled by experts trained and skilled in administration. Today, it may be noted, in absence of a Minister of Justice, the Chief Justice of the Federal Court and the two Chief Justices of High Courts, are concerned about subordinate Courts and their staff.

3.101 There is increasing trend of professionalism of Subordinate Courts. At one time, administrative officers such as Divisional Officers (Dos) and Additional Divisional Officers (ADOs) did part time duty sitting as magistrates. Though not qualified as lawyers, all of them had been given some training in law especially criminal law, the law of criminal procedure and the law of evidence, and they did well as magistrates. However, when emergency broke out in 1948, security became the first priority. The Dos and ADOs were then found to be not proper on the bench. The new trend is in favour of appointing trained lawyers as magistrates.

3.102 The Subordinate Courts in Sabah and Sarawak are governed by their respective Subordinate Courts Ordinance which make provisions for three main classes of Magistrates, namely, First Class Magistrates, Second Class Magistrates and Third Class Magistrates, all are legally qualified persons. First Class Magistrates may be declared as Stipendiary Magistrate by a warrant issued by the Governor. Normally, a First Class Magistrate can only hear civil cases where the value of the claim does not exceed $ 1000. However, where a First Class Magistrate has been declared a Stipendiary Magistrate, the Chief Justice may confer on him special power so that he can deal with civil claims up to $ 3000. The Second and third Class Magistrates deal mostly with minor cases. They are all administrative officers.

3.103 But the policy of judiciary is to take over all court work from administrative officers in states.

3.104 The Subordinate Courts in Peninsular Malaysia are having much higher jurisdiction in dealing with civil and criminal matters as compared with Subordinate Courts in Sabah and Sarawak .

3.105 There is no uniformity in Subordinate Courts in the whole country in respect of practice and procedure, though there is a constant demand in regard to uniformity in the organisation, functioning and separation of judiciary from executive.

3.106 It appears that the prosecuting officers and the subordinate judges constitute one common cadre and may change places from time to time.

3.107 The Judicial and Legal Service Commission, was established in 1957 to appoint, confirm, promote, transfer, and discipline officers of the Judicial and Legal Service. It was abolished in 1960 and then revived in 1973 on Malaysia Day. This Commission is established by Article 138 of the Constitution. Its function is to promote, confirm on the permanent or pensionable establishment and exercise disciplinary control over members of the Judicial and Legal Service. It does not, however, have anything to do with the appointment of the Attorney General, judges or the Tribunal to enquire into the conduct of judges.

3.108 The Judges’ Remuneration Act, 1971 provides for the remuneration of Judges’ and pensions and other benefits of their dependents. Salaries and allowances of Judges are paid in accordance with the provisions of Section 2(1), (2) and Schedules First and Second of the Act. As per the recent regulation i.e. the Judges’ Remuneration (Amendment of Schedules) Regulation, 1997 the salaries and allowances of judges with effect from 1-1-1995 are shown in the following table:-

SALARIES AND ALLOWANCES OF JUDGES IN MALAYSIA18.

(Figures in Ringgit Malaysia , RM)

No.

Post

Salary

Housing Allowance

Maids

Entertainment

Special Judicial Allowance

Monthly Total

House Maintenance P/A

1.

Chief Justice

12000

3150

2100

5400

6000

28650

4100

2.

President Court of Apparel

10520

2500

2000

5100

4500

24620

3000

3.

Chief Judge of Malaya H.C.

10420

2500

2000

5100

4500

24520

3000

4.

Chief Judge of Sabah And Sarawak H.C.

10150

2500

2000

5100

4500

24520

3000

5.

Federal Court Judges

9780

2250

1000

4600

3750

21780

3000

6.

Court of Appeal Judges

9415

2250

1000

4600

3650

20915

3000

7.

High Court of Malaya / Sabah and Sarawak Judges

9050

2250

1000

4600

3600

20500

3000

8.

Judicial Commissioner

8250

2000

1000

4600

3600

19450

3000

 

18. Judges' Remuneration Act, 1971 of Malaysia as amended in 1997.

 

3.109 Judges of the Federal Court are entitled to fully furnished institutional quarters which shall be maintained free of charge. If such quarters are not availed of, the judges are paid house rent subsidy of RM 2250 per month. This is with effect from 1-1-1992. They are also paid RM 1000 per month for domestic help and a further sum of RM 3000 per annum for house and garden upkeep. These are with effect from 1-1-1996.

3.110 Judges of the Court of Appeal are also entitled to free fully furnished institutional quarters or in lieu thereof a house rent subsidy of RM 2250 per month. They are also entitled to RM 1000 per month for domestic help and RM 3000 per annum for house and garden upkeep.

3.111 Judges of the High Court are also likewise entitled to free fully furnished institutional quarters or in lieu thereof a house rent subsidy of RM 2250 per month; besides RM 1000 per month for domestic help and RM 3000 per annum for house and garden upkeep.

Entertainment Allowance :

3.112 The Chief Justice is entitled to entertainment allowance of RM 5400 per month. President of the Court of Appeal is entitled to RM 5100 per month. Chief Judge of the High Court in Malaya is entitled to RM 5100 per month; Chief Judge of the High Court in Sabah and Sarawak is entitled to RM 5100 per month. Judges of the Federal Court, Judges of the Court of Appeal and Judges of the High Courts in Malaya, Sabah and Sarawak are entitled to RM 5000. RM 4800 and RM 4600 per month respectively.

Special Judicial Allowance :

3.113 The Judges are also entitled to Special Judicial Allowance.

3.114 Chief Justice is entitled to RM 6000 per month. President of the Court of Appeal is entitled to RM 4500 per month. Chief Judge of the High Court in Malaya is entitled to RM 4500 per month. Likewise, Chief Judge of the High Court in Sabah and Sarawak is entitled to RM 4500 per month. Judges of the Federal Court, Judges of the Court of Appeal and Judges of the High Courts in Malaya and Sabah and Sarawak are entitled to RM 3750, RM 3675 and RM 3600 per month respectively.

3.115 These are with effect from 1-1-1996.

UNITED STATES :

3.116 The American Court system is complex, partly because of their federal system. Each of the fifty states has its own written constitution. These documents, like the Federal Constitution, embody the principles of separation of powers, establishing the state’s legislature (sometimes called the General Assembly) as the lawmaking body, the Governor as the Chief executive officer, and a court system to exercise the judicial power. In some states the constitution itself creates the entire court system at both trial and appellate levels. In others, the constitution does little more than authorise the legislature to establish the judicial structure.19

3.117 Whether created by the state constitution or by enactments of the legislature, the judicial systems of the fifty states resemble each other in broad outline. Like all other aspects of state governments, however, they vary in detail. Any generalisations risk the portrayal of a judicial structure that is not quite like that in some or even many states. What follows is a description or the key components of the state court systems, with an indication of the typical patterns and variations.

____________________________________________________________

19. American Law. By Lawrence M. Freedman p 57.

 

Trial Courts :20

3.118 The trial courts are the lowest courts in all state systems, forming the base of the judicial pyramid. They are the most numerous courts, and collectively they have the most judges and cases. They are spread throughout the cities and countries in the State. These are the courts in which law suits are initially filed; hence, they are referred as courts of "first instance" or courts of "original jurisdiction". When persons commence civil proceedings, and when the state commences criminal prosecutions, they do so in trial courts.

3.119 In most states this base of courts of first instance is subdivided into two levels. The major trial courts, the upper level, are referred to as courts of "general jurisdiction" because they have authority to hear and decide numerous types of cases, civil and criminal. Unless some statutory or constitutional provision specifically deprives them of jurisdiction, they typically can adjudicate any kind of case. The name given to these courts varies from one state to another. In some states they are called "circuit courts"; in other states they are known as "superior courts"; in still others they are "district courts". This lack of uniformity in terminology is one of the many factors contributing to confusion concerning American Courts.

3.120 The lower level of trial courts, below the courts of general jurisdiction, consist of courts of "limited jurisdiction". In contrast to courts of general jurisdiction, these courts have relatively restricted authority. Typically such a court has power to adjudicate only a narrow range of matters, often only one specific type of case. For example, in some states there are traffic courts vested with jurisdiction over relatively minor motor vehicle offences. In some states there are probate courts with authority only over the administration of descendents’ estates or over guardianships of minor and incompetents. The authority of some courts of limited jurisdiction is defined in monetary terms. For example, a "small claims court" may have jurisdiction over civil cases in which the damages do not exceed $ 5,000/- or some other relatively small amount. States typically maintain courts of limited jurisdiction to try misdemeanors and perhaps juvenile offences that are not serious. Here again there is considerable variation from one state to another. A major twentieth-century movement has been aimed at unifying state trial courts. Its key feature is the consolidation of all trial court business into a single judicial tier, thereby abolishing the distinction between the two trial levels (e.g., Illinois and Iowa , pp. 88 and 89). Some states that have unified their trial courts in form have at the same time organised and supposedly single, unified court into divisions such as probate division, family division, small claims division, and so on, thereby preserving in substance the structure of the old limited jurisdiction courts. However, having all trial courts grouped into one tier, even nominally, permits a more effective management of trial level business. Under a single administrative authority, judges can be assigned from one division to another as the work requires. It is thought that a unified trial court also serves to avoid the appearance of second class justice for cases that would otherwise be handled by courts of limited jurisdiction.

Appellate Courts :

3.121 At the apex of the judicial pyramid in every state is the court of last resort, usually called the supreme court. There are only a few exceptions to this terminology. In New York and Maryland the highest tribunal is named the court of Appeals, and in Massachusetts and Maine it is known as Supreme Judicial Court . In two states, Texas and Oklahoma , there are two courts of last resort: the Supreme Court (for civil cases) and Court of Criminal Appeals (for criminal cases). Most state courts of last resort have seven judges, usually called "justices". The smallest has three and the largest, nine. In a few states these courts function in panels of fewer than all their members. However, in most states all judges usually sit together so that the court functions as a unit when hearing and deciding appeals.

 

Intermediate Appellate Courts :

3.122 Originally a state’s supreme court was the only appellate court in the state. It had jurisdiction over all appeals from the state’s trial courts. In the late nineteenth century the rising tide of litigation began to overrun the capacity of the single supreme court in some states. In response, the legislatures began to create intermediate appellate courts. These courts were inserted as a new judicial tier between the trial courts of general jurisdiction and the supreme court. Although the name given to these courts varies, the most common title is court of appeals. Until well into the twentieth century only a majority of states had established such courts. The movements to create them quickened after the Second World War; today thirty-eight states have intermediate appellate courts.

3.123 The simplest scheme is to provide that all appeals from the trial courts go to the intermediate court, with the supreme court receiving no appeals directly from the trial level. The supreme court’s jurisdiction is limited to reviewing the intermediate court’s decision on a discretionary basis. That is, after the appeal has been decided in the intermediate court, the losing litigant may petition the supreme court for review. That court may then, in its discretion, decide whether to take up the case for decision.

Federal Courts :21

3.124 Article III of the Federal Constitution provides: "The judicial Power of the United States , shall be vested in one supreme Court, and in such inferior Courts the Congress may from time to time ordain and establish." The creation of other federal courts is left up to Congress. That body moved promptly to pass the Judiciary Act of 1789, setting up the federal judicial system with trial courts in every state. The first set of intermediate courts with purely appellate jurisdiction was established by Congress in 1891. The structure put in place then is essentially the structure that exists today.

___________________________________________________________

21. Ibid No.2 p. 23 to 25.

3.125 The Congress has created chain of federal courts. The federal judicial pyramid, like that in many states, is three-tiered. At the base are the trial courts, the major ones being the district courts. At the middle level are the courts of appeals. At the apex is the Supreme Court.

District Courts :

3.126 In its design for the federal judiciary, Congress has divided the United States and its territories into ninety-four federal judicial districts. There is at least one such district in each state. In the largest and most heavily populated states there are several districts, identified geographically by such designations as the Southern District of New York. With minor exceptions, no judicial District crosses state state lines.

3.127 In each district there is a United States District Court. These ninety-four courts are the major trial courts of the federal judiciary. Each of these courts has at least two judges; many have several, and in the most populous districts the court has more than two dozen. Because each district covers either an entire state or a large part of a state, the Court typically holds sessions in several cities in the district. For example, the United States District Court for the Eastern District of Virginia (covering the eastern half of the state) sits in Richmond , Norfolk and Alexandria .

3.128 Although a district court may have numerous judges, each case is presided over by a single judge, as in the state trial courts. In civil actions seeking money damages, the Constitution guarantees a right to jury trial if a jury is requested by either party. Statutes sometimes accord a right to jury trial in other cases. If the right to jury trial is waived, or if no such right is given by the Constitution or a statute, the judge acts as trier of fact as well as of law. Criminal prosecutions, other than for misdemeanors, are conducted with juries unless the defendant waives that right.

Courts of Appeals :

3.129 In addition to having created the ninety-four districts as units of trial court organisation, Congress has also established thirteen federal judicial circuits as a basis for the federal intermediate court structure. In each circuit there is a court of appeals, officially designated as the United States Court of Appeals for that circuit. Eleven of the circuits are numbered and are organised on a territorial basis, each embracing several states. For example, the Fourth Circuit includes the states of Maryland , Virginia , West Verginia, North Carolina , and South Carolina . The United States Court of Appeals for the District of Columbia Circuit embraces only the District of Columbia . The court of appeals in each geographical circuit has jurisdiction over appeals from the district courts within its circuit, in both civil and criminal cases.

Supreme Court :

3.130 At the apex of the federal judicial pyramid is the Supreme Court of the United States , the only court specifically provided for in the Constitution. Legislation enacted by Congress sets the number of its judges (called Justices) and its jurisdiction, within the boundaries of the jurisdiction authorised by Article III of the Constitution.

3.131 The Court has - and has had since the middle of the nineteenth century - nine Justices, one of whom is designated as the Chief Justice of the United States .

3.132 The Supreme Court has jurisdiction to review all decisions of the federal appellate courts. It also has jurisdiction over the decisions of the highest state courts when those courts have decided a question of federal law. The power to review cases from both state and federal courts gives the Supreme Court a unique position in the American judiciary’s firmament.

3.133 With minor exceptions, the Court’s jurisdiction is discretionary. Litigants petition the Court for a writ of certiorari, in effect asking the Court to hear and decide a case on its merits. The Court then, in its discretion, decides whether to do so. In this process the Court employs a "rule of four". If any four of the nine Justices wish to grant the writ of certiorari, the case will be taken up for decision. Otherwise, certiorari is denied, and the decision of the court below is left standing.

3.134 It should be underscored that a federal district court is a trial court essentially like a state trial court of general jurisdiction. Both types of courts function under substantially the same trial procedures. Indeed, in many states the trial court procedures are identical to those in the federal district courts. A casual observer of proceedings in a federal district court and a state trial court would notice few differences. In all large cities, as well as in many smaller towns, both courts are in sessions - often in court houses within a few blocks of each other. From these two trial forums, however, the appellate routes diverge. An appeal in a federal case will go to the U.S. court of appeals for the circuit in which the trial court is located. An appeal from a state case will go either to the state intermediate appellate court or the state supreme court.

3.135 The procedural rules and the adversary style of proceedings are basically the same in the federal and state trial courts. Much of their business is also the same. Approximately one-fourth of the federal district court’s civil docket consists of cases brought there under the diversity of citizenship jurisdiction, which means that they are essentially state law cases. In such cases, the federal district courts are engaging in exactly the same kind of work as the state courts of general jurisdiction. In the rest of their business, in civil and criminal, the federal district courts are concerned primarily with issues of federal statutory law, intermingled with federal constitutional questions and maritime cases. Some of these questions also arise in state court litigation. In general, however, state courts are much more involved with the traditional common-law subjects than the federal courts, while the latter are much more heavily involved in adjudicating statutory and constitutional questions.

 

3.136 The highest degree of judicial independence is found in the federal system. All federal judges hold office during good behaviour and can be removed only through impeachment by Congress. In an impeachment proceeding the House of Representatives must prefer charges against the judge by a majority vote, and the Senate must try the judge on those charges. The judge can be removed only if the Senate finds him guilty by a two-thirds vote. Impeachment is a formidable procedure, not easily invoked.

3.137 At the other end of the spectrum, affording the smallest degree of independence, are those state judicial systems in which judges hold office for terms of years, at the end of which they must stand for re-election by the voters. A judge with a term as short as four or six years, no matter how conscientious he may be, can hardly be unaware that his judicial decisions could become a political issue in the next election, never more than a few years away. Even if the judge himself can perform judicial duties without regard to such considerations, public suspicion of political influence will be a lurking threat to the appearance of justice. Short terms of office and popular election seem inconsistent with the concept of judicial independence. Yet such arrangements exist in many States along with praise for the virtues of judicial independence.

3.138 In some States, the re-election of judges is by a "retention election". The judge runs on his own record without any opponent. The people are asked simplyto vote "yes" or "no" on whether that judge shall be retained in office. That system works to afford a somewhat higher degree of independence than does a contested election.

3.139 In an article titled "Judicial Independence in the USA " published in (1997) Electronic Journal, p.3, Justice Breyer of the U.S. Supreme Court, states as follows: There are three primary institutional pillars on which the U.S. Judicial administration is based. The first is the Judicial Conference of the United States - which was created in 1922. It comprises the Chief Justice of the Supreme Court, 13 Chief Judges of the Circuits, 12 District Court Judges and the Chief Judge of the Court of International Trade. The Judicial Conference is the national policy-making body for the Judiciary, and supervises the Administrative office of the U.S. Courts (which was established in 1939). The second one is the Administrative office of the U.S. Courts. It addresses to the needs for centralisation of Judicial administration and contains a body of professional administrators subject to the direct control of the Judicial Conference, which administers the federal court budget, personnel management, procurement and other house keeping and support functions. The third one is Circuit Judicial Councils which have primary responsibility in the judiciary’s disciplinary system.

3.140 Another independent, but centralised institution of the Judiciary is the Federal Judicial Centre, created by Congress in 1967. It is headed by the Chief Justice and is composed of six judges selected by the Judicial Conference and the Director of the Administrative Office. It has the responsibility of conducting research into Judicial administration and issues relevant to the administration of justice, as well as to propose and prepare educational programme for federal Judges.

3.141 The secured tenure and adequate remuneration for Judicial Officers have been always considered as the twin pillars of judicial independence. Article III, Section 1 of the U.S. Constitution provides that federal judges, "shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office."

 

 

3.142 An inter-locking net-work of federal statutes fixing compensation of high-level federal officials, including federal Judges provides for annual cost of living adjustments in salary determined in the same way as those for federal employees generally. But in four consecutive fiscal years commencing from 1976, Congress repealed, locked or postponed the previously authorised increases. A number of United States District Court Judges filed class actions against the United States in District Court, challenging the validity of the statutes under the Compensation Clause of the Constitution, which provides that federal judges shall receive compensation which "shall not be diminished" during their continuance in office. The District Court granted summary judgment in their favour.

3.143 In U.S. v. WILL22, BURGET C.J. of the U.S. Supreme Court held that the statutes revoking the increase have violated the Compensation Clause in so far as it applied to the members of the certified class.

3.144 The judicial compensation to the Federal Judges as on 15 July 1996 is: Chief Justice of the Supreme Court is paid a year $ 171,500; Associate Justice $ 164.100; U.S. Circuit Court of Appeals Judges $ 141,700 and U.S. District Judges $ 133.600.

 

 

 

 

 

 

____________________________________________________________

22. (1980) 449 U.S. 200, 227.

3.145 The annual salary structure of States Judges of Highest Court and General Trial Courts are as follows:

ANNUAL SALARY STRUCTURE OF JUDGES

IN SOME OF THE STATES IN U.S.A.

(in U.S. Dollars)

Name of the State

Highest Court

General Trial Court

Alabama

115,695 to 116,775

78,300 to 113,535

Arizona

101,130 to 103,538

86,683 to 96,314

California

131,085 to 137,463

107,390

Hawaii

93,780 to 94,780

86,780

Illionis

124,794

100,439 to 107,780

Maine

85,858 to 90,168

81,198 to 85,254

Minnesota

94,395 to 100,835

83,494 to 87,669

Missouri

99,733 to 102,233

76,059 to 86,256

New York

125,000 to 129,000

113,000

North Carolina

96,000 to 98,576

87,000 to 89,500

Pennysylvania

119,750 to 123,000

104,000 to 106,500

3.146 Information of all 50 States are indicated below23:

Salaries of associate justices of the highest courts range from $ 68,874 to $ 1,32,250; average $ 99,038; median $ 97,148.

______________________________________________________________________________

23. The National Center for State Courts, Salaries Current as of July 1, 1996.

Salaries of judges of intermediate appellate courts range from $ 77,856 to $ 124.200; average $ 97,427; median $ 94,355.

Salaries of general jurisdiction trial courts $ 67,513 to $ 1,15,000; average $ 88,284; median $ 86,533.

3.147 Recently, the Judicial Conference of the United States24 which was presided by Rehnquist C.J. voted overwhelmingly at its semi-annual meeting in favour of a resolution declaring that a pay raise is badly needed for judges, law-makers and top government officials because the last cost-of-living increase occurred four years ago. They have stated that while salaries have been frozen since 1993, the cost of living has increased more than 12 per cent. During the same period, rank-and-file federal employees received cost-of-living adjustments of nearly 13 per cent. They have also emphasized that the current law would provide for a 2.3 per cent increase which is far short of the 9.6 per cent "catch-up" pay adjustment. They have urged the Congress to consider the "special circumstances" facing judges; the judges unlike members of Congress or Cabinet members make a lifetime commitment and work for many years after other government leaders have retired.

3.148 They have warned that continued erosion in judicial pay will result in salaries falling below the minimum needed to attract and retain high-caliber judges.

 

* * * * *

 

______________________________________________________________________________

24. The Washington post 24 September 1997.

PAKISTAN :

SUPREME COURT OF PAKISTAN :

3.149 The Constitution of the Islamic Republic of Pakistan provides for the establishment of the Supreme Court of Pakistan in Chapter 2 of Part 7.

3.150 The Supreme Court is at the apex of the judicial system of Pakistan . It consists of a Chief Justice known as Chief Justice of Pakistan and such number of other Judges as may be determined by an Act of the Parliament. At present, besides the Chief Justice, there are 13 other Judges in the Supreme Court. The Chief Justice of Pakistan is appointed by the President. Other Judges are also appointed by the President in consultation with the Chief Justice. A person is eligible to be appointed as a Judge of the Supreme Court if he is a citizen of Pakistan and has been a Judge of a High Court for five years or an advocate of a High Court for fifteen years. The Chief Justice and Judges of the Supreme Court hold office till they attain the age of 65.

JURISDICTION :

3.151 The Supreme Court has original, appellate and advisory jurisdiction. The Supreme Court, to the exclusion of every other Court in Pakistan , has the jurisdiction to pronounce declaratory judgement in any dispute between the Federal Government and a provincial Government or between any two or more provincial Governments.

3.152 The Supreme Court has the power for the enforcement of the Fundamental Rights. It has jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences passed by a High Court, the Federal Shariat Court and the Services Appellate Tribunals. An appeal to the Supreme Court would lie as a matter of right for some specified cases; while for the rest, the Court hears an appeal with its prior permission.

3.153 The Supreme Court has Advisory jurisdiction. At any time, the President considers that it is desirable to obtain an opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. The Supreme Court considers the question so referred and reports its opinion on the question to the President.

3.154 The permanent seat of Supreme Court is at Islamabad , but it also sits at lahore , Karachi , Peshawar and Quetta . The Supreme Court, if it considers expedient to do so in the interest of justice, could transfer any case, appeal or other proceedings pending before any High Court to any other High Court.

3.155 All executive and judicial authorities throughout Pakistan are required to act in aid of the Supreme Court. Any decision of the Supreme Court, to the extent it decides a question of law or is based upon or enunciates a principle of law, is binding on all Courts of Pakistan. The Supreme Court has the power to review any judgment pronounced by it or any order made by it.

3.156 The Fifth Schedule of the Constitution of Islamic Republic of Pakistan relating to the Supreme Court provides that every Judge of the Supreme Court shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may be determined by the President. Under the Supreme Court Judges (Leave, Pension and Privileges) Order, 1997, a Judge of the Supreme Court including the Chief Justice shall be entitled to the use of an official residence without payment of rent throughout his term of office and for a period of 30 days thereafter.

3.157 In case a Judge chooses to reside in a house not provided by Government, he shall be entitled to a monthly allowance of Rs.13,500/- with maintenance at the cost of Government expense. He shall be entitled to the use of an official car maintained at Government expense with 400 litres of petrol per month. A superior Judicial Office Monthly Allowance is paid amounting to Rs.3,600/- in the case of Chief Justice and Rs.3,500/- in case of every other Judge.

3.158 The Chief Justice of Pakistan will be paid a cost of living allowance of Rs.1,417/- and every other Judge of the Supreme Court a sum of Rs.1,341/- per month. The above allowances are exempt from income-tax.

3.159 A retired Chief Justice and a Judge of the Supreme Court on retirement will be entitled to the services of either a driver or an orderly at his option. The services of the Driver or the Orderly will remain available to his widow after his death. Besides, the Chief Justice and the Judge of Supreme Court on his retirement or resignation shall be entitled to a minimum amount of pension equal to 70% of the salary as may be determined by the President from time to time plus 5% of the said salary with each completed year of service either as a Chief Justice or as a Judge, not exceeding the maximum amount of pension equal to 85% of the salary. He is also entitled to commutation of pension as per rules.

HIGH COURT :

3.160 Chapter 3 of Part VII provides for establishment of the High Court. It consists of Articles 192 to 203 regarding qualification, appointment and conditions of services of a Chief Justice and other Judges.

3.161 In each of the 4 provinces namely, Punjab , Sindh, NWPF and Balochistan, there is a High Court. The Islamabad Capital Territory falls within the jurisdiction of the Lahore High Court of Punjab. The High Court consists of a Chief Justice and other Judges as may be determined by law or as may be fixed by the President.

3.162 A Judge of the High Court is appointed by the President after consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the High Court in which appointment is to be made. The qualification for appointment of a Judge is that he must be a citizen of Pakistan, not less than 40 years of age and has been an advocate of the High Court or has held a judicial office for ten years and has for a period of not less than three years, served or exercised the functions of a District Judge in Pakistan. A Judge of a High Court holds office until he attains the age of sixty two years, unless he sooner resigns or is removed from office in accordance with the Constitution.

3.163 The High Court has original and appellate jurisdiction. It is empowered to make any order.

3.164 The High Court has the power to withdraw any civil or criminal case from the Trial Court and try it itself. It has extensive appellate jurisdiction against the judgements, decisions, decrees and sentences passed by the civil and criminal Courts.

3.165 The High Court has the power to make rules regulating its practice and procedure and of the Courts subordinate to it. Each High Court supervises and controls all Courts subordinate to it and any decision of the High Court binds all Courts subordinate to it.

TRANSFERS :

3.166 Transfer of the Judges: A Chief Justice or a Judge of the High Court is liable for transfer from one High Court to another or from the principal seat of a High Court to a bench of that High Court. In case he is so transferred, he is entitled, in addition to his salary, to a monthly allowance of Rs.5,000/-.

3.167 Under the High Court Judges (Leave, Pension and Privileges) Order, 1997, a Chief Justice and a Judge of the High Court shall be entitled to the official residence without payment of rent throughout his term of office and for a period of 30 days thereafter. In case he chooses to reside in a house not provided by the Government, he shall be entitled for a monthly allowance of Rs.13,500/- with maintenance at the Government expenses. He shall also be entitled to the use of an official car maintained at Government expense and 400 litres of petrol per month. a superior Judicial Office Allowance is paid amounting to Rs.3,500/- per month in case of a Chief Justice and Rs.3,000/- in case of every other Judge.

3.168 A Chief Justice is entitled to Rs.1,323/- per month and a Judge of a High Court is entitled to Rs.1,197/- per month as cost of living allowance. The above allowances are exempt from Income-tax.

3.169 A Chief Justice and a Judge of the High Court on retirement will be entitled to the services of either a driver or orderly at his option. The services of Driver or Orderly will remain available to his widow after death.

SHARIAT COURT :

3.170 Chapter 3-A of Part VII of the Constitution provides for the Federal Shariat Court in Pakistan . Articles 203A-203J deal with the appointment of the Judges including the Chief Justice of the Shariat Court .

3.171 Federal Shariat Court comprises, eight Muslim Judges including the Chief Justice to be appointed by the President, out of them, four are to be the persons qualified to be appointed as Judges of High Court, while three are to be Ulema (scholars well-versed in Islamic Law). Federal Shariat Court has original and appellate jurisdiction.

ORIGINAL JURISDICTION :

3.172 The Court is empowered to examine and decide a question whether or not any law or provision of law is repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (peace be upon Him). In case the Court decides that any Law or provision of law is repugnant to the injunctions of Islam, it will set out the extent to which such Law or provision of law is so repugnant, and specify the day on which the decision shall take effect. Where any law is held to be repugnant to the injunctions of Islam, the President in the case of Federal law and the Governor in the case of Provincial law is required to take steps to amend the law so as to bring it in conformity with the injunctions of Islam.

APPELLATE JURISDICTION :

3.173 The Court has exclusive jurisdiction to hear appeals from decision of criminal Courts under any law relating to enforcement of Hudood Law, i.e., Law pertaining to offences of intoxication, theft, Zina (unlawful sexual intercourse) and Qazf (false imputation of Zina). The principal seat of the Federal Shariat Court is at Islamabad , but it has circuits at Lahore , Karachi , Peshawar and Quetta .

OTHER CIVIL COURTS :

3.174 In every district of a Province, there is a Court of District Judge which is the principal Corut of original jurisdiction in civil matters. Besides the Court of District Judge, there are Courts of Civil Judges who function under the superintendence and control of the District Judge. All matters of civil nature originate in the Courts of Civil Judges. The District Judge may, however, withdraw any case and try it himself. Appeals against the judgements and decrees passed by the Civil Judges lie to the District Judge in cases where the value of the suit does not exceed the specified amount.

 

CRIMINAL :

3.175 In every district, there is a Court of Sessions Judge and Courts of Magistrates. Criminal cases punishable with death and cases arising out of the enforcement of laws relating to Hudood are tried by Sessions Judges. The Court of Sessions Judge is competent to pass any sentence authorised by law. Offences not punishable with death are tried by magistrates. There are Magistrates of I Class, II Class and III Class. An Appeal against the sentence passed by a Sessions Judge would lie to the High Court. An appeal against the sentence passed by a Magistrate would lie to the Sessions Judge, if the sentence is upto four years and in other cases to the High Court.

3.176 The recruitment of the subordinate judiciary at the trial Court level is made through a competitive examination held by the Provincial Public Service Commission. The posts of Additional District and Sessions Judges are filled in by promotion from the Judges of the Trial Courts as well as by direct recruitment from the Bar. Elevation to the High Court Benches is again made from the subordinate judiciary and from the Bar.

SPECIAL COURTS AND TRIBUNALS :

3.177 Special Courts and Tribunals are constituted to deal with specific types of cases, i.e. of offences pertaining to Banks; of Recovery of Bank Loans; under the Customs Act; for Traffic Offences, for trying corruption cases; under Commercial Laws and Drug Laws. There are also constituted Labour Courts; Insurance Appellate Tribunal; Income Tax Appellate Tribunal and Services Tribunals. Appeals from the Special Courts lie to the High Courts, except in case of Labour Courts and Special Traffic Courts which have separate forums of appeal. An appeal from Tribunals would lie to the Supreme Court of Pakistan.

WAFAQI MOHTASIB (OMBUDSMAN) :

3.178 The concept Mohtasib (Ombudaman) is an ancient Islamic concept and many Islamic States had established the office of Mohtasib to ensure that no wrong or injustice is done to the citizens. The Prophet of Islam (peace be upon Him) introduced the system of 'Hisab' or accountability. Article 276 of the Interim Constitution of 1972 provided for appointment of a Federal Ombudsman as well as Provincial Ombudsman for the first time. Subsequently, the Constitution of 1973 included the Federal Ombudsman at item No.13 of the Federal Legislative List in the Fourth Schedule. The institution of Ombudsman was, however, actually brought into being through the establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983.

3.179 The Wafaqi Mohtasib who is appointed by the President of Pakistan holds office for a period of four years. He is not eligible for any extension of tenure, or for re-appointment. He cannot be removed from office except on ground of misconduct or of physical or mental incapacity.

3.180 The chief purpose of the Wafaqi Mohtasib is to diagnose, investigate, redress and rectify any injustice done to a person through maladministration on the part of a Federal Agency or a Federal Government official. The primary objective of the office is to institutionalise a system for enforcing administrative accountability.

POWERS :

3.181 Mohtasib has the same powers as a Civil Court under the Civil Procedure Code for summoning and enforcing the attendance of any person, compelling production of documents and receiving evidence on affidavits. He has also powers identical to that of the Supreme Court of Pakistan to punish any person for contempt.

3.182 The most significant feature of the Ombudsman's powers is that where the superior Courts cannot take notice of orders of administrators which are in conformity with the law and rules - howsoever oppressive or unjust or arbitrary they may otherwise be - the Ombudsman can go into their equity aspect without any inhibition and recommend their withdrawal or modification, if he so finds. Similarly, where the law or rules empower an authority to exercise discretion in deciding a matter, no Court can question that discretion except the Ombudsman who, if he is satisfied that the discretion has not been exercised judiciously, may upset the decision or have it amended in the manner he deems fit.

 

3.183 SALARIES AND ALLOWANCE OF JUDGES IN PAKISTAN :

Chief Justice of Pakistan

Rs.20,250/- p.m.

Judges of Supreme Court

Rs.19,170/- p.m.

Chief Justice of High Court

Rs.18,900/- p.m.

Judges of High Court

Rs.17,100/- p.m.

Civil Judge

Rs.3880-290-6780

Senior Civil Judge

Rs.5085-366-8745

Additional District and Sessions Judge

Rs.7750-385-11600

District and Sessions Judge

Rs.9195-440-13595

 

* * * * *