Building Judicial Independence in Pakistan
Asia Report N°86
9 Nov 2004
EXECUTIVE SUMMARY AND RECOMMENDATIONS
On the three occasions since independence when military coups have ended democratic rule in Pakistan the judiciary not only failed to check extra-constitutional regime change, but also endorsed and abetted the consolidation of illegally gained power. The Musharraf government has deepened the judiciary's subservient position among national institutions, ensured that politics trumps the rule of law, and weakened the foundations for democratic rule. Substantial changes in the legislative framework for appointments, promotions and removals of judges, as well as the jurisdiction of the ordinary courts, are needed to restore confidence in the judiciary. But judicial independence from political influence and financial corruption cannot be restored by mere technical, legislative corrections. Reform depends upon a credible commitment by the government to respect the rule of law as much as upon legislated change.
Since 1955, Pakistan's courts have played a critical political role by reviewing the legitimacy of changes of government. To eliminate potential judicial challenges, the present military government, like previous ones, has devised ways to keep the judiciary weak.
The executive exercises control over the courts by using the system of judicial appointments, promotions and removals to ensure its allies fill key posts. In the immediate aftermath of the October 1999 coup, the judiciary was purged of judges who might have opposed the military's unconstitutional assumption of power. The purge was accomplished by requiring judges to take an oath to President Musharraf's Provisional Constitutional Order -- an oath that required judges to violate oaths they had all previously taken to uphold the 1973 Constitution. Fear that another oath will be used to remove more judges now limits the bench's freedom. Moreover, new judges must be wary because the executive can remove them after one or two years by declining to "confirm" their appointments.
Political allies now fill key judicial positions, particular the posts of Chief Justice of the Lahore and the Sindh High Courts. The Chief Justices of High Courts wield critical administrative powers over the allocation of cases to judges and the assignment of judges to courts across a province. The executive's power, via certain Chief Justices, to direct a case to pliant judges undermines lawyers' and litigants' expectation of a fair trial when the executive is a party. The executive also has improper influence over the electoral process via certain Chief Justices because the latter appoint the returning officers for elections from among the ranks of the subordinate judiciary.
Compromised by this political chicanery, the superior judiciary is unable to address creeping financial corruption within its own ranks. Dysfunction in the superior judiciary also impedes reform in the subordinate judiciary, which comprises the trial courts in which the mass of ordinary judicial business is transacted. Appalling under-resourcing and endemic corruption in the subordinate judiciary lead to agonising delays in the simplest cases and diminish public confidence in the judiciary and the rule of law.
In some subject-areas and in some territories, the government simply bypasses the ordinary courts by establishing parallel judiciaries. Since August 1947, the Federally Administered Tribal Areas (FATA) and the Northern Areas have had sui generis legal systems, more or less independent of Pakistan's ordinary judiciary. Little justification exists, as even the government seems to recognise, for the essentially colonial regimes preserved in these enclaves. Further, in 1997 and 1999 respectively, the government established separate anti-terrorism and accountability courts. Those tribunals contain procedural shortcuts that make them too attractive to overzealous police and prosecutors.
In the absence of a government visibly committed to following constitutional ground-rules and statutory laws, judges will continue to lack security of tenure and necessarily will make decisions with an eye to the government's agenda.
To the Government of Pakistan:
1. Establish, by proposing and urging adoption of a constitutional amendment, a transparent system of judicial appointments to the High Courts that expands accountability for such appointments beyond the executive and Chief Justices to include parliamentarians and bar councils and associations; prior to the adoption of such an amendment, involve the bar and parliamentarians in public discussions of candidates for posts on the High Courts.
2. End deviations from the seniority rule in the promotion of High Court judges to the posts of Chief Justice, establish by statute a seniority rule for promotions from the High Courts to the Supreme Court, and when filling vacancies on the High Courts and Supreme Court, promote female judges who are qualified candidates under the seniority rule.
3. End the practices of not confirming additional judges and of awarding government positions to retired judges; establish public audits of all members of the superior judiciary and close family members to ensure that only statutory benefits are awarded and corruption is avoided.
4. End the practice of selectively offering new oaths to judges, and renounce publicly the use of the judicial oath as a mechanism for purging the judiciary.
5. Institute new internal administrative mechanisms for the prevention of corruption and the removal of corrupt High Court judges, with oversight from a judicial commission that includes members of the bars and parliamentarians, and ensure that women and minorities are adequately represented in these mechanisms.
6. Institute administrative reforms that curtail Chief Justices' power over the assignment of cases and of judges, and establish professional, managerial divisions within the courts to fulfil this task.
7. Absorb the anti-terrorism and accountability courts into the ordinary judiciary, jettisoning procedural variations in bail, plea-bargaining, and the physical circumstances of trials that presently characterise those proceedings.
8. Institute courts within Pakistan's ordinary judicial hierarchy, with review in the Peshawar High Court and the Supreme Court, for the FATA, and conform courts' jurisdictions, judges' tenure and judges' privileges in the judiciary of the Northern Areas, including the new Court of Appeals, to practices in the ordinary courts.
9. Endeavour to ensure that judicial decisions at all levels respect international human rights, including the rights of women, and make efforts to eliminate traditional and religious practices imposed by tribal and village councils that are harmful to women.
To the United States, the European Union, and Other Members of the International Community:
10. Treat the independence of the judiciary, in particular the manipulation of appointments, promotions and removals in the superior judiciary, as a measure of democratic development in Pakistan.
11. Call upon the government of Pakistan to cease manipulation of the appointment and promotion of judges, and to commit to ending the practice of purging the bench through new oaths.
To the Asian Development Bank and Other Donor Agencies:
12. As a policy condition for further tranches of the structural adjustment loan under the Access to Justice Program, insist on reform of the appointments and promotions system for the superior judiciary and a strict adherence to the seniority rule for promotions.
13. Introduce measures to identify and remove from the superior and subordinate courts those judges engaged in financial corruption.
14. Promote meaningful in-service judicial training on gender sensitisation and the treatment in court of religious minorities, in particular Ahmadis and Christians, and press the government to implement reserved seats for women in key subordinate and superior judiciary positions.
Islamabad/Brussels 10 November 2004