Reforming the Judiciary in Pakistan
Asia Report N°160
16 Oct 2008
EXECUTIVE SUMMARY AND RECOMMENDATIONS
Pakistan’s return to civilian government after eight years of military rule and the sidelining of the military’s religious allies in the February 2008 elections offer an opportunity to restore the rule of law and to review and repeal discriminatory religious laws that restrict fundamental rights, fuel extremism and destabilise the country. Judicial reforms would remove the legal cover under which extremists target their rivals and exploit a culture of violence and impunity. Ensuring judicial independence would also strengthen the transition to democracy at a time when it is being undermined by worsening violence.
Laws that discriminate on the basis of religion and gender, including the blasphemy law, anti-Ahmadi laws, Hudood Ordinances and Qisas (retribution) and Diyat (bloody money) law, are part of the legacy of military rule. Given constitutional cover by military rulers and legal sanction by superior courts unwilling to uphold fundamental freedoms, these laws have undermined the rule of law, encouraged vigilantism and emboldened religious extremists. These extremists have used them to advance a radical ideology of exclusion, curtail free expression and discriminate against women and religious and sectarian minorities.
Motivated by self-preservation and self-interest, Pakistan’s superior judiciary has not just failed to oppose Islamic legislation that violates fundamental rights but has also repeatedly failed to uphold the constitution. While superior courts have validated military interventions, military regimes have manipulated judicial appointments, promotions and removals, steadily purging higher court benches of independent-minded judges. This has pushed the judiciary further to the ideological right. Today, judicial independence is hampered not only by the state but also by right-wing religious groups.
If democratic functioning is to be truly restored, the military’s politically motivated constitutional and legal changes that have radicalised swathes of Pakistani society must be reversed. If the democratic transition is to be sustained and strengthened, the freely elected government must respect judicial independence, and the judicial arm of the state must live up to its responsibility to protect and preserve the constitution.
Pakistan’s two largest national-level parties, the Pakistan People’s Party (PPP), now in government, and the Pakistan Muslim League-Nawaz (PML-N), the main opposition party, have pledged to undo the legacy of military rule. Upon assuming power in March, the PPP and PML-N, then coalition partners, released scores of political detainees, including lawyers and judges arrested during Musharraf’s November 2007 martial law. They also lifted the military regime’s ban on labour and student unions, and committed to enforcing basic human rights. The coalition government has since unravelled, primarily over disagreements on mechanisms to restore over 50 higher court judges, including the Supreme Court chief justice, illegally dismissed during Musharraf’s emergency. Nevertheless, both parties remain committed to restoring constitutionalism, the rule of law and judicial independence. Their ability to reach consensus on the necessary constitutional changes to remove the military’s political distortions will determine the future of the democratic transition.
Before the coalition collapsed, during negotiations with the PML-N on restoring the judges, the PPP had put together a proposed constitutional package, aimed also at generating a public and parliamentary debate on constitutional reform. While the proposals included useful suggestions on strengthening parliament’s role and undoing the military’s constitutional manipulations, some proposed measures could undermine democratic reform, including judicial independence.
The PPP should, after parliamentary debate and public consultation, particularly with the bar associations that have played a lead role in fighting military rule, introduce a constitutional amendment package to restore democratic functioning and the rule of law. Aside from reintroducing constitutionally sanctioned checks and balances between the executive, legislature and judiciary, any such package should focus on judicial reform. An independent, reformed judiciary will not only help underpin constitutionalism and the rule of law but could also play a crucial role in preventing another direct or indirect authoritarian intervention. The government’s democratic credentials and the country’s political stability would also be best served with the ruling and opposition parties reaching agreement in parliament on reversing state-driven Islamisation, repealing the laws that empower Islamist radicals at the cost of the moderate majority.
The international community should avail itself of the opportunity the new democratic government presents. By unconditionally supporting Musharraf’s military regime in the belief that this relationship would deliver counter-terrorism dividends, the international community, the Bush administration in particular, had shied away from supporting democratic reform, until Musharraf’s illegal martial law of November 2007. As the regional implications of Pakistan’s religious laws become more tangible, with similar laws in other Muslim-majority states drawing on the Pakistani precedent, so have the costs of international inaction. With a liberal government now in place, the international community could help reverse the tide of radicalism in Pakistan if it fully supports a sustained democratic transition, including an independent judiciary.
1. Reinstate, without exception, all judges deposed unconstitutionally after 3 November 2007, including Iftikhar Muhammad Chaudhry; with the Supreme Court deciding on his reinstatement to the position of chief justice.
2. Reverse the military’s constitutional and legal changes and introduce, after broad public consultation and extensive parliamentary debate, a constitutional amendment bill to restore and enhance the 1973 constitution’s liberal parliamentary structure, including religious equality, by:
a) repealing Musharraf’s Seventeenth Amendment, including Article 58-2 (b) which gives the president the power to dismiss elected governments;
b) removing the requirement under the Third Schedule of the constitution for the president and prime minister to be Muslims; and
c) reaffirming the authority of the ordinary courts to examine laws for repugnancy to Islam by abolishing the Federal Shariat Court through a constitutional amendment.
3. Ensure judicial independence by:
a) creating a Judicial Commission for the appointments of Supreme Court and High Court judges, guided by the May 2006 Charter of Democracy, comprising the chief justice of the Supreme Court, as its chair; the next two most senior Supreme Court justices; the four provincial chief justices; a member of the Pakistan Bar Council (PBC), nominated by the PBC; the president of the Supreme Court Bar Association (in matters related to the Supreme Court); and the four presidents of the High Court bar associations (in matters related to their respective High Court);
b) adhering to the seniority rule in the appointment of chief justices to the Supreme Court and High Courts;
c) empowering the Judicial Commission to take disciplinary actions against sitting judges; and
d) rendering invalid judicial appointments to the Supreme Court and High Courts should the oath of adherence to the constitution be violated.
4. Reduce opportunities for executive interference in the higher judiciary by immediately ending the practice of appointing retired judges to executive posts until two years after retirement.
5. Amend the constitution to curtail chief justices’ power over transfers of judges and assignment of cases, establishing professional, managerial divisions within the courts to fulfill this task.
6. Follow through on appropriate recommendations by earlier government legal reform commissions to improve the delivery of justice, including an expansion of court facilities, personnel and other resources.
7. Commit to the letter and spirit of Pakistan’s constitutional and international obligations, and the precedent of the Supreme Court judgment in the Hisba Bill case, by repealing all Islamic laws that discriminate on the basis of religion and gender, including the blasphemy law, anti-Ahmadi laws, Hudood Ordinances and Qisas (retribution) and Diyat (bloody money) law.
8. While those laws are still in effect:
a) institute mechanisms to identify and penalise subordinate court judges who fail to provide fair trials to women and religious and sectarian
minorities, particularly Ahmadis and Christians;
b) monitor cases under blasphemy and anti-Ahmadi laws and the Hudood Ordinances in subordinate courts;
c) ensure the safety of subordinate court judges from religious extremist groups who seek to undermine the trial process;
d) pass and enforce legislation to prevent false accusations of blasphemy and unlawful sexual intercourse, and prosecute anyone pressing frivolous charges; and
e) promote a broad public dialogue and meaningful parliamentary debate on discrimination in the Pakistan Penal Code.
9. Carry through on commitments to commute death penalty convictions to life imprisonment, and encourage a public debate on abolishing the death penalty.
10. Withdraw support for the Organisation of Islamic Conference (OIC) anti-defamation resolution in the UN Human Rights Council.
11. Persuade the Pakistan government to repeal discriminatory religious laws and comply with international obligations on human rights and religious freedoms including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
12. Call on Pakistan to withdraw support for the OIC anti-defamation resolution in the UN Human Rights Council.
Islamabad/Brussels, 16 October 2008