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.

Islamabad/Brussels 10 November 2004