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Reforming Pakistan’s Criminal Justice System
Reforming Pakistan’s Criminal Justice System
Table of Contents
  1. Executive Summary
Imran Khan’s Fall: Political and Security Implications for Pakistan
Imran Khan’s Fall: Political and Security Implications for Pakistan
Report 196 / Asia

Reforming Pakistan’s Criminal Justice System

Pakistan’s dysfunctional criminal justice system poses serious risks for domestic, regional and international security; the federal and provincial governments must make its reform a top priority.

Executive Summary

The ineffectiveness of Pakistan’s criminal justice system has serious repercussions for domestic, regional and international security. Given the gravity of internal security challenges, the Pakistan Peoples Party (PPP)-led government in Islamabad, and the four provincial governments should make the reform of an anarchic criminal justice sector a top domestic priority.

The low conviction rate, between 5 and 10 per cent at best, is unsurprising in a system where investigators are poorly trained and lack access to basic data and modern investigation tools. Prosecutors, also poorly trained, are not closely involved in investigations. Corruption, intimidation and external interference in trials, including by the military’s intelligence agencies, compromise cases before they even come to court. Given the absence of scientific evidence collection methods and credible witness protection programs, police and prosecutors rely mostly on confessions by the accused, which are inadmissible in court. Militants and other major criminals are regularly released on bail, or their trials persist for years even as they plan operations from prison. Terrorism cases, too, produce few convictions.

The failure of prosecutors to achieve convictions in major cases, such as the June 2008 Danish embassy bombing, the September 2008 Marriott Hotel bombing in Islamabad, and the March 2009 attack on a police academy in Lahore, has weakened public confidence in the state’s ability to respond to terrorism. Despite the increasing urgency of reform, Pakistan’s police, and indeed the whole criminal justice system, still largely functions on the imperative of maintaining public order rather than tackling 21st century crime.

A military-led counter-terrorism effort, defined by haphazard and heavy-handed force against some militant networks, short-sighted peace deals with others, and continued support to India and Afghanistan-oriented jihadi groups, has yielded few successes. Instead, the extremist rot has spread to most of the country. The military’s tactics of long-term detentions, enforced disappearances and extrajudicial killings provoke public resentment and greater instability, undermining the fight against violent extremism.

Wresting civilian control over counter-terrorism policy, a key challenge of the current democratic transition, will require massive investments in police and prosecutors, specifically to enhance investigative capacity and case building. Successes in combating serious crime, including kidnappings-for-ransom and sectarian terrorism, during the democratic transition of the 1990s demonstrate that civilian law enforcement agencies can be effective when properly authorised and equipped. With the scale of violence far greater today, the government needs all the more to utilise political and fiscal capital to modernise the criminal justice sector.

Criminal justice cannot, however, be isolated from the broader challenges of the democratic transition. The repeated suspension of the constitution by military regimes, followed by extensive reforms to centralise power and to strengthen their civilian allies, notably the religious right, have undermined constitutionalism and the rule of law. General Zia-ul-Haq’s Islamisation of the constitution and laws during the 1980s altered the basic structure of parliamentary democracy, introduced religious, sectarian and gender biases into law and made the violation of fundamental rights not just common practice but a matter of state policy. As a result, Pakistan moved farther and farther away from international standards of justice. The current parliament has, through the eighteenth constitutional amendment, reversed many of these distortions and added new provisions that, if implemented, may indeed strengthen constitutionalism and political stability. More legal reforms are needed. Discriminatory religious laws remain in force, and the justice system is still predisposed towards miscarriage.

In May 2009, the National Judicial (Policy Making) Committee (NJPC), headed by the Supreme Court chief justice, produced the National Judicial Policy (NJP) 2009 to make the justice system more responsive to citizen needs. The policy applies enormous pressures on civil and criminal courts to resolve cases within a fixed timeframe. However, with a lopsided emphasis on speedier delivery, the NJP has failed to address critical weaknesses in the judiciary, including the criminal justice system. An already low conviction rate could decline even further. While slow delivery remains a critical problem, policymakers should avoid resorting to quick fixes and procedural short-cuts such as parallel court systems and informal dispute resolution mechanisms. Such measures, including anti-terrorism courts, have failed to produce the desired results, and have also undermined the quality of justice. An enhanced and reformed criminal justice sector remains the best and only sustainable option.

International allies, particularly the U.S. and the EU, should allocate the necessary resources to make Pakistan a strong criminal justice partner. A lopsided partnership with Pakistan’s military has yielded few sustainable counter-terrorism successes. Al-Qaeda affiliated jihadi groups continue to operate in the Pakistani heartland, undermining the country’s security and the security of its neighbours and the international community more broadly. The international community must shift the focus of security assistance to the civilian law enforcement agencies, which would yield long-term counter-terrorism dividends.

Islamabad/Brussels, 6 December 2010

Security personnel walk past a banner featuring an image of Pakistan's Prime Minister Imran Khan near Parliament House building in Islamabad on April 3, 2022 as Khan called on his supporters to take to the streets on April 3 ahead of a parliamentary no-co Aamir QURESHI / AFP
Q&A / Asia

Imran Khan’s Fall: Political and Security Implications for Pakistan

Imran Khan has become the first Pakistani prime minister to lose office through a parliamentary no-confidence vote. In this Q&A, Crisis Group expert Samina Ahmed explains that his ouster occurred by constitutional means, but his challenge to the new government’s legitimacy could lead to violence.

How did the political crisis escalate?

The Pakistani parliament voted no confidence in Prime Minister Imran Khan in the early hours of 10 April, in a culmination of tensions that had been building for some time. Khan’s main opponents, former Prime Minister Nawaz Sharif’s Pakistan Muslim League (PML-N) and Bilawal Bhutto Zardari’s Pakistan Peoples Party (PPP), had long insisted that his victory in the 2018 general elections was the result of military interference. But beyond that shared belief, the two parties differed over ways to oppose Khan’s government; the PPP called for a no-trust vote in the federal parliament while the PML-N vacillated, opting at times to resign from the legislature and at other times to take to the streets in protest. The Khan government brought its two rivals together by consistently targeting their top leadership through a flawed accountability process overseen by the controversial National Accountability Bureau. Meanwhile, public anger at the government was growing because of soaring inflation and governance failures. Politicisation of the bureaucracy and interference in policing deprived citizens of basis services and security. The prospect of unrest was real. Yet when the opposition agreed on a common goal, ousting Khan through constitutional means – a no-trust vote in parliament – it posed a far bigger threat to the prime minister’s survival in office.

On 8 March, the joint opposition, which alongside PML-N and PPP included Fazlur Rehman’s Jamiat Ulema-e-Islam and other smaller parties, introduced a no-trust motion in parliament. At first, it lacked sufficient votes (172 in the 342-member National Assembly, the lower house) to de-seat the prime minister, who was three and a half years into his five-year term of office. But Khan had two important political vulnerabilities that allowed the opposition measure to pick up support. First, rifts within the ruling Pakistan Tehreek-e-Insaf (PTI) party had widened amid reports that a sizeable number of parliamentarians who had joined the PTI after leaving their previous parties intended to defect to the opposition. PML-N in particular was attractive to potential defectors as it seemed to be getting stronger with general elections due in mid-2023. The party, which has retained its large base, appeared to have gained ground in its traditional stronghold Punjab, the country’s most populous province with the largest number of parliamentary seats, where Khan’s handpicked chief minister had done little to win over voters by improving delivery of basic services. Khan’s second weakness was rising inflation, which predated the supply problems caused by the Ukraine war. Since it headed a coalition government with a razor-thin majority in the centre, the PTI government needed to keep key partners, the Sindh-based Muttahida Qaumi Movement-Pakistan (MQM-P), the Balochistan-based Balochistan Awami Party (BAP) and the Punjab-based Pakistan Muslim League-Quaid-e-Azam, on side.

To neutralise the threat posed by party dissidents, the PTI government approached the Supreme Court through a presidential petition, which, among other questions, asked the court if there could be a lifetime disqualification from legislative office for party defectors under Article 63-A, which de-seats a parliamentarian for violating party directives. That issue is still pending before the judges. As both the joint opposition and the government escalated their efforts to woo the PTI’s coalition partners, electoral calculations once again came into play. Perceiving the PML-N and PPP as better placed than an increasingly unpopular PTI in the forthcoming general elections, the BAP first joined the ranks of the opposition, followed by MQM-P. By 28 March, the day the no-trust vote was scheduled, the opposition was confident it no longer needed PTI dissidents to vote Khan out.  

That is when Khan played what he called his “trump card”. On 27 March, he addressed a rally in Islamabad that he dubbed Amr Bil Maroof (“enjoining what is good and forbidding what is wrong”, two religious duties of devout Muslims). While continuing to accuse the opposition of buying the loyalty of PTI dissidents, he now also warned of a “foreign conspiracy” behind its efforts to remove him. He accused the opposition parties of receiving foreign funds and conspiring at the behest of a foreign power to oust his government, later identifying the U.S. as that power.  

Washington’s displeasure with his government’s foreign policy lies at the heart of Khan’s conspiracy theory. He claims that his visit to Moscow in February, on the day Russia’s attack on Ukraine began – along with his opposition to the U.S. war in Afghanistan – explains U.S. attempts to remove him. Insisting that Pakistan’s military leadership agrees the U.S. was trying to oust his government, Khan claims as evidence a “threat letter”. In reality, there was no letter; Islamabad’s then ambassador to Washington had sent a diplomatic cable following his 7 March meeting with the U.S. assistant secretary of state for South and Central Asia, but it contained no suggestion that the U.S. wanted to depose the government. The Biden administration denied any such intention. But President Vladimir Putin’s government in Moscow backed Khan’s allegations, which may lend his foreign conspiracy narrative worrying long-term implications. Several Pakistani diplomats express concern that the political use of a diplomatic cable will make it harder for them to discuss sensitive issues with foreign counterparts. Yet Khan appears bent on using it both to undermine the domestic standing of his political opponents now in power in Islamabad and to galvanise his base, including for the forthcoming general elections. 

What role has the country’s powerful military played?

The military supported Khan before he formed his government, leading the opposition to claim that the PTI owed its victory in the 2018 elections to the generals. After Khan took power, he enjoyed nearly free rein in the domestic domain while the military high command retained control of sensitive foreign and security policy files. Khan and his cabinet ministers were often keen to emphasise that the PTI government and the military leadership were “on the same page”.

Yet that relationship became increasingly strained when the prime minister encroached on the military’s jealously guarded institutional autonomy. In October 2021, Khan refused to speedily sign off on the military’s nominee for the crucial post of Inter-Services Intelligence Chief. He backed down in the end, abandoning efforts to retain his preferred candidate Lieutenant General Faiz Hameed on the grounds that he was best placed to deal with the crisis next door in Afghanistan, and approving the high command’s choice, Lieutenant General Nadeem Anjum. But the damage was done. With the second three-year stint for army chief Qamar Javed Bajwa, the senior-most military officer, coming to an end in November 2022, the generals might have thought that Khan would once again try to muscle in a loyalist, this time to the top position.

Khan’s hardline anti-West foreign policy has also likely played a role in the military’s decision to distance itself from its political ally.

Khan’s hardline anti-West foreign policy has also likely played a role in the military’s decision to distance itself from its political ally. The prime minister’s ill-timed visit to Moscow had taken place just days before the opposition lodged its 8 March no-trust motion. Ignoring Washington’s calls to cancel the trip, Khan also took umbrage at a 1 March open letter from 22 Islamabad-based diplomats, including emissaries of all the major European Union states, asking Pakistan to condemn Russia’s aggression in Ukraine at the UN General Assembly. “Are we your slaves?”, the prime minister said at a public meeting. The EU is Pakistan’s largest trading partner and a source of much-needed assistance for a faltering economy, particularly through the provision of GSP+ status. Khan’s hostility toward the EU came at a time when the military high command was attempting – including through a mid-February visit by army chief Bajwa to Brussels – to ease tensions with EU institutions, including over differing approaches toward Taliban-controlled Afghanistan. 

Differences between the army chief and the prime minister on foreign and security policy grew even wider after Khan said the high command had at the 31 March National Security Council meeting backed his claims that the opposition was conniving with the U.S. to remove him. In fact, the meeting had merely resulted in a foreign ministry demarche to the top U.S. diplomat in Islamabad, which though critical of Washington’s “blatant interference” in Pakistan’s internal affairs, did not endorse Khan’s contention that the U.S. was plotting to oust his government. As the PTI government continued to insist that the military was on its side, a day before the opposition’s no-trust vote against Khan, the army chief issued what appeared to be a public rebuke of the prime minister’s anti-Western and seemingly pro-Russian agenda. Speaking at an event in Islamabad on 2 April, Bajwa strongly condemned Russia’s invasion of Ukraine and also emphasised that Pakistan had a “long and excellent strategic relationship with the U.S., which remains our largest export market”.

Most significantly, the military has avoided taking sides in the political standoff. Indeed, a last-minute gambit by Khan to involve the military failed. When approached on 30 March, the army chief and his intelligence director reportedly discussed three options with the prime minister: resign, call for new elections or face the vote of no-confidence. Khan opted for new elections, but the joint opposition insisted that he either resign or face the no-trust vote. The Supreme Court’s intervention would decide the fate of the prime minister and his government. Yet the high command’s decision to stay out of the political fray bears implications for the future.  

How has the Supreme Court’s intervention shaped the political crisis?

On 27 March, when Khan first claimed to have “exposed” a foreign conspiracy to oust him, he expressed hope that party dissidents would nonetheless rejoin the PTI. Khan was also still optimistic that his coalition partners would rethink the wisdom of joining hands with an opposition he accused of undermining national security. Yet both party dissidents and coalition partners sensed that they would do better in forthcoming elections by abandoning Khan.

The [Pakistan Tehreek-e-Insaf] attempted for several days to obstruct the no-confidence vote.

The PTI attempted for several days to obstruct the no-confidence vote. Since it knew the joint opposition now had the necessary votes in parliament, it first opted for delaying tactics, with the speaker of parliament refusing on one pretext or another to table the no-confidence motion in the National Assembly. On 3 April, well after the fourteen-day constitutional deadline for the parliamentary debate on the motion, it finally made it into the legislature’s agenda. In choreographed moves, the government then set about disrupting the process. As the session began, a federal minister claimed that Pakistan’s envoy to Washington was told during the 7 March meeting with the U.S. diplomat that “relations with Pakistan were dependent on the success of the no-confidence motion”. The minister cited Article 5 of the constitution, which says “loyalty” to the state is the “basic duty of every citizen”, as the basis for dismissing the resolution. Soon thereafter, the deputy speaker dismissed it and, also citing Article 5, said, “No foreign power shall be allowed to topple an elected government through a conspiracy”. Minutes later in a televised address Khan said he had advised the president to dissolve parliament, adding that general elections would soon be held. The president complied and dismissed the National Assembly. He subsequently retained Khan as “interim” prime minister until the appointment of a caretaker administration that would remain in place until elections within 90 days of the assembly’s dissolution.

The political and constitutional crisis that ensued threatened to upend the entire democratic process. Even before the joint opposition or top lawyers’ bodies had approached the Supreme Court, the chief justice on the basis of suo moto (original jurisdiction) initiated hearings, which continued for five days, on the speaker’s rejection of the no-confidence motion and the president’s dismissal of parliament. While the joint opposition and lawyers argued that the speaker and prime minister’s actions were unconstitutional and against the parliament’s rules, the attorney general – a Khan appointee – insisted that new elections were the only means of restoring political stability, an implied reference to the “doctrine of necessity” used by Pakistan’s top court to justify past extra-constitutional interventions.

The Supreme Court, however, opted to uphold the constitutional process. On 7 April, the five-member bench unanimously ruled that the speaker’s 3 April rejection of the no-confidence motion was “contrary to the constitution and the law”. Since the advice given by a prime minister facing a no-trust vote to dissolve parliament was also unconstitutional, the National Assembly “remained in existence”. The ruling went much further by giving a firm date, 9 April, for the no-confidence vote and also warned that parliament’s session could not be prorogued until that process concluded. On that day, as ruling-party parliamentarians backed by a partisan speaker refused to allow the vote until close to midnight, Supreme Court judges prepared to enforce their ruling. The vote finally happened after the speaker passed on his post to a former PML-N parliamentary speaker. The resolution passed, as expected, by 174 votes, ending Khan’s term of office.

Lawyers and civil society activists have applauded the Supreme Court’s upholding of the constitution, parliamentary democracy and the rule of law. PTI leaders, however, question the top court’s impartiality. Some have decried the court’s suo moto action as an encroachment on parliament’s autonomy; others have used far stronger language, with a former federal minister and close Khan confidante denouncing the court’s ruling as a “judicial coup”. Enraged by Khan’s dismissal, the former ruling party has made the top court the target of its ire.

How is Khan’s rhetoric shaping political and security dynamics?

In his last nationally televised address a day before his dismissal, Khan said he would not recognise any “imported” government and called for nationwide protests on 10 April.  Responding to his appeal, PTI activists held demonstrations in all major cities, with large crowds raising anti-U.S. slogans. Though Khan has also called on his supporters to protest peacefully, his political rhetoric increases the risk of political turmoil. Khan intends to take his fight with the new coalition government led by Shehbaz Sharif of PML-N to the streets as is evident from the en masse resignation of PTI lawmakers, barring dissidents, from the National Assembly on 11 April.

PTI activists have already resorted to intimidation of party dissidents. On 18 March, a violent mob that included two PTI parliamentarians attacked the Sindh government’s state house in Islamabad where around twenty dissident lawmakers had taken refuge. Sindh police officers prevented the mob from assaulting the dissidents. When asked about the incident, Khan said “our people turned emotional”, appearing to excuse the attackers’ actions. Claiming that dissidents had been bribed to switch loyalties, he also insisted that public pressure would force them to return to the party. When they refused to change course, on 31 March Khan warned them against casting their votes for the no-trust motion. The nation, he said, “would neither forgive nor forget you and the people behind you for becoming part of an international conspiracy”. Earlier, on 27 March, a PTI government federal minister told supporters at a rally in Khyber Pakhtunkhwa, “If suicide was not haram (forbidden), I would go into parliament and blow it up”. Party loyalists have since threatened dissidents, dubbing them “traitors”. The PTI has formally begun a process of de-seating party dissidents but lacks a legal basis for doing so.  Khan’s emotional appeals to protest his ouster, notwithstanding his calls for peaceful protests, could fuel further animosity against dissident parliamentarians in both the federal and provincial legislatures.

Though Khan insists that his supporters must protest peacefully, his claims of foreign-sponsored regime change and his refusal to accept the legitimacy of the incoming government, together with his track record, give ground for concern.

Though Khan insists that his supporters must protest peacefully, his claims of foreign-sponsored regime change and his refusal to accept the legitimacy of the incoming government, together with his track record, give ground for concern. Khan rejected the results of the 2013 elections that brought PML-N into power, claiming that the polls were rigged. Denying that government’s legitimacy, Khan called upon Prime Minister Nawaz Sharif to resign in advance of new elections. When the government rebuffed his demands in end-August 2014, Khan abandoned peaceful protests for a confrontation with the government. Holding a massive sit-in very close to the parliament building in Islamabad, he threatened to storm the prime minister’s house if Sharif did not step down. The next month, his inflamed activists, working in tandem with followers of a hardline Islamist Barelvi politician-cum-preacher, attacked the parliament and other government buildings; at least three protesters were killed and hundreds injured in clashes with law enforcement agencies.

Khan’s foreign conspiracy theories fuel anti-U.S. sentiment among his supporters. Agitated PTI protesters chanting anti-U.S. slogans have burned the U.S. flag and effigies of President Joe Biden at demonstrations across the country. Security agencies have tightened security measures in sensitive areas of the federal capital that house the U.S. and other Western missions. Khan’s tactic of alleging that the new government was “foreign-imposed” – in other words, forced upon an Islamic country through a Western conspiracy – could even risk giving militant groups a rallying cry to raise funds, find new recruits and attack state institutions.

What lies ahead as general elections approach?

The incoming coalition government faces multiple challenges. First of these is to defuse political tensions by offering to work with the opposition as Prime Minister Sharif has already done, while also resisting the temptation to settle political scores. The government also needs to stabilise the floundering economy, including by securing assistance from international financial institutions. Militant groups, especially the Pakistani Taliban, which has been making a comeback in the tribal belt along the Afghan border, are again an increasing threat. As the 2023 elections approach, an acute immediate task will be to ensure that political contestation does not translate into violence. Prime Minister Sharif and his coalition partners have identified reforms of electoral mechanisms and processes as a key priority; these could reduce the risk of deadly unrest by making the vote more transparent and credible. But the road ahead will be hard.

When in government, the PTI was already in confrontation mode with the Election Commission of Pakistan, accusing the body that oversees elections of partisanship. Now in opposition, the former prime minister will likely give even less credence to the Commission’s ability to conduct free, fair and credible elections.

It is evident, as stated earlier, that Khan intends to take his fight with the new government to the streets. Yet his ability to take on all institutions of the state – the executive, the judiciary and the legislature – at the same time will depend on his supporters’ staying power. A coalition government such as Sharif’s, composed of parties with widely differing ideologies, might also find it difficult to reach consensus on key political issues. The new government, moreover, could face the same pressures as Khan’s did from voters should it fail to address inflation rates, now driven up further by the Ukraine war and the sanctions imposed on Russia, which have raised fuel and food prices in particular. Should political confrontation become more violent and the security environment also deteriorate further, the military might once again be thrust into the political fray. How the new government navigates these minefields will determine whether Pakistan can turn the page on this political crisis and move to a peaceful vote in 2023.