Reforming Pakistan’s Criminal Justice System
Reforming Pakistan’s Criminal Justice System
Table of Contents
  1. Executive Summary
Keeping Turmoil at Bay in Pakistan’s Polarised Polity
Keeping Turmoil at Bay in Pakistan’s Polarised Polity
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

Commentary / Asia

Keeping Turmoil at Bay in Pakistan’s Polarised Polity

Kicked out of office, former Prime Minister Imran Khan keeps denying his successor’s legitimacy. In this excerpt from the Watch List 2022 – Spring Update, Crisis Group urges the EU and its member states to help Pakistan's new government ward off violence, expand the social safety net and promote electoral reforms.

Though Pakistan’s former Prime Minister Imran Khan was ousted through a democratic, constitutional process, he has denied the new government’s legitimacy, a tack that could lead to violence. The strategy Khan has relied on since parliament passed a no-confidence vote against him on 10 April has two goals: to undermine the coalition government led by Shehbaz Sharif and to galvanise popular support for new polls. Khan accuses his political opponents, now heading a new government, of conspiring with the U.S. to remove him, and is calling on his supporters to reject “foreign-imposed regime change”. He also bears grudges against the Supreme Court for upholding the constitutionality of the no-trust vote and against the country’s powerful military for refusing to back him in the standoff. Khan’s only hope for a political comeback seems to lie in building mass opposition to Sharif’s government and forcing it to hold general elections well ahead of the scheduled 2023 date. He assumes that the military high command would back new polls, much as his relations with the top brass have soured, in order to keep political turmoil at bay. Yet his own approach – his refusal to accept the authority of the apex election body, the Election Commission of Pakistan (ECP) – dents the prospect of a peaceful post-election transfer of power.

The Sharif government has taken a resolutely different direction from that of its predecessor. It is seeking to re-engage with key diplomatic and trading partners, particularly the European Union and the U.S. In an effort to stem the economic downturn, worsened by the war in Ukraine, it has appealed to international financial institutions, including the International Monetary Fund (IMF) and the World Bank, for support. The coalition government has also taken tentative steps to improve democratic governance, including by removing some curbs on media freedom. Additionally, it has pledged to enact legislation reforming the electoral process prior to holding new polls.

The political, economic and diplomatic challenges confronting the new government are compounded by deteriorating security. Khan’s anti-Western rhetoric risks emboldening Islamist militant and jihadist forces in the country. Militant violence is already surging, particularly in Khyber Pakhtunkhwa province’s tribal belt bordering Afghanistan, straining relations between Islamabad and Kabul’s Taliban-led authorities. Political polarisation could worsen and erupt into violence, weakening parliamentary institutions, while sapping the state’s capacity to counter security threats.

To help lower these risks, the EU and its member states should:

  • Use the structured dialogues that are part of the EU-Pakistan cooperation framework to build a constructive working relationship with the new government on political, security and foreign policy issues of mutual concern, and pursue plans to hold the first official EU-Pakistan Security Dialogue. Repairing ties with Islamabad would help undo damage done by Khan’s conspiracy narrative.
     
  • Hold talks with the new government on the renewal of Pakistan’s status under the EU’s Generalised Scheme of Preferences Plus (GSP+), which provides substantial trade benefits to Islamabad and is set to expire at the end of 2022, including by moving forward with the European External Action Service’s GSP+ mission that was put on hold amid the Pakistani political crisis.
     
  • Assist Sharif’s government in expanding the social safety net, with special attention to women and girls, and in rebuilding militancy-hit regions, particularly in Khyber Pakhtunkhwa’s tribal belt abutting Afghanistan, thus thwarting militants looking to take advantage of local alienation.
     
  • Promote electoral reforms to stop the forthcoming elections from sparking violence and prepare to send an election observation mission, as past missions have helped identify problems in the electoral process.
     

The Costs of Populist Rhetoric

Since his dismissal, Khan has relied on an anti-Western narrative to attack his opponents and incite his supporters. Addressing large rallies in Karachi, Peshawar, Lahore and other cities countrywide, and using social media to spread his message to his youthful supporters, Khan has alleged that the U.S., angered by his “independent foreign policy”, conspired to remove his government. He cites as evidence a diplomatic cable, which he calls a “threat letter”, sent by Pakistan’s then-envoy to Washington after a 7 March meeting with a top State Department official. Khan claims that the U.S. was antagonised by his refusal to cancel a trip to Moscow on 24 February, the day Russia invaded Ukraine, and by his opposition to the U.S. war in Afghanistan – he says he rejected Washington’s demands for military bases in Pakistan for operations next door.

Khan’s allegations are targeted at political opponents but also the judiciary and army. He has accused the Pakistan Muslim League-Nawaz and Pakistan Peoples Party, who now spearhead the coalition government, of conniving with the U.S. to remove his Pakistan Tehreek-e-Insaf (PTI) government. Khan turned to these allegations when the opposition, supported by most of his coalition partners, moved to vote no confidence in his leadership. The charges formed the bedrock of the deputy parliament speaker’s case for dismissing the motion and President Arif Alvi’s case when on 3 April he dissolved the National Assembly. Had the dissolution stood, it would have required new polls within 90 days. But on 7 April, the Supreme Court reversed both actions as unconstitutional and the no-confidence motion went ahead, resulting in Khan’s removal on 10 April and Sharif’s election as prime minister the next day. Khan’s supporters subsequently took to social media to lambast the Court, but also Pakistan’s military leaders, who stayed neutral during the showdown.

Khan accused the new government’s entire top leadership of corruption, based on charges filed against them by his government.

Following his ouster, Khan opted to take to the streets, hoping to whip up popular sentiment against the Sharif government, as well as the PTI dissidents who had chosen to back it. Khan accused the new government’s entire top leadership of corruption, based on charges filed against them by his government. He insisted that they had bought the loyalty of those PTI lawmakers, both federal and provincial, who have lined up behind them. Most PTI members of the National Assembly, the lower house of parliament, resigned en masse upon Khan’s instructions. Khan has since asked the Supreme Court to bar those who refused to quit, and other PTI dissidents in the Punjab assembly, from legislative office for life, and many of them have been forced into hiding by PTI supporters’ threats of violence. The Court has passed over this request, but on 17 May, it did rule that votes of party defectors on no-confidence motions, or elections for prime minister or chief minister (the top office in Pakistan’s provinces), cannot be counted. That decision has direct implications for Punjab, the country’s most populous and politically weighty province, where provincial lawmakers, including some two dozen PTI dissidents, chose Sharif’s son Hamza over Khan’s nominee as chief minister in mid-April.

In this atmosphere of heightened polarisation, Khan’s call on his supporters to march on Islamabad and to remain there until his demand for new elections is met could lead to deadly violence. Accepting Khan’s conspiracy narrative at face value, the PTI base is infuriated by their leader’s ouster. With such a ready audience, Khan’s inflammatory rhetoric aimed at besieging the federal capital could fuel bloodshed, paralyse the government and force a military intervention that would lead to new polls. Indeed, some analysts believe that may be Khan’s intent. The PTI used similar tactics in 2014, when its sit-in against Nawaz Sharif’s government saw party activists attack parliament and other government buildings, bringing the administration to a standstill. Addressing a rally in late April, Khan called on the army to endorse holding “early elections”. The military, however, took no sides in the lead-up to the prime minister’s ouster and seems disinclined to change its stance in the aftermath. Khan’s attempts while prime minister to intrude on the military’s jealously guarded institutional autonomy are likely one reason for the high command’s lack of support. His meddling included a reported attempt to nominate his own man as army chief to replace the incumbent, who is set to retire in November. Army officials, meanwhile, have long been concerned about the adverse implications of the former prime minister’s anti-Western conspiracy narrative and his criticism of the EU and U.S., both key diplomatic and trading partners.

Even before Khan was ousted, army chief Qamar Javed Bajwa tacitly rebuked his anti-West and pro-Russia rhetoric, saying Pakistan has “very cordial historic relations with both camps”. Since Khan left office, however, the military has become more explicit in repudiating his specific claims, one of which is that the high command endorsed his allegations of U.S. skulduggery at a 31 March meeting of the National Security Council. In mid-April, the military spokesman reminded journalists that the Council had issued a statement following the 31 March meeting; they could read it themselves to see that it contained no mention of a U.S. “conspiracy”. As for what Khan calls the “threat letter”, the spokesman explained that the State Department official had used undiplomatic language in the 7 March meeting with the Pakistani envoy, amounting to “interference” in Pakistan’s internal affairs. The envoy’s cable – the so-called letter – had merely informed the foreign ministry of this interaction. Islamabad then sent a demarche to Washington, but that is where the matter stopped. The spokesman further rejected Khan’s claim that the U.S. asked Pakistan to provide bases on its territory. He concluded by emphasising that the high command had stayed neutral in the political standoff in accordance with the military’s constitutional role. On 22 April, in another statement, the Council expressly denied the existence of a U.S. plot to oust Khan. Nonetheless, the ex-prime minister persists in saying the army backs his claims.

Khan’s relationship with the military could be damaged beyond repair if he opts to violently oppose the Sharif government at a time when militant attacks are surging. Attacks by Pakistani Taliban militants, particularly in Khyber Pakhtunkhwa’s merged tribal districts at the border with Afghanistan, have escalated in recent weeks, killing or injuring scores of soldiers. The spike in cross-border attacks and military casualties is straining Pakistan’s ties with its Afghan Taliban allies. For the first time since the Taliban takeover in Afghanistan, Pakistani warplanes have reportedly attacked Pakistani Taliban targets in Afghan territory. At a time when the Pakistani Taliban are making a comeback, taking advantage of Afghan havens, the military high command is likely particularly concerned about Khan’s anti-Western rhetoric. His allegation that the Sharif government is “foreign-imposed” – in other words, forced upon an Islamic country by meddling Westerners – could give the Pakistani Taliban yet another rallying cry with which to raise funds, find new recruits and attack state institutions.

Opportunities and Constraints

The coalition government faces major economic challenges. GDP growth is low; the current account deficit is unsustainable; foreign exchange reserves are fast depleting; and soaring inflation rates, now driven up further by the Ukraine war and the sanctions on Russia, have raised fuel and food prices. Mending relations with the West, particularly the EU and U.S., its major trading partners, is therefore a top policy priority. Sharif and his cabinet ministers recognise that the EU, through the GSP+ and the trade benefits it provides, is a major source of much-needed assistance for Pakistan’s faltering economy, and hence they have vowed to strengthen diplomatic and trade relations with the bloc. Pakistan also needs U.S. support as it approaches the IMF and the World Bank for financial assistance, a task that the government should undertake with some urgency if it is to prevent an economic meltdown. Successful negotiations with the IMF for resumption of a multibillion-dollar loan program will require withdrawing Khan’s economically unviable populist measures, such as high subsidies for fuel and power. The government has been slow to act as prices rise and its indecision is further weakening the country’s floundering economy.

With poverty levels rising and food price inflation at an all-time high, if the government fails to provide social safety nets for the poorest and most vulnerable households, public anger could play into the opposition’s hands. The Sharif government has made some promising commitments. For instance, it has committed to continued support for the Benazir Income Support Program (BISP), which provides targeted assistance in the form of cash transfers to women who head households falling below the poverty line. Islamabad should consider using savings made by discontinuing Khan’s financial awards to loyalist parliamentarians and tax amnesty schemes to increase both the amount of BISP cash transfers and the number of grantees.

The coalition government has also moved to reverse steps taken under Khan to reduce media freedom and civil space more generally. Intolerance of criticism was a hallmark of the PTI government, with female journalists in particular bearing the brunt of party activists’ social media attacks. It has yet to become clear, however, if the Sharif government’s commitment to protect freedom of expression and association will translate into durable action.

The Sharif government could be forced to accept the military’s policy preferences.

Like its predecessor, the Sharif government could be forced to accept the military’s policy preferences. This tendency is already evident in a crackdown on criticism of the military on social media websites. The military’s red lines have even determined the new cabinet’s formation. After agreeing to include in his cabinet Mohsin Dawar, the National Assembly member from North Waziristan, the founder of the civil society-led Pashtun Tahafuz Movement and an outspoken military critic, Sharif now seems to be backtracking. Still, Dawar accompanied the prime minister when he visited Khyber Pakhtunkhwa’s North Waziristan district less than a fortnight after taking office. During the visit, Sharif pledged to improve civic facilities such as schools and health clinics. Such civic assistance should be targeted at women and girls, whose access to education, health care and other basic services has severely declined due to both militancy and military operations in this and other conflict-hit zones.

With general elections due no later than October 2023, time constraints will limit the coalition government’s capacity to carry out governance and economic reforms. It should therefore focus on the most pressing. Clarity on economic policies, including through successful negotiations with the IMF, could help address economic uncertainty, but given the tight timeline electoral reform requires a particularly urgent response. Rejecting Khan’s calls for elections before such reforms are enacted, the coalition partners intend to work in parliament to identify gaps and flaws in electoral laws and processes.

Khan’s rejection of the ECP’s neutrality and refusal to cooperate with parliament might make it difficult to obtain political ownership of the electoral reform process. The parliamentary coalition, composed of nine political parties with widely ranging ideological and regional constituencies, is fairly representative of public opinion. It should, however, also consult civil society, including women’s and rights groups, as it devises electoral reform. Moreover, respect for the ECP’s autonomy and authority will be crucial for any credible election. The ECP’s preparations for the general elections, which could be complete by May 2023, include delineating constituencies, possibly based on a new census. This exercise should ensure that all sidelined groups, including women, are properly represented. Close cooperation between the executive and election authorities will also be needed to address a sizeable gender gap, close to 20 per cent, in the registration of female and male voters. An aggressive drive, with donor support, is needed to ensure that women are issued computerised national identity cards, a prerequisite for registering as voters. The card is also required for access to financial assistance earmarked for women, such as through the BISP.

Moving Ahead

The EU should respond positively to the Sharif government’s stated desire to reset the diplomatic ties that the former prime minister’s anti-Western agenda adversely affected. Islamabad’s growing concerns about militant threats, including from across the Afghan border, offer new opportunities for a security dialogue on issues of mutual concern. The extension of badly needed economic assistance would be particularly helpful to the new government, as it faces an unprecedented economic crisis.

Brussels should also look into expanding bilateral trade and investment ties with Islamabad, notably by renewing Pakistan’s GSP+ status, while making clear that the renewal is tied to human rights, rule of law and democratic governance conditions that the EU will monitor closely in the coming months. To assess the progress Islamabad makes on these conditions and to use the leverage that renewal can bring, the European External Action Service should move forward with its GSP+ mission, which was postponed due to Pakistan’s political crisis. In its dialogue with Islamabad, the mission should particularly focus on issues pertaining to the protection of women and children, as well as the enforcement of the freedom of association and speech enshrined in Pakistan’s constitution.

The European Union should support the new government’s efforts to provide social safety nets to the poorest and most vulnerable households.

Further, the European Union should support the new government’s efforts to provide social safety nets to the poorest and most vulnerable households, worst affected by the economic crisis. It should provide financial and technical aid to assist Pakistan in giving all women computerised national identity cards to afford them access to existing social safety programs, such as the BISP, and to any new ones (as well as to the ballot box). Brussels should also work with Islamabad in helping residents of the conflict-hit zones of Khyber Pakhtunkhwa province, particularly the tribal belt on the border with Afghanistan. Women and girls, who have borne the brunt of both militancy and military operations, should be a key target of such assistance.

Finally, the EU should encourage parliamentary reforms of the electoral legal framework. It should, for instance, urge Pakistan to consider the recommendations of the 2018 election observation mission, particularly with regard to restrictions on freedom of speech and association. Brussels should also consider sending an election observation mission for the forthcoming general elections, which would, as in the case of past missions, advise the ECP and the incoming government on areas of particular interest for electoral reform. At the very least, a credible electoral process may curb the potential for electoral disputes to degenerate into violence.

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