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The Search for Justice in Pakistan International Commission of Jurists

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The Search for Justice in Pakistan International Commission of Jurists Authority without accountability: The search for justice in Pakistan International Commission of Jurists Composed of 60 eminent judges and lawyers from all regions of the world, the International Commission of Jurists promotes and protects human rights through the rule of law, using its unique legal expertise to develop and strengthen national and international justice systems. Established in 1952 and active on five continents, the ICJ aims to ensure the progressive development and effective implementation of international human rights and international humanitarian law; secure the realization of civil, cultural, economic, political and social rights; safeguard the separation of powers; and guarantee the independence of the judiciary and legal profession. © Copyright International Commission of Jurists Cover photo by Tahir Wadood Malik The ICJ permits free reproduction of extracts from any of its publications provided that due acknowledgment is given and a copy of the publication carrying the extract is sent to its headquarters at the following address: P.O. Box 91 33 Rue des Bains, Geneva, Switzerland E-mail: [email protected] www.icj.org Authority without accountability: The search for justice in Pakistan 4 Authority without accountability This report was researched and written by Reema Omer, ICJ International Legal Advisor for Pakistan with the assistance of Sheila Varadan, ICJ International Legal Advisor for South Asia. Editorial and legal review were provided by Sam Zarifi, Jill Heine, Ian Seiderman, John Holschuh and Ben Schonveld. The ICJ would like to thank Aiyan Bhutta, Asad Jamal and Salman Akram Raja for their assistance and guidance. I A Rehman, Dato’ Param Cumaraswamy and Justice Stefan Trechsel reviewed the report, providing invaluable insight, for which the team is grateful. The ICJ would like to convey its gratitude to Dr Faqir Hussain, Registrar of the Supreme Court for his time and assistance. Finally, the ICJ would like to thank retired and sitting judges as well as legal practitioners who generously made time to meet with us and share their valuable insight and experiences. The law and facts are stated as at 1 October 2013. The search for justice in Pakistan 5 TABLE OF CONTENTS LIST OF ABBREVIATIONS ......................................................................9 INTRODUCTION AND SUMMARY .............................................................11 INTERNATIONAL LEGAL FRAMEWORK .......................................................22 (A) The State’s obligation to provide a remedy for human rights violations .. 24 (B) The State’s duty to ensure accountability for human rights violations .... 26 (C) An independent and impartial judiciary ............................................... 27 (D) The independence of the judiciary and the separation of powers ............ 28 POLITICAL BACKGROUND ....................................................................31 (A) The October 1999 Military Coup d’Etat ............................................... 31 (B) Justice Iftikhar Muhammad Chaudhry is appointed Chief Justice of the Supreme Court ............................................................................... 32 (C) The Supreme Court begins to assert its independence ......................... 33 (D) Chief Justice Chaudhry is suspended from the Supreme Court .............. 34 (E) The Lawyers’ Movement and the 2007 State of Emergency ................... 34 (F) The transition to democracy and the return of the Chief Justice ............. 35 (G) The beginning of a new era of the independence of the judiciary in Pakistan .......................................................................................... 36 (i) The Supreme Court addresses corruption ...................................... 37 (ii) Supreme Court restricts military rule ............................................ 38 6 Authority without accountability PART I: THE SUPREME COURT’S INTERPRETATION OF ARTICLE 184(3) ...........40 (A) What is Article 184(3)? ..................................................................... 41 (i) Historical evolution of Article 184(3) ............................................. 41 (B) The Supreme Court increases its use of extraordinary jurisdiction under Article 184(3) .................................................................................. 42 (i) Public Importance ...................................................................... 43 (1) Arsalan Iftikhar case (2012) ................................................... 43 (ii) Interpretation of Fundamental Rights ............................................ 45 (1) ‘Memogate’ case (2012)......................................................... 47 (2) Muhammad Yasin v. Federation of Pakistan (2012) .................... 48 (3) Revision of Presidential Elections case (2013) ........................... 49 (C) Need for guidelines on the composition of benches hearing Article 184(3) cases .......................................................................... 51 PART II: THE SUPREME COURT’S HUMAN RIGHTS RECORD ...........................55 (A) The Supreme Court’s notable achievements in promoting and protecting human rights .................................................................................. 56 (i) Criminal investigations and prosecutions ....................................... 57 (1) Public lynching of two brothers in Sialkot (2010) ...................... 57 (2) Shooting of Sarfraz Shah (2011) ............................................. 58 (ii) Gender-based violence ................................................................ 60 (1) Legislation on acid violence (2009) .......................................... 60 (2) Investigation and prosecution of rape (2012) ........................... 61 (iii) Rights of minority groups ........................................................... 62 (1) Rights of Hijras (2009) .......................................................... 62 The search for justice in Pakistan 7 (B) The Supreme Court’s response to enforced disappearances .................. 63 (i) International law relating to enforced disappearance ........................ 63 (ii) The Supreme Court exercises its 184(3) jurisdiction to take up the matter of ‘missing persons’ ......................................................... 64 (iii) The Supreme Court fails to ensure accountability for enforced disappearances .......................................................................... 65 (1) Adiala 11 (2010) ................................................................... 65 (2) Ineffectual commissions of inquiry on enforced disappearances .. 68 (3) Impunity for enforced disappearances ................................... 70 (C) The Supreme Court fails to use its original jurisdiction to protect and safeguard human rights ................................................................... 71 (i) The petition challenging the Actions (in Aid of Civil Power) Regulations 2011 ....................................................................... 71 (ii) The petition to commute death sentences ..................................... 73 (D) The Supreme Court’s use of contempt of court powers interferes with the right to freedom of expression ........................................................... 74 (i) Contempt of Court – silencing criticism? ....................................... 77 PART III: FURTHER ISSUES OF CONCERN ARISING FROM EXPANSIVE USE OF ORIGINAL JURISDICTION ...........................................................81 (A) Unsustainable workload and backlogs in the Supreme Court ................. 81 (B) Procedural concerns in the administration of Article 184(3) cases........... 84 (i) Rights of interested parties under Article 184(3) petitions and suo motu matters ....................................................................... 84 (1) Difference between a review and an appeal .............................. 84 (2) ‘PCO Judges’ case (2009) ....................................................... 85 (3) Revision of Presidential Elections (2013) .................................. 87 (ii) Right to an impartial hearing and the presumption of innocence ...... 88 8 Authority without accountability (C) Respect for the separation of powers – usurping the powers of the legislature and executive .................................................................. 90 (i) Challenging the legitimacy of the Balochistan Government .............. 90 (ii) Supervision of National Accountability Bureau (NAB) investigations .. 91 (iii) Disqualification of Yousaf Raza Gillani (2012) ................................. 92 (D) Creating a two-tier justice system – bypassing the lower courts ............ 96 CONCLUSIONS AND RECOMMENDATIONS ..................................................98 The search for justice in Pakistan 9 LIST OF ABBREVIATIONS AACPR Actions (in aid of civil power) Regulations, 2011 ATC Anti-terrorism Court BHC Balochistan High Court CAT Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment CBI Central Bureau of Intelligence CNG Compressed Natural Gas CEDAW Convention on the Elimination of All Forms of Discrimination against Women CIMP Commission of Inquiry for Missing Persons CRC Convention on the Rights of the Child DG Director General DIG Deputy Inspector General FATA Federally Administered Tribal Areas FC Frontier Corps FIA Federal Investigation Agency FIR First Information Report HRCP Human Rights Commission of Pakistan ICCPR International Covenant on Civil and Political
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