BUILDING JUDICIAL INDEPENDENCE IN PAKISTAN 10 November 2004 Asia Report N°86 Islamabad/Brussels TABLE OF CONTENTS EXECUTIVE SUMMARY AND RECOMMENDATIONS................................................. i I. INTRODUCTION .......................................................................................................... 1 II. THE STRUCTURE AND HISTORY OF PAKISTAN'S JUDICIARY.................... 2 A. THE STRUCTURE OF PAKISTAN'S JUDICIARY ............................................................................2 B. COURTS AND POLITICS: PRE-1999 ENTANGLEMENTS.........................................................3 C. THE SUPREME COURT AND THE 12 OCTOBER 1999 COUP ..................................................5 III. JUDICIAL APPOINTMENTS AND PROMOTIONS ............................................... 6 A. THE CONSTITUTIONAL FRAMEWORK.....................................................................................6 B. APPOINTMENTS AND PROMOTIONS IN PRACTICE..................................................................8 C. REFORMING THE APPOINTMENT AND PROMOTION OF JUDGES ...........................................11 IV. THE REMOVAL OF JUDGES................................................................................... 12 A. MEANS OF REMOVING JUDGES............................................................................................12 B. REFORMING REMOVALS AND STEMMING CORRUPTION.......................................................13 C. "ADDITIONAL" HIGH COURT JUDGES ..................................................................................14 V. OTHER MECHANISMS OF EXECUTIVE CONTROL ....................................... 15 A. REWARDING FAVOURED JUDGES ........................................................................................15 B. FINANCIAL CORRUPTION AND POLITICAL INFLUENCE...........................................................16 C. ADMINISTRATIVE POWERS OF CHIEF JUSTICES OF THE HIGH COURTS .................................17 VI. THE SUBORDINATE JUDICIARY .......................................................................... 18 A. JUDICIAL STANDARDS, SALARIES AND CORRUPTION .........................................................18 B. THE SUBORDINATE JUDICIARY AND THE ELECTORAL PROCESS .........................................19 C. REFORM WITHIN THE SUBORDINATE JUDICIARY ................................................................21 D. WOMEN AND RELIGIOUS MINORITIES BEFORE THE SUBORDINATE JUDICIARY.....................23 VII. PARALLEL COURT STRUCTURES ....................................................................... 24 A. THE NATIONAL ACCOUNTABILITY BUREAU AND ACCOUNTABILITY COURTS......................24 B. ANTI-TERRORISM COURTS..................................................................................................26 C. THE FEDERALLY ADMINISTERED TRIBAL AREAS...............................................................27 D. THE NORTHERN AREAS ......................................................................................................29 VIII. CONCLUSION ............................................................................................................. 30 APPENDICES A. MAP OF PAKISTAN ..............................................................................................................31 B. ABOUT THE INTERNATIONAL CRISIS GROUP .......................................................................32 C. ICG REPORTS AND BRIEFINGS ON ASIA SINCE JANUARY 2001 ...........................................33 D. ICG BOARD MEMBERS .......................................................................................................36 ICG Asia Report N°86 10 November 2004 BUILDING JUDICIAL INDEPENDENCE IN PAKISTAN EXECUTIVE SUMMARY AND RECOMMENDATIONS On the three occasions since independence when remove them after one or two years by declining to military coups have ended democratic rule in Pakistan "confirm" their appointments. the judiciary not only failed to check extra- constitutional regime change, but also endorsed and Political allies now fill key judicial positions, particular abetted the consolidation of illegally gained power. the posts of Chief Justice of the Lahore and the Sindh The Musharraf government has deepened the High Courts. The Chief Justices of High Courts wield judiciary's subservient position among national critical administrative powers over the allocation of institutions, ensured that politics trumps the rule of cases to judges and the assignment of judges to courts law, and weakened the foundations for democratic across a province. The executive's power, via certain rule. Substantial changes in the legislative framework Chief Justices, to direct a case to pliant judges for appointments, promotions and removals of judges, undermines lawyers' and litigants' expectation of a as well as the jurisdiction of the ordinary courts, are fair trial when the executive is a party. The executive needed to restore confidence in the judiciary. But also has improper influence over the electoral process judicial independence from political influence and via certain Chief Justices because the latter appoint the financial corruption cannot be restored by mere returning officers for elections from among the ranks technical, legislative corrections. Reform depends upon of the subordinate judiciary. a credible commitment by the government to respect the rule of law as much as upon legislated change. Compromised by this political chicanery, the superior judiciary is unable to address creeping financial Since 1955, Pakistan's courts have played a critical corruption within its own ranks. Dysfunction in the political role by reviewing the legitimacy of changes of superior judiciary also impedes reform in the government. To eliminate potential judicial challenges, subordinate judiciary, which comprises the trial courts the present military government, like previous ones, in which the mass of ordinary judicial business is has devised ways to keep the judiciary weak. transacted. Appalling under-resourcing and endemic corruption in the subordinate judiciary lead to The executive exercises control over the courts by agonising delays in the simplest cases and diminish using the system of judicial appointments, public confidence in the judiciary and the rule of law. promotions and removals to ensure its allies fill key posts. In the immediate aftermath of the October In some subject-areas and in some territories, the 1999 coup, the judiciary was purged of judges who government simply bypasses the ordinary courts by might have opposed the military's unconstitutional establishing parallel judiciaries. Since August 1947, assumption of power. The purge was accomplished the Federally Administered Tribal Areas (FATA) by requiring judges to take an oath to President and the Northern Areas have had sui generis legal Musharraf's Provisional Constitutional Order -- an systems, more or less independent of Pakistan's oath that required judges to violate oaths they had all ordinary judiciary. Little justification exists, as previously taken to uphold the 1973 Constitution. even the government seems to recognise, for the Fear that another oath will be used to remove more essentially colonial regimes preserved in these judges now limits the bench's freedom. Moreover, enclaves. Further, in 1997 and 1999 respectively, new judges must be wary because the executive can the government established separate anti-terrorism and accountability courts. Those tribunals contain Building Judicial Independence in Pakistan ICG Asia Report N°86, 10 November 2004 Page ii procedural shortcuts that make them too attractive 7. Absorb the anti-terrorism and accountability to overzealous police and prosecutors. courts into the ordinary judiciary, jettisoning procedural variations in bail, plea-bargaining, In the absence of a government visibly committed to and the physical circumstances of trials that following constitutional ground-rules and statutory presently characterise those proceedings. laws, judges will continue to lack security of tenure and necessarily will make decisions with an eye to 8. Institute courts within Pakistan's ordinary the government's agenda. judicial hierarchy, with review in the Peshawar High Court and the Supreme Court, for the FATA, and conform courts' jurisdictions, judges' RECOMMENDATIONS tenure and judges' privileges in the judiciary of the Northern Areas, including the new Court of To the Government of Pakistan: Appeals, to practices in the ordinary courts. 1. Establish, by proposing and urging adoption of 9. Endeavour to ensure that judicial decisions at a constitutional amendment, a transparent all levels respect international human rights, system of judicial appointments to the High including the rights of women, and make Courts that expands accountability for such efforts to eliminate traditional and religious appointments beyond the executive and Chief practices imposed by tribal and village councils Justices to include parliamentarians and bar that are harmful to women. councils and associations; prior to the adoption of such an amendment, involve the bar and To the United States, the European Union, and parliamentarians in public discussions of Other Members of the International Community: candidates for posts on the High Courts. 10. Treat the independence of the judiciary, in 2. End deviations from the seniority rule in the particular the manipulation of appointments, promotion of High Court judges to the posts of promotions