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Report On the ICJ Mission to Pakistan Autumn 2011 Table of Contents I Introduction ..................................................................................................................................2 A The Mandate..........................................................................................................................................2 B The Method............................................................................................................................................3 C Acknowledgments .................................................................................................................................4 II Background .................................................................................................................................4 A Federal Structure ................................................................................................................................4 B The Constitution....................................................................................................................................5 C The Organization of the Judiciary ......................................................................................................5 III Independence of the Judiciary .................................................................................................7 A The Standards of Independence ..........................................................................................................7 B The Appointment of Judges ................................................................................................................8 C The Term of Office..............................................................................................................................11 D Safeguards Against Outside Pressure ...............................................................................................11 E A Tribunal Established by Law.........................................................................................................13 F The Economic Situation of Judges.....................................................................................................14 G The Independence of the Bar.............................................................................................................14 H Other Matters Affecting the Functioning of the Judicial System ..................................................14 IV Procedures suo motu...................................................................................................................15 A The Constitutional Rule .....................................................................................................................15 B Practical Application ..........................................................................................................................16 C Assessment...........................................................................................................................................18 V Conclusions................................................................................................................................21 VI Recommendations....................................................................................................................22 ANNEX A .........................................................................................................................................23 ANNEX B..........................................................................................................................................25 1 I Introduction A The Mandate The International Commission of Jurists (ICJ) is composed of 60 eminent judges and lawyers from all regions of the world, working to promote and protect human rights through the Rule of Law and to develop and strengthen national and international justice systems. 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. The ICJ established an Asia Pacific Program (APP) with a regional office in Bangkok in 2006. In 2010 it developed a South Asia Program (SAP), which addresses the Rule of Law and human rights in a number of countries in the region, including Pakistan. The country had been shaken by a series of dramatic governance crises with the unconstitutional usurpation of power by the Military on several occasions since it was founded in 1959. In this context the independence of the judiciary has been undermined, in particular by forceful removal of the Chief Justice. The constitutional order was restored in 2008 after successful protests by the Lawyers’ Movement,1 which were supported by a number of political parties and civil society groups. A Mission on the independence of the judiciary and the Lawyers’ Movement had been undertaken by the ICJ in 2007. The present Mission was to follow up that work. Its mandate was to assess and report on the nature and extent of this Rule of Law crisis and to make legal and policy recommendations in accordance with international principles and standards on the independence of the judiciary and the separation of powers. Mr. Stefan Trechsel2 and Mr. Graham Leung3 undertook the Mission which took place between 7th and 15th September 2011, with meetings in Karachi (twice), Lahore and Islamabad. 1 The Lawyers' Movement was the name given to the popular mass protest movement started by the lawyers of Pakistan in response to the actions of 9 March 2007 by the country's president, general Pervez Musharraf when he unconstitutionally sacked Iftikhar Muhammad Chaudhry, the Chief Justice. 2 Judge Stefan Trechsel (Switzerland) has been an ad litem Judge at the United Nations International Criminal Tribunal for the former Yugoslavia since April 2006. He is also a Professor Emeritus of Criminal Law and Procedure at the University of Zurich. Judge Trechsel was elected to the European Commission of Human Rights in 1975, later serving as its Vice-President (1987 to 1994) and President (1995 to 1999). He has also served as an independent expert of the Secretary-General of the Council of Europe on the issue of political prisoners in Azerbaijan. Judge Trechsel was a member of the ICJ Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights. He has also acted as counsel for the United States of America before the International Court of Justice in the LaGrand Case (Germany vs. the United States of America). He has authored several books with his most recent book entitled Human rights in Criminal Proceedings (OUP, 2005). Judge Trechsel obtained his law degree (1963) and PhD (1966) from the University of Bern. 3 Graham Leung (Fiji) is a former President of the Fiji Law Society and Chairman of the Electoral Commission of Fiji. He is a senior Vice President of Law Asia, a member of the Council of the Commonwealth Lawyers Association and an executive of the International Bar Association’s Pro Bono and Access to Justice Committee. Mr Leung is the current Director of the International Commission of Jurist’s Centre for the Independence of Judges and Lawyers (CIJL). 2 B The Method 1. General Observation The Mission’s approach was to meet with key actors and study primary resources to inform its assessment. Under the prevailing circumstances, this pragmatic approach was chosen with all its advantages and weaknesses. It is not intended as a scientific study conducted the methodological standards of empirical research. 2. Documents One source of information, both accessible and reliable, is documents. We consulted legislative texts, in particular the Constitution of Pakistan, judgments of the Supreme Court and a variety of reports from governmental, inter-governmental and non- governmental sources, as well articles in the media.4 3. Interviews The Mission also interviewed and consulted with a broad range of actors in the judiciary and legal profession, government and civil society. Amongst those whom the Mission met included Supreme Court Justices Jawwad Khawaja and Tassaduq Hussain Jillani, the Chief Justice of Lahore Ijaz Ahmed, Dr Babar Awan, former Federal Minister for Law, Justice and Parliamentary Affairs and current Vice- President of the Pakistan Peoples Party, Mr. Imran Khan, leader of Pakistan Tehreek-E-Insaf (Movement for Justice), Mr. Hamid Khan, and Ms Asma Jahangir then President of the Supreme Court Bar Association of Pakistan (SCBAP). However, there were also many informal conversations by members of the Mission with Pakistan lawyers and judges, particularly when they participated in a Regional Seminar entitled “Justice for All and Impunity for None” which was held from 9th to 11th September in Lahore. The seminar was organized by the SCBAP. As a number of interlocutors preferred not to be quoted, the Report will generally not identify the oral sources for any specific statement. The full list of persons who were interviewed at length by members of the Mission is attached as Annex A. There were several other members of the legal profession that members of the mission interacted with during the visit. 4. Visits The Mission also visited a number of institutions including the High Court of Punjab in Lahore, the Supreme Court of Pakistan and the Parliament in Islamabad, as well as a number of lawyers’
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