Report of LAWASIA Fact-finding Mission to Pakistan 17-21 July 2008 LAWASIA Secretariat GPO Box 980 BRISBANE QLD AUSTRALIA 4001 tel: +61 7 3222 5888 fax: +61 7 3222 5850 email: [email protected] website: www.lawasia.asn.au LAWASIA FACT-FINDING MISSION TO PAKISTAN 17-21 JULY 2008 Contents 1. Executive summary p. 3 2. Terms of reference p. 4 3. Members of the LAWASIA Fact-finding Mission P. 4 4. Acknowledgements p. 4-5 5. Persons interviewed pp. 6-7 6. Timeline pp. 6-10 7. The current controversy pp. 10-11 8. Undercurrents pp. 11-12 9. Mission conclusions/recommendations pp. 12-14 Annexures • Proclamation of Emergency, issued November 3, 2007 pp. 16-17 • Provisional Constitution Order No 1 of 2007 pp. 18-20 • Oath of Office (Judges) Order, 2007, November 3, 2007 pp. 21-22 • Text of Murree Declaration p. 23 • Text of proposed constitutional amendments pp. 24-43 • Resolution of Pakistan Bar Council of 22 June 2008 pp. 44-47 2 LAWASIA FACT-FINDING MISSION TO PAKISTAN 17-21 JULY 2008 1. EXECUTIVE SUMMARY The observations and conclusions of the fact-finding mission to Pakistan can be summarised as follows: (a) The independence of the judiciary and how that relates to integrity of the Constitution of Pakistan have been underlying matters of considerable concern to the legal community of Pakistan in particular since October 1999 which saw a military takeover of government; (b) These matters relate directly to the rule of law and have impacted on democratic government in Pakistan; (c) The actions of President Musharraf in March 2007 in declaring Chief Justice Iftikhar Mohammad Chaudhry “non-functional” and the subsequent action taken against the Chief Justice and other members of the judiciary after a proclamation of a state of emergency on 3 November would seem to offer justification for these concerns; (d) The delay in restoring the judiciary to the position of 2 November 2007 according to the government’s undertaking in the Murree Declaration would seem to have exacerbated the situation. It has, however, further strengthened the resolve of the lawyers’ movement in support of a full restoration of judiciary and against further constitutional amendment other than a return to the constitutional position of 12 October 1999; (e) the proposed constitutional amendments include measures that can be viewed as attempts to curtail and limit the powers and independence of judiciary and do not appear to be necessary to resolve the issue of the restoration of the judiciary to the position of 2 November 2007; (f) the resolve of the deposed judges to maintain an independent judiciary, coupled with the support of the lawyers’ movement for their actions merit continued international attention in general but particularly deserve the practical support of the international legal community. 3 2. TERMS OF REFERENCE 2.1 It was resolved by the LAWASIA Executive Committee that LAWASIA should send a fact- finding mission to Pakistan, with the intent of developing an understanding of issues related to the rule of law, the independence of the judiciary and the independence of lawyers and the bar, following the change of government in February 2008. 2.2 The formal terms of reference are as follows: 1. to meet with a wide range of key personnel in Pakistan’s legal community and seek their reactions to the current situation as it pertains to rule of law, independence of the judiciary and the independence of lawyers and the bar; 2. to understand issues that confront the legal profession in the aftermath of the last 14 months where its strike action in support of an independent judiciary was a pivotal factor in rule of law outcomes in Pakistan; 3. to gain an impression of the future of the legal community and justice system under the new government; 4. to consider, based on its findings, how LAWASIA can best support and promote the interests of the Pakistan Bar Council and the legal community as a whole, and how it can best assist in supporting the rule of law and an independent judiciary and profession in Pakistan. 3. MEMBERS OF THE LAWASIA FACT-FINDING MISSION 3.1 The members of the mission were: Mr Mah Weng Kwai, president of LAWASIA and former president of the Malaysian Bar Council; Mr Prashant Kumar, ExCo member of LAWASIA and honourary joint treasurer of the Bar Association of India; Mr Christopher Leong, LAWASIA member and Council member of the Malaysian Bar Council; Ms Janet Neville, CEO/Secretary-general of LAWASIA. 4. ACKNOWLEDGEMENTS 4.1 LAWASIA acknowledges with gratitude the support and interest of the Malaysian Bar 4 Council in facilitating the attendance of Mr Leong as a member of the mission; 4.2 The mission notes with deep appreciation the invaluable support, advice and practical assistance provided by the Pakistan Bar Council; 4.3 It records its gratitude to the Lahore High Court Bar Association, the Supreme Court Bar Association of Pakistan, the Honourable Minister for Law, Justice and Human Rights, the Office of the Attorney-General of Pakistan, the Sindh High Court Bar Association and the Sindh Bar Council for arranging receptions for the mission; 4.4 It acknowledges with particular thanks the generosity, hospitality, wide-ranging assistance and encouragement provided by LAWASIA member, Mr Mohammad Akram Sheikh, in planning and reception of the mission; 4.5 It thanks the Chief Minister of Punjab, the Hon Mian Shabhaz Sharif, the Hon Chief Justice Iftikhar Chaudhry and the Hon Chief Justice Sabihuddin Ahmad not only for their willingness to spend time with the mission but also for their kind hospitality; 4.6 Above all, LAWASIA records its sincere appreciation to the many in Pakistan who willingly and openly shared information, views and experiences with the mission. 5. PERSONS INTERVIEWED 5.1 The mission was able, at meetings and receptions arranged, to speak to many judges, lawyers and others. The listing below is indicative, not exhaustive: • Hon Senator Farooq Naek, Minister of Law, Justice and Human Rights; • Hon Mian Shabhaz Sharif, Chief Minister, Punjab; • Hon Chief Justice Iftikhar Muhammad Chaudhry, deposed Chief Justice of Pakistan; • Hon Chief Justice Sabihuddin Ahmad, deposed Chief Justice of Sindh High Court; • Justice (ret’d) Rasheed A Razvi, chairman, Executive Committee, Pakistan Bar Council, president of Sindh Court Bar Association; • Justice (ret’d) Tariq Mahmood, member legal team for Chief Justice Chaudhry; • Mr Hamid Khan, member, Pakistan Bar Council, member, legal team for Chief Justice Chaudhry; • Members of the Pakistan Bar Council, including, Mr Muhammad Arshed, secretary, Senator Sardar Muhammad Latif Khan Khosa, Mr Aaqil Lodhi, Mr H Syed Rehman; • President, Mr Aitzaz Ahsan, office-bearers and members of the Supreme Court Bar Association of Pakistan; • President, Mr Anwar Kamal, office-bearers and members of the Lahore High Court 5 Bar Association; • President, Mr Syed Muhammad Shah, office-bearers and members of the Lahore Bar Association; • Mr Ashtar Ausaf Ali, former Advocate-General, Punjab; • Ms Naheda Mahboob Ellahi, Deputy Attorney-General for Pakistan; • Mr Syed Mohammad Farooq Shah, Secretary to the Attorney-General’s Office; • Dr Danishwar Malik, Prosecutor-General, National Accountability Bureau; • Mr Muhammad Bilal, senior advocate, former member of Pakistan Bar Council and former LAWASIA Councillor for Pakistan; • Mr Muneer Malik, former president, Supreme Court Bar Association of Pakistan and Sindh High Court Bar Association, member, legal team for Chief Justice Chaudhry; • Mr Mohammed Akram Sheikh, LAWASIA member, former president, Supreme Court Bar Association of Pakistan; • In addition to the president, Mr Rasheed A Razvi, office-bearers and members of the Sindh High Court Bar Association; • Vice chairman, Mr Muzafar Ali Laghari, office bearers and members of Sindh Bar Council; • Mr Haleem Siddiqui, chairman, Executive Committee, Sindh Bar Council; • Ms Noor Naz Agha, president, Pakistan Women Lawyers Association; • Mr Mahmood -ul-Hassan, president, Karachi Bar Association; • Justice (ret’d) Khalid ur Rehman, former Chief Justice of Punjab; • Mr Sahibzada Anwar Hamid, vice president, Supreme Court Bar Association of Pakistan; • Mr Mohsin Nadeem, president, Lahore Tax Bar Association; • Justice (ret’d) Mansoor Hussain Sial, former judge, Supreme Court of Pakistan; • Mr Muhammad Amir Jawaid, secretary, Supreme Court Bar Association, Pakistan; • Mr Raja Nias Ahmed Rathore, former president, High Court Bar Association, Rawalpindi; • Justice (ret’d) Abdul Waheed Siddique, former judge, Federal Shariah Court. 6. TIMELINE The events leading up to LAWASIA mission: (a) Following a military takeover of the government of Pakistan led by General Pervez Musharraf on 12 October 1999, on 25 January 2000, judges of all Pakistan courts were required to take an oath of office under the Oath of Office (Judges) Order, 2000. 6 This obliged them to discharge their duties and perform their functions in accordance with the Proclamation of Emergency of 14 October 1999 and the Provisional Constitutional Order; (b) The then Chief Justice of Pakistan, Justice Saiduzzaman Siddiqui, five other Supreme Court judges and a number of provincial high court judges refused to take the oath and ceased to hold office; (c) A bench of 12 judges of the Supreme Court, headed by then Chief Justice Irshad Hassan Khan, dealt with a number of petitions against the military takeover and for the restoration of the Assemblies (national and provincial houses of parliament) and on 12 May 2000, announced their judgment which had the effect of justifying the military takeover and giving power to a military ruler to amend the Constitution. The judgment also indicated that the cases of the former Chief Justice and the judges of the High Court who did not take the oath could not be re-opened, according to a doctrine of past and closed transaction1; (d) Justice Iftikhar Muhammad Chaudhry was among the judges who took their oath under Oath of Office (Judges) Order, 2000.