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An International
Stinging Indictment of Superior Judiciary in Pakistan
SAT
Report
ISLAMABAD,
November 10: The Musharraf government has deepened the judiciary's
subservient position among national institutions, ensured that
politics trumps the rule of law, and weakened the foundations
for democratic rule, the International Crisis Group (ICG) says
in its latest report on Pakistan.
Released
in Islamabad and Brussels, the report says: "On the three
occasions since independence when military coups have ended democratic
rule in Pakistan the judiciary not only failed to check extra-constitutional
regime change, but also endorsed and abetted the consolidation
of illegally gained power.
"The
Musharraf government has deepened the judiciary's subservient
position among national institutions, ensured that politics trumps
the rule of law, and weakened the foundations for democratic rule.
Substantial changes in the legislative framework for appointments,
promotions and removals of judges, as well as the jurisdiction
of the ordinary courts, are needed to restore confidence in the
judiciary. But judicial independence from political influence
and financial corruption cannot be restored by mere technical,
legislative corrections. Reform depends upon a credible commitment
by the government to respect the rule of law as much as upon legislated
change.
"Since
1955, Pakistan's courts have played a critical political role
by reviewing the legitimacy of changes of government. To eliminate
potential judicial challenges, the present military government,
like previous ones, has devised ways to keep the judiciary weak.
The
executive exercises control over the courts by using the system
of judicial appointments, promotions and removals to ensure its
allies fill key posts. In the immediate aftermath of the October
1999 coup, the judiciary was purged of judges who might have opposed
the military's unconstitutional assumption of power.
The
purge was accomplished by requiring judges to take an oath to
President Musharraf's Provisional Constitutional Order -- an oath
that required judges to violate oaths they had all previously
taken to uphold the 1973 Constitution. Fear that another oath
will be used to remove more judges now limits the bench's freedom.
Moreover, new judges must be wary because the executive can remove
them after one or two years by declining to "confirm"
their appointments.
Political
allies now fill key judicial positions, particular the posts of
Chief Justice of the Lahore and the Sindh High Courts. The Chief
Justices of High Courts wield critical administrative powers over
the allocation of cases to judges and the assignment of judges
to courts across a province. The executive's power, via certain
Chief Justices, to direct a case to pliant judges undermines lawyers'
and litigants' expectation of a fair trial when the executive
is a party. The executive also has improper influence over the
electoral process via certain Chief Justices because the latter
appoint the returning officers for elections from among the ranks
of the subordinate judiciary.
Compromised
by this political chicanery, the superior judiciary is unable
to address creeping financial corruption within its own ranks.
Dysfunction in the superior judiciary also impedes reform in the
subordinate judiciary, which comprises the trial courts in which
the mass of ordinary judicial business is transacted. Appalling
under-resourcing and endemic corruption in the subordinate judiciary
lead to agonizing delays in the simplest cases and diminish public
confidence in the judiciary and the rule of law.
In
some subject-areas and in some territories, the government simply
bypasses the ordinary courts by establishing parallel judiciaries.
Since August 1947, the Federally Administered Tribal Areas (FATA)
and the Northern Areas have had sui generis legal systems, more
or less independent of Pakistan's ordinary judiciary.
Little
justification exists, as even the government seems to recognize,
for the essentially colonial regimes preserved in these enclaves.
Further, in 1997 and 1999 respectively, the government established
separate anti-terrorism and accountability courts. Those tribunals
contain procedural shortcuts that make them too attractive to
overzealous police and prosecutors.
In
the absence of a government visibly committed to following constitutional
ground-rules and statutory laws, judges will continue to lack
security of tenure and necessarily will make decisions with an
eye to the government's agenda.
Recommendations
To
the Government of Pakistan:
1.
Establish, by proposing and urging adoption of a constitutional
amendment, a transparent system of judicial appointments to the
High Courts that expands accountability for such appointments
beyond the executive and Chief Justices to include parliamentarians
and bar councils and associations; prior to the adoption of such
an amendment, involve the bar and parliamentarians in public discussions
of candidates for posts on the High Courts.
2.
End deviations from the seniority rule in the promotion of High
Court judges to the posts of Chief Justice, establish by statute
a seniority rule for promotions from the High Courts to the Supreme
Court, and when filling vacancies on the High Courts and Supreme
Court, promote female judges who are qualified candidates under
the seniority rule.
3.
End the practices of not confirming additional judges and of awarding
government positions to retired judges; establish public audits
of all members of the superior judiciary and close family members
to ensure that only statutory benefits are awarded and corruption
is avoided.
4.
End the practice of selectively offering new oaths to judges,
and renounce publicly the use of the judicial oath as a mechanism
for purging the judiciary.
5.
Institute new internal administrative mechanisms for the prevention
of corruption and the removal of corrupt High Court judges, with
oversight from a judicial commission that includes members of
the bars and parliamentarians, and ensure that women and minorities
are adequately represented in these mechanisms.
6.
Institute administrative reforms that curtail Chief Justices'
power over the assignment of cases and of judges, and establish
professional, managerial divisions within the courts to fulfil
this task.
7.
Absorb the anti-terrorism and accountability courts into the ordinary
judiciary, jettisoning procedural variations in bail, plea-bargaining,
and the physical circumstances of trials that presently characterize
those proceedings.
8.
Institute courts within Pakistan's ordinary judicial hierarchy,
with review in the Peshawar High Court and the Supreme Court,
for the FATA, and conform courts' jurisdictions, judges' tenure
and judges' privileges in the judiciary of the Northern Areas,
including the new Court of Appeals, to practices in the ordinary
courts.
9.
Endeavor to ensure that judicial decisions at all levels respect
international human rights, including the rights of women, and
make efforts to eliminate traditional and religious practices
imposed by tribal and village councils that are harmful to women.
To
the United States, the European Union, and Other Members of the
International Community:
10.
Treat the independence of the judiciary, in particular the manipulation
of appointments, promotions and removals in the superior judiciary,
as a measure of democratic development in Pakistan.
11.
Call upon the government of Pakistan to cease manipulation of
the appointment and promotion of judges, and to commit to ending
the practice of purging the bench through new oaths.
To
the Asian Development Bank and Other Donor Agencies:
12.
As a policy condition for further tranches of the structural adjustment
loan under the Access to Justice Program, insist on reform of
the appointments and promotions system for the superior judiciary
and a strict adherence to the seniority rule for promotions.
13.
Introduce measures to identify and remove from the superior and
subordinate courts those judges engaged in financial corruption.
14.
Promote meaningful in-service judicial training on gender sensitization
and the treatment in court of religious minorities, in particular
Ahmadis and Christians, and press the government to implement
reserved seats for women in key subordinate and superior judiciary
positions.
