Pakistan: the legacy of Chief Justice Chaudhry

Dec 5, 2013

Supreme Court Chief Justice Iftikhar Muhammad Chaudhry finishes his eight-year term on 12 December 2013, leaving the legacy of a robust and assertive Court, as well as some well-founded criticisms of inconsistency in its approach to human rights, the ICJ says in a new report released today.

The ICJ’s 99-page report, Authority without accountability: the search for justice in Pakistan, presents a detailed assessment of the Court’s human rights jurisprudence during Chief Justice Chaudhry’s tenure.

It also provides recommendations to the Court to build on its work and improve its central role as a bulwark for the rights of the Pakistani people and the rule of law.

“The ICJ commends Chief Justice Chaudhry for redefining the Court as an independent institution and closing the door to military rule in Pakistan,” said Sam Zarifi, Asia Director for ICJ.  “But there are also concerns about how the Court has exercised its judicial authority in protecting and promoting human rights.”

Under Chief Justice Chaudhry, the Supreme Court has increasingly used its authority to intervene directly in matters of public interest, invoking its “extraordinary jurisdiction’’ under Article 184(3) of the constitution.

The ICJ report shows that the Supreme Court has succeeded, in some cases, to bring accountability to a government and military that have long enjoyed impunity for human rights violations.

“However, the lack of guidelines about how the Court exercises this extraordinary power has led to criticisms about how it decides which cases to hear and, as importantly, which cases to ignore,’’ Zarifi added. “This lack of transparency corrodes the Court’s tremendous achievements and undermines the principles of rule of law that the Court seeks to uphold.”

The report documents some of the Supreme Court’s strides in strengthening the rights of victims to justice and remedy.

The Supreme Court has consistently taken a firm stance against unconstitutional usurpation of power by the military and has effectively held public officials accountable for corruption and abuse of power, it says.

In doing so, the Court has brought Pakistan closer to fulfilling some of its obligations under international human rights law.

“There is still a long way to go before civilian and military authorities in Pakistan are truly brought to justice for human rights violations,” said Zarifi. “But the Supreme Court has certainly made a visible dent in the culture of impunity, spanning decades in Pakistan.”

The ICJ study also sheds light on some inadvertent yet predictable consequences of the expanded use of Article 184(3), which if left unchecked, may weaken the rule of law and independence of the judiciary.

These include an overwhelming increase in case-load, leading to long delays faced by litigants; dispositions in cases that leave affected partied without any remedy or redress; influence on trial courts and interference with the presumption of innocence, blurring of institutional boundaries and undermining separation of powers, and the creation of a two-tier and arbitrary justice system.

“The Court should address these concerns as a matter of priority to ensure its hard-won independence is not undermined by allegations that the highest court of Pakistan is politically motivated,” said Zarifi.

“Under international standards, the judiciary must not only be independent and impartial, it must also be seen to be independent and impartial,” he added. “The absence of any actual or perceived bias is critical to ensure public confidence in the fair administration of justice.”

Some examples of the Supreme Court’s inconsistent use of its extraordinary jurisdiction to promote and protect human rights:

• The Court declared the Contempt of Court Act 2012 (a law that sought to curtail the judiciary’s contempt powers) void in less than two months after it was passed by Parliament. However, the Court has still not acted on a petition, made in 2011, calling for a review of the Actions (in Aid of Civil Power) Regulations, which facilitates enforced disappearances and arbitrary detention.

• In June 2012, the Chief Justice assumed jurisdiction on its own motion (known suo motu notice) of a case involving corruption allegations against his son, Arsalan Iftikhar. By contrast, in the same year the Court did not act when persons belonging to the minority Ahmadiyya community were attacked and their places of worship vandalized and destroyed.

The ICJ reiterates recommendations made in its 2011 Pakistan Mission Report:

• The Supreme Court should exercise its powers under Article 184(3) of the Constitution in a manner that complies with Pakistan’s obligation under international law to promote, protect and respect human rights, maintain rule of law and uphold separation of powers.

• The Court should adopt transparent yet flexible criteria to govern how cases are selected under Article 184(3), and in particular taken up under the Court’s suo motu jurisdiction, taking into account that suo moto procedures are an exception exercise of power.

Contact:

Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; email: sam.zarifi(a)icj.org

Reema Omer, ICJ International Legal Advisor for Pakistan (Lahore), t: +923214968434; email: reema.omer(a)icj.org

Pakistan-Authority without Accountability-Executive Summary-Publications-report-2013 (Download executive summary, in pdf)

Pakistan-Authority without Accountability-Publications-report-2013 (Download full report, in pdf)

Pakistan-Retiring Chief Justice-news-press release-2013-urdu (full text in pdf)