the global voice of
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The struggle to maintain
an independent judiciary:
a report on the attempt to
remove the Chief Justice of
Pakistan
July 2007
An International Bar Association
Human Rights Institute Report
Supported by the
Foundation Open Society Institute
International Bar Association
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London W1T 1AT
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The struggle to maintain an independent
judiciary: a report on the attempt to
remove the Chief Justice of Pakistan
Contents
Page
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Overview of the facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Delegation members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Interviews and consultations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2. Background
Basic geography and demographics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Political history: 1947–1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Current regime: 1999–2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Executive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Legislature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The judiciary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The Supreme Court of Pakistan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The High Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Federal Shariat Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
The courts and military rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Removal of judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Pakistan’s international human rights obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3. The recent events concerning the Chief Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
The Chief Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Events of 9 March and the following days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
The Army House events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Pakistan: the struggle to maintain an independent judiciary
President’s Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Convening of the Supreme Judicial Council. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
President’s Reference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Treatment of Chief Justice after leaving Army House. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Order of 15 March . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Current legal proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Supreme Judicial Council proceedings since 9 March . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Supreme Court proceedings since 9 March. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Reaction to these events by the public and the legal profession . . . . . . . . . . . . . . . . . . . . . . . 32
Protests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Media . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4. Relevant legal principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Independence of the judiciary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Proceedings against a judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Impartiality of the judiciary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Freedom of assembly and expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Actions of the Executive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Actions of the Supreme Judicial Council. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Accountability of the Chief Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
The right to freedom of assembly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
The right to freedom of speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
7.Appendices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
Relevant sections of the Constitution of the Islamic Republic of Pakistan, 1973. . . . . . . . . . . . 47
Relevant international principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Orders and notifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Pakistan: the struggle to maintain an independent judiciary
Executive Summary
The International Bar Association’s Human Rights Institute (IBAHRI) commissioned a high-level visit
to Pakistan under its rapid response mechanism to investigate the circumstances and implications for
judicial independence and the rule of law arising from the attempt to remove from office the Chief
Justice of Pakistan in March 2007. The delegation met with many lawyers, bar associations, journalists,
the Minister of Law, Justice and Human Rights, the Chief Justice, the Chief Justice’s legal counsel and
members of civil society. The delegation also reviewed relevant legal documents.
In the words of the press release issued by the President’s Office, on 9 March 2007, President
Musharraf ‘called’ the Chief Justice to Army House and ‘confronted’ him with allegations of
misconduct. The President was in military uniform and in the company of several other senior
military officers and the Prime Minister. He demanded the Chief Justice’s resignation. When the
Chief Justice refused, he was held incommunicado at Army House for approximately five hours.
The President then issued an Order restraining the Chief Justice from carrying out his functions
due to the facts narrated in a Reference to the Supreme Judicial Council and immediately appointed
another Supreme Court judge as Acting Chief Justice. On the same day a meeting of the Supreme
Judicial Council was convened by flying in on special planes two of its members. In the presence
of the Attorney General representing the Government but in the absence of the Chief Justice, the
Council issued an order that the Chief Justice not perform his judicial functions until the reference
was answered.
After his release from Army House the Chief Justice was refused entry to the Supreme Court,
was stripped of his protocol, was placed under effective house arrest for several days and was denied
any meaningful opportunity to communicate with counsel before the first session of the Supreme
Judicial Council on 13 March. On his way to the 13 March hearing, the Chief Justice was roughly
manhandled by the police.
On 15 March, the President purported to place the Chief Justice on ‘compulsory leave’, acting
under the authority of the Judges (Compulsory Leave) Order, 1970, promulgated during General
Yahya Khan’s military rule, the continuing validity of which is strongly contested.
The Chief Justice has filed a petition with the Supreme Court challenging the Reference to the
Supreme Judicial Council on a number of grounds, including that the proceedings were motivated
by malice, that certain members of the Council are biased and that the Council has no constitutional
authority to deal with the Reference.
The actions of the President of Pakistan and the treatment accorded to the Chief Justice by
the authorities provoked an outcry of protest from the Pakistani legal profession. Many lawyers
interviewed by the IBAHRI delegation stated that the Chief Justice had become unpopular with
the government because of his proactive stance in cases involving human rights and privatisation,
and they alleged that the government was concerned about the outcome of possible future cases
involving the upcoming Presidential elections, the legality of the President retaining his position
Pakistan: the struggle to maintain an independent judiciary
as Chief of Army Staff, and further privatisation challenges. Peaceful demonstrations by lawyers,
civil society and opposition political parties were met with police violence, harassment and the use
of widespread preventative detention. Restrictions were also imposed on media reporting of these
events and intimidation of media personnel occurred.
These events give rise to many serious issues of Pakistani law that are now before the Supreme
Court. However, these events also plainly raise serious issues involving basic notions of judicial
independence and procedural fairness under generally accepted international norms and it is upon
those norms that this IBAHRI report is based.
The President’s actions towards the Chief Justice represent a direct assault on the independence
of the judiciary. When the attempted forced resignation was unsuccessful, the Chief Justice was
restrained from acting as Chief Justice and effectively kept under house arrest. This assertion of
executive power is contrary to the norms of judicial independence. The manner and undue haste with
which the Supreme Judicial Council was convened infringed the Chief Justice’s right to a fair hearing.
The Chief Justice was given no hearing or opportunity to make submissions on the allegations against
him. The lack of procedural fairness is cause for grave concern. The manner in which the Reference
was initiated has given rise to a wide spread perception that the Chief Justice was not treated fairly and
the principle of judicial independence and the rule of law were disregarded.
Holding the Chief Justice incommunicado under house arrest for several days, with no
meaningful opportunity to consult counsel prior to the Supreme Judicial Council proceedings,
together with the abusive physical treatment of the Chief Justice by the authorities is contrary to the
most basic norms of judicial independence and procedural fairness.
The Supreme Court is currently considering whether the Supreme Judicial Council has the
jurisdiction to hear the Reference and has also commenced hearing the merits of the Chief
Justice’s Petition. Whichever body is deemed appropriate by the Supreme Court, it must make its
decision in accordance with the law, in a transparent and fair manner, without influence from the
Executive. The standards of a fair trial should also be adhered to. It is also important that other
complaints that have been made to the Supreme Judicial Council against other judges be dealt with
expeditiously and without further delay.
There is also serious concern about the level of police brutality in the face of peaceful protests
and with the severity of restrictions being placed on people’s ability to participate in these organised
events, including government interference with televising these events and encouraging newspapers
to restrict their coverage of the crisis. Freedom of association and of expression are recognised as
fundamental principles in both international law and the Constitution of Pakistan.
Immediate steps should be taken to restore confidence in the judiciary and to demonstrate
Pakistan’s commitment to the independence of the judiciary and respect for the rule of law. There
is a general perception of corruption at all levels of the judiciary, especially the lower levels, and
individual judges need to be and be seen to be impartial. Confidence can only be restored within
the judiciary when it administers justice in accordance with the laws.
Pakistan: the struggle to maintain an independent judiciary
IBAHRI Recommendations
1. The President should rescind the Order of 9 March purporting to restrain the Chief Justice
from carrying out his functions.
2. The President should rescind the Order of 15 March purporting to place the Chief Justice on
‘compulsory leave’.
3. The President should withdraw his direction to the Supreme Judicial Council that it inquire
into the allegations of misconduct against the Chief Justice.
4. The Chief Justice should be restored to his office.
5. The allegations of misconduct against the Chief Justice contained in the Reference should be
referred to the appropriate authority, as determined by the Supreme Court to be dealt with
according to law, fairly, expeditiously, transparently and without Executive interference.
6. The allegations of misconduct against other judges should be referred to the Supreme Judicial
Council to be dealt with according to law, fairly, expeditiously, transparently and without
Executive interference.
7. Clear procedures to ensure the timely and judicious treatment of complaints against judges
should be developed and applied, to ensure respect for judicial independence, procedural
fairness, and judicial accountability for improper conduct.
8. The Supreme Judicial Council Procedure of Enquiry 2005 should be amended to allow for
public hearings in appropriate cases, and in any case in which the judge concerned so wishes.
9. Clear rules should be prescribed relating to the actions that can be taken against a judge who
is being investigated by the Supreme Judicial Council. A judicial body, independent of the
Executive, should be provided with the power to make such decisions.
10. Action should be taken by the appropriate authorities to ensure that the police do not use
objectionable levels of force against protestors. Unacceptable restraints should not be used to
prevent people from protesting. The use of harassment, preventative arrest and detention to
discourage and prevent peaceful protest is unacceptable.
11. The Executive should cease its interference with the freedom of the press in reporting on the
issue of the Chief Justice.
12. The courts should use the sanction of contempt with restraint and should not threaten those
who merely wish to comment on on-going judicial proceedings, especially where those
proceedings are of such gravity and public importance as the issues surrounding the case of
the Chief Justice.
13. Systematic reforms should be introduced to ensure the independence of the judiciary. Reform
should occur in the area of appointment, promotions, salary, removals, and accountability of
Pakistan: the struggle to maintain an independent judiciary
judges. Additionally, internal administrative mechanisms to monitor and prevent corruption
should be introduced.
14. The Executive should ensure that timely reporting is made under the human rights treaties to
which it is a party, to engender in the government a greater appreciation of, and respect for,
human rights as they apply in the context of Pakistan.
15. The Government should initiate, as a matter of urgency, a wide-ranging enquiry with respect to
ratifying the human rights treaties to which Pakistan is not yet a party.
16. The IBAHRI encourages the legal profession to continue in the quest for Pakistani institutions
to act in accordance with the law and for the protection of the independence of the judiciary
in a peaceful manner.
17. The international community should place pressure on the President to carry out the above
recommendations.
18. The international community should provide assistance to Pakistan so that it can introduce the
necessary reforms to the judiciary.
Pakistan: the struggle to maintain an independent judiciary
1. Introduction
1.1 This report is the result of a rapid response fact-finding visit to the Islamic Republic of Pakistan
(Pakistan) carried out by the International Bar Association’s Human Rights Institute from 28
April to 6 May, 2007, under funding from the Open Society Institute.
1.2 The International Bar Association (IBA) is the world’s largest lawyers’ representative
organisation, comprising 30,000 individual lawyers and over 195 bar associations and law
societies. In 1995, the IBA established the Human Rights Institute (IBAHRI) under the
Honorary Presidency of Nelson Mandela. The IBAHRI is non-political and works across the
Association, helping to promote, protect and enforce human rights under a just rule of law,
and to preserve the independence of the judiciary and legal profession worldwide.
1.3 The IBAHRI’s decision to send a delegation to Pakistan was in response to the alarming events
relating to the treatment of the Chief Justice, Iftikhar Muhammad Chaudhry, and after receipt
of an invitation from the Supreme Court Bar Association of Pakistan.
1.4 The Terms of Reference for the visit were to:
• examine the legality of the process of restraining and attempting to remove from office
Chief Justice Iftikhar Muhammad Chaudhry and of the procedures for hearing the
allegations against him;
• investigate the independence of the legal profession in Pakistan in the light of recent events;
• review the government responses to lawyer protests and media coverage of these events; and
• analyse the international and domestic legal norms applicable to this situation.
Overview of the facts
1.5 In the words of the press release issued by the President’s Office, on 9 March 2007, President
Musharraf ‘called’ the Chief Justice to Army House and ‘confronted’ him with allegations of
misconduct.
1.6 The President was in military uniform and in the company of several other senior military
officers and the Prime Minister. He demanded the Chief Justice’s resignation. When the Chief
Justice refused, he was held incommunicado at Army House for approximately five hours.
1.7 Within a matter of a few hours from the Chief Justice’s refusal to resign, a rapid series of events
unfolded:
• The President issued an Order restraining the Chief Justice from carrying out his functions.
• Immediately thereafter the President appointed Justice Iqbal as Acting Chief Justice, ‘being
the most senior Judge available’. Justice Bhagwandas, who is the most senior judge after the
Chief Justice was in India and temporarily absent from Pakistan.
Pakistan: the struggle to maintain an independent judiciary
• President Musharraf issued a Reference to the Supreme Judicial Council (SJC) detailing
complaints against the Chief Justice.
• A meeting of the SJC was immediately convened in Islamabad by flying in on special planes
two of its members.
• The SJC issued an Order that the Chief Justice not perform his judicial functions until
the Reference was answered. This was in the presence of the Attorney General but in the
absence of the Chief Justice, who had no knowledge of the session.
1.8 After his release from Army House the Chief Justice was refused entry to the Supreme Court,
was stripped of his protocol, was placed under effective house arrest for several days and was
denied any meaningful opportunity to communicate with legal counsel before the first session
of the SJC on 13 March.
1.9On his way to the 13 March hearing, the Chief Justice was roughly manhandled by the police.
1.10On 15 March, the President purported to place the Chief Justice on ‘compulsory leave’, acting
under the authority of the Judges (Compulsory Leave) Order,1970, promulgated during
General Yahya Khan’s military rule, the continuing validity of which is strongly contested.
1.11The actions of the President of Pakistan and the treatment accorded to the Chief Justice by
the authorities provoked an outcry of protest from the Pakistani legal profession. Peaceful
demonstrations by lawyers, civil society and opposition political parties were met with police
violence, harassment and the use of widespread preventative detention.
Delegation members
1.12 The IBAHRI is grateful to the delegation members who accepted the invitation to take part in
this visit. The appointed delegation members were:
• Justice Robert Sharpe, Court of Appeal for Ontario, Canada;
• Dr Phillip Tahmindjis, IBA Programme Lawyer, United Kingdom;
• Haji Sulaiman Bin Abdullah, Barrister, Malaysia; and
• Michelle Bradfield, mission rapporteur, Research Fellow, Lauterpacht Centre for
International Law, University of Cambridge.
1.13 Unfortunately, Haji Sulaiman Bin Abdullah was refused a visa from Pakistan’s High
Commission in Malaysia, apparently because of the nature of his visit to Pakistan. He was
therefore unable to participate in the interviews in Pakistan.
10
Ms Bradfield took part in this visit in her individual capacity and was not representing the Lauterpacht Centre for International Law.
Pakistan: the struggle to maintain an independent judiciary
Interviews and consultations
1.14 The delegation met a wide range of persons and organisations involved in the justice system,
including: His Honour Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan, Ch.
Muhammad Wasi Zafer, Minister for Law, Justice and Human Rights, His Honour Jaweed
Khawaja, former Justice of the High Court of Lahore, Adv. Muhammad Ahsan Bhoon,
President, Lahore High Court Bar Association, Niaz Ahmed, Program Manager, National
Democratic Institute, Sheila Fruman, Country Director, National Democratic Institute, Asma
Jahangir, UN Special Rapporteur on Freedom of Religion or Belief, Nasir Saeed Sheikh,
former Deputy Attorney-General, Ansar Abbasi, Editor, Investigations, The News, Najam
Sethi, Editor-in-Chief, Daily Times, Executive and Members of the Lahore High Court Bar
Association, other senior advocates and lawyers. The IBAHRI wishes to express its sincere
gratitude for the hospitality and assistance given by all those it met.
1.15 The delegation tried repeatedly, but unsuccessfully, to have interviews with Attorney-General
Makhdoom Ali Khan, Justice Bhagwandas, and the former Registrar of the Supreme Court Dr
Faqir Hussain.
1.16 This report is based upon an analysis of information gathered from those the delegation met
in Pakistan and relevant Pakistan and international laws and standards. The conclusions and
recommendations of the report are set out in Chapter 5 and Chapter 6.
Pakistan: the struggle to maintain an independent judiciary
11
12
Pakistan: the struggle to maintain an independent judiciary
2. Background
Basic geography and demographics
2.1 Pakistan borders the Arabian Sea in the south, India in the east, Iran and Afghanistan in the
west and China in the north. It consists of four provinces: Balochistan, the North West Frontier
Province, Punjab and Sindh. Additionally, there are the Federally Administered Tribal Areas,
the Federally Administered Northern Areas, and the Islamabad Capital Territory.
2.2The population of Pakistan is approximately 165 million and consists of five major ethnic
groups which are Punjabi, Sindhi, Pashtun (Pathan), Baloch and Muhajir. 97 per cent of the
population is recorded as being Muslim (77 per cent Sunni and 20 per cent Shi’a) with the
remaining three percent including Christians and Hindus.
Political history: 1947–1999
2.3Pakistan gained independence as an Islamic state on the partition of British India in 1947,
having been part of the British empire since 1857. It was originally established as the
Dominion of Pakistan comprising two separate parts, East Pakistan and West Pakistan. Upon
independence, Pakistan became almost entirely a Muslim society, as Indian Muslims relocated
to Pakistan and Pakistan’s Hindus and Sikhs departed.
2.4In October 1955 there was a conflict between the Constituent Assembly, which was responsible
for drafting Pakistan’s first Constitution, and the Executive (then Governor-General Ghulan
Mohammad). The Constituent Assembly attempted to remove the Governor-General’s power to
dismiss ministers and the Governor-General retaliated by dissolving the Constituent Assembly.
2.5In 1956, Pakistan became a federal republic. Its first written Constitution was established and
the nation was renamed the Islamic Republic of Pakistan. In October 1958 martial law was
established when Ayub Khan executed a bloodless military coup, suspended the Constitution
and abolished all political parties. Khan resigned in 1969 and power was taken over by General
Yahya Khan, who held the first national elections in independent Pakistan in 1970. In 1971,
after military confrontation and intervention by India, East Pakistan became the independent
state of Bangladesh.
2.6There was a democratic interlude between 1972-1977 under Prime Minister Zulfikar Ali
Bhutto, who introduced the 1973 Constitution. He undertook reform and the nationalisation
of large sections of industry and the financial sector. In July 1977 the army, under General
Zia ul-Haq, declared martial law and arrested Bhutto who was later hanged for conspiring
to murder a political opponent. After assuming the presidency, General Zia introduced the
This section was compiled from the following sources: United States, Central Intelligence Agency: https://www.cia.gov/cia/publications/factbook/geos/pk.html; United Kingdom, Foreign & Commonwealth Office: http://www.fco.gov.uk/servlet/Front?pagename=
OpenMarket/Xcelerate/ShowPage&c=Page&cid=1007029394365&a=KCountryProfile&aid=1019041564003
This section was compiled from the following sources: Commonwealth Secretariat, http://www.thecommonwealth.org/YearbookInternal/145175/history/ ; Hamid Khan, Constitutional and Political History of Pakistan (Karachi, 2002).
Pakistan: the struggle to maintain an independent judiciary
13
Islamic Shariah legal code. Martial law and the prohibition of political parties remained
until 1985. Soon after, President Bhutto’s daughter, Benazir, returned from exile to lead the
Pakistan People’s Party. When General Zia died in 1988 she was elected Prime Minister. In
1990 she was dismissed on charges of incompetence and corruption.
2.7 Elections were then held but in 1993 both the President and Prime Minister resigned under
pressure from the military. New elections occurred and Benazir Bhutto won by a small
majority. However, in 1996 President Leghari, prompted by the army and opposition leaders,
dissolved the National Assembly, and thus brought down the Bhutto government, amid
allegations of corruption, financial incompetence, and human rights violations. After she was
charged, tried, convicted and sentenced to jail, Benazir Bhutto fled the country.
2.8 New elections were held in February 1997. The Pakistan Muslim League (Nawaz) won a
majority of the seats in the National Assembly and Nawaz Sharif became Prime Minister. He
repealed the eighth amendment to the Constitution introduced in 1985 under the rule of
General Zia, which had allowed the President to dissolve the National Assembly and thereby
remove the Prime Minister and Cabinet, and placed the power to appoint Supreme Court
judges and military chiefs-of-staff with the Prime Minister, thus making the parliamentary
system less presidential in nature.
Current regime: 1999–2007
2.9In October 1999, Prime Minister Sharif ordered the dismissal of Chief of Army Staff General
Pervez Musharraf, whereupon General Musharraf executed a bloodless military coup and
assumed executive powers. The coup was largely condemned, but General Musharraf claimed
it was necessary to restore both the economy and the deteriorating political situation. The
necessity argument has been referred to frequently by his regime.
2.10On 14 October 1999, General Musharraf declared a state of emergency and issued the
Provisional Constitutional Order which suspended the federal and provincial parliaments,
held the Constitution in abeyance, designated General Musharraf as Chief Executive and
barred any court from making an order against him or any other person exercising powers
under his authority. Musharraf then created an eight-member National Security Council as the
premier governing body.
2.11On 12 May 2000, the Supreme Court unanimously validated the October 1999 coup and
granted General Musharraf executive and legislative authority for three years from the date
of the coup. On 10 October 2000 Nawaz Sharif was convicted of the crimes of hijacking and
terrorism and sent into exile in Saudi Arabia. In June 2001 President Rafiq Tarar resigned and
General Musharraf declared himself President.
This section was compiled from the following sources: Cushing, T; ‘Pakistan’s General Pervez Musharraf: Deceitful Dictator or Father
of Democracy?’, Penns State University International Law Review, Vol. 21, 2003. Sheikh, Z, ed; The Constitution of the Islamic Republic of Pakistan, (Karachi, 2004) pp 217-218.Commonwealth Secretariat, http://www.thecommonwealth.org/YearbookInternal/145175/history/
; The ICG ‘Building Judicial Independence in Pakistan’, 10 November 2004.
Zafar Ali Shah v Pervez Musharraf PLD 2000 Supreme Court 869. Iftikhar Muhammad Chaudhry was a member of this court.
14
Pakistan: the struggle to maintain an independent judiciary
2.12After the events of 11 September 2001, Pakistan became a key ally of the United States in the
region and has played a significant role in the ‘war on terror’.
2.13In April 2002 Musharraf held a referendum to determine whether he would serve a term
of five years as President, even though a referendum is not the mechanism stipulated in the
Constitution for electing a President. The referendum result largely supported Musharraf, but
it was widely acknowledged that it was fraught with irregularities.
2.14In accordance with the Supreme Court’s ruling in the Zafar Ali Shah case in 2000, Mussharraf
held National Assembly elections in October 2002, but he prevented Benazir Bhutto and
Nawaz Sharif from returning to Pakistan to contest the position of Prime Minister. These
elections resulted in a hung parliament. The Commonwealth observer group said that ‘on
election day this was a credible election’, but that ‘in the context of various measures taken by
the government we are not persuaded of the overall fairness of the process as a whole’.
2.15In January 2004, Musharraf won a vote of confidence from the Electoral College, the body
designated by the Constitution to elect the President, consisting of the members of both
houses of parliament and the four provincial assemblies.10 Having previously announced in the
Legal Framework Order of 2002 that he would relinquish his military role, Musharraf reneged
on this promise in late 2004 when he announced that he would continue as President and
Chief of Army Staff until 2007 when elections are due.
2.16In June 2004, the Prime Minister resigned and was succeeded by Chaudhry Shujaat Hussain
until July of that year when he made way for the then Finance Minister Shaukat Aziz.
2.17 There is currently much debate in Pakistan as to whether or not elections for the National
Assembly will be held at the end of 2007 and whether the newly composed National Assembly
will be given the opportunity to elect the President. There is also the highly contentious issue
whether General Musharraf, if re-elected as President, will attempt to continue as Chief of
Army Staff as well, in the face of the Constitutional prohibition against the President holding
any other office.11
Constitution
2.18 Pakistan has a mixed record in terms of parliamentary democracy with a significant history of
suspension of the Constitution. Pakistan’s current Constitution was enacted in 1973. It was
held in abeyance between 1977 and 1985 and again between 1999 and 2002, when it was only
partially restored.
10
11
Ibid.
The Pakistan Muslim League-Quaid-e-Azam (PML-Q), which supported General Musharraf, took 77 seats, followed by the Pakistan
Peoples Party (PPP) with 63, Muttahidda Majlis-e-Amal (MMA; a new alliance of religious parties opposed to the US military presence
in Pakistan) with 45, Pakistan Muslim League (Nawaz) with 14 and Muttaheda Qaumi Movement (MQM) with 13, leaving a large
block of members of smaller parties and independents. Commonwealth Secretariat; http://www.thecommonwealth.org/YearbookInternal/138965/politics/
Commonwealth Secretariat; http://www.thecommonwealth.org/YearbookInternal/138965/politics/
Constitution, Article 41
He won 658 of 1170 votes. Cushing, T; ‘Pakistan’s General Pervez Musharraf: Deceitful Dictator or Father of Democracy?’ Penns State
University International Law Review, Vol. 21, 2003.
Constitution Article 43
Pakistan: the struggle to maintain an independent judiciary
15
2.19 Pakistan’s legal system is based on English common law with provisions to accommodate its
status as an Islamic state. The Constitution is comprehensive, comprising almost 300 sections.
It contains a chapter on fundamental rights including the freedoms of thought, speech,
religion and worship, assembly, association, and the press, as well as equality of status.12 While
laws inconsistent with or in derogation of these fundamental rights are void,13 this will not
apply to any laws relating to the armed forces, the police or other forces charged with the
maintenance of public order.14 Apart from challenging laws which might be contrary to
fundamental rights, the Constitution does not confer these rights per se on citizens, nor is
there a provision to allow courts to apply international human rights norms directly.
2.20 The Constitution also provides for four provincial governments, including their procedural
and financial regulation15 and the distribution of legislative power between the Federation and
the Provinces.16
Executive
2.21 The Constitution provides that the President is head of state and is elected for five years by
an Electoral College.17 The President exercises the executive authority of the Federation.18
Until April 1997 (when Nawaz Sharif abolished them), the President had certain discretionary
powers such as the power to dissolve the National Assembly. General Musharraf restored
these powers in October 2002 under the Legal Framework Order. The Constitution limits the
President to a maximum of two consecutive terms.19
2.22 The Prime Minister is the head of the Cabinet of Ministers.20 The Prime Minister is appointed
by the President from the members of the National Assembly as the person who commands
the confidence of the majority in the National Assembly.21 The Prime Minister and Cabinet aid
and advise the President in the exercise of his functions.22 The Prime Minister holds office at
the pleasure of the President unless the Prime Minister no longer commands the confidence
of the majority in the National Assembly, in which case the President shall require the Prime
Minister to obtain a vote of confidence from the National Assembly.23 Federal Ministers and
the Ministers of State of the Provinces are appointed by the President from amongst the
members of parliament on the advice of the Prime Minister.24 The Cabinet, together with the
Ministers of State, are collectively responsible to the National Assembly.25
12
13
14
15
16
17
18
19
20
21
22
23
24
25
16
Constitution, Part II, Chapter 1 (Articles 8-28)
Constitution, Article 8(1)
Constitution, Article 8(3)
Constitution, Articles 101-140.
Constitution, Articles 141, 142.
Constitution, Article 41.
Constitution, Article 90.
Constitution, Article 44(2).
Constitution, Article 91(1).
Constitution, Articles 91(2); 91(2A).
Constitution, Article 91(1).
Constitution, Article 91(5).
Constitution, Art 92(1).
Constitution, Art 91(4).
Pakistan: the struggle to maintain an independent judiciary
Legislature
2.23 There is a bicameral legislature consisting of the National Assembly, which is the lower house,
and the Senate, which is the upper house. Prior to the Legal Framework Order, the National
Assembly had 217 directly elected members who served for five years, including ten from
(non-Muslim) minorities. The Legal Framework Order increased the number of seats to 342,
which included 60 seats for women and ten for representatives of minorities, both of which
were allocated proportionately to all parties gaining more than 5 per cent of the directly
elected seats.26 The Senate has 100 members (previously 87) who are elected for six years with
approximately half of them retiring every three years.27 The four provinces elect 22 senators
each, including four women and four “technocrats” (there is no definition of this term); the
remaining 12 senators are elected from the Federal Capital Territory and the tribal areas.
Amendments to the Constitution require the support of two-thirds of the total membership of
the National Assembly and the Senate.
The judiciary
2.24 Pakistan’s system of courts consists of the Supreme Court of Pakistan, a High Court for each
Province, the Federal Shariat Court and a number of lower courts.28 The Constitution
provides that the jurisdiction of the courts is solely derived from the Constitution and that
the judiciary is to be separated progressively from the Executive within 14 years of the day the
Constitution commenced.29 Thus, in theory, by 1987 the judiciary should have been a separate
institution from the Executive.
The Supreme Court of Pakistan
2.25 The Supreme Court consists of a Chief Justice and a bench currently composed of 18 judges.30
The Chief Justice is appointed by the President but in 1998 it was established that the Chief
Justice is to be selected on the basis of seniority.31 The other judges of the Supreme Court are
appointed by the President after consultation with the Chief Justice.32 In 1996 the Supreme
Court placed a number of qualifications on the role of the President and gave the judiciary a
more prominent role in appointments.33
2.26 The Supreme Court has exclusive jurisdiction over disputes between any two or more
governments (i.e. the Federal Government and the Provincial Governments)34 and also has
jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences
either with or without leave to appeal being granted by the relevant High Court, as provided
26
27
28
29
30
31
32
33
34
Constitution, Article 51.
Constitution, Article 59.
Constitution, Art 175(1).
Constitution, Article 175
Constitution, Article 176 and http://www.supremecourt.gov.pk//intro-judges.htm.
Asad Ali v Federation of Pakistan PLD 1998 Supreme Court 161
Constitution, Article 177(1).
Al-Jehad Trust v Federation of Pakistan PLD 1996 Supreme Court 324
Constitution, Article 184(1).
Pakistan: the struggle to maintain an independent judiciary
17
in the Constitution.35 It is also given a jurisdiction, commonly referred to as its suo moto power,
to make orders if it considers that there is a question of public importance with reference to
the enforcement of any of the Fundamental Rights specified in Chapter 1 of Part II of the
Constitution.36
The High Courts
2.27 There is a High Court in each of the four provinces, each consisting of a Chief Justice and as
many judges as may be determined by law or as may be fixed by the President.37 Judges of
the High Courts are appointed by the President after consultation with the Chief Justice of
Pakistan, the relevant Governor and, except when appointing the Chief Justice, with the Chief
Justice of the High Court.38 The High Courts have both original and appellate jurisdiction.39
Federal Shariat Court
2.28 The Federal Shariat Court consists of not more than eight Muslim judges, including the Chief
Justice of the Federal Shariat Court, appointed by the President.40 The Federal Shariat Court
has both original and appellate jurisdiction. It has original jurisdiction to determine whether
any law or provision is repugnant to the Injunctions of Islam.41 Each of the judges and the
Chief Justice are to hold office for three years and may be reappointed for further terms as
determined by the President.42 At any time the President can modify the term of appointment
of a judge of the Federal Shariat Court.43
The courts and military rule44
2.29 Throughout the history of Pakistan the judiciary has had many opportunities to uphold the
Constitution and place constraints on the Executive and military, but it has often failed to do
so. A trilogy of cases in 1955 arose over the Governor-General’s dissolution of the Constituent
Assembly. The Federal Court (then the equivalent of the Supreme Court) refused to question
the Governor-General’s action and maintained that the Governor-General had the power to
make laws by executive order under the doctrine of state necessity.45
35 Constitution, Article 185.
36 Constitution, Article 184(3). The rights referred to relate to security of the person, safeguards as to arrest and detention, slavery and
forced labour, retrospective punishment, double punishment, self-incrimination, dignity, privacy, freedom from torture, freedoms
of movement, assembly, association, carrying on a trade or business, speech, religion, property, equality, non-discrimination and the
preservation of language, script and culture: Articles 8-28.
37 Constitution, Article 192.
38 Constitution, Art 193(1), and interpreted in Al-Jehad Trust v Federation of Pakistan PLD 1996 Supreme Court 324.
39 Constitution, Article 199.
40 Constitution, Article 203C(2).
41 Constitution, Article 203D.
42 Constitution, Article 203C(4).
43 Constitution, Article 203C(4B).
44 This section was compiled from the following sources: The International Crisis Group ‘Building Judicial Independence in Pakistan’
10 November 2004; Hamid Khan, Constitutional and Political History of Pakistan (Karachi, 2002); Sheikh (ed), The Constitution of the
Islamic Republic of Pakistan, (Karachi, 2004); and Commonwealth Secretariat, http://www.thecommonwealth.org/YearbookInternal/145175/history/
45 Federation of Pakistan v Moulvi Tamizudding Khan, PLD 1955 Federal Court 240; Usif Patel v The Crown PLD 1955 Federal Court 387;
Reference by his Excellency The Governor General PLD 1955 Federal Court 435.
18
Pakistan: the struggle to maintain an independent judiciary
2.30 Executive supremacy over the democratic legislative process was again accepted by the courts
in 1958 when General Ayub Khan staged a coup. The Supreme Court endorsed a doctrine of
“revolutionary legality” which clothed the coup with legality as it satisfied the test of efficacy
and became “a basic law-creating fact”, effectively equating force, efficacy and legality.46 This
doctrine was subsequently repudiated in 1972 by the Supreme Court when it held that General
Yahya’s declaration of martial law did not necessarily provide the military with the power to
abrogate the Constitution and that his assumption of power lacked a constitutional basis.47
This ruling was made, however, after the fall of General Yahya and in a period of civilian rule.
2.31 However, this assertion of judicial authority was short-lived as the Supreme Court validated
the military coup of General Zia-ul-Haq in 1977 by relying on state necessity and its 1955
precedent. The Supreme Court’s decision also gave General Zia the power to make laws and to
amend the Constitution.48
2.32 Similar judicial compliance has continued under the Musharraf regime. After the 1999 coup
General Musharraf issued both a Proclamation of Emergency which held the Constitution in
abeyance, and the Provisional Constitutional Order which barred any court from making any
order against the Chief Executive or calling into question the Proclamation of Emergency.
In response to petitions filed in the Supreme Court to challenge these actions, Musharraf
issued an order requiring superior court judges to swear an oath to uphold the Provisional
Constitutional Order. On 26 January 2000 13 judges, including five members of the Supreme
Court, were dismissed for not taking the oath. The newly constituted Supreme Court deemed
Musharraf’s coup to be legal, and, following the doctrine of necessity the Supreme Court
sanctioned both the Proclamation of Emergency and the Provisional Constitutional Order.49
The Supreme Court held that the 1973 Constitution remained the supreme law but that it
was in abeyance and that Musharraf had the authority to amend it. The Court gave General
Musharraf three years to carry out his programme and then hold general elections.
2.33 In 2002, there were legal challenges to General Musharraf’s referendum on the basis that
a referendum was not the specified mechanism in the Constitution for the election of a
President. The Supreme Court refused to decide the issue. On 27 April 2002 it issued an
order which declared the challenges to be ‘academic, hypothetical and presumptive in nature’
and declined to ‘go into these questions at this stage’.50
Removal of judges
2.34 The Constitution provides that Supreme Court judges must retire at age 6551 and High Court
judges at the age of 62.52 The Constitution also provides that a judge who is found by the
46 The State v Dosso PLD 1958 Supreme Court 533
47 Asma Jilani v The Government of the Punjab PLD 1972 Supreme Court 139. International Crisis Group Asia Report, ‘Building Judicial
Independence in Pakistan’, 10 November 2004.
48 Begum Nusrat Bhutto v Chief of Army Staff and Federation of Pakistan PLD 1977 Supreme Court 657.
49 Zafar Ali Shah v Pervez Musharraf PLD 2000 Supreme Court 869.
50 Hussain Ahmed v Perves Musharraf PLD 2002 Supreme Court 853.
51 Constitution, Article 179.
52 Constitution, Article 195.
Pakistan: the struggle to maintain an independent judiciary
19
Supreme Judicial Council to be incapable of performing the duties of his office or has been
guilty of misconduct may be removed from office by the President.
2.35 The Supreme Judicial Council is composed of the Chief Justice of Pakistan, the two most senior
judges on the Supreme Court and the two most senior High Court Chief Justices. Prior to
2004 the Supreme Judicial Council could not undertake an investigation of a judge unless
the President had provided it with information about the judge and directed it to inquire
into the matter. The Seventeenth Amendment to the Constitution provided the Supreme
Judicial Council with the power to initiate an enquiry on its own motion and to receive
information from any source.53 Since 1973, the Supreme Judicial Council has not taken
formal proceedings against any judge. There were few references of misconduct filed before
the adoption of the 1973 Constitution, of which two were contested.54
2.36 In 2005, the Supreme Judicial Council laid down procedural rules to govern its enquiries into
allegations of judicial misconduct.55 These rules established a mechanism for investigating
complaints. As the Supreme Judicial Council’s Chair, the Chief Justice instructs one
member of the Council to provide his/her opinion on whether there is sufficient material
to commence an enquiry.56 If that member is of the opinion that there is sufficient material
to commence an enquiry, the matter will be placed before the full Council,57 which will
then conduct an enquiry.58 If the Council is of the view that the matter warrants removal
proceedings being taken against the judge, it must issue a show cause notice with supporting
material, calling upon the judge to explain the conduct within 14 days.59 On receipt of the
reply from the judge, the Council shall convene its meeting to proceed further with the
matter.60
Pakistan’s international human rights obligations
2.37 Pakistan has ratified the Convention on the Prevention and Punishment of the Crime
of Genocide, the International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention on the Elimination of All Forms of Discrimination against
Women, and the Convention on the Rights of the Child. Significantly for the purposes of
this report, Pakistan is not a party to the International Covenant on Civil and Political Rights,
or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, and it has given no indication that it intends to become a party to the
International Convention for the Protection of All Persons From Forced Disappearances
(which is open for signature but is not yet in force). Pakistan has signed, but has never
ratified, the International Covenant on Economic, Social and Cultural Rights.
53
54
55
56
57
58
59
60
20
Section 10 of the Constitution (Seventeenth Amendment) Act, 2003 (3 of 2003). Item 20 of the schedule to C.E.O. No. 24 of 2002.
The State v Justice Akhlaq Hussain PLD 1960 SC 26; and The President v Justice Shaukat Ali PLD 1971 SC 585.
The Supreme Judicial Council Procedures of Enquiry, 2005.
Ibid, Section 7.
Ibid, Section 7(3).
Ibid, Section 8.
Ibid, Section 9(1)
Ibid, Section 9(2)
Pakistan: the struggle to maintain an independent judiciary
2.38 Pakistan has not been diligent in complying with its reporting obligations under those
treaties to which it is a party. It acceded to the Convention on the Elimination of All Forms of
Discrimination against Women in 1996, but did not submit a report until 2005, in the form
of a combined initial, second and third periodic report.61 Its most recent report under the
Convention on the Elimination of All Forms of Racial Discrimination was submitted in 1996,
and that was a combined 10th, 11th, 12th, 13th and 14th report.62 While Pakistan’s first report
under the Convention on the Rights of the Child was submitted in a timely manner, its second
report, due in 1997, was not submitted until 2001.63
2.39 This is a poor record of both ratification and reporting. Those human rights treaties to which
Pakistan is a party are not self-executing and require an act of parliament to be brought into
domestic law. In addition to notification in the official gazette, rules of procedure also need to
be notified before a law can become operational and enforceable by courts.64
2.40 To the extent that they are binding as customary international law, provisions of the Universal
Declaration of Human Rights, the UN Basic Principles on the Independence of the Judiciary
and the UN Basic Principles on the Role of Lawyers, are relevant. These, together with other
instruments, are discussed later in this report.
61
62
63
64
CEDAW/C/PAK/1-3, 3 August 2005
CERD/C/299/Add.6, 13 June 1996
CRC/C/65/Add.21, 11 April 2003
See Amnesty International, Pakistan: Recommendations for an Effective National Human Rights Commission, http://web.amnesty.org/library/Index/ENGASA330192005?open&of=ENG-PAK
Pakistan: the struggle to maintain an independent judiciary
21
22
Pakistan: the struggle to maintain an independent judiciary
3. The recent events concerning
the Chief Justice
The Chief Justice
3.1 Chief Justice Iftikhar Muhammad Chaudhry was born in 1948 and started practice as an
advocate in 1974. He was appointed Advocate-General of Balochistan in 1989 and elevated to
Judge of the High Court of Balochistan in 1990. Appointed Chief Justice of the High Court of
Balochistan in 1999, Chaudhry was appointed to the Supreme Court of Pakistan on 4 February
2000, and assumed the office of Chief Justice of Pakistan on 30 June 2005. He is scheduled
to retire in 2013 at the age of 65. He is the 20th Chief Justice of Pakistan and the fifth Chief
Justice of Pakistan under the present military regime. 3.2 Until the events of 9 March, the Chief Justice was not particularly well-known by the public. He
enjoyed the respect of the legal profession due to the office he held, but he was not generally
seen as being one of Pakistan’s most outstanding jurists. Many practitioners acknowledge the
Chief Justice’s attempts to improve the backlog of pending cases in the Supreme Court. It
has been reported that during his 20-month tenure as Chief Justice, the backlog of pending
cases in Supreme Court was reduced from approximately 38,000 cases to 10,000 through the
introduction of systematic changes.65
3.3 The Chief Justice is also known to use his suo moto powers to take up matters where he believes
injustice has occurred. He has taken up many cases involving violations of human rights as
well as other cases of political and public importance, and he has afforded relief to some of
the most disadvantaged people in Pakistan. In his Petition to the Supreme Court challenging
the Reference to the Supreme Judicial Council, the Chief Justice asserted that during his
tenure he incurred the intense displeasure of the Prime Minister, the President and many of
their close associates because he investigated ‘more than 6,000 cases of human rights abuse
during one year’, ‘began inquiring into the land allotments to influential people in Gawadar’,
restrained environmental degradation and ‘prevented parks from being converted into
commercial enterprises.’66
3.4 A notable recent decision related to the privatisation of Pakistan Steel Mills. The Supreme
Court (including the Chief Justice in the majority) held that the agreement with a consortium,
strongly supported by the military authorities, was void because the privatisation process was
vitiated by the acts of certain state functionaries which violated the law.67
3.5 Among the most sensitive cases, including one which the Chief Justice heard just a day before his
‘suspension’, were those related to ‘forced disappearances’. At the end of 2005 the Chief Justice,
through his suo moto powers, began investigating the disappearance of between 400–600 people.
65 The Daily Times, March 11 2007, http://www.dailytimes.com.pk/default.asp?page=2007%5C03%5C11%5Cstory_11-3-2007_pg3_1
66 In the Supreme Court of Pakistan, Constitutional Original Petition No.21 of 2007, p 13.
67 Constitutional Petition No.9 of 2006 and Civil Petition Nos 345 & 394 of 2006, unreported.
Pakistan: the struggle to maintain an independent judiciary
23
The Chief Justice ordered the Government to furnish details of the whereabouts of some of these
people. When these Orders were not satisfactorily answered he expressed strong disappointment
over the Government’s failure to produce the necessary information. As of 9 March 2007, 23
people had been released due to his efforts. The Human Rights Commission of Pakistan has
maintained that those who disappeared and were subsequently released by state agents have
testified that the victims were illegally detained and subjected to prolonged isolation and
physical and mental torture by law enforcement agencies to extract confessions and evidence.68
3.6 Many people interviewed by the delegation said that they expected the Chief Justice to hear
other cases of national, political and constitutional importance in the near future. Cases either
pending or likely to come before the Supreme Court raise issues pertaining to the upcoming
presidential elections, the possibility of the postponement of the general elections to be held
in 2007, the legality of the President retaining his position as Chief of Army Staff, and further
privatisation challenges.69
Events of 9 March and the following days
The Army House events
3.7 On the morning of 9 March 2007 the Chief Justice presided over several cases. Later that
morning, President Musharraf ‘called’ the Chief Justice to Army House. The Chief Justice
arrived at 11.30 AM and entered general discussions with the President, who was dressed in
his military uniform. At this point ‘a number of TV cameramen and photographers were
also ushered into the room. They took several pictures and made movie footage.’70 Shortly
thereafter, the Chief Justice was ‘confronted’ by President Musharraf with allegations of
misconduct71 and they were joined by several other senior military officers as well as the Prime
Minister. The Chief Justice has stated that the President ‘referred to such baseless charges as
had already been published from a letter written by an advocate, and gave the petitioner the
option, and indeed fervently persuaded him to resign from the office of the Chief Justice of
Pakistan. All manner of offers were also made.’72 The President has admitted that the Chief
Justice was provided with the option to resign or face proceedings before the Supreme Judicial
Council.73 The Chief Justice refused to resign. After 30 minutes the President departed but
the Chief Justice was held ‘absolutely against his will’ at Army House until after 5 PM.74 During
this time he was in the company of the senior military officers who ‘insisted’ that he resign.75
68
69
70
71
72
73
74
75
24
Human Rights Commission of Pakistan, State of Human Rights in 2006, (Lahore, January 2006) pp 46-51
In the Supreme Court of Pakistan, Constitutional Original Petition No 21 of 2007, p 14.
Chief Justice’s Affidavit accompanying his Petition to the Supreme Court which was filed on 30 May 2007.
President’s Press Release, 9 March 2007, http://www.presidentofpakistan.gov.pk/NewsEventsDetail.aspx?NewsEventID=3578. Despite
this Press Release the President has denied calling the Chief Justice to Army House and has stated that the Chief Justice had requested
the meeting. Reply by the Respondents to Chief Justice’s Petition, p 9.
In the Supreme Court of Pakistan, Constitutional Original Petition No 21 of 2007, p 14
Reply by the Respondents to Chief Justice’s Petition, p 9.
In the Supreme Court of Pakistan, Constitutional Original Petition No 21 of 2007, p 14 and CJ’s Affidavit which was filed on 30 May
2007.
Director-General of the Intelligence Bureau, Aijaz Shah; Director-General of Inter-Services Intelligence, Lt. Gen. Ashfag Pervaiz Kiyani; Director-General of Military Intelligence, Maj. Gen. Nadeem Ijaz. Chief Justice’s Affidavit which was filed on 30 May 2007 in the
Constitutional Original Petition No 21 of 2007.
Pakistan: the struggle to maintain an independent judiciary
The Minister for Law, Justice and Human Rights, Muhammad Wasi Zafar, alleged to the
delegation that the Chief Justice chose to stay at Army House because he was examining the
supporting documentation for the Reference, which was between 600–700 pages. The Chief
Justice’s lawyers deny that he was shown these accompanying documents.
President’s Orders
a) Restraint of the Chief Justice
3.8 Upon the Chief Justice’s refusal to resign the President made an Order which stated: ‘The
President … does hereby restrain Mr Justice Iftikhar Muhammad Chaudhry to act as Chief
Justice of Pakistan and a Judge of the Supreme Court, as he is unable to perform the functions
of his office due to facts narrated in a reference having been made against him to the
Supreme Judicial Council…’76
b) Appointment of Acting Chief Justice
3.9 While the Chief Justice was still being held at Army House the President appointed Mr Justice
Javed Iqbal as the Acting Chief Justice under Article 180 of the Constitution. Justice Abdul
Hameed Dogar administered the oath. The delegation was told that the ceremony was
uncharacteristically simple. Instead of being held in the main hall of the Supreme Court, a
small room on the third floor of the judges’ block of the Supreme Court was used.
3.10 The appointment of Justice Javed Iqbal was made in the absence of the senior most judge
of the apex court, Justice Rana Bhagwandas, who was in India and temporarily absent from
Pakistan. Convening of the Supreme Judicial Council
3.11 On 9 March President Musharraf filed a Reference with the Supreme Judicial Council directing
it to enquire into certain allegations of misconduct. Shortly after the oath-taking ceremony
of the Acting Chief Justice, the Supreme Judicial Council held a session. This was chaired by
the Acting Chief Justice and its other members consisted of Justice Abdul Hameed Dogar,
and Justice Sardar Muhammad Raza Khan, as well as the Chief Justice of Lahore High Court,
Iftikhar Hussain Chaudhry and the Chief Justice of Sindh High Court, Sabihuddin Ahmed.
The latter two had been flown in from Lahore and Karachi on special planes that afternoon.
At this session the Attorney General was also in attendance. The Chief Justice was given no
notice of these proceedings and therefore did not attend.
3.12 At this session the Supreme Judicial Council made an Order which stated: ‘After examining
the Reference and having gone through the record the Council has taken cognizance of the
76 See Appendix
Pakistan: the struggle to maintain an independent judiciary
25
Reference and decided to invite the respondent to appear before it on 13 March 2007.’77 It
further ordered that the ‘respondent shall not perform functions as Judge of the Supreme
Court and/or the Chief Justice of Pakistan till the above Reference is answered by the
Council’.
President’s Reference
3.13 The Reference filed by the President against the Chief Justice mainly focused on allegations
that the Chief Justice used his influence to assist the advancement of his son’s career, initially
in the medical profession and then in the police service. It is also alleged that the Chief
Justice had more cars than he was entitled to and that he insisted on being provided protocol
which has not previously been sought by or provided to a Chief Justice. This included
demanding that police vehicles escort his cars and that senior bureaucrats meet him at
airports. It is also alleged that he frequently demanded the use of the aircraft of Governors or
Chief Ministers for his travel.
3.14 Most of the charges listed against the Chief Justice were contained in a letter written by Naeem
Bokhari78 to the Chief Justice, and widely circulated, several weeks before the Reference.
3.15 There was much comment in the media and by lawyers to whom the delegation spoke which
suggested that such allegations, even if true, related to commonplace conduct and that the
Chief Justice was being singled out because of his judicial activism in cases involving violations
of human rights and in cases of political and public significance.
Treatment of Chief Justice after leaving Army House
3.16 When the Chief Justice was eventually released from Army House his car had ‘been stripped
of both the flag of Pakistan and the emblem flag’.79 He endeavoured to return to his office at
the Supreme Court but was prevented from entering and was escorted to his residence. When
he arrived home at 5.45 PM he ‘was shocked to see police officials and agencies personnel
without uniform all over his residence’.80
3.17 Additionally, all his vestiges of office had been removed. His cars were removed from his
premises by a forklift, his telephone lines and television cables were disconnected and he
did not receive any newspapers. One car was returned without the keys. He and his family,
including a child of seven, were prevented from leaving the premises. His children were
prevented from attending school and university.
3.18 On 10 March, the Chief Justice received a ‘Notice’ from the Supreme Judicial Council which
informed him that the Reference had been filed, and a copy of the Order of the Supreme
Judicial Council of 9 March, but no supporting documents were provided.81
77 See Appendix
78 Pakistani lawyer and media personality
79 Chief Justice’s Affidavit, 30 May.
80 Ibid.
81 Appendix and Chief Justice’s Affidavit, 30 May.
26
Pakistan: the struggle to maintain an independent judiciary
3.19 Many people tried to gain access to the Chief Justice after 9 March but the police prevented
their entry. On 11 March, a delegation of the representatives of the Bar waited for almost
two hours in front of the Chief Justice’s residence but they were prevented from entering.
On 12 March Asghar Khan, a veteran politician, was the first person given permission to visit
the Chief Justice. He had requested permission the day before but it was not granted. He
decided to attend the Chief Justice’s residence where he was kept waiting for some time and
was eventually allowed in by the security personnel. Later that day four Supreme Court judges
visited the Chief Justice. All other lawyers, friends, political leaders, senators and journalists
were prevented from entering the Chief Justice’s premises by the security personnel. The
Chief Justice’s petition asserts that he was physically detained inside his residence, along with
all his family members, and the only people given access to him were those who were approved
by the officials serving the President.82
3.20 On 13 March, the Chief Justice attempted to walk the relatively short distance from his
residence to the Supreme Court for the session of the Supreme Judicial Council. He refused
to be driven in an official car and was manhandled by the police who attempted to force him
into the car. When he complained about this behaviour the Acting Chief Justice directed an
inquiry into the mistreatment by the police.83 Thereafter, an inquiry by a three-member bench
of the Supreme Court instituted a charge for contempt of court against seven police officers,
including the Inspector General of Police and Senior Superintendent of Police in Islamabad,
for ‘grossly manhandling’ the Chief Justice.84 On 8 May, the Court reserved its judgement on
these charges.85
3.21 Detained in his premises with his family until 13 March, the Chief Justice stated that his
‘personal and private life’ and that of his family ‘suffered a great shock and the concept of
privacy appeared as if it was an impotent word.’86 After 16 March the ‘on going pressure to
“resign from office” was released to some extent’.87 The Chief Justice believed his house was
bugged and the residence opposite his has been occupied by the agencies and police.88 In
addition, the Chief Justice’s staff at the Supreme Court were reportedly missing and had
been kept in an unknown place. The Chief Justice’s Chamber was sealed and legal files had
apparently been removed.
Order of 15 March
3.22 On 15 March the President made another Order which provided: ‘the President, in terms
of Article 2(1) of the Judges (Compulsory Leave) Order, 1970 (P.O. No. 27 of 1970), is
pleased to order that Mr Justice Iftikhar Muhammad Chaudhry, Chief Justice and Judge of
the Supreme Court of Pakistan shall be on compulsory leave with effect from the 9th March,
82
83
84
85
86
87
88
In the Supreme Court of Pakistan, Constitutional Original Petition No 21 of 2007, p 15.
Mr Justice Ijaz Afzal of Peshwar High Court carried out the inquiry.
Supreme Court Press Release, 11 April 2007, http://www.supremecourt.gov.pk//pr/PR-ARIL-11-2007%20SMC.htm
Dawn, 9 May 2007 http://www.dawn.com/2007/05/09/top1.htm
Chief Justice’s Affidavit, 30 May.
Ibid.
Ibid.
Pakistan: the struggle to maintain an independent judiciary
27
2007, till submission of the report by the Supreme Judicial Council and the President’s order
thereon…’
3.23 Many people suggested to the delegation that this action was taken by the President in
response to public criticism that there was no legal basis for the President’s Order of 9 March
suspending the Chief Justice. The same criticism was made of the Order of 15 March.
Current legal proceedings
Supreme Judicial Council proceedings since 9 March
3.24 After the first meeting of the Supreme Judicial Council on 9 March it held a number of
sessions with the Chief Justice present. In early May the Supreme Court began to hear
petitions challenging the Reference to the Council. The Council refused to stay the hearing
pending the Supreme Court’s determination of these petitions. Both ran in parallel fashion
until the Supreme Court eventually stayed the proceedings before the Council on 7 May 2007.
13 March
3.25 The Chief Justice first appeared before the Supreme Judicial Council on 13 March. Upon
his arrival at the Supreme Court building (where the Council sits) he was able to ask several
lawyers if they would represent him. They agreed, but the Council initially prevented legal
representation. The Chief Justice made an application challenging the constitutional authority
of the Council to entertain the Reference.89 Eventually, the Chief Justice’s lawyers were granted
permission to enter and represent him. They immediately requested that the proceedings
be adjourned as they had not been able to meet with their client. The proceedings were
adjourned until 16 March. The same day the Council directed the Attorney General of
Pakistan to ensure that the Chief Justice would have access to his legal counsel.90
16 March
3.26 Counsel for the Chief Justice sought to have the Supreme Judicial Council proceedings
adjourned until 26 March 2007, as, despite extensive efforts, they had not been permitted
by security personnel to meet with the Chief Justice. In a press release the Council stated:
‘The Supreme Judicial Council made it clear that there was absolutely no restraint on the
respondent who could move freely and everyone has access to see him. Insofar as the security
measures are concerned, this aspect of the matter squarely falls within the jurisdictional
domain of the executive/police. Therefore, the Council directed learned counsel for the
Referring Authority to ensure that every step is taken in accordance with law.’91
89 Supreme Judicial Council Press Release, 13 March 2007, http://www.supremecourt.gov.pk//pr/13.htm
90 Ibid.
91 Supreme Judicial Council Press Release, 16 March 2007, http://www.supremecourt.gov.pk//sub_links/pr/PR-17-03-2007.htm
28
Pakistan: the struggle to maintain an independent judiciary
3.27 The Council adjourned the proceedings to 21 March 2007.
20 March
3.28 On 20 March 2007 the Council issued a press release stating that the proceedings against the
Chief Justice were adjourned until 3 April 2007.92 No reason was provided.
3 April
3.29 The composition of the Supreme Judicial Council altered. Justice Rana Bhagwandas, who had
been sworn in as Acting Chief Justice on 24 March 2007, replaced Justice Javed Iqbal as Chair.
Until this time, proceedings of the Council were conducted in camera. The Chief Justice made
an application for an open and public trial, which was denied. The Council adjourned the
proceedings until 13 April to hear further legal objections made by the legal counsel for the
Chief Justice.93
13 April
3.30 The Chief Justice’s legal team completed their arguments regarding alleged bias of certain
members of the Supreme Judicial Council on the grounds set out below in the Petition made
to the Supreme Court. Proceedings were adjourned until 18 April 2007.94
18 April
3.31 Legal counsel for the Chief Justice made an application seeking a decision on the allegations
of bias before the Supreme Judicial Council heard further arguments challenging the
Reference. The Council rejected this application and arguments were heard regarding the
Council’s constitution and composition. The Chief Justice also applied for a stay of the
Council’s proceedings until the decision of Constitutional Petition No. 21/2007, filed by the
Chief Justice, was made by the Supreme Court (see below). This application was denied. The
proceedings were adjourned until 24 April.95
24 April
3.32 The Chief Justice’s legal counsel addressed arguments on the constitutionality of Presidential
Order No. 27 of 1970, under which President Musharraf had made his Order of 15 March
requiring the Chief Justice to take compulsory leave. Proceedings were adjourned until 2
May.96
92
93
94
95
Supreme Judicial Council Press Release, 20 March 2007, http://www.supremecourt.gov.pk//sub_links/pr/pr20.htm
Supreme Judicial Council Press Release, 3 April 2007, http://www.supremecourt.gov.pk//sub_links/pr/pr-03-04-07.htm
Supreme Judicial Council Press Release, 13 April 2007, http://www.supremecourt.gov.pk//sub_links/pr/PR-13-04-2007.htm
Supreme Judicial Council Press Release, 13 April 2007, http://www.supremecourt.gov.pk//sub_links/pr/Press%20Release180407.
htm
96 Supreme Judicial Council Press Release, 24 April 2007, http://www.supremecourt.gov.pk//pr/P24.htm
Pakistan: the struggle to maintain an independent judiciary
29
2 May
3.33 Again the Chief Justice’s counsel requested that the proceedings be adjourned until the
decision of Supreme Court on the Chief Justice’s Petition to that court. This was again denied.
The Chief Justice’s legal counsel addressed argument regarding the power of the Supreme
Judicial Council under Article 209 of the Constitution to restrain the Chief Justice from
performing his functions as well as the President’s power to suspend or send a judge on forced
leave.97
3 May
3.34 Legal arguments were given by both sides which addressed the preliminary objections.
Proceedings were adjourned until 9 and 10 May.98
7 May
3.35 The Supreme Court stayed proceedings in the Supreme Judicial Council until the proceedings
were heard by the Full Court of the Supreme Court.
Supreme Court proceedings since 9 March
3.36 On 18 April the Chief Justice filed a Constitutional Petition in the Supreme Court challenging
President Musharraf’s filing of the Reference against him. A Supreme Court bench of three
judges was already hearing similar petitions filed by various legal counsel and bar associations.
3.37 The Chief Justice’s petition raised 132 questions on the competence of the Supreme Judicial
Council to try the Chief Justice and the actions taken by the Executive against him. The main
contentions are as follows:
• Under Article 209 of the Constitution, the Supreme Judicial Council could not be
constituted without the Chief Justice.
• The personal bias and prospects of advancement of some members of the Council excluded
them from sitting on it. Bias was alleged on a number of grounds, including:
- that as the Chief Justice is appointed on the basis of seniority, removal of the present
Chief Justice would lead to the elevation of those sitting in judgment of him;
- that complaints of misappropriation of funds which are on the record of the Council are
currently pending in relation to one member;
- that there is personal bias and ‘inveterate hatred’ by one member for the Chief Justice.
• The President acted mala fide and with undue haste and a collateral purpose.
97 Supreme Judicial Council Press Release, 2 May 2007, http://www.supremecourt.gov.pk//sub_links/pr/p-2.5.07.htm
98 Supreme Judicial Council Press Release, 2 May 2007, http://www.supremecourt.gov.pk//sub_links/pr/3-5-07%201.htm
30
Pakistan: the struggle to maintain an independent judiciary
• The appointment of the Acting Chief Justice and the convening of the Council was done
with undue haste.
• The appointment of the Acting Chief Justice was illegal and not in accordance with Article
180 of the Constitution.
• The President has no power to restrain the Chief Justice from performing the functions of
his office or to send any judge on forced leave and therefore the Orders of 9 and 15 March
are illegal.
• The Supreme Judicial Council has no powers to pass any final order and no authority to pass
an interim order and therefore the Order dated 9 March is illegal.
• The proceedings held in camera by the Supreme Judicial Council are illegal and in violation
of the fundamental rights of the Chief Justice.
3.38 The Chief Justice denied the charges levelled against him in the Reference and called for an
open public trial by an impartial, un-biased and legally competent forum with full opportunity
to obtain the records required for his defence.99
3.39 The Respondent’s reply denies the above contentions and asserts the legality of all actions
carried out on 9 March and thereafter.100
3.40 The proceedings in the Supreme Court are ongoing. On 19 April the three-member bench of
the Supreme Court set 24 April as the date for the hearing of the petition and issued notices
to all respondents, including the President, the Federation of Pakistan, the Prime Minister and
the Supreme Judicial Council, for submitting their responses. The Registrar of the Supreme
Court had originally rejected the Chief Justice’s petition, but after legal counsel objected, the
Court set aside the Registrar’s decision and decided to take up the case.
3.41 On 7 May a Bench of five members decided that, due to the unprecedented constitutional and
legal issues involved in the cases, the full court would hear the Petition of the Chief Justice
and 22 similar petitions. The Bench also decided to stay the proceedings of the Council until
the case was heard by the full court of the Supreme Court. This Bench excluded the judges
who were members of the Supreme Judicial Council and also Justice Khan, who had previously
recused himself.101 Since 14 May the Supreme Court has been consistently hearing these
petitions. On 11 June, it deferred its ruling on the maintainability of the Petition filed by
the Chief Justice against the Presidential Reference and commenced regular hearings on the
merits of the petition.102
99 In the Supreme Court of Pakistan, Constitutional Original Petition No 21 of 2007, p 38.
100 Reply by the Respondents to Chief Justice’s Petition.
101 Supreme Court Press Release, 7 May 2007, http://www.supremecourt.gov.pk//sub_links/pr/PR%2007-05-07.htm
102 Dawn, 11 June 2007, http://www.dawn.com/2007/06/12/top1.htm
Pakistan: the struggle to maintain an independent judiciary31
3.42 On 15 June, the Supreme Judicial Council turned over its records to the Supreme Court,
holding that the records are not protected.103 On 28 June the government withdrew its
objection to the Supreme Court deciding the issue of the presidential reference and handed
all its files and documents relating to the reference to the 13-member full court bench of the
Supreme Court.104 On 2 July the Supreme Court reprimanded government lawyers for filing
a ‘scandalous’ dossier of evidence against Chief Justice, fined the government Rs 100,000 and
suspended the advocate on record who filed the evidence. It also banned all unauthorised
personnel, including intelligence personnel, from entering the Supreme Court and high
courts and ordered the Intelligence Bureau to sweep the courts and their judges’ homes of
any bugging devices, and file an affidavit to this effect within one week.105
Reaction to these events by the public and the legal profession
3.43 During the evening of 9 March, images of the President and the Chief Justice at Army House
were released to the media and the State Minister for Information stated that the Chief Justice
was ‘non-functional’ and had been ‘suspended’.106
3.44 The media immediately commenced comprehensive coverage of the situation and interviewed
many lawyers who condemned the President’s action as unconstitutional. Both the Supreme
Court Bar Association and the Pakistan Bar Council passed resolutions condemning President
Musharraf’s acts against the Chief Justice and the house arrest.
3.45 The first petition in the Supreme Court against the President’s attempt to restrain the Chief
Justice from carrying out his duties was filed on 10 March by advocates who urged the Court
to declare the Order of 9 March and the detention of the Chief Justice to be illegal and
unconstitutional. Many other petitions of a similar nature were filed, including one by the
Supreme Court Bar Association.
3.46 The media reported that many lawyers condemned not only the President’s Order of 9
March but also his Order to appoint the Acting Chief Justice, on the basis that it was also
unconstitutional given that the most senior judge was not appointed.
3.47 The official Government position adopted on 9 March and thereafter was that the President
had acted in accordance with the law and the Constitution and that the matter was now under
judicial consideration. The Government also denied that the Chief Justice was under house
arrest and stated that he was able to see whom he pleased.107
3.48 During the weeks following 9 March a number of people resigned in protest at the President’s
actions. Some of these included: Justice Khawaja, Lahore High Court Judge;108 Nasir Saeed
103 Dawn 14 June, 2007, http://www.dawn.com/2007/06/14/top1.htm
104 Daily Times 29 June, 2007, http://www.dailytimes.com.pk/default.asp?page=2007\06\29\story_29-6-2007_pg1_3; see also http://nation.
com.pk/daily/jun-2007/29/index1.php
105 Daily Times 3 July, 2007, http://www.dailytimes.com.pk/default.asp?page=2007\07\03\story_3-7-2007_pg1_1
106 http://www.tribuneindia.com/2007/20070321/world.htm
107 http://www.thenews.com.pk/top_story_detail.asp?Id=6624)
108 Gulf News, 21 March 2007 (http://archive.gulfnews.com/world/Pakistan/10112332.html)
32
Pakistan: the struggle to maintain an independent judiciary
Sheikh, Deputy Attorney General;109 Ashraf Yar Khan, Civil Judge of Bagh district;110 Rajesh
Chandar, Civil Judge of Pano Aquil;111 Pir Ali Muhammad Rashdi, Magistrate of Pano
Aquil;112 Mr Saeed Khurshid Ahmed, Magistrate;113 Allah Babhayo Gabol, Civil Judge in
Karachi;114 Ehsan Malik, Civil Judge in Karachi; and Kotri Malik Javed Memon, Sessions Judge,
Nawabshah.115
Protests
3.49On 12 March mass nationwide demonstrations of lawyers protested about the treatment of the
Chief Justice. Protests have continued on a regular basis, as have nationwide boycotts of courts.
Initially, only lawyers were protesting, but they were soon joined by members of civil society
and political parties opposed to the Government.
3.50The legal community of Pakistan has demonstrated a remarkably strong and courageous
commitment to the rule of law and to the importance of an independent judiciary. Many
leaders of the bar stated to the delegation that they could neither rely on the Executive nor
the judiciary to act in accordance with the law. Their protests represented their attempt to
hold these institutions accountable.
3.51Many of the protests have been met with force and brutality by the police. Many people
to whom the delegation spoke have claimed that they were protesting peacefully but were
confronted with batons, teargas, rubber bullets and unnecessary force. Pictures in the media
and first hand accounts of lawyers being beaten and physically injured are shocking. A
troubling pattern has been established before each protest begins. Hundreds of people have
been arrested and detained in the days leading up to a scheduled protest. Blockades have
been placed outside city centres to prevent people who live outside the city participating in
these protests. In addition, blockades are placed in close proximity to the area of the protests,
which further limits the citizen’s ability to participate in the protests. The delegation saw
evidence of such blockades. Bans on public gatherings on the days of scheduled protests have
also been ordered.
3.52The involvement of civil society in the issue has become widespread and is evidenced by the
facts associated with the journey of the Chief Justice to Lahore on 5 May, where he was to
provide an address to the Lahore Bar Association. The Chief Justice left Islamabad by car
and was joined by over thirty cars and six coaches. The convoy totalled over 300 people. The
journey ordinarily takes no longer than 6–8 hours, but took the Chief Justice over 21 hours.
In the towns and cities along the way he received an unprecedented welcome with people
lining the streets and throwing rose petals on his car while chanting favourable slogans. It was
109 International Herald Tribune, 20 March 2007 (http://www.iht.com/articles/2007/03/20/news/pakistan.php)
110 Gulf News, 21 March 2007 (http://archive.gulfnews.com/world/Pakistan/10112332.html) (http://www.dawn.com/2007/03/28/
top3.htm)
111 The News, 25 June 2007 (http://www.thenews.com.pk/top_story_detail.asp?Id=6624)
112 Ibid.
113 Dawn, 15 March 2007, (http://www.dawn.com/2007/03/15/top5.htm)
114 Ibid.
115 Dawn, 21 March 2007 http://www.dawn.com/2007/03/21/top4.htm)
Pakistan: the struggle to maintain an independent judiciary33
reported that at least 4,900 opposition leaders and 60 members of legal bodies were taken into
custody by the police throughout the country on the eve of the Chief Justice’s journey.116
3.53Due to the scale and consistency of these protests, a full account of each protest cannot be
contained in this report, but in order to provide an illustration of the protests the details of
two will be recounted.
3.54On 17 March in Lahore there was an All Pakistan Lawyers Convention in the High Court
building for the purpose of devising a course of action, in response to the events of 9 March.
The lawyers told the delegation they were attempting to carry out a peaceful protest when
they were confronted by a large contingent of police. The police, wearing anti-riot uniforms,
had cordoned off the Lahore High Court building and set up barricades around the area,
including barbed wire on the main gate. The riot police entered the grounds of the High
Court and fired large amounts of teargas into the grounds and into the High Court building
itself. Many lawyers were beaten with batons. Approximately 55 lawyers were injured.
Ambulance and the fire brigade (the latter being necessary because of a fire erupting in a car
as a result of the teargas) were prevented from entering the area. According to the lawyers
to whom the delegation spoke, hundreds of charges were laid against the protesting lawyers
under the Terrorist Act, including charges against the President, Vice-President and Secretary
of the Lahore Bar Association. In the lead up to this event, the President of the Lahore Bar
Association had been stopped on the evening of 15 March on his way home and detained by
people who refused to identify themselves. After several hours he was informed that he was in
police custody. He was taken to a number of premises and finally taken to a police station. He
was questioned about the reasons for his ‘agitating’ and finally released.
3.55In another example, the events of 12 May in Karachi, where the Chief Justice had scheduled
another visit, were the most violent protests to date. Tension was already high in Karachi
prior to the visit. Two days prior to these events, unidentified assailants fired 16 bullets at the
house of the Chief Justice’s lawyer, Munir A Malik, who is also the President of the Supreme
Court Bar Association. Lawyers and opposition leaders had organised their regular protests
to coincide with the Chief Justice’s visit, while political parties who support the President also
organised large rallies to demonstrate that support.
3.56On 12 May, the Chief Justice flew into Karachi but police prevented him from leaving the
airport. Many lawyers had wanted to escort him from the airport to town, but they found all
the roads blocked with barricades and large containers, and by trucks and buses with their
tyres deflated. When the violence erupted it was widely reported that the large contingent
of police, in excess of 16,000, were either not present during the violence or did nothing to
intervene. These events left 43 dead and hundreds injured.
116 The News, May 6, http://www.thenews.com.pk/arc_default.asp
34
Pakistan: the struggle to maintain an independent judiciary
3.57In response to these events the Pakistan Human Rights Commission stated the following:
The aim is to silence, depress, and decimate the civil society of Pakistan. It was a militant act
to deny people their freedom of expression and association. The blocking of roads, arming
Muttahidi Qaumi Movement (MQM) militants who took positions at strategic roadblocks, and
ignoring the directions of the Sindh High Court were all carried out by the government.117
3.58Soon after these events a ‘shoot to kill’ order against anyone involved in violence was given to
all paramilitary forces.118 The IBAHRI condemns such an order.
Media
3.59There have been a number of restrictions placed on the media since the events of 9 March.
3.60On 12 March two private television channels, Aaj TV and GEO News, were taken off air after
receiving a warning from the Pakistan Electronic Media Regulatory Authority for showing
pictures of police baton-charging protesting lawyers in Lahore. It was reported that television
channels were contacted and told not to telecast scenes of police action against lawyers.119
Further ‘verbal orders’ were given not to give too much coverage of the ongoing judicial
crisis.120 There were also reports that GEO News received a written order from the Pakistan
Electronic Media Regulatory Authority restraining it from airing a popular show because of
its coverage of the 13 March meeting of the Supreme Judicial Council.121 It is also commonly
perceived by many of the people to whom the delegation spoke that many of the editors of
newspapers had been contacted and requested not to give too much coverage to the issues
regarding the Chief Justice.
3.61 The most violent incident occurred on 16 March when GEO News was covering, from its
rooftop, the events outside the Supreme Court while the Supreme Judicial Council was in
session. It is reported that three or four policemen, including an inspector, came to the office
and asked for the cameras on the rooftop to be removed. The request was refused unless a
written directive was provided. In response, approximately two dozen police officers entered
and ransacked the premises. There was a strong reaction from journalists, politicians, lawyers
and traders against this attack and President Musharraf appeared live-to-air on television and
said the incident was ‘regrettable’ and promised swift action against the people responsible
for it. He further stated: ‘I want to tell the nation that our strength is in the reforms we
have undertaken – the freedom of speech, freedom of expression, freedom of media and
supremacy of human rights – that is our mandate and this is a violation of it and I strongly
condemn it.’122
117 HRCP Press Release, 13 May, http://www.hrcp-eb.org/P_releases.cfm#‘Shoot%20on%20sight’%20orders%20not%20justified
118Dawn, 14 May 2007, http://www.dawn.com/2007/05/14/top1.htm
119 Dawn, 13 March 2007, www.dawn.com/2007/03/12/top3.htm
120 Ibid.
121 Dawn, 16 March, http://www.dawn.com/2007/03/16/top7.htm
122President’s Press Release, 16 March, http://www.presidentofpakistan.gov.pk/PRPressReleaseDetail.aspx?nPRPressReleaseId=1908&nY
ear=2007&nMonth=3
Pakistan: the struggle to maintain an independent judiciary35
3.62Another restriction on the media and more generally on the freedom of expression occurred
on 9 May 2007 with the circulation by the Supreme Court of a press release which warned
against comments being made about the President’s Reference against the Chief Justice,
stating that any comments would amount to contempt of court. It stated:
Discussions, comments or write-ups that are likely to interfere with the legal process, ridicule,
scandalize or malign the court or any of its judges, or that touch on the merits of the case are
strictly prohibited.123
123 Supreme Court Press Release, 9 May 2007, http://www.supremecourt.gov.pk//sub_links/pr/pr-9-5-2007.htm
36
Pakistan: the struggle to maintain an independent judiciary
4. Relevant legal principles
4.1 In analysing the events described above it is necessary to draw upon the internationally
accepted principles relating to the independence of the judiciary, the rule of law, the right
to a fair and impartial trial, and the right to freedom of expression. These internationally
accepted standards provide the yardsticks against which the IBAHRI forms its conclusions on
the acceptability of the treatment of the Chief Justice and related circumstances.
Independence of the judiciary
4.2 An independent judiciary, free from Executive interference, is a basic norm of democratic
society. Judicial independence requires that judges be afforded security of office. Judges
should not be removed, suspended or prevented from performing their judicial functions
except for mental or physical disability to perform those functions or by reason of misconduct
rendering them unfit to retain the office of a judge. International standards do not permit
the removal or suspension of a judge by Executive fiat. A judge may only be removed or
suspended after a fair and impartial hearing by the appropriate judicial body as designated by
law.
4.3 The independence of the judiciary is widely recognised in a number of international
instruments, such as Article 10 of the Universal Declaration of Human Rights (Universal
Declaration) and Article 14 of the International Covenant on Civil and Political Rights
(ICCPR), which both require an independent and impartial tribunal. Although Pakistan is
not a signatory to the ICCPR, the Universal Declaration is widely regarded as representing
customary international law upon which the ICCPR elaborates, and Pakistan’s Constitution
provides for an independent judiciary as well as for the other rights referred to below.
4.4 The 1985 Basic Principles on the Independence of the Judiciary (Basic Principles), which
were unanimously endorsed by the General Assembly, provides for the independence of the
judiciary and the ‘duty of all government and other institutions to respect and observe’ this
independence.124 There are many other international documents which confirm these basic
principles of the independence of the judiciary, including:
• The Syracuse Draft Principle on Independence of the Judiciary, 1981;
• The International Bar Association Minimum Standards of Judicial Independence, 1982;
• Montreal Universal Declaration on the Independence of Justice, 1983;
• Singhvi Draft Universal Declaration of Justice, 1989;
• Beijing Statements on the Independence of the Judiciary, 1995;
124 Principle 1, Principles on the Independence of the Judiciary. These principles were adopted by the Seventh United Nations Congress
on the Prevention of Crime and the Treatment of Offenders, and later endorsed by General Assembly resolutions 40/32 of 29 November 198540/146 of 13 December 1985.
Pakistan: the struggle to maintain an independent judiciary37
• The Universal Charter of the Judge by the International Association of Judges, 1999;
• The Bangalore Principles of Judicial Conduct, 2002.
4.5 There is therefore much international support for this principle. Pakistan’s Constitution
provides for an independent judiciary, separate from the Executive.125 Pakistan has embedded
in its Constitution the essential framework of the separation of powers, between the Executive,
legislature and judiciary. Adherence to this framework is paramount in providing the
necessary checks and balances in a functioning democratic society.
Proceedings against a judge
4.6 The Basic Principles provide that a judge is entitled to security of tenure unless the judge is
incapacitated or the judge’s behaviour renders him/her unfit to discharge judicial duties,
in which case the judge may be disciplined, suspended or removed.126 The IBA Minimum
Standards of Judicial Independence provide: ‘A judge shall not be subject to removal unless by
reason of a criminal act or through gross or repeated neglect or physical or mental incapacity
he/she has shown himself/herself manifestly unfit to hold the position of judge.’127 The 1973
Pakistan Constitution reflects a similar principle.128
4.7 The Basic Principles provide that a complaint made against a judge shall be dealt with
expeditiously and fairly, and the judge has the right to a fair hearing.129 The Basic Principles
also provide that ‘the examination of the matter at its initial stage shall be kept confidential,
unless otherwise requested by the judge.’130
4.8 All proceedings against a judge must be carried out in accordance with the laws of the country.
This accepted international principle is recognised in the provisions of the Constitution of
Pakistan relating to the removal of judges as well as in Article 4 which provides that individuals
have the right to be dealt with in accordance with the law and that ‘no action detrimental to
the life, liberty, body, reputation or property of any person shall be taken except in accordance
with the law.’
4.9 The right to fair trial is recognised in the Universal Declaration. Whilst none of the
international documents dealing with the judiciary specify in detail the elements of a right to a
fair trial, the fundamental norms of procedural justice required to guarantee due process are
recognised as those contained in Article 14(3) of the ICCPR.131 The procedural rights relevant
to the situation of the attempt to remove the Chief Justice are:
125 Constitution, Article 175(3).
126 Principles 12 and 18.
127 IBA Minimum Standards of Judicial Independence, Article 30.
128 Constitution, Article 209(5) and (6)
129 Principle 17 and Beijing Statement Article 26.
130 Principle 17.
131 Human Rights Committee, General Comment No. 13, Equality before the courts and the right to a fair and public hearing by an independent court established by law, CCPR General Comment No. 13, 13 April 1984, paragraph 5. Note further that these are described as the
minimum guarantees which a State must provide.
38
Pakistan: the struggle to maintain an independent judiciary
• the right to equality and equal treatment before the law;
• the right to the presumption of innocence;
• the right to be informed promptly and in detail of the nature and cause of the charge
against him; and
• the right to have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing. This includes having the right to effective
access to documents and other evidence essential for his or her defence.
4.10 In addition, the Pakistan Constitution guarantees the right to liberty and security of
person,132 which corresponds with Article 17 of the ICCPR and guarantees that ‘No one
shall be subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation.’
Impartiality of the judiciary
4.11 A concept closely related to the independence of the judiciary is that individual judges must
be impartial and free from outside interference or influence. Impartiality has been defined as
‘a freedom from bias, prejudice and partisanship, and it means not favouring one more than
another, it connotes objectivity and an absence of affection or ill-will.’133
4.12 The Bangalore Principles provide that a judge should withdraw from a case to protect the
impartiality requirement when he or she has actual bias or prejudice concerning a party or
personal knowledge of disputes on evidential facts concerning the proceedings.134
Freedom of assembly and expression
4.13 The right to freedom of assembly and freedom of speech are integral to a democracy and
the capacity of the ordinary citizen for democratic participation. This right is common to
international declarations and treaties such as the Universal Declaration,135 the International
Covenant on Civil and Political Rights136 and major regional human rights conventions.
4.14 Pakistan’s Constitution also contains these rights: ‘Every citizen shall have the right to
assemble peacefully and without arms, subject to any reasonable restrictions imposed by law
in the interest of public order’,137 and furthermore that: ‘Every citizen shall have the right
to freedom of speech and expression, and there shall be freedom of the press’,138 subject to
reasonable restrictions imposed by law in a number of circumstances.139
132 Constitution, Article 9.
133 Report of Special Rapporteur on independence of judges and lawyers, E/CN.4/Sub.s/1995/18/Add.1.1
134 Value 2.
135 Articles 19, 20
136 Articles 19, 21
137 Constitution, Article 16
138 Constitution, Article 19.
139 Ibid
Pakistan: the struggle to maintain an independent judiciary39
4.15 The United Nations Basic Principles on the Role of Lawyers also provides that lawyers are
entitled to ‘freedom of expression, belief, association and assembly. In particular, they
shall have the right to take part in public discussion of matters concerning the law, the
administration of justice and the promotion and protection of human rights’.140
140 Principle 23.
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Pakistan: the struggle to maintain an independent judiciary
5. Conclusions
Actions of the Executive
5.1 The President’s actions towards the Chief Justice, particularly between 9 and 13 March,
represent a direct assault on the independence of the judiciary. The President attempted to
force the Chief Justice’s resignation and when that did not succeed he was ‘restrained from
acting as the Chief Justice’ and effectively kept under house arrest. This assertion of executive
power is contrary to the international norms of judicial independence.
5.2 The Executive on 15 March made another Order which placed the Chief Justice on ‘forced
leave’. The IBAHRI will not directly comment on the legality under Pakistan law of this Order
as it is under consideration by the Supreme Court, but it is of the opinion that the previous
actions of the Executive against the Chief Justice seriously taint this Order which represented
nothing more than an ex post facto attempt to provide a legal basis for the precipitous actions
of 9 March.
Actions of the Supreme Judicial Council
5.3 The IBAHRI is concerned with the manner and undue haste with which the Supreme Judicial
Council was convened. The IBAHRI believes that the Supreme Judicial Council could not be
seen to be objective or free from the influence of the Executive. This conclusion is based on
the following facts:
• the rapid series of events required to get the Reference immediately before the Supreme
Judicial Council, including the purported suspension of the Chief Justice, and the
appointment of an Acting Chief Justice;
• the convening of a Council session within hours after receiving the Reference, which
involved two judges being flown to Islamabad on special planes;
• the holding of the extraordinary session in the evening with the Attorney-General present
but without notice to the Chief Justice;
• the immediate pronouncement of the Supreme Judicial Council’s Order which did not
allow for adequate consideration of the allegations against the Chief Justice;
• the close similarity of the Council’s Order with that of the President; and
• the non-compliance of the Supreme Judicial Council to its own rules of procedure.
5.4 The IBAHRI is of the opinion that the Chief Justice’s right to a fair hearing was infringed by
the actions of the Supreme Judicial Council. The Council made the Order of 9 March 2007,
which prohibited the Chief Justice from performing his functions, without informing him
of the allegations or providing him with any opportunity to counteract these allegations.
Pakistan: the struggle to maintain an independent judiciary
41
Furthermore, the Chief Justice was given notice that he had to appear before the Council
on 13 March, along with a copy of the Reference and the Order of 9 March, but he was not
provided with any supporting documentation. On 13 March, the Chief Justice, who had been
under effective house arrest, had not been able to meet with any legal counsel and his legal
counsel were initially denied entry to the hearing.
5.5 In his Petition to the Supreme Court, the Chief Justice outlined detailed reasons for his
allegations of bias on the part of three members of the Supreme Judicial Council. The IBAHRI
cannot come to any conclusion as to whether these allegations are substantiated, and this
matter is currently before the Supreme Court. However, the IBAHRI reiterates the principle
that judges be impartial and if there are reasonable grounds to suggest that particular judges
are not, they should not be involved in the hearing of the case against the Chief Justice.
5.6 The Chief Justice has requested a public hearing of the allegations against him. The United
Nations Basic Principles on the Independence of the Judiciary provide that the proceedings
at the initial stage should be held in camera, unless the judge wishes otherwise.141 In camera
proceedings may be justified in relation to some complaints of judicial misconduct in order to
protect the judge and the institution of the judiciary from the damaging effect of allegations
that prove to be unfounded. However, in this case, the party seeking the protection of
proceedings held in camera is not the judge whose reputation is threatened but the Executive
which is attempting to shield its actions from public scrutiny. While the procedural rules of
the Supreme Judicial Council provide for proceedings to be held in camera, the IBAHRI is of
the view that due to the Chief Justice’s wishes, the public reaction to this case, and the need
for justice be seen to be done, it would clearly have been preferable that these proceedings
were public.
Accountability of the Chief Justice
5.7 The IBAHRI is of the view that if there are credible charges against the Chief Justice, they must
be dealt with in accordance with the law. The events since 9 March have demonstrated that
there appears to be considerable doubt as to the appropriate body to deal with allegations of
misconduct against the Chief Justice. Currently, the issue as to who has jurisdiction to deal
with such alleged misconduct is before the Supreme Court. The Government argues that the
Supreme Judicial Council has this jurisdiction, whereas the Chief Justice is of the belief that it
lies only with the Supreme Court. The IBAHRI does not draw a conclusion on the appropriate
body to carry out this investigation. Whichever body is deemed appropriate by the Supreme
Court, it must make its decision in accordance with the law, in a transparent and fair manner,
without influence by the Executive. The standards of a fair trial should also be adhered to.
5.8 It is also important that other complaints that have been made to the Supreme Judicial Council
against other judges should be dealt with expeditiously and without further delay.
141 GA Resol. 40/32 (1985) & 40/146 (1985), Principle 17.
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The right to freedom of assembly
5.9 While there are exceptions and qualifications to this right in Pakistani and international law,
the IBAHRI is nevertheless seriously concerned with the level of police brutality in the face
of peaceful protests, as evidenced in the incident of 17 March in Lahore. Also, the IBAHRI
is concerned with the severity of restrictions being placed on people’s ability to participate
in these organised protests. Additionally, the IBAHRI is concerned with the involvement of
political parties and the potential for further violence, as occurred in Karachi on 12 May.
The right to freedom of speech
5.10 The IBAHRI will not embark here on a detailed discussion of the interpretation and
applicability of the qualifications placed on this right, whether under Pakistani law or under
international norms. However, the IBAHRI is nevertheless extremely concerned that the
actions of the Pakistan Electronic Media Regulatory Authority in preventing the televising
of these events and encouraging newspapers to restrict their coverage of this judicial crisis
infringe this right.
5.11 The IBAHRI is also concerned with the breadth of restrictions imposed by the Supreme Court
under its contempt power, especially the prohibition on comments ‘that touch on the merits
of the case’. The events from 9 March onwards are significant for all members of society.
Restrictions should not be placed on the media or public at large which infringe the right to
freedom of speech.
5.12 The media is integral to the dissemination of information to the people, especially on matters
of national significance. The IBAHRI recommends that these restrictions be removed.
Pakistan: the struggle to maintain an independent judiciary
43
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Pakistan: the struggle to maintain an independent judiciary
6. Recommendations
6.1 The IBAHRI shares the perception of the vast majority of the Pakistani legal profession that the
actions of the President and the authorities constitute a direct assault on the independence of
the judiciary and the rule of law. Given the urgency of the situation, the IBAHRI released an
interim report on 8 May 2007 and the recommendations made at that time are repeated here,
together with additional recommendations.
6.2 Immediate steps should be taken to restore confidence in the judiciary and to demonstrate
Pakistan’s commitment to the independence of the judiciary and respect for the rule of law.
There is a general perception of corruption at all levels of the judiciary, especially the lower
levels, and individual judges need to be, and be seen to be, impartial. Confidence can only be
restored within the judiciary when it administers justice in accordance with the laws. There is
also much confusion about which body can hear complaints against a Chief Justice and what
procedures should be followed. The IBAHRI therefore recommends:
1. The President should rescind the Order of 9 March purporting to restrain the Chief
Justice from carrying out his functions.
2. The President should rescind the Order of 15 March purporting to place the Chief Justice
on ‘compulsory leave’.
3. The President should withdraw his direction to the Supreme Judicial Council that it
inquire into the allegations of misconduct against the Chief Justice.
4. The Chief Justice should be restored to his office.
5. The allegations of misconduct against the Chief Justice contained in the Reference
should be referred to the appropriate authority, as determined by the Supreme Court to
be dealt with according to law, fairly, expeditiously, transparently and without Executive
interference.
6. The allegations of misconduct against other judges should be referred to the Supreme
Judicial Council to be dealt with according to law, fairly, expeditiously, transparently and
without Executive interference.
7. Clear procedures to ensure the timely and judicious treatment of complaints against
judges should be developed and applied, to ensure respect for judicial independence,
procedural fairness, and judicial accountability for improper conduct.
8. The Supreme Judicial Council Procedure of Enquiry 2005 should be amended to allow
for public hearings in appropriate cases, and in any case in which the judge concerned so
wishes.
9. Clear rules should be prescribed relating to the actions that can be taken against a judge
who is being investigated by the Supreme Judicial Council. A judicial body, independent
Pakistan: the struggle to maintain an independent judiciary
45
of the Executive, should be provided with the power to make such decisions.
10. Action should be taken by the appropriate authorities to ensure that the police do not
use objectionable levels of force against protestors. Unacceptable restraints should not be
used to prevent people from protesting. The use of harassment, preventative arrest and
detention to discourage and prevent peaceful protest is unacceptable.
11. The Executive should cease its interference with the freedom of the press in reporting on
the issue of the Chief Justice.
12. The courts should use the sanction of contempt with restraint and should not threaten
those who merely wish to comment on on-going judicial proceedings, especially where
those proceedings are of such gravity and public importance as the issues surrounding
the case of the Chief Justice.
13. Systematic reforms should be introduced to ensure the independence of the judiciary.
Reform should occur in the area of appointment, promotions, salary, removals, and
accountability of judges. Additionally, internal administrative mechanisms to monitor and
prevent corruption should be introduced.
14. The Executive should ensure that timely reporting is made under the human rights
treaties to which it is a party, to engender in the government a greater appreciation of,
and respect for, human rights as they apply in the context of Pakistan.
15. The Government should initiate, as a matter of urgency, a wide-ranging enquiry with
respect to ratifying the human rights treaties to which Pakistan is not yet a party.
16. The IBAHRI encourages the legal profession to continue in the quest for Pakistani
institutions to act in accordance with the law and for the protection of the independence
of the judiciary in a peaceful manner.
17. The international community should place pressure on the President to carry out the
above recommendations.
18. The international community should provide assistance to Pakistan so that it can
introduce the necessary reforms to the judiciary.
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7. Appendices
Relevant sections of the Constitution of
The Islamic Republic of Pakistan, 1973
9. Security of person
No person shall be deprived of life or liberty save in accordance with the law.
16. Freedom of assembly
Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable
restrictions imposed by law in the interest of public order.
19. Freedom of speech, etc
Every citizen shall have the right to freedom of speech and expression, and there shall be freedom
of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam
or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign
States, public order, decency or morality, or in relation to contempt of court,[15][commission of] or
incitement to an offence.
175. Establishment and jurisdiction of courts
...(3) The Judiciary shall be separated progressively from the Executive within fourteen years from
the commencing day.
180. Acting Chief Justice
At any time when(a) the office of Chief Justice of Pakistan is vacant; or
(b) the Chief Justice of Pakistan is absent or is unable to perform the functions of his office due
to any other cause, the President shall appoint the most senior of the other Judges of the
Supreme Court to act as Chief Justice of Pakistan.
209. Supreme Judicial Council
(1) There shall be a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council.
(2) The Council shall consist of, (a) the Chief Justice of Pakistan; (b) the two next most senior
Judges of the Supreme Court; and (c) the two most senior Chief Justices of High Courts.
Pakistan: the struggle to maintain an independent judiciary
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Explanation:- For the purpose of this clause, the inter se seniority of the Chief Justices of the High
Courts shall be determined with reference to their dates of appointment as Chief Justice otherwise
than as acting Chief Justice], and in case the dates of such appointment are the same, with reference
to their dates of appointment as Judges of any of the High Courts.
(3) If at any time the Council is inquiring into the capacity or conduct of a Judge who is a member
of the Council, or a member of the Council is absent or is unable to act due to illness or
any other cause, then (a) if such member is a Judge of the Supreme Court, the Judge of the
Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of
clause (2), and (b) if such member is the Chief Justice of a High Court; the Chief Justice of
another High Court who is next in seniority amongst the Chief Justices of the remaining High
Courts, shall act as a member of the Council in his place.
(4) If, upon any matter inquired into by the Council, there is a difference of opinion amongst
its members, the opinion of the majority shall prevail, and the report of the Council to the
President shall be expressed in terms of the view of the majority.
(5) If, on information from any source, the Council or] the President is of the opinion that a Judge
of the Supreme Court or of a High Court, (a) may be incapable of properly performing the
duties of his office by reason of physical or mental incapacity; or (b) may have been guilty of
misconduct, the President shall direct the Council to, or the Council may, on its own motion,
inquire into the matter.
(6) If, after inquiring into the matter, the Council reports to the President that it is of the opinion,
(a) that the Judge is incapable of performing the duties of his office or has been guilty of
misconduct, and (b) that he should be removed from office, the President may remove the
Judge from office.
(7) A Judge of the Supreme Court or of a High Court shall not be removed from office except as
provided by this Article.
(8) The Council shall issue a code of conduct to be observed by Judges of the Supreme Court and
of the High Courts.
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Relevant International Principles
Universal Declaration of Human Rights
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers.
Article 20
(1) Everyone has the right to freedom of peaceful assembly and association.
International Covenant on Civil and Political Rights
Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone shall
be entitled to a fair and public hearing by a competent, independent and impartial tribunal
established by law. The press and the public may be excluded from all or part of a trial for
reasons of morals, public order (ordre public) or national security in a democratic society,
or when the interest of the private lives of the parties so requires, or to the extent strictly
necessary in the opinion of the court in special circumstances where publicity would prejudice
the interests of justice; but any judgement rendered in a criminal case or in a suit at law
shall be made public except where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality: (a) To be informed promptly and in detail in
a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
Pakistan: the struggle to maintain an independent judiciary
49
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of
his own choosing; to be informed, if he does not have legal assistance, of this right; and to
have legal assistance assigned to him, in any case where the interests of justice so require,
and without payment by him in any such case if he does not have sufficient means to pay
for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses against
him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the
language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of their age
and the desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence being
reviewed by a higher tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has been pardoned on the ground that a
new or newly discovered fact shows conclusively that there has been a miscarriage of justice,
the person who has suffered punishment as a result of such conviction shall be compensated
according to law, unless it is proved that the non-disclosure of the unknown fact in time is
wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has already
been finally convicted or acquitted in accordance with the law and penal procedure of each
country.
Article 21
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise
of this right other than those imposed in conformity with the law and which are necessary in a
democratic society in the interests of national security or public safety, public order (ordre public),
the protection of public health or morals or the protection of the rights and freedoms of others.
Basic Principles on the Independence of the Judiciary
The following basic principles, formulated to assist Member States in their task of securing and
promoting the independence of the judiciary should be taken into account and respected by
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Pakistan: the struggle to maintain an independent judiciary
Governments within the framework of their national legislation and practice and be brought to the
attention of judges, lawyers, members of the executive and the legislature and the public in general.
The principles have been formulated principally with professional judges in mind, but they apply
equally, as appropriate, to lay judges, where they exist.
Independence of the judiciary
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the
Constitution or the law of the country. It is the duty of all governmental and other institutions
to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in
accordance with the law, without any restrictions, improper influences, inducements,
pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive
authority to decide whether an issue submitted for its decision is within its competence as
defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process,
nor shall judicial decisions by the courts be subject to revision. This principle is without
prejudice to judicial review or to mitigation or commutation by competent authorities of
sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal
procedures. Tribunals that do not use the duly established procedures of the legal process
shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial
tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to
ensure that judicial proceedings are conducted fairly and that the rights of the parties are
respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to
properly perform its functions.
Freedom of expression and association
8. In accordance with the Universal Declaration of Human Rights, members of the judiciary
are like other citizens entitled to freedom of expression, belief, association and assembly;
provided, however, that in exercising such rights, judges shall always conduct themselves in
such a manner as to preserve the dignity of their office and the impartiality and independence
of the judiciary.
9. Judges shall be free to form and join associations of judges or other organizations to
Pakistan: the struggle to maintain an independent judiciary
51
represent their interests, to promote their professional training and to protect their judicial
independence.
Qualifications, selection and training
10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate
training or qualifications in law. Any method of judicial selection shall safeguard against
judicial appointments for improper motives. In the selection of judges, there shall be no
discrimination against a person on the grounds of race, colour, sex, religion, political or
other opinion, national or social origin, property, birth or status, except that a requirement,
that a candidate for judicial office must be a national of the country concerned, shall not be
considered discriminatory.
Conditions of service and tenure
11. The term of office of judges, their independence, security, adequate remuneration, conditions
of service, pensions and the age of retirement shall be adequately secured by law.
12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory
retirement age or the expiry of their term of office, where such exists.
13. Promotion of judges, wherever such a system exists, should be based on objective factors, in
particular ability, integrity and experience.
14. The assignment of cases to judges within the court to which they belong is an internal matter
of judicial administration. Professional secrecy and immunity
15. The judiciary shall be bound by professional secrecy with regard to their deliberations and
to confidential information acquired in the course of their duties other than in public
proceedings, and shall not be compelled to testify on such matters.
16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation
from the State, in accordance with national law, judges should enjoy personal immunity from
civil suits for monetary damages for improper acts or omissions in the exercise of their judicial
functions.
Discipline, suspension and removal
17. A charge or complaint made against a judge in his/her judicial and professional capacity
shall be processed expeditiously and fairly under an appropriate procedure. The judge shall
have the right to a fair hearing. The examination of the matter at its initial stage shall be kept
confidential, unless otherwise requested by the judge.
18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour
that renders them unfit to discharge their duties.
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19. All disciplinary, suspension or removal proceedings shall be determined in accordance with
established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an
independent review. This principle may not apply to the decisions of the highest court and
those of the legislature in impeachment or similar proceedings.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an
independent review. This principle may not apply to the decisions of the highest court and
those of the legislature in impeachment or similar proceedings.
Basic Principles on the Role of Lawyers
Guarantees for the functioning of lawyers
16. Governments shall ensure that lawyers ( a ) are able to perform all of their professional
functions without intimidation, hindrance, harassment or improper interference; ( b ) are
able to travel and to consult with their clients freely both within their own country and abroad;
and ( c ) shall not suffer, or be threatened with, prosecution or administrative, economic
or other sanctions for any action taken in accordance with recognized professional duties,
standards and ethics.
17. Where the security of lawyers is threatened as a result of discharging their functions, they shall
be adequately safeguarded by the authorities.
18. Lawyers shall not be identified with their clients or their clients’ causes as a result of
discharging their functions.
19. No court or administrative authority before whom the right to counsel is recognized shall
refuse to recognize the right of a lawyer to appear before it for his or her client unless that
lawyer has been disqualified in accordance with national law and practice and in conformity
with these principles.
20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in
written or oral pleadings or in their professional appearances before a court, tribunal or other
legal or administrative authority.
21. It is the duty of the competent authorities to ensure lawyers access to appropriate information,
files and documents in their possession or control in sufficient time to enable lawyers to
provide effective legal assistance to their clients. Such access should be provided at the earliest
appropriate time.
22. Governments shall recognize and respect that all communications and consultations between
lawyers and their clients within their professional relationship are confidential.
Pakistan: the struggle to maintain an independent judiciary
53
Freedom of expression and association
23. Lawyers like other citizens are entitled to freedom of expression, belief, association and
assembly. In particular, they shall have the right to take part in public discussion of matters
concerning the law, the administration of justice and the promotion and protection of human
rights and to join or form local, national or international organizations and attend their
meetings, without suffering professional restrictions by reason of their lawful action or their
membership in a lawful organization. In exercising these rights, lawyers shall always conduct
themselves in accordance with the law and the recognized standards and ethics of the legal
profession.
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