How has Pakistan’s judiciary contributed to the preservation or undermining of the rule of law? What steps must Pakistan’s democratic leadership take to uphold constitutional government and respect for fundamental rights? This report from the International Crisis Group examines the role of Pakistan’s judiciary in upholding fundamental rights, the rule of law and the constitution. It argues that the judiciary has failed to uphold the constitution and to oppose Islamic legislation that violates fundamental rights. Pakistan’s return to civilian government provides an opportunity to restore the rule of law and repeal discriminatory laws that undermine fundamental rights and fuel extremism.
Pakistan’s higher judiciary has repeatedly sanctioned military interventions and constitutional amendments that have fundamentally altered the legal and political system and undermined judicial independence. If democratic functioning is to be truly restored, constitutional and legal changes made under military rule must be reversed. The government must respect judicial independence and the judiciary must carry out its duty to protect and preserve the constitution. The Pakistan People’s Party (PPP) should introduce a constitutional amendment package reintroducing checks and balances between the branches of government and focusing on judicial reform.
The legacy of military rule in Pakistan includes discriminatory religious laws that undermine the rule of law, encourage vigilantism and embolden religious extremists:
- Pakistan’s blasphemy law emphasises the protection of Muslims and imposes harsher sentences, including the death penalty, for offences against Islam. It is widely abused, particularly by radical Sunni groups targeting religious minorities.
- Legislation prohibits Ahmadis, a Sunni minority sect, from claiming to be Muslims or promoting their faith. The vague language of anti-Ahmadi laws has resulted in many trivial cases being brought against Ahmadis.
- The Hudood Ordinances discriminate against women. While changes to the law now prevent charges of ‘fornication’ being brought against rape victims, women are still prevented from giving evidence. Inhumane sentences also remain in place.
- The Federal Shariat Court (FSC) constitutes a parallel Islamic justice system. The FSC bench consists only of Muslim judges appointed by the executive. The FSC has significant powers of judicial review, as well as quasi-legislative powers.
While discriminatory religious laws must be repealed it is also necessary to address the political climate that has produced and perpetuated these laws. The democratic transition provides an opportunity to restore constitutional functioning, overseen by a reformed and independent judiciary that is capable of protecting the constitution. The Government of Pakistan should:
- reinstate all judges deposed unconstitutionally during the 2007 martial law, with the supreme court deciding on Iftikhar Muhammad Chaudhry’s reinstatement as chief justice;
- reverse the military’s constitutional and legal changes and introduce, after consultation and debate, a bill to restore and enhance the 1973 constitution’s liberal parliamentary structure;
- ensure judicial independence by creating an appropriately constituted and empowered Judicial Commission for the appointment of Supreme Court and High Court judges;
- reduce opportunities for executive interference in the higher judiciary by prohibiting the appointment of retired judges to executive posts until two years after their retirement;
- amend the constitution to curtail chief justices’ power over transfer of judges and assignment of cases, establishing a managerial department to fulfil this task; and
- withdraw support for the Organisation of Islamic Conference anti-defamation resolution in the UN Human Rights Council.
