Human Rights and Democratic Development in Pakistan

by Hina Jilani

Part III

1. Rule of Law and the Administration of Justice

      Long years of military rule, and its repeated sanction by superior courts, affected not only Pakistan's political environment, but also the constitutional framework for legislation and the enforcement of laws. Denial of democratic rights, laws permitting the violation of fundamental freedoms, and autocratic imposition of State authority was given a veneer of legality by the mere act of legislation. The general perception of law being just and equitable and, therefore, the rule of law being a strong protection against the denial of rights changed. Law is now seen more as an instrument of control than that of relief and redress. This perception is shared by both civil society and State institutions. While for the former, the perception is manifest in resentment against the law and the structure of authority it creates, in the latter the total lack of respect for law is evident in the behaviour and conduct of law enforcement organs of the State, and the impunity with which the State itself contravenes the law.

Constitutional Framework for Democratic Development and Human Rights

      Between 1956 and 1973, four Constitutions were framed (61). Each of these Constitutions was either abrogated or suspended after a military coup-d'état(62). While the 1956 Constitution provided for justiciable fundamental rights, the Constitution promulgated by the President in 1962 made no such provisions. The latter was a constitutional document enforced through a Presidential Order. It was neither debated nor framed by a constituent body. Fundamental rights were later added to the Constitution through an amendment made by the Parliament, elected subsequent to the enforcement of the Constitution. The 1973 Constitution, though not a perfect document, can claim a legitimate source of creation, the Parliament elected in 1970 being the Constituent Assembly for framing the Constitution (63). Fundamental rights were made an operative part of the Constitution, the Judiciary was empowered to issue writs and was promised full separation from the Executive (64). Justiciability extended to legislation which was ultra vires of the Constitution, including legislation by Parliament abridging any of the fundamental rights conferred by the Constitution (65).

      Deviations from the constitutional framework hampered the development of law in accordance with the principles enshrined therein. Not only was the body of law allowed to deviate from the direction set by the Constitution, the Constitution itself was amended in a manner that has created ambiguity in its basic principles. Tampering with the letter and spirit of the Constitution began soon after its enforcement (66). ). Using the emergency provisions in the Constitution (67), fundamental rights were suspended, and remained suspended throughout the period of civil government between 1973 to 1977. The civilian government was overthrown by a military coup on 5 July 1977. The legitimacy of this change was challenged by the wife of the deposed Prime Minister (68). The Court upheld the legitimacy of the military government on the grounds of necessity. It went one step further, and gave the Chief Martial Law Administrator power to amend the Constitution. This power was used most liberally to adulterate the Constitution before it was finally restored in 1985 (69). Amendments made as a consequence of the power granted by the Supreme Court to the Chief Martial Law Administrator, added to the existing ambiguities in the Constitution. The legislature inducted as a result of the non-party election held under martial law in 1985, made additional amendments, significantly changing the scheme of the Constitution, and creating further ambiguities (70). Even after eight years of restored civilian rule in Pakistan, and the induction of three legislative assemblies in this period, these amendments have raised serious issues in law-making, administration of justice, and the maintaining of a healthy balance and relationship between the different organs of the State.

Law Making

      While Pakistan claims it has returned to democracy and the government enjoys legitimacy through the electoral process, democratic process is not apparent either in law-making or other procedures of the Parliament. Lack of healthy competition between the government and the opposition has created an atmosphere of confrontation, undermining the role of Parliament as a representative body. Since 1988, the Pakistan People's Party and the Pakistan Muslim League have come into power in turn. Neither has recognized the legitimacy of the other to govern, nor the essential role of the parliamentary opposition. The ruling party will do everything it can to remain in power, while the opposition can do all it can to remove the elected government from power. Each of these parties have either actively sought intervention by the President and the military authorities to oust the other from power, or have welcomed such interventions without any concern for the future for a stable parliamentary democracy in Pakistan. Between 1988 and 1997 (nine years), four elections were held, and none of the elected governments or the National Assemblies completed its five-year term. This not only created political instability, it also seriously affected the performance of Parliament as a legislative body. The process of law-making has slowed to the point of causing serious concern for the survival of democracy in Pakistan. Law-making has become a contentious process, and the government rules by ordinance rather than by laws emerging from a healthy legislative process in Parliament. This situation has continued during the tenure in power of both the present government and the present opposition (71). The role of Parliament has been severely criticized by the press and has drawn censure from different sectors of society. The protest, however, falls far short of mass public reaction. Parliament seems impervious to the criticism and no significant improvement is visible. The situation is expected to worsen as tensions heighten (72), la situation va sans doute se détériorer.

      Concern for a fair legislative process in Pakistan has mounted as extraordinary methods of legislation are increasingly resorted to. Study of the legislative process since 1992 shows that rule by Ordinance (73) has become the norm, rather the promulgation of ordinances being used in exceptional circumstances and only when the Parliament is not in session. In the year 1992, nine new Acts were enacted by Parliament compared to twenty-two Ordinances promulgated by the President. The number of Ordinances promulgated in 1995 had increased to 127 (74). The power granted in the Constitution for extraordinary legislation was misused to legislate without the active participation of the opposition in Parliament. Often Ordinances are promulgated immediately before the session of the National Assembly or the Senate. Ordinances are not expeditiously adopted by the legislature. Instead they are repeatedly re-issued (75).

      Where Parliament has adopted laws, these have lacked free and fair discussion. Not only are laws adopted without an active discussion in Parliament, no public debate is possible before legislation, as there is no publicizing of proposed legislation. It is only rarely that the public enjoys the privilege of expressing views regarding a proposed law before it is a fait accompli. On the other hand, many legislative measures important to the public remain neglected, mainly because of contentiousness between the government and the opposition (76). It is true that, individually, the government and the opposition have each committed themselves to many measures - but they never reach the floor of the House. It is also true that government and opposition have been accessible to representatives of different groups and associations to hear grievances and recommendations for legislation (77). While this contact may have served to inform and sensitize individual members of the political parties, the effect on the policies of political parties has been very limited. Human rights groups seem to have had some success, however, in drawing attention to constitutional and legislative measures needed to improve the promotion, protection and implementation of human rights (78).

The Judicial System

      Under the original 1973 Constitution (79), the judicial system consisted of the Supreme Court at the apex, with High Courts in the provinces having appellate as well as constitutional jurisdiction. The High Courts also administer the subordinate courts within their jurisdiction. Using the powers granted by the Supreme Court (80)), the military government amended the Constitution in 1980 and established a Federal Shariat Court with the jurisdiction to review existing legislation and to decide whether or not a law or a provision of any law is repugnant to the injunctions of Islam (81). The Federal Shariat Court also has criminal appellate jurisdiction over the decisions of trial courts in cases falling under Islamic penal laws promulgated in 1979, as part of the Islamisation process of the military government of Zia-ul-Haq (82).

      The Constitution confers original jurisdiction on the Supreme Court in any dispute between two or more governments, in which the Court can pronounce declaratory judgments (83). The Court has original jurisdiction over cases involving rights recognized and guaranteed by the Constitution only if it considers that a matter of public importance is involved (84). This is a jurisdiction concurrent to that of the High Courts to issue writs for the enforcement of fundamental rights (85). The Supreme Court has used this jurisdiction in recent years to promote public interest litigation, and has decided some important human rights issues (86). However, the same jurisdiction has also been used to deliver some controversial judgments, including one that placed a ban on organizing student unions in universities. A separate registry has been established in the Supreme Court to accept petitions for the enforcement of fundamental rights.

      The High Courts have the power of judicial review of executive action and may issue writs which are prohibitory or directory or make declaratory orders to ensure conformity of the executive with the Constitution and the (87). Powers of the High Courts to protect the right to liberty are expressly provided for in the Constitution as well as in the Criminal Procedure Code (88). This is in addition to the powers of the High Court to enforce all the fundamental rights guaranteed in the Constitution and its inherent powers of issuing any order in the interest of law (89) and due process. These rights can be enforced against the State as well as against private parties. High Courts have the power to take suo moto action for the enforcement of fundamental rights, even where no petition has been brought before them.

     Original jurisdiction for trial of most civil and criminal cases lies with the subordinate courts. The High Courts have original jurisdiction in Constitutional and some civil matters, where the pecuniary limits of the matter under dispute exceed the jurisdiction of the subordinate courts. All cases - civil and criminal - are tried by a single presiding judge. There is no jury system. The law, however, provides for an appeal against all judgments.

     Administrative tribunals are provided for trial of labour cases, services matters and those related to banks. Decisions of these tribunals are subject to appeal. The law prescribes qualifications of judges, procedures for trial, and the right to appeal. While the justification for such tribunals is generally accepted, strong objections have been expressed with respect to the use of special courts for the trial of special offences. The establishment of the Special Courts for the Suppression of Terrorist Activity and the Speedy Trial Courts established by successive governments, were strongly criticized. Some of these special tribunals have been abolished (90). while new ones have been created under the Anti-Terrorism Act. The major concern in both cases were the inadequate provisions for ensuring fair trial and due process.

Independence of the Judiciary

      Judicial independence and separation of the judiciary from the executive has been a long-standing demand in Pakistan. The Constitution guaranteed that within three years of coming into force, the judiciary should be separated progressively from the executive. This period was increased to five, and then to fourteen, years by later amendments to the Constitution (91). Under the original provision, steps should have been taken to complete the process of separation by 14 August 1976. Even after the latest amendment, the judiciary remained under the administrative control of the executive and subject to pressures that undermined its independence despite the constitutional guarantee. The members of the Pakistan Bar Council filed proceedings in the Sindh High Court seeking directions from the court for the executive to implement the constitutional mandate. The case went to the Supreme Court and directions were issued to the government by that body to give effect to the constitutional provision and to enforce a law passed in 1972 (92), for separation of the judiciary from the executive by 23 March 1994 (93). It was not until 1996 that steps were initiated for the separation of the judiciary from the executive in compliance with the Supreme Court decision. The process is still not complete and is at different stages of progress in the four provinces. The process has by no means been well managed. The efficiency and competence of the subordinate judiciary have been of serious concern during the process of transition. Most of the judges deputed as judicial magistrates to assume jurisdiction over criminal cases previously tried by executive magistrates have limited knowledge of and experience in criminal law and require extensive additional training.

     Establishment of the Federal Shariat Court has created a parallel judicial system, which has exclusive jurisdiction over matters previously dealt with in the existing judicial system.

     "The reason for the creation of a separate Shariat Court structure may well have been born of a genuine desire to implement the Islamisation of laws in Pakistan, but the practical effect of its establishment, jurisdiction and structure has been to weaken the jurisdiction of the Superior Courts, create insecurity amongst superior judiciary and make unnecessary inroads in the judicial system which could have dealt with the Shariat jurisdiction in its existing structure" (94).

      This comment contained in the report of the International Commission of Jurists (1987) reflects the situation prevalent even today. The Federal Shariat Court continues to strike down laws as being repugnant to Islam. Its decisions are binding on High Courts (95), and courts under their jurisdiction. Thus, the jurisdiction of the High Courts for interpretation of laws according to the Constitution has been affected. The Federal Shariat Court has also declared that Parliament cannot override its decisions (96), thus placing itself above the reach of elected legislators.

      If the Federal Shariat Court decides that any law or provision of a law is repugnant to the injunctions of Islam, it specifies a date on which its decision is to take effect. On the stipulated date, the affected law ceases to apply (97). The responsibility for taking steps to amend the law to make it conform to the injunctions of Islam belongs to the President or the Governor on federal and provincial matters, respectively (98), It is important to note that neither the President nor Governor of a province has any role in the enactment of laws by Parliament (99). Appeals on decisions of the Federal Shariat Court proceed to a special bench of the Supreme Court (100), composed of three Muslim judges of the Supreme Court and two ulema (101) appointed by the President.

      Presidential powers completely undermine the independence of the judges of the High Courts and Supreme Court appointed to the Federal Shariat Court. The Federal Shariat Court has eight judges, including the Chief Justice. Only Muslims are qualified to be appointed. The Chief Justice has to be a person who is, has been, or is qualified to be a judge of the Supreme Court; or who is or has been a permanent judge of a High Court. Four of the judges must be persons who are, or have been, or are qualified to be judges of the High Court. Three of the judges are to be appointed from amongst ulema who are well versed in Islamic law. The President has sole authority to appoint judges to the Federal Shariat Court, including the power to determine the qualifications necessary for the ulema members of the bench. The term of office of a judge is three years, but may be modified by the President at will. The President also enjoys unfettered powers to assign judges of this court to any other office or require them to perform any functions he deems fit (102). Judges of the High Courts who are appointed to the Federal Shariat Court can be so appointed for a period of two years without their consent (103). ). Any judge who does not accept appointment to the Court is considered to have retired from office (104). This power has been used frequently and liberally to control the judiciary and to punish the more independent judges (105). Judges from the High Courts and the Supreme Court tend to be releuctant to be appointed to the Shariat Court.

     While Islamic penal laws apply to non-Muslims and the jurisdiction of the Federal Shariat Court extends over matters affecting the population in general, including the non-Muslim population, only Muslim lawyers are eligible to appear before the Court, in addition to jurisconsults appointed to a panel maintained by the Court. This provision is one of many factors which has deepened a sense of alienation in the non-Muslim community. Resentment on the part of non-Muslim litigants and lawyers is even more pronounced when a non-Muslim party to a proceeding before the Court is denied the right to counsel of their choice.

     The concern over judicial independence is, however, not limited to the Federal Shariat Court. Procedure for the appointment of judges to superior courts is provided for in the Constitution. This has recently become a contentious issue between the judiciary and the government. The Supreme Court delivered a landmark judgment providing guidelines for appointment of judges, and defining the role of the judiciary in the decision on appointments by the President. It was held, inter alia, that such appointments must follow after effective consultation with the Chief Justice of Pakistan, or the Chief Justice of the Province for which the appointment is proposed. While this judgment is widely acclaimed as an assertion of judicial independence, strong reservations regarding the effective independence of the judiciary remain, and tensions between the executive and the judiciary did not abate with this judgement. Another major concern is the susceptibility of the judiciary to interest group pressures. Women's organizations, for example, consider that social and cultural biases in judicial decisions have adversely affected women's fundamental rights.

      It is, nevertheless, true that judicial independence has come to be recognized as essential for democratic development and stability. A Supreme Court decision in 1996 is a step forward in establishing clearer rules for the appointment, transfer and promotion of judges in a manner that ensures their independence (106). Some aspects of the judgment have, however, been criticized for exceeding the boundaries of judicial independence and creating the potential for judicial dictatorship by making inroads into the legitimate functions of Parliament.

NOTES

61)     This includes the Interim Constitution of 1972, adopted by the National Assembly, which was also the Constituent Assembly for the framing of the 1973 Constitution. The Legal Framework Order promulgated by the military government in 1969, under which elections were held in 1970, is in addition to these four constitutional instruments. See Appendix I: "The Constitutions of Pakistan". Return

62)     While the 1956 and the 1962 Constitutions were totally abrogated, portions of the 1973 Constitution were placed in "abeyance" by the military government that overthrew the civilian government of Zulfikar Ali Bhutto in July 1977. Return

63)     The Parliament did not start functioning until after the martial law imposed in 1969 was lifted in 1972. On a writ petition challenging the imposition of Martial law in 1969, the Supreme Court held martial law to be illegal and the Chief Martial Law Administrator, a usurper. This decision, however, came after the "usurper" had already been deposed. Nevertheless, this decision did expedite the transition to civilian rule. Reference: PLD 1972 SC 139. Return

64)     Article 175 of the Constitution.  Return

65)     Article 8 of the Constitution. Return

66)     Between 1973 and 1977 there were seven amendments to the Constitution. These included amendments curtailing the power of judicial review and creating a minority status for a particular religious group, thereby putting them outside the pale of Islam. Return

67)     Article 233 of the Constitution. Return

68)     Begum Nusrat Bhutto vs The Chief of Army Staff and Federation of Pakistan, PLD 1977 Supreme Court 657. Return

69)     The Constitution was restored in March 1985 vide the Presidential Order No. 14 of 1985. However, Martial Law imposed on 5 July, 1977, was lifted on 1 January, 1986. Return

70)     The Constitution (Eighth Amendment) Act, 1985. Return

71)     A comparison of the reports of the Human Rights Commission of Pakistan on the State of Human Rights for 1992 (when the present opposition was in power) and 1995 reveals that the situation continues to be more or less the same. These reports specify the number of laws and the number of Ordinances passed during the year for which the report has been prepared. Return

72)     The new government that came into power after the elections in February 1997, enjoys a clear majority, and does not feel constrained in its capacity to pass legislation. It has, however, misused this majority by ignoring the opposition in the process of law-making. Flash legislation is resorted to, without allowing debate even when adopting important constitutional amendments. Draconian laws like the Anti-Terrorism Act, which denies due process and gives unfettered powers to the police, were passed without public debate. Return

73)     Article 89 of the Constitution confers the power on the President to enforce law through the promulgation of an Ordinance, except when the National Assembly is in session and if satisfied that circumstances exist which render it necessary to take immediate action. Validity of an Ordinance is four months from its promulgation, and, if not placed before the Parliament for enactment, it stands repealed after that period. Return

74)     State of Human Rights reports of the Human Rights Commission of Pakistan, 1992 to 1995. Return

75)     Qisas and Diyat Ordinance, amending the Pakistan Penal Code with respect to punishment for offences against the human body, was initially promulgated in 1990 and was re-issued every four months for five years. It became a regular Act in 1997. Return

76)     Constitutional amendment for the restoration of special seats for women in the National Assembly has been a long-standing demand by women. Owing to a lack of consensus between the two major parties in the Assembly, no steps have been taken in this regard. Return

77)     The Human Rights Commission of Pakistan, Women's Action Forum, Pakistan Federal Union of Journalists, traders organizations and the Chamber of Commerce have reported formal and informal meetings with groups from the two major parties who have been contacted and have been available for meetings on legislative proposals and recommendations from these groups. The Aurat Foundation, a women's development NGO, has started a legislative watch programmes. In connection with this activity the organization claims to have established regular contact with political parties with representatives in the Parliament. AGHS Legal Aid Cell has held special sessions for preparing drafts for the more popular legislative demands in the area of human rights with sectoral emphasis, e.g.: on women, children, minorities. Return

78)     Legislation regarding bonded labour and employment of children is an example of such contact. The last PPP government made proposals on the amendments to electoral laws following a series of meetings organized by different groups including the HRCP, where parliamentarians were invited to participate. Return

79)     The Constitution was drastically changed during the martial law period between 1977 and 1986. Chapter 3-A was added to the Constitution in 1980 to establish the Federal Shariat Court. Return

80)     Begum Nusrat Bhutto v. The Chief of Army Staff and Federation of Pakistan: PLD 1977 Supreme Court 657. Return

81)     Chapter 3-A titled "Federal Shariat Court" was added to the Constitution vide Constitution (Amendment) Order, 1980, (Presidential Order No.1 of 1980). Return

82)     Five laws were promulgated in 1979 as Islamic laws dealing with four offences for which punishment is specifically provided in the Holy Quran. These laws are popularly known as the "hadood laws". "Hadood" is the plural for "hadd", punishments of the Quran. These laws deal with the punishment for extra-marital sexual relationships, theft and robbery, drinking of liquor, drug use and trafficking and slander.Return

83)     Article 184 of the Constitution. Return

84)     Article 184 of the Constitution. Return

85)     Article 199 of the Constitution. Return

86)     Including environmental issues. Return

87)     Article 199(a) of the Constitution. Return

88)     Article 199(b) of the Constitution and section 491 of the Criminal Procedure Code. Return

89)     Section 561-A of the Criminal Procedure Code. Return

90)     Special Courts for Speedy Trial (Repeal) Ordinance, 1994. Return

91)     Amended earlier by the Constitution (5th Amendment) Act, 1976, and then by Presidential Order 14 of 1985. Return

92)     Law Reforms Ordinance (XII of 1972). Return

93)     Government of Sindh and others vs. Sharaf Faridi and others PLD 1994 SC 105. Return

94)     Report by International Commission of Jurists, 1987 : "Pakistan: Human Rights After Martial Law". Return

95)     Article203G of the Constitution. Return

96)     Muhammad Ismail Qureshi and others v. Federal Government of Pakistan, PLD 1992 FSC 445. Return

97)     Article 203C(3)(b) of the Constitution. Return

98)     Article 203(C)(3)(a) of the Constitution. Return

99)     Except for the requirement of the assent of the President before a Bill passed by the two Houses can become an Act at the Federal level, and the assent of the Governor for enactment at the Provincial level. Return

100)     The Shariat Appellate Bench of the Supreme Court. Return

101)     Islamic religious scholars. Singular form is Alim. Return

102)     Article 203C(4B) of the Constitution. Return

103)     Article 203C(4) of the Constitution. Return

104)     Article 203C(5). Return

105)     One instance is that of a Chief Justice of the Federal Shariat Court who was removed by President Zia from office after he had displeased the General and his orthodox religious allies by finding the punishment of stoning prescribed by the Islamic law of adultery and enforced by Zia, as not a punishement prescribed by the Holy Quran. Services of the Chief Justice were placed at the disposal of the Ministry of Law. Return

106)     Al-Jehad Trust case, reported in Pakistan Legal Decisions, 1996, Supreme Court. Return