IBA Pakistan Report « The Report Press

Posted by: Report Press | Wednesday 9 May 2007

IBA Pakistan Report

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Publisher: REPORT PRESS – Special Reports Media – USA

International Bar Association Human Rights Institute Report

Interim Report of the IBA Fact-Finding Delegation to Pakistan – May 2007 – London, UK

By International Bar Association

Dr. Phillip Tahmindjis, the IBA Program Lawyer and a Member of the IBA Delegation, says: “This is a very serious situation. The events are contrary to international standards requiring respect for judicial independence and fairness to judges facing allegations of misconduct. The IBA welcomes the suspension in the last 24 hours of proceedings before the SJC pending a Supreme Court determination, but still reiterates the eight recommendations made in the [IBA] preliminary report to facilitate a resolution of this dilemma.”

(1) Reason for the Delegation

(ReportPress.com) – The International Bar Association (IBA) commissioned a rapid response delegation 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 (CJP) [Iftikhar Muhammad Chaudhry] in March 2007. The IBA will release its full report in the weeks to come but given the urgency of the situation, releases this preliminary report today [Tuesday, 8 May 2007].

The [IBA] Delegation consisted of Robert Sharpe who is a Justice of the Court of Appeal for Ontario, Canada; Dr. Phillip Tahmindjis, Programme Lawyer, International Bar Association; and Michelle Bradfield who is a Research Fellow at the Lauterpacht Centre for International Law, University of Cambridge. The delegation met with many lawyers; bar associations; journalists; the Minister of Law, Justice and Human Rights; the CJP; the CJP’s legal counsel; and members of civil society. The delegation also reviewed relevant legal documents.

(2) Facts

In the words of the press release issued by the President’s Office, on March 9 2007, [unconstitutional] President [Pervez] Musharraf “called” the CJP to Army House and “confronted” the CJP with allegations of misconduct.

The [unlawful] President was in military uniform and in the company of several other senior military officers and the [puppet] Prime Minister [Shaukat Aziz]. He demanded the CJP’s resignation. When the CJP refused, he was held incommunicado at Army House for approximately five hours. Within a matter of a few hours from the CJP’s refusal to resign, a rapid series of events unfolded:

- The [illegal] President issued an Order restraining the CJP from carrying out his functions due to the ‘facts’ narrated in a Reference to the Supreme Judicial Council (SJC).

- Immediately thereafter the [self-appointed] President appointed [Supreme Court of Pakistan (SCP)] Justice [Javed] Iqbal as Acting Chief Justice, “being the most senior Judge available”. The most senior [SCP] Judge [Justice Rana Bhagwandas] was in India and only temporarily absent from Pakistan.

- A meeting of the SJC was convened by flying in on special planes two of itsmembers.

- In the presence of the Attorney General representing the Government but in the absence of the CJP, the SJC issued an order that the CJP not perform his judicial functions until the Reference was answered.

After his release from Army House the CJP 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 SJC on March 13 [2007].

On his way to the March 13 hearing, the CJP was roughly manhandled by the police. The March 13 and succeeding hearings before the SJC have proceeded in camera, contrary to the wishes of the CJP.

On March 15, the [tyrannical] President purported to place the CJP on “compulsory leave”, acting under the authority of the Judges (Compulsory Leave) Order, 1970, promulgated during [Anti-Pakistan Army Dictator] General Yahaya Khan’s military rule, the continuing validity of which is strongly contested.

The CJP has filed a petition with the SCP challenging the Reference to the SJC on a number of grounds, including that the proceedings were motivated by malice, that certain members of the SJC are biased and that the SJC has no constitutional authority to deal with the Reference.

The actions of the [corrupt] President of Pakistan and the treatment accorded to the CJP 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.

(3) Conclusions

These events give rise to many serious issues of Pakistani law that are now before the SJC and SCP. 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 we base this report. We conclude that:

1. From March 9 to March 13 [2007], the atmosphere of intimidation and coercion brought to bear upon the CJP in an attempt to force his resignation is plainly unacceptable.

2. The [criminal] President’s Order of March 9 restraining the CJP from carrying out his functions and the Order of March 15 placing the CJP on “compulsory leave” represent a measure of executive interference with judicial independence inconsistent with fundamental norms of international law.

3. The extraordinary March 9 ex parte session of the SJC which immediately passed an Order that the CJP not perform his judicial functions was convened with undue haste. The CJP was given no hearing or opportunity to make submissions on the allegations against him. The lack of procedural fairness is cause for grave concern.

4. Holding the CJP incommunicado under house arrest for several days, given no meaningful opportunity to consult counsel prior to the SJC proceedings, together with the abusive physical treatment of the CJP on that date by the authorities are contrary to the most basic norms of judicial independence and procedural fairness.

5. The manner in which the Reference was initiated has given rise to a widespread perception that the CJP was not treated fairly and the principle of judicial independence and the rule of law were disregarded.

6. In our view the events of March 9-13 irretrievably taint the proceedings now before the SJC [and SCP] and the Orders of March 9 and 15 as being contrary to international standards requiring respect for judicial independence and fairness to judges facing allegations of misconduct.

(4) Recommendations

We share the perception of the vast majority of the legal profession that the actions of the [barbarous] President and the authorities constitute a direct assault on the rule of law and the independence of the judiciary. We therefore recommend:

1. That immediate steps 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.

2. That the [thuggish] President rescind the Order of March 9 purporting to restrain the CJP from carrying out his functions.

3. That the [terrorist] President rescind the Order of March 15 purporting to place the CJP on “compulsory leave”.

4. That the [evil] President withdraw his direction to the SCJ that it inquire into the allegation of misconduct against the CJP contained in the Reference.

5. That the CJP be restored to his office.

6. That the allegations of misconduct against the CJP contained in the Reference 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.

7. That [all] allegations of misconduct against other Judges be referred to the SJC to be dealt with according to law, fairly, expeditiously, transparently and without executive interference.

8. That clear procedures be followed to ensure the timely and judicious treatment of complaints against Judges to ensure respect for judicial independence, procedural fairness and judicial accountability for improper conduct.

The International Bar Association (IBA) – the Global Voice of the Legal Profession, established since 1947 in London, UK – is the world’s leading organization of international legal practitioners, bar associations and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world. It has a membership of 30,000 individual lawyers and more than 195 bar associations and law societies spanning all continents. It has considerable expertise in providing assistance to the global legal community as well as being a source of distinguished legal commentators for international news outlets. www.IBAnet.org

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