www.ReportPress.com
Publisher: REPORT PRESS – Special Reports Media – USA
IBA Demands Restoration of the Chief Justice of Pakistan
An International Bar Association (IBA) Human Rights Institute (HRI) Report
IBA, the Global Voice of the Legal Profession
Supported by the Foundation Open Society Institute (FOSI)
Executive Summary – July 2007
The Struggle to Maintain an Independent Judiciary: a report on the attempt to remove the Chief Justice of Pakistan [Mr. Iftikhar Muhammad Chaudhry]
(ReportPress.com) – 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 [Mr. Iftikhar Muhammad Chaudhry] 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 General’s Office, on 9 March 2007, [Pakistan Army Dictator-Tyrant] General [(retired) Pervez] Musharraf ‘called’ the Chief Justice to Army House and ‘confronted’ him with allegations of misconduct. The General was in military uniform and in the company of several other senior military officers and the Prime Minister [Shaukat Aziz]. He demanded the Chief Justice’s resignation. When the Chief Justice refused, he was held incommunicado at Army House for approximately five hours.
The General 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 [SJC] and immediately appointed another Supreme Court judge as Acting Chief Justice [ACJ]. 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 General 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 General 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 regime because of his proactive stance in cases involving human rights and privatisation, and they alleged that the regime was concerned about the outcome of possible future cases involving the upcoming Presidential elections, the legality of the General retaining his position 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 General’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 regime 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.
IBAHRI Recommendations:
1. The General should rescind the Order of 9 March purporting to restrain the Chief Justice from carrying out his functions.
2. The General should rescind the Order of 15 March purporting to place the Chief Justice on ‘compulsory leave’.
3. The General 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 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 General 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.
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
Copyright © 2007-2010 ReportPress.com
Author: IBA
Chief Editor: Syed Adeeb
Publisher: Report Press – USA
Publication Date: Wednesday, 11 July 2007
