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International Crisis Group: Reforming the Judiciary in Pakistan

October 16, 2008

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Pakistan’s return to civilian government after eight years of military rule and the sidelining of the military’s religious allies in the February 2008 elections offer an opportunity to restore the rule of law and to review and repeal discriminatory religious laws that restrict fundamental rights, fuel extremism and destabilise the country. Judicial reforms would remove the legal cover under which extremists target their rivals and exploit a culture of violence and impunity. Ensuring judicial independence would also strengthen the transition to democracy at a time when it is being undermined by worsening violence.

Laws that discriminate on the basis of religion and gender, including the blasphemy law, anti-Ahmadi laws, Hudood Ordinances and Qisas (retribution) and Diyat (bloody money) law, are part of the legacy of military rule. Given constitutional cover by military rulers and legal sanction by superior courts unwilling to uphold fundamental freedoms, these laws have undermined the rule of law, encouraged vigilantism and emboldened religious extremists. These extremists have used them to advance a radical ideology of exclusion, curtail free expression and discriminate against women and religious and sectarian minorities.

Motivated by self-preservation and self-interest, Pakistan’s superior judiciary has not just failed to oppose Islamic legislation that violates fundamental rights but has also repeatedly failed to uphold the constitution. While superior courts have validated military interventions, military regimes have manipulated judicial appointments, promotions and removals, steadily purging higher court benches of independent-minded judges. This has pushed the judiciary further to the ideological right. Today, judicial independence is hampered not only by the state but also by right-wing religious groups.

If democratic functioning is to be truly restored, the military’s politically motivated constitutional and legal changes that have radicalised swathes of Pakistani society must be reversed. If the democratic transition is to be sustained and strengthened, the freely elected government must respect judicial independence, and the judicial arm of the state must live up to its responsibility to protect and preserve the constitution.

Pakistan’s two largest national-level parties, the Pakistan People’s Party (PPP), now in government, and the Pakistan Muslim League-Nawaz (PML-N), the main opposition party, have pledged to undo the legacy of military rule. Upon assuming power in March, the PPP and PML-N, then coalition partners, released scores of political detainees, including lawyers and judges arrested during Musharraf’s November 2007 martial law. They also lifted the military regime’s ban on labour and student unions, and committed to enforcing basic human rights. The coalition government has since unravelled, primarily over disagreements on mechanisms to restore over 50 higher court judges, including the Supreme Court chief justice, illegally dismissed during Musharraf’s emergency. Nevertheless, both parties remain committed to restoring constitutionalism, the rule of law and judicial independence. Their ability to reach consensus on the necessary constitutional changes to remove the military’s political distortions will determine the future of the democratic transition.

Before the coalition collapsed, during negotiations with the PML-N on restoring the judges, the PPP had put together a proposed constitutional package, aimed also at generating a public and parliamentary debate on constitutional reform. While the proposals included useful suggestions on strengthening parliament’s role and undoing the military’s constitutional manipulations, some proposed measures could undermine democratic reform, including judicial independence.

The PPP should, after parliamentary debate and public consultation, particularly with the bar associations that have played a lead role in fighting military rule, introduce a constitutional amendment package to restore democratic functioning and the rule of law. Aside from reintroducing constitutionally sanctioned checks and balances between the executive, legislature and judiciary, any such package should focus on judicial reform. An independent, reformed judiciary will not only help underpin constitutionalism and the rule of law but could also play a crucial role in preventing another direct or indirect authoritarian intervention. The government’s democratic credentials and the country’s political stability would also be best served with the ruling and opposition parties reaching agreement in parliament on reversing state-driven Islamisation, repealing the laws that empower Islamist radicals at the cost of the moderate majority.

The international community should avail itself of the opportunity the new democratic government presents. By unconditionally supporting Musharraf’s military regime in the belief that this relationship would deliver counter-terrorism dividends, the international community, the Bush administration in particular, had shied away from supporting democratic reform, until Musharraf’s illegal martial law of November 2007. As the regional implications of Pakistan’s religious laws become more tangible, with similar laws in other Muslim-majority states drawing on the Pakistani precedent, so have the costs of international inaction. With a liberal government now in place, the international community could help reverse the tide of radicalism in Pakistan if it fully supports a sustained democratic transition, including an independent judiciary.

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