PAKISTAN: Court delays, rights violations and impunity give no cause for celebration of Supreme Court’s Golden Jubilee

August 10, 2006

A Statement by the Asian Human Rights Commission

PAKISTAN: Court delays, rights violations and impunity give no cause for celebration of Supreme Court’s Golden Jubilee

As part of its celebrations of fifty years of existence, the Supreme Court of Pakistan is holding an International Jurists Conference starting August 11, 2006. The four-day conference will have “justice for all” as its theme and will be attended by more than 100 international delegates. Its agenda includes the domestic application of human rights norms, the independence of judiciary, the role of judiciary in good governance and many other points. Given the appalling record of the judiciary in Pakistan, the culture of impunity that it participates in creating and the massive delays to cases at all levels of the judicial system, there should be cause for concern, not celebration. Due to a lack of independence and to institutionalized corruption, the judiciary in Pakistan only delivers justice for the few – the rich, influential or militarily powerful – not justice for all. It will take more than a four-day conference to alter this.

Under the now-defunct 1956 Constitution, the Chief Court of Pakistan was replaced by the Supreme Court. On August 11, 1947, the founder of the newly-formed State of Pakistan, Mr. Mohammad Ali Jinnah, announced that the country would be a secular state. In his speech during the inauguration of the first Assembly of Pakistan, just three days before the independence of country, Mr. Mohammad Ali Jinnah put forward a vision of secularism by announcing:

“You may belong to any religion caste or creed – that has nothing to do with the business of the state. In due course of time, Hindus will cease to be Hindus and Muslims will cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the state”.

In this speech Mr. Jinnah outlined the country’s political system, which was to be based on an elected parliamentary system. The assembly unanimously adopted this system as the basic guidelines for the future constitution. However, following the demise of Mr. Jinnah, Pakistan has progressively abandoned its founding democratic principles and become ever more autocratic and theocratic. The judiciary in Pakistan, rather than taking the path of Jinnah’s guidelines, has supported the military and autocratic governments under the pretext of “saving the country” and the paltry doctrines of necessity rather than the upholding of the ideals of justice.

Fifty years on from the establishment of the Supreme Court, and given the holding of an international conference focusing on the country’s judiciary, it may be helpful here to review the current state of human rights and justice in Pakistan.

The situation of court delays and decisions: There are more than 15,000 cases pending before the Supreme Court of Pakistan, the country’s apex court. Beyond this, many thousands more cases are pending in the over 3,500 other courts around the country. The disposal of cases in the country is extremely slow, giving rise to the accumulation of cases before the courts and the inability of the judicial system to deliver justice in an acceptable and timely manner. The disposal of ordinary cases takes a minimum of five to six years in Pakistan’s courts. If the cases go through the appeals process, they can take as long as 20 to 25 years, as each appeals court takes six to seven years to decide, and there are three to four such stages before reaching the Supreme Court.

A “Local Bodies” system has been put in place in the country, in which government services have been decentralized, including those of the judiciary. This has been done ostensibly to “provide justice at the people’s doorstep”, but in reality the local bodies system has lead to the increased corruption of the judiciary as a whole. The local bodies system is so devolved, that the feudal lords, big land owners, tribal chiefs, police and unscrupulous people are using their influence to make the system serve their interests, not justice. Human rights violations, which include honor killings, extra-judicial killings, kidnappings, rapes, torture and forced disappearances continue unabated in Pakistan and are accompanied by impunity for the perpetrators.

Constitutional status of the judiciary: In 2000, the current military regime brought in the so-called Provisional Constitutional Order (PCO) which replaced Pakistan’s 1973 Constitution. At the time, the highest judiciary and provincial high courts sanctioned the military government by taking an oath. The oath, which is normally to be taken upon the country’s Constitution, was reportedly taken on a blank document. The country’s parliament was restored in 2002 and was followed by the restoration of the 1973 Constitution in 2004. However, the members of the judiciary have still not renewed their oaths upon this constitution and, as a result, are acting unconstitutionally. During all military governments and regimes, the judiciary has also failed to oppose the military dominance of the judiciary and the operation of military courts. These factors signal the judiciary’s subservience to the military and its lack of intention to act to uphold the constitution. How can we expect the constitutional rights of the people of Pakistan to be upheld by an unconstitutional judiciary?

Grave human rights abuses ongoing: the AHRC continues to receive an increasing number of reports of cases of torture, forced disappearances and extra-judicial killings taking place in Pakistan. The perpetrators of these acts continue to enjoy near-total impunity for their actions. For example, the Inspector General of prisons in Sindh province was allegedly responsible for the torture to death of five high profile prisoners in Karachi in 2005 and 2006, but, despite credible evidence of his responsibility and many complaints from prisoners’ families, he has not even faced judicial questioning. He has since been killed by unknown persons. In another example of a high profile case, Mr. Mir Murtaza Bhutto, the head of a major political party – the Pakistan Peoples Party – who is also the son of former Prime Minister Mr. Zulfiqar Ali Bhutto, was allegedly killed along with several friends by members of the Karachi police in a fake encounter, but no police officer has been punished. The case of Mir Murtaza Bhutto’s killing has been pending in court since 1996 without a decision as yet. The allegedly involved police officers have not been suspended and some of them have even been promoted to high-level posts.

According to reports in May, 2006, over 1,250 cases of police torture were reported as having been committed in the country during the previous 16 months, despite police reforms and the setting up of ‘public safety commissions’ at the district level. According to these reports, the police tortured 960 men, 180 women, 85 boys and 25 girls. Most of the cases were reported in the Punjab and Sindh provinces, with 743 cases in Punjab and 503 cases in Sindh. Eight cases of police torture were reported in Balochistan, 43 in the North West Frontier Province and 23 in the federal capital, Islamabad. There are over 1000 reported cases of forced disappearances since 2002. The Federal interior minister stated in December 2005 in the National Assembly that over 4000 persons have been detained in Balochistan province (since 2002). However, of this number, less than 200 persons have been presented before the courts, meaning that the remainder are being detained incommunicado. The military’s detention facilities are effectively off-limits and the judiciary lacks the ability or will to gain access to persons being detained there. Even when family members or witnesses identify members of the authorities as having carried out human rights violations, the courts generally take the government’s denial statements as sufficient evidence for the disposal of cases. Despite the high number of cases of various very grave abuses, no law enforcement or military personnel have been punished for their actions. Impunity is a key factor in enabling the ongoing violation of human rights violations and the judiciary bears significant responsibility for this situation.

The judiciary in Pakistan critically lacks independence and has, since its inception, been the tool of various forms of unconstitutional governments and military regimes, enabling the destruction of democracy and democratic institutions. Pakistan has been under 31 years of military rule out of the 59 years since independence. The judiciary has bent under the various doctrines of necessity instituted during this period, and has failed to deliver justice in any credible form or to deliver “justice for all”.

The advent of the Supreme Court’s Golden Jubilee should be used as an opportunity to face the failings of the system, for the judiciary to return to the constitutional fold and to reform in order to stamp out the corruption and lack of independence that is currently crippling the system. Then, perhaps, will there be cause for celebration rather than concern.

Document Type : Statement
Document ID : AS-188-2006
Countries : Pakistan,