Professional Documents
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Justice Account Ibility and International Experience
Justice Account Ibility and International Experience
Justice Account Ibility and International Experience
REPORT
Justice, Accountability
and International Experience
R O U N D TA B L E
REPORT
Justice, Accountability
and International Experience
PILDAT is an independent, non-partisan and not-for-profit indigenous research and training institution with the mission to
strengthen democracy and democratic institutions in Pakistan.
PILDAT is a registered non-profit entity under the Societies Registration Act XXI of 1860, Pakistan.
ISBN: 978-969-558-046-2
No part of this publication may be produced, translated, stored in a retrieval system, or transmitted in any form or by any means
electronic, mechanical, via photocopying, recording or otherwise without the prior permission of PILDAT.
This publication is provided gratis or sold, subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired
out or otherwise circulated without the publisher's prior consent in any form of binding or cover other than in which it is published and
without a similar condition, including this condition being imposed on the subsequent publisher.
Published by
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Mr. Ahmer Bilal Soofi, President Research Society of International Law (RSIL)
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Session 2: Dispensing Justice and Establishing Accountability through the Judicial System of
Pakistan
An overview of the Judicial System of Pakistan and how far has it succeeded in providing justice
and establishing rule of law
Mr. Hamid Khan, Former President; Supreme Court Bar Association, Pakistan
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Special Remarks by Mr. Graham Everett Leung, Managing Partner, Howards Lawyers, Fiji
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Q&A
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Special Remarks by Mr. Abdul Rahim Kamara, Executive Director; Manifesto 99; Sierra Leone
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Mr. Hamid Khan, Former President; Supreme Court Bar Association, Pakistan
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Preface
Preface
akistan Institute of Legislative Development And Transparency - PILDAT, in partnership with 'No Peace Without Justice'
(NPWJ) an international NGO, organized a Roundtable on the subject of Justice, Accountability and International
Experience on May 2-3, 2007 at Islamabad.
The roundtable was organised with the objective to understand and take stock of the realities on the ground in Pakistan in terms
of available non-judicial, quasi-judicial and neo-traditional accountability mechanisms and how these contribute to
implementing the International Criminal Court's complementarity. The project, under the overarching umbrella of NPWJ,
includes a series of dialogues and discussions in various countries including Pakistan, Fiji and Sierra Leone. The outcome of the
discussions will feed into the production of a Global Report on whether, how and to what extent non-judicial, quasi-judicial and
neo-traditional accountability mechanisms have, could or should contribute to implementing ICC complementarity, narrowing
the impunity gap and promoting the rule of law rather than provide an alibi for impunity.
PILDAT wishes to thank the honourable session chairs, speakers and participants for sharing their views at the roundtable.
Special thanks are due to the NPWJ team and representatives of partner organizations from Fiji and Sierra Leone who travelled
to Pakistan especially to take part in the roundtable discussion.
Acknowledgments
PILDAT would like to acknowledge the financial support of No Peace Without Justice and the European Union for the roundtable
and the compilation and publication of this post-roundtable report.
Disclaimer
PILDAT and its team have made every effort to ensure the accuracy of the contents of this report and do not accept
responsibility for any omission and error, as it is not deliberate. The views expressed in this report are those of the various
speakers and the participants and are not necessarily shared by PILDAT or its supporters. The contents of this publication is the
sole responsibility of PILDAT, reflecting the views of the speakers, and can in no way be taken to reflect the views of the
European Union.
Islamabad
July 2007
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Executive
Summary
Executive
Summary
rominent legal minds of the country, at the Roundtable on Justice Accountability and International Experience, organized by
PILDAT, urged demilitarization of politics and economy as a way forward towards establishing rule of law and supremacy
of the constitution in the country. They believed that the struggle for independence of judiciary in Pakistan has still a long way to
go, but it is heartening that this struggle is gaining momentum through the courage shown by Justice Iftikhar Muhammad
Chaudhry and the national movement of lawyers in his support which has the potential to bring about a change for the better.
The roundtable conference brought together respected legal experts such as Justice (Retired) Saeed uz Zaman Siddiqui, former
Chief Justice of Pakistan; Mr. Hamid Khan, Advocate Supreme Court and Former President Supreme Court Bar Association; Mr.
Shahid Hamid, Advocate Supreme Court and Former Governor Punjab; Dr. Parvez Hassan, Prominent Lawyer; Mr. Ahmer Bilal
Soofi, Expert in International Law; Senator Babar Awan, Advocate Supreme Court and Justice Nasira Iqbal, Former Judge and
Barrister Zafar ullah Khan. The conference also brought together international legal experts from the UK, Italy, Belgium, Sierra
Leone and Fiji including Ms. Alison Smith, Mr. Niccolo Figa-Talamanca, Mr. Graham Everett Leung and Mr. Abdul Rahim Kamara.
Prominent participants at the roundtable conference included politicians and MPs, lawyers' community, youth representatives,
the media and civil society organizations.
Initiating the conference, Mr. Ahmed Bilal Mehboob, PILDAT Executive Director, said that the objective of the international
conference was to review and analyze the judicial and quasi-judicial system in Pakistan and how it fared with the international
scenario.
Senator S. M. Zafar chaired the session on International Perspective of Justice and Accountability with special reference to the
International Criminal Court (ICC). Ms. Alison Smith introduced the ICC and Rome Statute. Speaking on the topic Mr. Ahmer Bilal
Soofi said that Pakistan has not ratified the Rome Statute as yet and believed that it should do so as. He said that the Rome
Statute codified the Geneva Convention, which Pakistan has ratified, but the Rome Statute contains additional content.. The
Rome Statute has provided a suo-moto mechanism which has reduced the impunity gap to those violators who would have
otherwise escaped. He said that the Pakistani foreign office has not been correctly identifying the legal scenario in the occupied
Kashmir. The foreign office frames the Kashmir issue as a violation of human rights but in effect, it is a violation of international
humanitarian law. Defining it in this perspective gives Pakistan additional leverage to present a strong international case. Dr.
Soofi said that the state did not give enough importance to international law on many fronts. He highlighted that each time the
US makes an attack anywhere, it will first have been cleared by an international humanitarian law expert. On the conflict in tribal
areas, a view can be applied that given the threshold of armed conflict, international human rights laws can be applied there but
the government does not take that view. He said that the government is hesitant in ratifying the ICC especially relating to its suomoto jurisdiction and maintains that the referral of cases should be through the Security Council instead. Responding to a query
that even if Pakistan has not ratified the ICC, what happens if the parties involved in a conflict in an area of the country want to
complain about the alleged excesses of the military or the state to the ICC, Mr. Soofi said that it was possible that parties could
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refer the situation to the ICC and in that scenario, Pakistan will have a problem on its hands.
Justice Saeed uz Zaman Siddiqui chaired the session entitled, 'Dispensing Justice and Establishing Accountability through the
Judicial System of Pakistan', presenting an overview of the Judicial System of Pakistan and how far it has succeeded in
providing and establishing the rule of law. Mr. Hamid Khan, Former President; Supreme Court Bar Association, said that the
judiciary in Pakistan is burdened with the image of being weak and pliable particularly towards the military regimes. There have
been significant efforts made to justify violation and subversion of the Constitution at the hands of the military rulers. It has been
legitimizing the military regimes and in the process enjoying the fruits of power. Therefore, the judicial organ of the State has
been politicized with irreparable damage to its reputation and credibility. There have been some good judgments, but they are
exceptions rather than the rule. There are certain instances of public interest litigation which is not seen with favour by
undemocratic regimes and the impeachment process against the Chief Justice of Pakistan, Justice Iftikhar Muhammad
Chaudhry, is retaliation of the Musharraf regime to his judicial activism.
Presenting his views at the PILDAT International Conference, Mr. Shahid Hamid, Advocate Supreme Court and former Governor
of Punjab, said that the courts and judges in Pakistan are extremely over-worked Research has shown that in the courts of civil
and session judges, an average of 1000 cases are pending per judge in Punjab and 600 cases pending per judge in Sindh and
NWFP. Balochistan has a better position where, on average, 45 cases per judge are pending at one time as a significant section
of the population in the province relies on Sardari and Jirga Systems for seeking justice. Mr. Shahid Hamid said that corruption is
prevalent in the judiciary, especially the subordinate judiciary. This research has also shown that the government spends less
than 1 % of its total expenses on the judiciary which is very low. He believed that the judicial system needed extensive reforms.
In his comments, Justice (Retired) Saeed uz Zaman Siddiqui, Former Chief Justice, said that the Supreme Court, being the
creature of the Constitution, has only such authority or jurisdiction that is conferred upon it by the Constitution. The Constitution
authorizes the Supreme Court only to interpret the Constitution and the law and to declare the meaning of a particular provision
of the Constitution and the law. It has no power either to arrogate legislative power to itself, or to delegate it to any one, because it
lies within the exclusive prerogative of the Parliament.
Speaking on the topic of Jirga System in the Tribal Areas of Pakistan, Barrister Zafar ullah Khan said that the Frontier Crimes
Regulation is a strange and unjust system, but that people still go to the Jirga system because of their perception that the
criminal justice system has many major inadequacies. Presenting the FCR regulations clause by clause, Barrister Zafar ullah
Khan said that the system still enjoys widespread favour due to its less expensive nature and simple implementation, although
corruption has begun to enter the system and the poor and more vulnerable segments of society cannot afford to convene a
Jirga.
Expanding on the topic of Panchayats in Rural Areas and what makes them stay, Justice Nasira Iqbal said that the tribal courts
flourish with the blessing of the local police, civil administration, feudal lords and politicians. She believed the outmoded tribal
Jirga/Panchayat system still continues because the courts are burdened with a huge backlog of cases and physical access to
the courts is extremely limited for those who live in the urban slums, semi-urban, rural and remote areas. The basic structure of
the dual formal legal system is biased in favour of the affluent and politically powerful and the law enforcement agencies suffer
from lack of credibility.
Concluding the international conference and giving recommendations on establishing an effective rule of law in Pakistan, Dr.
Parvez Hassan said that the military, with its uncontrolled access to the power and resource bases of the nation, with the
accompanying patronage and opportunities that it commands, is a serious threat to any effective or genuine rule of law in the
years head. He said that no objective of the country can be more important, and more pressing, than to restore civilian
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supremacy, the supremacy of the Constitution, the laws and the Parliament. He emphasized that the demilitarization of politics
and economy was needed through capturing the potential of Article 6 of the Constitution. A minimalist approach, however, in the
direction of the national accountability of the military would be to require the consideration and approval of the defence budget in
the National Assembly. Improving and upholding the constitutional governance was another important goal and requires each
organ and authority of the state and each person performing functions on behalf of an organ or authority of the State to act in
accordance with the principles of policy laid down in Chapter 2 of Part II of the Constitution. The facilitation and strengthening of
the rule of law requires the government to hold periodic, free and fair elections, not excluding any person or political party and
held under an impartial and effective Election Commission. Dr. Parvez Hassan emphasized that the legal infrastructure
development was required particularly with a stronger emphasis on legal ethics. The Codes of Conduct of the Bar Associations
should strengthen ethics and professional responsibility. Presenting vision for the way forward, Dr. Hassan suggested that the
country and its people should consider establishing a Truth and Reconciliation model, as in Chile and South Africa. He also said
that meeting the challenges of Talibanization of our society was another crucial step towards reform. In the final analysis,
whether Pakistan will succeed, in the times ahead, to find and sustain a genuine culture of freedom and rule of law will depend, to
a large extent, on how it handles the looming threat to Taliban our society. Article 2 of the Constitution declares that Islam shall be
the State religion of Pakistan and, in fairness to its historical roots, this is the way it should be. However, there is a fundamental
difference in Islamizing and Talibanising our polity.
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Session 1
An International Perspective
of Justice and Accountability
with special reference to
International Criminal Court (ICC)
Ms. Alison Smith
Legal Counsel and Coordinator,
the International Criminal Justice Program, NPWJ
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Ms. Smith said individuals, and not the states as such, may
be called to account and this was an important pillar of
International Criminal Justice. In Human Rights Law for
example, she said, the states are called to account as states
were the actor. A good example of international criminal law
is the tribunal established after the Second World War to
prosecute the leaders of Nazi Germany. Crimes are not
committed by abstract entities. They are committed by men
[and women], she quoted the tribunal as having said
during the proceedings. She said there is an important
deterrent factor, which is the likelihood that individuals will
be held to account for the wrongs they have done if they do
not follow the rules, she said.
In recent years, she said, there had been a move by
international justice institutions to limit their prosecution to
those who bear the greatest responsibility for the
commission of the crimes during a conflict. She said some
people say that this limitation is a question of resources.
Disagreeing to this notion she said it was the question of
policy and the policy was that those who are at the top or
near the top chain of decision-making, are those who are
most likely to be deterred from committing the crime.
She said there was no peace without justice and those who
bear the greatest responsibility should always face criminal
accountability. She said the accountability was that the
people responsible for the sufferings of many people would
actually be held to account for their crimes and the victims
would have their grievance redressed.
Ms. Smith said that the Rome Statute for International
Criminal Court had a lot of provisions recognising the rights
of victims, recognising their right to participate and
recognising their right to be informed. In the Democratic
Republic of Congo and Uganda, the rights of the victims
have been recognized. She said that it was a very good
approach of the ICC, as earlier institutions did not have
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An International Perspective of
Justice and Accountability with
special reference to the International
Criminal Court (ICC)
Mr. Ahmer Bilal Soofi
President Research Society
of International Law (RSIL)
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resist the surrender under the law. Mr. Soofi believed that
Pakistan should ratify the ICC. Apart from ratification, he
said Pakistan must ensure in place a detailed legal
mechanism through an implementing law. This will help
Pakistan try such criminals in Pakistan, he said, adding that
it will become a protective measure for the country.
In the context of the Occupied Kashmir, for example, he said
that the successive Pakistani governments have not
correctly identified the legal situation. Human rights are
individual rights and it is not the violation of human rights
but international humanitarian law that India was violating in
Kashmir. This was applicable in cases where the army was
called in. There is presence of Indian army in Occupied
Kashmir for the last four decades. Pakistan, he said, would
get to benefit if it ratified the law and correctly put forward its
perspective on the issue.
Mr. Soofi said that the concept of the roundtable was not
confined only to the ICC but to justice as a whole. When
you ratify a convention you are measuring yourself against
a written text of a binding agreement. He said Pakistan's
conduct in future should be measured in this particular
reference. He said if Pakistan or any other country ratifies a
treaty, it surrenders a portion of its sovereignty of the
subject matter regulated by the treaty. Pakistan had signed
more than 30,000 bilateral and multilateral agreements and
same was the case with most of the countries all over the
globe. He said these treaties have substantive obligations.
More recently, he said, the traditional crimes are changing
in terms of international governance. Initially, Pakistan had
violations of Geneva Convention as a predominant issue,
we had hijacking as one of the most important crimes and
we had piracy as a traditional crime. But these days we have
issues like terrorism, money laundering, and other acts that
constitute crimes. So the shape of the crime has changed
and the legal reaction against crime is also changing, with a
greater sense of binding on the states.
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Q & A / Discussion
Mr. Shahid Hamid
Former Governor Punjab
You said earlier that crimes are individual's acts and the
individuals have to be held responsible. But in the presence
of the proposed automatic compensation mechanism, who
will pay the compensation: the state authority or the
individuals?
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acts and that is the way the state steps in. If the state is able
to create disconnect, then another law takes over called
Draft Article on State Responsibility. Pakistan is trying to do
that in case of Dr. Abdul Qadeer Khan to create a difference
between the irresponsible act of the individual versus and
the state position.
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Session 2
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Benazir by President Ghulam Ishaq Khan in 1990 was upheld by the Supreme Court in Khawaja Tariq Rahim's case5.
The dissolution of National Assembly and dismissal of
Benazir Bhutto's second government by President Farooq
Leghari in 1996 was also up-held by the Supreme Court 6. It
was only in the case of the dissolution of the National
Assembly in April 1993, resulting in the dismissal of Nawaz
Sharif as Prime Minister, that the Supreme Court set aside
the order of dissolution and revived the National Assembly
and reinstated Nawaz Sharif Government.7 The explanation
generally given for this departure from the consistent
record of the judiciary in upholding the undemocratic
orders and acts of the Governor Generals, Presidents and
Martial Law Administrators is that, at that time, the civil and
military establishment was divided over the action of
President Ishaq in dismissing the government of Nawaz
Sharif and the Supreme Court felt free to give judgment
without any pressure.
Even after the death of General Zia, the judiciary has been
up-holding the orders of the Presidents and Governors
dissolving the National Assembly and the Provincial
Assemblies respectively under their discretionary powers.
In Haji Saifullah's case 4 the order of General Zia dissolving
the National Assembly on 29 May 1988 was declared
invalid but the judgment came after the death of General Zia.
One of his sons, Ijaz ul Haq, had the audacity to make a
public statement that no such judgment would have been
delivered had his father been alive. The dissolution of
National Assembly and dismissal of the government of
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stamp charges is Rs. 135 million so the 90 per cent of all the
litigation cost does not fall on the litigants. It is borne by the
taxpayers. The litigants are only required to pay 10 per cent
of the total expenditure.
What the judiciary needs is fundamental reforms. A threetier system is required which is working successfully in
several countries. The country needs to get rid of the civil
judges altogether and have more district judges for which
the prescribed minimum age should be from 35 to 45 years
with 10 years experience. This will contribute to reducing
three to four years of delay of pendency. It was time for the
judiciary to take up valuable suggestions, involving public
and bar councils, increase the emoluments of the retiring
judges and induct new and young judges. There should be
an in-built system within the superior judiciary to ensure
implementation on its decisions. An implementation
system exists in the President House, Prime Minister
House, Chief Minister House and at all other such offices
but there is no such mechanism for the superior judiciary.
The total budget of the Lahore High Court is Rs. 350 million
and pendency of cases is of 75,000 cases. However, the
LHC is disposing of 80,000 cases per year. The reason
behind the pendency of cases is due to the fact that there
are 32 judges instead of the sanctioned strength of 50
judges. The vacant seats have not been filled over the years.
An analysis of the cost-per-case-disposed-off basis of the
Supreme Court would indicate 4,500. In the subordinate
judiciary, there are 1100 district and civil judges and the
number of cases pending with them is about 1.1 million and
their budget is 1100 million and their disposal rate is 1.3
million cases per annum. The total cost of the per-disposed
case is Rs 850 only.
I have also had the honour of doing welfare work and had an
organization namely The Hamza Foundation for hearingimpaired children. It has a state-of-the-art institution
located in Johar Town Lahore. Two years ago, the chief
Minister was the chief guest on a function there and he was
so impressed with the work that he increased the special
education budget 24 times after his visit to Johar Town.
There is another myth that the justice has become
expensive as so much is charged in the name of the fee, to
give one example. The total expenditure of the judiciary,
high court, civil court and other courts is less than Rs. 1.5
billion. Total receipts of the provincial government from the
judicial system by the way of the court fee and all other
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Q & A / Discussion
Mr. Ahmed Bilal Mehboob
Executive Director, PILDAT
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to a great extent.
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Special Remarks
Mr. Graham Everett Leung
Managing Partner, Howards Lawyers, Fiji
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of home-grown sins.
In January this year, he said the coup maker suspended the
Chief Justice of Fiji. He sent the second-most senior army
personnel to the Chief Justice's chambers and gave him an
ultimatum that he either resign or he could go home on
leave. He chose to go home on leave, asking the military
men what wrong he had done. They told him that the
judiciary was in shambles and inefficient. Until today, he
said no charges have been framed against the Chief Justice
of Fiji.
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Concluding Remarks
Justice (Retd.) Saeed uz Zaman Siddiqui
Former Chief Justice of Pakistan
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Session 3
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3 Tahira S. Khan; Beyond HonourA Historical Materialist Explanation of Honour-related Violence. Oxford University Press, 2006. Pg. 245-247.
4 The historical evolution of Panchayati Raj in the Punjab: the village panchayats were set up formally for the first time in the composite province of Punjab in 1912 after the passage of
the Punjab Village Panchayat Act in 1912 which was later replaced by the Punjab Village Panchayat Act, 1921 and then by the Village Panchayats Act, 1939. After independence and
the partition of Punjab, the Indian Constitution placed the Panchayati Raj System under the Directive Principles of State Policy. The Punjab Panchayat Act, 1952 was modified for the
adoption of a three-tier pattern by the Panchayat Samitis and Zilla Parishads Act, 1961. Later the state government enacted the Punjab Panchayati Raj Act, 1994, which is still in
force. In Pakistan, the Panchayat Act, 1939 was modified by THE WEST PAKISTAN (ADAPTATION AND REPEAL OF LAWS) ACT, 1957 which was repealed in 1959. However the
Panchayat practices still remain in vogue in Southern Punjab and Sindh, e.g. Mukhtaran Mai case 2002 . The Supreme Court of Pakistan directed that the offenders be arrested and
brought to trial. The Sessions Court convicted the rapists and sentenced them to death. The High Court, in appeal, acquitted five convicts and reduced the sentence of the sixth to life
imprisonment. The Appeal in this case is still pending before the Supreme Court, where the fate of the accused will finally be decided. Numerous cases decided by Panchayats have
been reported even in 2007.
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Statute Laws
Tribal Laws
Informal Laws
Customary Laws
Implementation through
Civil & Criminal Courts
Lower. High, Supreme
Implementation through
Federal Shariat Court
Implementation through
Jirga or Panchayat,
Enforcement through
State Police
Department
Enforcement through
State Police Department
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5 Chart Reproduced from Tahira S. Khan; Beyond HonourA Historical Materialist Explanation of Honour-related Violence. Oxford University Press, 2006. Ch. 9. Pg. 244
6 Selected Proceedings of TA 3433-PAK, Strengthening of Institutional Capacity for Judicial and Legal Reform, January 2003.ADB.M/o LJ and HR, Government of Pakistan.
p.356
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this regard.
In rural Baluchistan, a large number of people approaching
the tribal areas police for registration of an FIR have to pay a
monetary fine to the tribal chief or Sardar. Such practices
are an effective deterrent against access to justice.
How will vulnerable sections of society then receive justice
in those areas where the Panchayat/Jirga System now
functions? The Local Government Ordinance 2001
provides for the establishment of the Musalihat Anjuman
(MA) consisting of two men and one woman in every Union
Council. MA mechanisms are based on the principle that
parties should reach a mutually acceptable solution rather
than spend time, energy and money in courts by
encouraging amicable settlement of disputes.
7 Please see Judiciary as a Catalyst for Social change paper presented by Samar Minhalla, Research Anthropologist Executive Director, Ethnomedia and Development, at the
International Jurists Conference held in Islamabad, August 2006.
8 Chapter XI of Local Government Ordinance 2001 Musalihat Anjuman S.102. Constitution of Musalihat Anjuman:- (1) In each Union, a Musalihat Anjuman shall be constituted
consisting of a panel of three Musaleheen (Conciliators) one of whom shall be a female to be elected from amongst the residents of the Union who are publicly known to be persons
of integrity, good judgment and command respect . Disputes which may be brought to the Musalihat Anjuman:-Domestic violence; Matrimonial disputes; Property disputes; Child
abuse, vagrancy and compelling children, females and disabled persons to beg; Exclusion of females from inheritance; Marriage to Quran, Watta Satta (exchange marriage),
Walwar, Swara (giving women in marriage to settle disputes); Zhagh (asserting ownership over women of the enemy tribe); Forced marriage & human trafficking; Forced labour;
Public insult, assault and degradation of females; Sexual harassment at the workplace; Related matters
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Q & A / Discussion
Muhammad Matloob Khan
Ph.D Scholar, University of Karachi
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Only the Supreme Court could take suo moto notice and
high courts were not empowered to do so. If the Supreme
Court started taking up individual cases, it would create
difficulties for itself.
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Special Remarks
Mr. Abdul Rahim Kamara
Executive Director Manifesto 99
Sierra Leone
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Session 4
Establishing an Effective
Rule of Law in Pakistan
the Way Forward
Dr. Parvez Hassan
Partner Hassan
& Hassan Associates
An Introductory Excursus
Sixty (60) years after its founding and following three
Constitutions (1956, 1962 and 1973) and several
mutilations and revivals (Provisional Constitution Orders
and Revival of Constitution Orders), the rule of law remains
elusive in Pakistan and a dream more distant than it
appeared in 1947. Rule of law was founded and continues
to flourish on the supremacy of law facilitated by a system
of governance that is democratic, participative and
transparent and, importantly, supported by a strong and
independent judiciary.
That a military General, in uniform, could, on 9 March 2007,
summon the Chief Justice of Pakistan to intimidate him,
allegedly with the help of five other uniformed Generals, into
resigning is a shameful reminder and acknowledgment of
the lack of respect, at the highest level, for the integrity and
independence of our judiciary, so vital for the rule of law.
Four coups that led to military rule for as much as half of our
total national life of six decades have positioned the military
as the most dominant player in almost every aspect of our
national life including politics, civil service, trade,
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1. Farhatullah Babar, The Armed Forces and the Corporate Sector, The News, 30 April 2007, documents, based on records before the Parliament, the all-pervasive intrusion of the
military in several corporate and real estate enterprises, many supported by public funds, and the resultant un-level playing field created for other enterprises. The article records
the view of a former British High Commissioner in Pakistan that the military's growing commercial interests in Pakistan were hampering poverty reduction efforts and the
effectiveness of the judiciary in the country.
2. PLD 1996 Supreme Court 324.
3. Id. at 399.
4. Sharaf Faridi vs. Federation of Pakistan, PLD 1989 Karachi 404, at 42728.
5. PLD 1973 Supreme Court 49.
6. Ld. At 70.
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14. See, generally, Dr. Parvez Hassan, Securing Environmental Rights through Public Interest Litigation in South Asia, Global Judges Symposium on Sustainable Development and the
Role of Law, at Johannesburg, South Africa, 18-20 August 2002, organized by the United Nations Environment Program, and with Azim Azfar in 22.3 Virginia Environmental Law
Journal 216-236 (2004)). See also Nasim Hasan Shah, Public Interest Litigation as a Means of Social Justice, PLD 1993 Journal 31.
15. The observance of religious freedoms under our Constitution has been dealt in an earlier article, Dr. Parvez Hassan, Religious Freedom: A Comparative Analysis of the U.S. and
Pakistan Constitutions, PLD 1987 Journal 157-170.
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17. See, generally, Dr. Parvez Hassan, Elements of Good Environmental Governance, delivered at the Asia Pacific Parliamentarians Forum Tokyo, Japan, 10-11 May 2001, published
in 6 Asia Pacific Journal of Environmental Law, at 1-11 (Volume 6, 2001), and in Asian Development Bank, Capacity Building for Environmental Law in the Asia And Pacific Region:
Approaches and Resources, 984-990 (Volume 2, 2002). Also in PLJ 2001 Magazine 251-259.
18. The international efforts to promote access to information in national laws and policies have been strengthened by the experiences with The Aarhus Convention, 1998 [1998
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1999) 38 ILM 517].
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The conduct of some lawyers in the recent emotioncharged processions in support of the Chief Justice also
raises questions about tolerance and the denial of due rights
to others. Many statements emerged during the crisis that
sought to unilaterally and, without notice, exclude some
lawyers from memberships in the Bar Associations. The
rule of law would have been better served by
acknowledging dissent as a part of the rule of law and by the
taking of actions only after notice and providing an
opportunity to the concerned party to provide his
explanation before terminating his membership of the Bar.
Truth and Reconciliation
Another possible way forward is with respect to the Truth
and Reconciliation model so well pioneered by Chile and
adopted to great national advantage and healing by Nelson
Mandela in South Africa. The South African experience has
shown that a nation afflicted with injustices, hatred,
oppression, intolerance and bitterness can make a new
beginning based on realization of past wrongs and
forgiveness.
The political, economic and social landscape in Pakistan
today echos a similar divisiveness generated by the
numerous transgressions by several key stakeholders,
including and led by the repeated military interventions. If
these transgressors can develop the maturity to publicly
admit that we did wrong and we will not do it again, the
stage can be set for a way forward based on truth,
atonement and reconciliation as a grand national exercise.
Meeting the Challenges of Talibanisation of our Society
But, in the final analysis, whether Pakistan will succeed, in
the times ahead, to found and sustain a genuine culture of
freedom and rule of law will depend, to a large extent, on
how it handles the looming threat to Talibanise our society.
Any discussion of the rule of law in Pakistan in the years
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Establishing an Effective
Rule of Law in Pakistan
the Way Forward
Mr. Hamid Khan
Former President;
Supreme Court Bar Association, Pakistan
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Q & A / Discussion
why is there reluctance on the part of the judiciary to take
any step which would have even the slightest chance of
causing annoyance to the government? Can it ever be
imagined that the rule of law and separation of power, which
deprive two million people of their basic rights of
representation in the legislature, be ensured in the Northern
Areas?
Syed Ali
Member Youth Parliament
As the discussion focuses on justice and accountability, we
the people of northern areas are the most vulnerable victims
of the current unjust political system in Pakistan. The
military is the architect of the Kashmir policy which has
caused enough suffering to us. We have no Constitutional
representation in the Parliament. We are governed neither
by the Constitution nor by the Constitution passed by the
Northern Areas Legislative Council. We are governed by the
Northern Areas Legal Framework Order 1994 passed by the
Kashmir and Northern Areas Ministry. So that is the biggest
form of injustice. Northern Areas Legal Framework Order
regards judiciary as an attached department of the Kashmir
and Northern Areas Division. I think this speaks volumes for
the commitment of the government for the independence of
judiciary.
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Concluding Remarks
Ms. Alison Smith
Legal Counsel and Coordinator,
International Criminal Justice Program
No Peace Without Justice