Chief Justice of Pakistan Iftikhar Chaudhry finishes his eight-year term on 12 December 2013, leaving the legacy of a robust and assertive court, as well as some well-founded criticisms of inconsistency in its approach to human rights, the ICJ says in a report released on Thursday.
The ICJ’s 99-page report, authority without accountability: the search for justice in Pakistan, presents a detailed assessment of the court’s human rights jurisprudence during Chaudhry’s tenure.
It also provides recommendations to the court to build on its work and improve its central role as a bulwark for the rights of the Pakistani people and the rule of law.
“The ICJ commends Chief Justice Chaudhry for redefining the court as an independent institution and closing the door to military rule in Pakistan,” said Sam Zarifi, Asia Director for the ICJ.
“But there are also concerns about how the court has exercised its judicial authority in protecting and promoting human rights.”
Under Justice Chaudhry, the Supreme Court has increasingly used its authority to intervene directly in matters of public interest, invoking its “extraordinary jurisdiction’’ under Article 184(3) of the constitution.
The ICJ report shows that the Supreme Court has succeeded, in some cases, to bring accountability to a government and military which have long enjoyed impunity for human rights violations.
“However, the lack of guidelines about how the court exercises this extraordinary power has led to criticisms about how it decides which cases to hear and, as importantly, which cases to ignore,’’ Zarifi added. “This lack of transparency corrodes the court’s tremendous achievements and undermines the principles of rule of law that the court seeks to uphold.”
The report documents some of the Supreme Court’s strides in strengthening the rights of victims to justice and remedy.
The Supreme Court has consistently taken a firm stance against unconstitutional usurpation of power by the military and has effectively held public officials accountable for corruption and abuse of power, it says.
In doing so, the court has brought Pakistan closer to fulfilling some of its obligations under international human rights law.
“There is still a long way to go before civilian and military authorities in Pakistan are truly brought to justice for human rights violations,” said Zarifi. “But the Supreme Court has certainly made a visible dent in the culture of impunity, spanning decades in Pakistan.”
The ICJ study also sheds light on some inadvertent yet predictable consequences of the expanded use of Article 184(3), which if left unchecked, may weaken the rule of law and independence of the judiciary.
These include an overwhelming increase in case-load, leading to long delays faced by litigants; dispositions in cases that leave affected partied without any remedy or redress; influence on trial courts and interference with the presumption of innocence, blurring of institutional boundaries and undermining separation of powers, and the creation of a two-tier and arbitrary justice system.
“The court should address these concerns as a matter of priority to ensure its hard-won independence is not undermined by allegations that the highest court of Pakistan is politically motivated,” said Zarifi.
“Under international standards, the judiciary must not only be independent and impartial, it must also be seen to be independent and impartial,” he added. “The absence of any actual or perceived bias is critical to ensure public confidence in the fair administration of justice,” he said.
