Justice Account Ibility and International Experience

R O U N D TA B L E
REPORT
Justice, Accountability
and International Experience
May 2-3, 2007

Islamabad, Pakistan
Non c' pace senza giustizia

No Peace Without Justice
This project is funded by the

European Union
R O U N D TA B L E
REPORT
Justice, Accountability
and International Experience
May 2-3, 2007

Islamabad, Pakistan
Non c' pace senza giustizia

This project is funded by the

European Union
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.
Copyright Pakistan Institute of Legislative Development And Transparency PILDAT
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First Published: July 2007
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PILDAT
Justice, Accountability and International Experience

Roundtable: May 2-3, 2007
REPORT
Abbreviations & Acronyms

Preface
Executive Summary
Session 1: Introduction and International Perspective
Welcome Remarks and Introduction to the Roundtable Theme
Mr. Ahmed Bilal Mehboob, Executive Director PILDAT
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An International Perspective of Justice and Accountability with special reference to the

International Criminal Court (ICC)
Ms. Alison Smith; Legal Counsel and Coordinator, International Criminal Justice Program No Peace
Without Justice
13
Mr. Ahmer Bilal Soofi, President Research Society of International Law (RSIL)
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Q&A
19
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
25
Mr. Shahid Hamid, Former Governor Punjab
31
Q&A
33
Special Remarks by Mr. Graham Everett Leung, Managing Partner, Howards Lawyers, Fiji
37
Concluding Remarks by the Session Chair

Justice (Retd. ) Saeed uz Zaman Siddiqui, Former Chief Justice of Pakistan
39
Session 3: Quasi- Judicial and Neo-traditional Accountability Mechanisms in Pakistan

Jirga System in the Tribal Areas of Pakistan: How Fair and How Effective?
Barrister Zafar ullah Khan, Managing Partner, Jurist Consults
41
Punchayets in Rural Areas: What makes them stay?

Justice (Retired) Nasira Iqbal, Member Pakistan Law and Justice Commission
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Q&A
49
Special Remarks by Mr. Abdul Rahim Kamara, Executive Director; Manifesto 99; Sierra Leone
53
Session 4: Establishing an Effective Rule of Law in Pakistan the Way Forward

Dr. Parvez Hassan, Partner Hassan & Hassan Associates
55
Mr. Hamid Khan, Former President; Supreme Court Bar Association, Pakistan
63
Q&A
65
Concluding Remarks by the Session Chair

Ms. Alison Smith; Legal Counsel and Coordinator, International Criminal Justice Program; No Peace
Without Justice
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Abbreviations and Acronyms

CJP
FANA
FR
GHQ
ICC
LHC
NA
NWFP
SC
Chief Justice of Pakistan

Federally Administered Northern Areas
Frontier Region
General Headquarters of the Pakistan Army
International Criminal Court
Lahore High Court
Northern Areas
North West Frontier Province
Supreme Court
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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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Welcome and Introduction

Mr. Ahmed Bilal Mehboob
Executive Director, PILDAT
n his introductory remarks, Mr. Ahmed Bilal Mehboob

welcomed the guests and informed that the date for the
roundtable was decided several months ago at that time
PILDAT did not know that such a judicial crisis would arise.
However, the issue was related to the theme of the
conference.
Mr. Mehboob informed the audience that the conference
was part of a project PILDAT was carrying out with an
international NGO, No Peace Without Justice (NPWJ),
which is based in Brussels with headquarters in Rome and
an office in New York. He welcomed the representatives
from NPWJ who had traveled from Europe to participate in
the conference as well as other guests who had come from
Fiji and Sierra Leone. The project envisaged several case
studies including Pakistan, Sierra Leone and Fiji. He said
that the basic theme behind the project was to look into
mechanism of dispensation of justice and accountability in
Pakistan and other countries and share these experiences in
the form of global case studies.
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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
s. Alison Smith said that she was honoured and

pleased to be part of a gathering of illustrious legal
minds of Pakistan to learn about the country's justice
dispensation system. She also thanked PILDAT for
organising and hosting the conference.
Accountability, she said, was an important issue. Injustice
anywhere threatens justice everywhere. She said
accountability was self-explanatory term because it meant
to be called to account for your actions, to explain yourself
according to a set of rules.
In many ways, she said, one of the most important aspects
of accountability is when it is pre-emptive. Prospective
accountability was perhaps the most effective kind of
accountability. She said the rule of law was strengthened by
having prospective accountability, because it leads to better
adherence to the rules. Justice was one part of
accountability and not the only means to having
accountability. Accountability was people being called to
account for what they have done. The question was who
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similar recognition of the rights of the victims. The preamble

of the Rome Statute refers to the fact that the crimes within
the jurisdiction of the ICC are the most serious crimes of
concern to the humanity as a whole. Giving another
example, she said the genocide taking place in Darfur was
not only affecting the people in Sudan but affecting people
worldwide. She said this genocide was diminishing
international peace and security. Therefore, the
international community has the right to hold accountable
those who are responsible.
was being called to account and by whom and according to

what rules. She said the international community had
agreed on a set of rules according to which individuals can
be called to explain themselves, namely International
Criminal Law. She said a lot of International Criminal Law
was found in the Rome Statute of the International Criminal
Court. The Rome Statute sets out various crimes under
international law for which there may be individual criminal
responsibility, particularly war crimes, crimes against
humanity and genocide. These are the basic rules all the
states have agreed to, she added.
Before the existence of the International Criminal Court in

July 2002, there was no permanent institution to hear these
crimes under international law. Ad-hoc tribunals were
established though there has been some difficulty in
assessing the impact of these temporary tribunals. She said
the crimes within the jurisdiction of the ICC are applicable to
all states whether they have signed it or not as they are
based on customary international law. Each state has an
obligation based on international law, either to prosecute
those who have allegedly committed crimes under
international law or to extradite them to a state that is willing
and able to prosecute. She said primary responsibility of
doing that falls on the state. The Rome Statute established
the permanent ICC where these crimes can be addressed,
but primary responsibility for justice and accountability
rests on the state, as the ICC will step in only when the state
is unwilling or unable to execute accountability: this is the
principle of complementarity and the very foundation of the
ICC itself.
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)
r. Mr. Ahmer Bilal Soofi said that international law is

sub-divided into two sets. The set one of the
international law is administered to the resort of the use of
force. If a country wishes to attack another country, he said,
it has to prove justification of defence or pre-emptive right,
for example. All this category of the legal regimes will be in
one set of international law while the other set of
international law regarding the use of force is the actual law
which regulates the acts of hostility, he said. Once the
conflict starts, he said the regime of law called the law of
conflict takes over and has nothing to do with resort to the
use of force. Once the conflict has commenced, rightly or
wrongly, he said it must be regulated through certain
regimes.
Mr. Soofi believed these regimes were found in customs
and principles of chivalry or the principle of waving a white
flag. In current times, all those customary regimes have
been codified in the internationally binding Geneva
Conventions and the Hague Conventions which administer
the conflicts. He said Geneva Conventions were
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internationally accepted. He said the problem with Geneva

Conventions was that it created substantive offence or
substantive wrong without an implementing mechanism.
They had a declaration of an offence without a mechanism
to enforce and there was no court set up under the Geneva
Conventions. Therefore if a country, such as Pakistan,
ratified the Geneva Conventions, he said, it had a
corresponding responsibility of implementing the law or to
incorporate the Geneva Conventions grave breaches into an
offence of the Pakistan Penal Code to prosecute the people.
But the Geneva Conventions, despite its high moral ground
authority failed to achieve smooth and simple
implementation legislation in various countries. Pakistan
was no exception. Pakistan signed the Geneva Convention
in 1949 and to-date does not have laws which implement
Geneva Conventions. He said international conventions had
to be implemented specifically in Pakistan's laws before the
courts could take cognizance of that or frame charges
under that or extend protection to local population under
that convention. He believed that Pakistan had suffered
because it had not yet implemented the Geneva
Conventions, but instead only has an obsolete law from
1936.
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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.
Explaining the background, Mr. Soofi said that certain

global events moved the conscience of the international
community and subsequently the International Criminal
Tribunal for the former Yugoslavia and the International
Criminal Tribunal for Rwanda were formed. There was a lot
of support for the establishment of a permanent court for
many years. The Rome Statute gave an implementing form
to the offence originally under the Geneva Convention. In
article 7, 8 and 9, he said, it reincarnated the original
breaches into more explicit language. Now there is the ICC
which not only extends the jurisprudence of Geneva
Convention in terms of the offences identification to more
specific offence but created an obligation on states to
implement it.
Discussing Pakistan's case, Mr. Soofi said that if Pakistan
does not ratify the ICC, which it has not, then the question
arises as to what is the nature of ICC to comply with.
Substantive provisions by virtue of customary norms have
a binding force, he said, adding that Geneva Conventions
had a binding impact. So, he said, the issue of ratification
will become an obstructive issue in procedural
implementation. Giving an example, he said if a Pakistani
soldier committed a crime under the article 7, and Pakistan
has not ratified the convention then could Pakistan
surrender the soldier? He believed that Pakistan could not
Commenting on the events which have taken place more

recently i.e. Charsada and other aerial bombing incidents in
not only in Pakistani territories but also in the other areas, he
said that one view could be that the incident resulted in
civilian causalities, therefore it was a state responsibility. He
said the other view would be since it was part of our
obligations under various conventions to carry out this
military action. The precedents are in the favour of the first
opinion. The Army has to ensure minimum civilian damage
and ensure greater responsibility.
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Mr. Soofi believed that there was no norm in Pakistan or

other third world countries to have legal input taken when
military operations were carried out. He surprised the
audience by saying that during US attacks on Iraq whenever
missiles were fired from a US Carrier, onboard it was a
invariably a legal advisor of International Humanitarian Law
who would first cleared the target by making an assessment
that if it hit the target then what will be the legal
repercussions.
Raising the issue of compensation and victims, he said that
to create deterrence and ensuring justice and to bring in
accountability mechanisms if there were provisions under
which people could see that they would be prosecuted, it
will create deterrence. The other approach is that we should
have implanted an automatic mechanism of compensation.
After all, he said, these are the individuals who are affected.
Giving example of the Hamadan (Osama bin Laden's driver)
Case, he said that the US court came to the conclusion that
he could not be tried by a military commission unless and
until a competent tribunal determined his prisoner of war
status. He said that in cases of excesses committed by a
state, then the people who have suffered should be
compensated by the state because they are the victims of
the excesses of the state and that this could also act as a
deterrent.
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Q & A / Discussion
Mr. Shahid Hamid
Former Governor Punjab
agreements with all the countries, which it has now. The US

has adopted its own military manual, sidestepping the
international laws.
How could the ICC bring to justice the personnel of the

countries that have not ratified the charter?
Mr. Yasir Abbasi

Advocate

President Research Society of International Law (RSIL)
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?
Jurisdiction is always governed by the text of the treaty and

every treaty determines its own jurisdiction and how it will
be applicable. All treaties say that all actions which are
subject matter of the treaty must take place on the territory
of the state which is ratifying the treaty. Here the situation is
quite reverse. The ICC was mindful of the situation that only
three crimes namely crimes of hijacking, violation of
Geneva Convention and piracy had universal recognition.
Whenever a hijacker was found in one country, that country
could not try him without the obligation of surrendering
him/her to the country of his/her origin. Similarly, in the
case of terrorism, it was being argued that crime of
terrorism was the crime of universal jurisdiction. In the case
of Geneva Convention violation, if a violator was found in
England, he could be prosecuted whatever his nationality
was. The ICC says that if the national of any country, which
has not ratified the convention, has committed a crime on a
territory of the state which has ratified it, then that country
has the right either to prosecute him or surrender him to the
ICC. It has been laid down in the text of the charter. This has
been pushed by the US which wanted to have bilateral

There are existing mechanisms for each area for their
enforcement. Transorganised Crimes Convention
empowers law enforcement agencies to have mutual legal
assistance to seek warrants and ensure freezing of
accounts, for example. Likewise there was a convention
being negotiated by the International Maritime Organisation
which essentially set out that if the ships are going on the
high sea, they can be stopped and their cargo opened. Now
there is a provision in the additional protocol that if the
extradition is of frivolous nature, compensation will be paid
to the victim by the state which has the responsibility for
this. In grave breaches and in violation of International
Humanitarian Law, there is a responsibility of the official
acts. So the state does bear the responsibility for the state
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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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States, whether they ratify the treaty or not, can accept the
jurisdiction of the court for crimes allegedly committed
after July 1, 2002. Once the Statute was ratified by the 60
States parties, the Statute entered into force. If Pakistan
enters the treaty, it will be answerable for the acts
committed either from the date it enters the treaty or from
July 1, 2002, the day the treaty was ratified.
Ms. Asiya Nasir

MNA, MMA
The government has been emphasising three main issues:
transparency, accountability and good governance.
Experiences show that the government has failed to
implement these three rules. How will you compare it with
the international experience?
Mr. Niccolo Figa-Talamanca

Program Director, No Peace Without Justice
Let me try and answer the question about how can a court
prosecute the individuals if the country has not ratified the
treaty. I am an Italian national and currently I am in Pakistan
and subject to the Pakistani laws. It used to be in the 17th
century that you carried the state law with you wherever
you went in the world. But in modern times we are subject
to the laws where we are irrespective of where we are from.
If Pakistan has ratified the agreement then I am subject to
the Pakistani law irrespective of my nationality. We spoke of
the US position considerably. What is important that in the
course of the last five years, the position of the US in the
international courts has considerably eroded. For example,
the US policy on Darfur is under serious criticism. This is
the sign of evolution within the US administration.
In certain parts of Pakistan some operations are carried out

by the armed forces. How you will categorize the human
rights violations in this regard?
Senator S. M. Zafar
Former Law Minister of Pakistan;
Chairman, Senate Functional Committee on HumanRights
It is the responsibility of the government to maintain
transparency, accountability and good governance. Same
is the case with the incumbent government; it has ensured
freedom for the media for the first time in the history.
There will be two opinions. One is that they [the state] will
come up with the notion that there is no violation of
international humanitarian law and the situation is not in the
nature of an armed conflict. There is another opinion that
there is the situation of an armed conflict by virtue of the
presence of the military forces and their use of military
firepower is causing damage. Since we do not have any
domestic law dealing with such scenarios, we will have to
fall back on the Army Act and any irresponsible act by an
individual, should be prosecuted by the army.
Mr. Shahid Hamid

Former Governor and Supreme Court Lawyer
What are the remedies available in international law against
the state entities that are persistently committing state
terrorism and violating International Humanitarian Law?
The state terrorism was coined more as a political phrase
initially and then became a legal phrase. There is no
international convention or international law which makes a
declaration that a certain state conducts terrorism or statesponsoring terrorism. It was more of a political jargon. But
there is text appearing in various UN resolutions and
conventions from where one can make an inference that
this regime is on its way to evolve more firmly. But,
technically speaking, all terrorism activities are carried out
by the individuals and the decision makers. The individual
responsibility is of those individuals and the state is linked

If Pakistan chooses to be a signatory to the Rome Statute
then is there any provision which can be invoked for the
crimes which have been committed before the signing of
the treaty?
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intrinsically because it cannot disassociate from the

decision-makers. Primarily, the remedy lies in international
humanitarian law; the ICC is there to judge such cases and
there are no straitjackets any longer.
REPORT
Justice about construction of the wall. So there is plenty of

evidence that international law can be beneficial for people
and for the weaker states.
Executive Director PILDAT
Ms. Alison Smith

Legal Counsel and Coordinator, International Criminal
Justice Program; No Peace Without Justice
Pakistan has not ratified the treaty. So what happens if

someone wants to take the issue of excesses being
committed by armed forces in Balochistan? Who is
qualified to move the court in this regard?
Terrorism, as such, is not included in the Rome Statute of

the ICC. There is a review conference coming up in the next
couple of years where the state parties will get together to
discuss whether the Statute needs to be amended.
Primarily, it will look into the crime of aggression to be
included in the Statute. Drug trafficking and terrorism could
be included after that review meeting.

A separate prosecution chamber could itself make
recommendations on any complaint. The complaint can be
filed by the affected party even though the state has not
ratified. Pakistan may be reluctant to ratify the treaty due to
this factor. Other countries, including Pakistan, are waiting
for the US position also. The political position of the
Pakistani government is also not favourable to the ICC. If
intelligent implementing legislation is made through the
assemblies, the problem can be redressed.
Mr. Ommar Abbasi

Member Youth Parliament
Mr. Soofi said that in order to maintain international
mechanism you have to surrender a part of your
sovereignty for international treaties. On the other hand we
have clear cut violations of the international conventions
and treaties in Kashmir and other parts of the world. Hashmi
Rafsanjani of Iran a couple of years ago said that
international treaties are like drops of ink on paper and
another perspective is that these are usually for weaker
states. Which of these two opposite paradoxes is suitable
for Pakistan?
Ms. Alison Smith

Justice Program; No Peace Without Justice
The office of the prosecutor has the right to initiate
investigations based on the information he receives. The
prosecutor has not done that as yet and has said he will not
do so. A non-state party can refer the case to the ICC
Prosecutor for investigation as has been done by the
Central African Republic. In relationship to the situation
earlier mentioned, however, it was unlikely that the
Prosecutor will take action on the complaint other than the
state party. If the state refers the case then the Prosecutor
has to investigate the matter or give the reasons why he is
not starting the investigations.

It is a wider question and one standardized emotional
approach is that we do not believe in the international
disciplines and we are doing things in the correct way. If you
want to live in isolation, that is the way of doing it. The other
way is that no country says that it is violating the
convention. It puts innovative interpretation on the same
text. Sovereignty stands surrendered as a matter of fact
when you ratify any treaty or agreement. But you get
benefits out of this signing also. International discipline is
far more extensive, far more complex and far more detailed
in nature. If you play your cards smartly, you can attain
more benefits. For example many small countries can take
on much stronger countries within the World Trade
Organisation. I will give enormous credit to the legal
strategy of Palestine as they hired best team of legal experts
and won the case against Israel in the International Court of
Mr. Muhammad Azam

Student, International Islamic University
It appears that most of the regimes and structures are
based on the principal of injustice. The more the country is
stronger militarily or economically, the more influential it is.
International treaties go against the principal of equality,
sovereignty and justice until we get rid of injustice and bad
regimes.
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REPORT

areas to the law school and universities with regard to

particular research?
There is one thing called realpolitic which is correct. Every

country has its own interests. There are certain avenues
where you have enormous margins of performance:
developing countries, less strong countries and even
Muslim countries. Very often they do not exploit that margin
of performance and that is where the complaint of a person
like me starts. I have seen delegations going out for
negotiations on treaties but coming back only with
shopping to show for their trip. They need to participate in
the negotiations, but they also need to be sufficiently
reinforced to do so: such a delegation has to be backed with
a strong group of 14-15 lawyers and diplomats.

I agree with your concern that there should be a feedback
from the practitioners to the law faculties. But that may not
be left alone to the senior lawyers alone. It should be almost
institutional in nature. For example, Ministry of Foreign
Affairs deals every day with such propositions. Whatever
they do has ramifications. The research wing at the Ministry
of Foreign Affairs can identify propositions which are in
Pakistan's interest. Ministry of Justice could do that;
Attorney General's office could do that. There is need for
institutional arrangement rather than leaving this matter to
individuals.
Mr. Wazir Ahmed Jogazai

Former Deputy Speaker, National Assembly

What was the need for Pakistan to become member of the

Copyright Convention? When you are not producing any
thing then why you are becoming member of such
conventions.
There has been a lot of talk on voluntary surrender of

sovereignty by states when they enter into such treaties.
We have seen an increasing trend internationally that more
and more cases which were treated in the past were treated
as an exclusive domain of a country, something as their
domestic matter, but now they are being handled by
international forums. My question is about the recent
statement made by International Commission of Jurists.
They commented on the issue of Chief Justice of Pakistan.
Is it legitimate to discuss such a thing at international
forum?

There are a lot of conventions we have ratified. For example
Pakistan is participating in the Antarctica negotiations.
There is no harm in participating but ratification is
something where we will have to make an informed
analysis of our interests. Pakistan is also producing
intellectual property that needs to be protected. Then
perhaps it is relevant to sign it and ratify it. Being a part of
the global world we should be participating in global events.
It is of significant importance to protect copyright.

The difficulty with international law is that it has no binding
effect domestically. It does not overwrite the municipal laws
of the country. There has to be developed a mechanism that
the countries are compelled to bring their domestic laws in
line with the international laws. That is the only way to make
the international law a success. The ICC has been formed
recently and the US has made huge efforts for this, but
when it was formed, the US refused to ratify it. Similarly,
none of the international powers have subscribed to the
ICC. It was only the European community which came
forward on this front. Each country has surrendered a part
of its sovereignty by subscribing to the charter of the UN.
What is needed today is that the international law should be
The deficiency is that we do not have any powerful legal cell

at the Foreign Office, which otherwise has very brilliant
officials. On an average the number of legal advisors to any
Foreign Office of the country like ours is from 25 to 40. The
US has the highest number with 150 advisors. There is a
need to restructure our foreign office on these lines.
Ms. Farzana Malik
Central Information Secretary PML Women Wing
Law students need to do more and more research on
certain issues. Why don't senior law practitioners identify
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made binding and should be respected by all the powers. It

is high time that the international community, if it wants to
live in peace, should make up its mind for the enforcement
and improvement of the international law. Only through the
implementation of international law can there exist a
peaceful world.
Mr. Clifford Wardlaw
US Embassy
What do you make of the reluctance behind the slow pace of
legislation on the Anti-Money laundering Bill?
I personally think that it is poor legislation. A bill has been
tabled in the Parliament which is going beyond the
international minimum requirement. We have set up special
courts under the proposed bill to try anti-money laundering
offences. None of the world entities has asked us to form
the courts for this purpose but we formed on our own. My
argument is that it is not required. You simply need to frame
an additional charge of money laundering where the offence
has been committed. We have given financial investigation
powers which are not mentioned in our obligations. It will
create problems for our peoples. Those who drafted the bill
even did not know about it completely. We are adopting a
flawed procedure by following the Indian model, which
failed when they presented the same bill in an international
forum.
23
REPORT
PILDAT

REPORT
Session 2
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
he role that the military and the judiciary have played in

Pakistan during the past fifty years has led to repeated
constitutional crises, de-politicization of national issues,
interference of bureaucratic and military intelligence
agencies in politics, ascendancy of military over civilian
authority and disaffection and estrangement of the people
of Pakistan from the political process and governance.
The decline in the credibility and independence of judiciary
began with the appointment of Justice Muhammad Munir
as Chief Justice of Pakistan in 1954. Under his leadership
the Federal Court gave controversial judgment in Maulvi
Tameez-ud-Din Khan's case 1 upholding the action of the
then Governor General dissolving the Constituent Assembly
in 1954. This judgment paved the way for the judiciary in
future to justify patently arbitrary, malicious and capricious
acts and orders of the executive on hyper technical grounds
or self-serving theories or concepts. When the Martial Law
was declared in October 1958, the Supreme Court, once
again led by Chief Justice Munir, upheld the imposition of
Martial Law on the basis of Hans Kelsen's General Theory of
1
25
PLD 1955 F.C. 240
PILDAT

REPORT
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.
Law and State in Dosso's case.2 The court held that a

victorious revolution or a successful coup d'etat is an
internationally recognized legal method of changing the
constitution.
It took more than 13 years for the Supreme Court to reverse
the outrageous judgment in Dosso's case when it declared
General Yahya Khan usurper in Asma Jilani's case.
However, the judgment only came after the overthrow of the
usurper. The real test of independence of the Supreme
Court would have been if the judgment had been rendered
while Yahya was still in power. When the Supreme Court
was put to test in Nusrat Bhutto's case3, it floundered once
again. In this case the Supreme Court upheld the military
take over and imposition of Martial Law by General Zia on
the touchstone of doctrine of necessity.
Although the judiciary cooperated wholeheartedly with the
regime of General Zia yet it ultimately faced humiliation
under the Provisional Constitution Order 1981. A number of
judges were either dismissed or forced to resign. They
included General Zia's chief benefactors like Justice Anwarul-Haq, the then Chief Justice of Pakistan, and Justice
Maulvi Mushtaq Hussain, the Chief Justice of Lahore High
Court, who headed a bench of five judges who sentenced
Mr. Zulfiqar Ali Bhutto to death. The judiciary had the
audacity to up-hold the PCO of 1981 even though it had
stripped the judiciary off its independence and credibility. It
is, however, appreciable that two judges of the Supreme
Court, two judges of the Balochistan High Court and four
judges of the Lahore High Court refused to take an oath
under the PCO.
Justice Sajjad Ali Shah was appointed Chief Justice in

preference to three of his senior colleagues in June 1994
which caused quite an unrest amongst the members of the
judiciary and the Bar. However, he improved his image with
the judiciary, the Bar and the people by giving judgment in Al
Jehad Trust' case8 in 1996 upholding the principle of
seniority for appointment as Chief Justice. He, however,
avoided judgment on the validity of his own appointment
being in violation of this very principle. Had he stepped
down at that juncture he would have made for himself a
place in history. But unfortunately this was not to be.
This judgment led to serious confrontation between Justice
Sajjad and Prime Minister Benazir Bhutto which became an
important factor in the dissolution of the National Assembly
in November 1996 and consequential dismissal of Benazir
government. To add insult to injury, Justice Sajjad, heading
a bench of judges of his own choice without regard to the
tradition of hearing such cases by the Full Court, dismissed
the petition of Benazir Bhutto against dissolution of the
National Assembly.9
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
Although Justice Sajjad was a benefactor of Nawaz Sharif

and had paved the way for his return to power, it did not take
long before serious differences developed between them.
PLD 1958 S.C. 533

PLD 1977 S.C. 657
4 PLD 1989 S.C. 166
5 PLD 1992 S.C. 646
6 PLD 1998 S.C. 388
7 PLD 1993 S.C. 673
8 PLD 1996 S.C. 324
9 PLD 1998 S.C. 388
2
3
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appeared to be an accidental one. It seemed to be an

institutional reaction to the repeated interference in the
military affairs by the then Prime Minister Nawaz Sharif who
had earlier removed an army chief and was bent upon
removing another and replacing him with his favourite.
However, subsequent events have proved that the move
was not accidental, but was rather pre-planned with an
agenda to follow.
The situation came to a head on 28 August 1997 when

Justice Sajjad recommended five judges from three High
Courts for elevation to the Supreme Court. There was
strong resistance to these recommendations from the
executive, particularly the Prime Minister.
In order to defeat the recommendations, the government
notified a reduction in the number of judges of the Supreme
Court from seventeen to twelve, a number fixed as far back
as 1986. This was done to preclude the making of
appointments altogether. However, Justice Sajjad struck
back and suspended the notification. The President warned
the government that he might be compelled to notify the
elevation of those judges. At this, Nawaz capitulated and
ordered notification of appointment of these judges.
Real exposure of the military rulers came about when the

imposition of military rule was challenged and petitions in
this behalf were filed before the Supreme Court. By this
time, the military rulers had made sufficient inroads into the
Supreme Court and had moles working within the court that
would be protecting rather than advancing the interests of
the military rulers. The matter came to a head when the
judges of the superior courts were forced to take an oath
under The Provisional Constitution Order (PCO) on 26
January 2000. It appears now that arrangements had
already been made to create divisions within the Supreme
Court. When the Chief Justice Saeed-uz-Zaman Siddiqui
refused to take an oath, he was put under house arrest until
such time that those who had agreed to go along with
Musharraf, to take an oath under the PCO, had actually done
so. The result was that Chief Justice and five other judges
did not take an oath and were forced to resign and the
remaining seven took an oath under the PCO. The operation
to divide, weaken and emaciate the Supreme Court was
successfully carried out by General Musharraf with the
assistance of the "insiders" who saw the division within the
court as an opportunity to have one of them become Chief
Justice even if it was at the expense of independence and
credibility of the judiciary. Subsequent events have
demonstrated that Justice Irshad, in collusion with the
military junta, had been instrumental in the effort to divide
the Supreme Court and was thus rewarded by being sworn
in as the Chief Justice and on retirement was appointed
Chief Election Commissioner.
By November 1997, the confrontation had intensified and

battle lines were drawn between the executive and the
Parliament on the one hand, and the President and the Chief
Justice on the other. On 28 November, the Supreme Court
Bench headed by the Chief Justice took up the contempt
case against the Prime Minister. Under a pre-planned move,
PML (N) workers stormed the Supreme Court building, thus
preventing the Bench from continuing the hearings. It is
common knowledge that PML (N) workers from various
places in the Punjab were taken to Islamabad in buses
under the leadership of their respective MNAs and MPAs.
They attacked the building and the police contingent present
there stood aside like spectators.
In the meantime, a majority of the judges of the Supreme
Court rose in revolt against the Chief Justice and restrained
him from performing functions as the Chief Justice. On 2
December 1997, the Supreme Court met in two rival
Benches in the Supreme Court building. Heading a threemember Bench, he suspended the Thirteenth Amendment
without adequate hearing, thus restoring the President's
powers to dissolve the National Assembly. The rival tenmember Bench immediately held the order in abeyance and
restrained the President from acting on such a ruling. In the
final judgment, the ten member bench held that the
appointment of Justice Sajjad as the Chief Justice was void
and that Justice Ajmal Mian should immediately assume
the administrative and judicial powers and functions of the
Chief Justice.10
The Supreme Court, under its new Chief Justice, had

promised a lot and committed itself to protecting, rather
enhancing the interests of the military rulers, though at a
great cost to the nation. The military takeover was not only
justified under the doctrine of state necessity but the
military regime was given three years to implement its
avowed objects and agenda announced on 17 October
1999. Musharraf was given power to amend the
Constitution though no such plea had been made by any of
Judiciary and Musharraf regime

At the outset, the military takeover on October 12, 1999
10
REPORT
PLD 1998 S.C. 161
27
PILDAT

the parties to the case. The matter of judges of the Supreme

Court who had refused to take an oath under PCO was held
REPORT
took notice of the missing persons of whom the intelligence

agencies in Pakistan have allegedly kidnapped and kept
incommunicado. The Supreme Cour t demanded
intelligence and other law enforcing agencies to disclose
the whereabouts of the missing persons.
All this proved to be too much to bear for the regime of
General Musharraf. On 9 March 2007 General Musharraf
summoned the Chief Justice Iftikhar Muhammad Chaudhry
to the Army House and in full uniform of the Chief of Army
Staff ordered him to resign or face allegations under a
reference proposed to be sent to the Supreme Judicial
Council against him. The Chief showed exceptional courage
and refused to resign. He was thus kept in confinement in
Army House for more than five hours and had Justice
Javaid Iqbal (not the senior most judge of the Supreme
Court) take an oath of the office of Acting Chief Justice
while the Chief Justice was in custody in Army House at
Rawalpindi. A Reference was hurriedly sent against the
Chief Justice under Article 209 of the Constitution of
Pakistan. He was suspended by the order of the President
from performing his functions; he was not allowed to go to
his office in the Supreme Court, which was sealed by the
government, and was taken to his residence and kept under
house arrest for about a week. All telephone connections
were cut off and he could not communicate with anyone
outside his house; even his family members were
prohibited from leaving the house and his children were not
allowed to go to their educational institutions. The
proceedings before the Supreme Judicial Council are
continuing and a petition on behalf of the Chief Justice has
been filed before the Supreme Court on several important
constitutional points which is likely to be followed up soon.
Conclusion
Thus, the judiciary in Pakistan has a chequered history. It is
burdened with the image of being weak and pliable,
particularly towards the military regimes. Significant efforts
have been made to justify violations and subversions 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. Some are of the opinion that there
have been a few good judgments though they have been
considered exceptional. There are certain instances of
public interest litigation which is not seen with favour by the
PLD 2000 S.C. 869.

PLD 2002 S.C. 853
13 PLD 2003 S.C. 74.
14 PLD 2005 S.C. 719.
15 PLD 2006 S.C. 697
11
12
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undemocratic regimes and impeachment process against

the Chief Justice of Pakistan, Justice Iftikhar Muhammad
Chaudhry, is retaliation of Musharraf regime to his judicial
activism. However, the courage shown by Justice Iftikhar
and the national movement of lawyers in his support and for
independence of judiciary have the potential to bring about
a change for the better. It is also obvious that the judiciary in
Pakistan has not succeeded in providing and establishing
rule of law in the country. It goes without saying that
independent judiciary is sine qua non for establishment of
rule of law in the country and the struggle for independence
of judiciary in Pakistan still has a long way to go.
29
REPORT
PILDAT

REPORT
An overview of the Judicial

System of Pakistan and how
far has it succeeded in providing
justice and establishing rule of law
Mr. Shahid Hamid
he Supreme Court of Pakistan comprises the Chief

Justice and 16 other judges and currently two more
ad-hoc judges. We have four provincial High Courts. There
are 50 judges in the Lahore High Court, 28 in Sindh High
Court, 16 in Peshawar High Court and 9 in Balochistan High
Court. Another court known as the Federal Shariah Court
was brought in by General Ziaul Haq with reference to the
Islamic Hudood laws with the powers to declare any law
passed by the Parliament or the Provincial Assembly as
void if it were considered in violation of the injunction of the
Holy Quran and Sunnah. Beneath the above mentioned
courts, there is a four tier structure. Beneath the High
Courts, there are District & Sessions Courts dealing with
civil and criminal jurisdictions respectively, then Civil and
Magisterial courts dealing with civil disputes and petty
criminal cases respectively.
In addition to the above structure there are labour courts to
handle labour disputes, environment courts dealing with
environmental issues as well as various other tribunals.
There also are special courts for terrorism and banking and
accountability, to name a few. This summarises the basic
31
PILDAT

REPORT
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.
judicial system of Pakistan.

How much is spent on the judicial system and what are the
results? First let us examine the Supreme Court. The budget
of the Supreme Court is Rs. 150 million at the current time.
How can it be compared to the budget of the federal
government which is 1100 billion? The Supreme Court
budget, in comparison is 0.17 per cent. The budget of any
Ministry or federal department would be considerably
higher than the budget of the highest judiciary.
With so much pendency, the number of pending cases with

judges is about 1000 per judge in Punjab, 600 in Sindh, 600
on the NWFP and only 45 cases with the judge of
Balochistan.
An additional issue is delayed justice. The delays are
greatest in the Punjab, followed by the NWFP, Sindh and
Balochistan. The judiciary has tried to increase the disposal
rate and has, on several occasions, suggested fundamental
reforms. The number of judges needed to address the issue
of pending cases is twice the existing number. However,
regardless of the procedure, the problem will not be solved
until the vacancies of judges are filled. as it is humanly
impossible to tackle such a large number of cases with the
present number of judges.
The Supreme Court is disposing of 13000 to 15000 cases

annually. Whatever may be said of the present Chief Justice,
he has reduced the pendency of cases to a mere 11,000
cases and if the current rate of the disposal of cases
continues, then in the next 2-3 years every case will be
decided in 2-3 days. It was quite a remarkable achievement
on the part of the judiciary. The average cost of the disposal
of each case was Rs. 11,000, one of the best possible
ratios in the world.
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
32
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REPORT
Q & A / Discussion
system. We all know that the problem is that of cost,

complexity and delay. I would like to ask that rather than
urging the provincial government to fund the civil judicial
system why not urge the provincial governments to start
the concept of alternative dispute resolution system, as in
England?
Does the extraordinarily low level of pendency in

Balochistan as compared to the Punjab have any thing to do
with the traditional system of dispensing justice in
Balochistan?
Mr. Shahid Hamid

Justice (Retd.) Saeed uz Zaman Siddiqui

Former Chief Justice of Pakistan
The alternative dispute resolution system has been

encouraged quite a bit in the last year or so. This system is
now in place in the Tax System; it has produced somewhat
mixed results. It worked well for quite a while but the CBR
then developed some reser vations about the
recommendations resulting from the alternative dispute
resolution committees. A decision on a dispute should be
provided within 30 days though there were committees that
did not provide decisions for over a year.
It is because of the population. Balochistan's population is

less than that of Karachi's population. Apart from that, the
local Jirga System might be one of the reasons for the low
pendency in the courts. There was an issue of pendency in
Balochistan High Court but when Mr. Justice Ajmal Mian
was appointed, the pendency was reduced only to 700
cases. It is also true that Sardari system has also to do
something with the low level of pendency. 90 per cent of the
lawyers are based in Quetta and another 10 per cent are at
Naseerabad, Gawadar and Turbat. Certain district
headquarters do not even have any judges. This shows the
trend of litigation in the province. The legal system of
Balochistan is entirely focused on three or four districts.
It is also a question of the will to let the system work. In order

to make it work more efficiently, a fundamental overhaul of
the arbitration law is necessary. In countries such as
Canada and the US, the alternative dispute resolution
system is encouraged and may be enforced as a
compulsory process. There was a bill pending with the
Senate regarding changes in the existing law and if it is
adopted, the burden of the ordinary courts will be reduced
Mr. Osama Azim Chaudhry

Mr. Shahid Hamid mentioned the flaws in the civil judicial
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to a great extent.
REPORT
level. He should have been encouraged but one month

before the elections he was told by the then Governor that
remove the judges you have appointed at the district level
and appoint these scoundrels in their place. He said that he
reacted that they were corrupt to the core and the Governor
responded this was what they wanted him to do. Therefore,
within a day, all the honest judges were replaced with those
who had been sidelined for their corruption. The Lahore Bar
Council issued a White paper containing all of these things
but the most corrupt chief justice is still there, running a
whole system of corruption. The chief justice has a network
of corruption but he is darling of this government. My blood
boils each time I hear that he was among the judges who are
hearing the case of Chief Justice. He is the man against
whom there were frivolous charges of corruption and cases
against him were pending with the Supreme Judicial
Council while he was among the hearers of the CJs case.
Mr. Muhammad Hussain Mehanti

MNA, MMA
I appreciate the paper presented by Mr. Hamid Khan which
covered not only the history of the judiciary but also gave
insight into the prevailing judicial crisis in the country. We
have seen and observed that in this type of situation, the
army and the military regime have always prevailed over the
judiciary and decisions have subsequently been made in
their favour. Many believe that the judiciary has matured
enough and the public is now supporting it. Should we,
today, hope that the judiciary will come out successful of
the military pressure and the present crises will be resolved
by the CJP's reinstatement?
In the last four years, there were eight appointments in the

Supreme Court, four from Punjab and as many from other
provinces. Two Chief Justices from the NWFP and one each
from Sindh and Balochistan were elevated to Supreme
Court. From Punjab, that chief justice has been kept over
there for nearly five years. Four judges junior to him have
been elevated, the reason being that he is serving the
interest of the rulers to every extreme.
Mr. Hamid Khan

Former President; Supreme Court Bar Association,
Pakistan
My hopes are very high but my expectations very low. After
all, we have had a burden of 50 years of sad experiences. In
this particular case, the lawyers' community has shown
and is still showing great resilience and now the civil society
is also supporting them.
The military regime has perverted the entire system of

judiciary by awarding premium to the corrupt judges. The
army has institutionalized corruption and sanctioned from
the very top. This is the state of affairs in which we are right
now. The current struggle of judiciary might be the
beginning of the revolution and the scenario might change
in the coming times. The army was always desperate to
grab power. On December 16, 1971, Dhaka fell and half of
our country had gone. It was the biggest shame to happen
to Pakistan in its 60 years' history as our 90,000 army men
also surrendered. On December 18, 1971, General Yahya
Khan sent General Abdul Hameed Khan, who was acting
Chief of the Army Staff, to gather the army top brass to
address them. Army has nothing to do with the loss of the
half of the country and evil persons like Bhutto and Mujib
are responsible for this. We have done every thing to save
the country but the politicians are responsible for this
fiasco, thus addressed the General to the army men. Gen.
Musharraf would do anything to remain in power. Article 6
of the Constitution could keep the army away from grabbing
power in the country and it were the people of Pakistan who
could ensure enforcement of this Article.
The internal mechanics of the judiciary were unfortunately,

by and large, the same as they used to be. For example, if
somebody agrees to become acting chief justice, how
could he accept to take an oath in the situation when he had
not even talked to the Chief Justice? The Military can still
manipulate the judges and get their way. Ordinary citizens
are asking simple and straight questions which our judges
do not know. There was 50 years' dust on the judiciary
which was very thick and will take time to be removed and
that was where the problem was.
I agree to the perception that there is corruption in the
judiciary. If the survey of transparency and other agencies
was restricted only to Punjab, the percentage of the corrupt
judicial officials would be much higher. For judicial
appointment, real consideration was given as to how
corrupt a person was. In 2002, before the general election,
there was a judge who never heard a case against the
military regime, but one merit is that he was financially
honest. He also removed or sidelined all of the corrupt
judges in Punjab and brought in honest judges at the district
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Justice (Retd.) Nasira Iqbal

Member Pakistan Law and Justice Commission
REPORT
expenses. Why have the judiciary or the bars never

seriously pressed the government that the income
generated by the courts should be retained by them and
used in their budget? Such a step would guarantee the
independence of the courts. Only 10 per cent of the income
generated by the courts was retained by them while all the
remaining money went to the government coffers. Does the
ADB-funded US $ 350 million Access to Justice
Programme affect the independence of the judiciary?
I would like to make an observation on the internal

mechanics of judiciary. If the Chief Justice stood against the
army regime, it did not mean that all the judges were going
to act in the same manner. All of us had already seen the
conduct of the judges on the first day of the suspension of
the Chief Justice. Changes could be brought about and
solidarity expressed by the legal fraternity will have some
effects on judges. I hope that there will be no impediments
when the Chief Justice visits Lahore. The government was
concerned that the security of the Chief Justice was in
jeopardy and he should reach Lahore by air instead of
travelling by road. Now, after suspending him, the
government offered him a flight but in the reference they
claimed that the Chief Justice misused the authority by
demanding planes from the Chief Ministers.

This proposal first came to me when I was the Chief Justice
of Pakistan but I rejected it citing three reasons. The first
was that there was a condition attached to the loan that the
courts would submit the disposal reports to the bank. I
objected to the condition and said that nobody could ask
courts to be subordinate to the loan-giving agencies. The
second reason was that this loan should exclusively be
under the control of the Supreme Court for the purpose of
expenditure which was not accepted by the then Prime
Minister of Pakistan. The third reason was that it was a one
time grant and the money should have been used for
infrastructure development of the courts and for making
more appointments. I questioned whether they would be
able to sustain it by providing matching grants everywhere
in the budget. They could not reply to my question
satisfactorily and I rejected the proposal. But my
predecessor approved the proposal. There were a lot of
complaints about the money being spent on the judiciary.
Lawyers have been trying their best since March 9, 2007

but the other groups who could have acted are still silent.
What about the Parliamentarians? I do believe that the
President has directed the Parliamentarians that on May 13,
2007 there is going to be a show in favour of Gen.
Musharraf and each one is supposed to commandeer
buses carrying thousands and thousands of people in order
to justify their presence in the Parliament. Taking cue from
the lawyers, the Parliamentarians could impeach the
President and put in place the supportive articles of the
Constitution.
The newspapers reported that the Vice Chancellor of the
Punjab University was only a matriculate but he wanted to
hold the office for another three years term though his
tenure was expiring. After the events of March 9, 2007, she
said that the Professors Association unanimously, for the
first time, moved a resolution that they would not accept an
outsider to head the premier institution. She said it was time
the people stood up against army.
Mr. Hamid Khan

Pakistan
It was a loan and our generations would be paying for that
as it was not a grant. It was a well-kept secret as to how this
money was being spent. We wrote a letter to the Federal
Law Secretary and all four provincial Law Secretaries,
asking them how much of that money had been spent, what
it had been spent on, how much was available and how did
they intend to spend the remaining money. Neither the
Federal government nor the three provincial governments
replied. Only the Sindh government sent some idea
regarding spending the money they received. Everybody
was out to make money out of this money. Mr. Justice
Sheikh Riaz got a Supreme Court judge appointed as the
Punjab Law Secretary with full confidence that he would sit
on the Bench and would do as per his liking. Normally High
Regarding Article 89 A of the Civil Procedure Code, there

was a resolution at a conference held in February 2007 that
it should be made mandatory that any case that comes to
the court must be referred to some alternate dispute
resolution for a fixed period and if it was not resolved then it
should be referred to the court again.
Regarding the income of the court, small amounts of
money is given to the courts in the budget but huge sums
are taken from it in the form of court fees, and other
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Court judges were appointed as law secretaries but Mr.

Justice Sheikh wanted his man as Law Secretary so that he
could use the money according to his will. That Law
Secretary was removed with the transfer of Mr. Justice
Shaikh Riaz. Then our historical building was demolished
as they wanted it to be built anew.
I regret that even the Supreme Court did not pass a good
order in that case. It was done on the will of the Chief Justice
only without knowing that it would change the facade of the
historical building. Mr. Justice Shaikh Riaz got a judicial
order from a judge (now retired) that it should be
demolished and rebuilt. The ADB is instrumental in having
our historical buildings demolished and reconstructed. This
is how the money for Access to Justice Programme is being
utilised.
Ms. Farzana Malik
First of all I would like to extend my compliments to the
honourable chair and worthy speakers for their impressive
presentations. My question is about the judicial activism.
This terminology is very active these days. As a lay person I
would like to know what exactly the term judicial activism
means and how exactly it could replace the politicised
judicial system?
Judicial activism is a newly-coined term but I do not agree
with this. The judges were never activists but people who
have to think over the matter several times before coming to
a just conclusion. I always opposed the usage of this
terminology.
There was a special jurisdiction created in our Constitution
under Article 184 and sub article 3. Under that article
special jurisdiction has been given exclusively to the
Supreme Court to take up cases of public interest but it did
not mean taking up individual cases but rather cases that
involved a larger public interest. The courts should be very
careful in utilising Article 184 and sub Article 3 and should
consider only those exceptional cases in which no other
court was open to a party, that it was such a vital question
that a very large population was interested in its result and
then should there be any question of enforcing fundamental
rights, the case should be referred to the high courts.
36
REPORT
PILDAT

REPORT
Special Remarks
Mr. Graham Everett Leung
Managing Partner, Howards Lawyers, Fiji
hanking the organizers of the roundtable, Mr. Leung

said that he was pleased to be among the
distinguished analysts and jurists. Listening to the
speakers, he could not help but get struck by some of the
sad but interesting paradigms of Fiji and Pakistan,
especially with regard to judiciary.
He said Fiji, like India, was a British colony between 1874
until 1970 when she gained independence from Britain. Like
Pakistan, he said, Fiji was also a member of the
Commonwealth. In 1987, the third ranking member of the
Fiji military staged a coup. During the last 20 years, Fiji has
had a history of coups, not dissimilar to the ones people
were facing in Pakistan. He said a civilian also attempted to
stage a coup in 2000. But, ironically, the military helped
push and fight his coup and this was supported by the high
court decision. In December 2006, the military again
staged a coup and overthrew a lawfully elected
government, invoking the 'doctrine of necessity.' The coup
leader in his address to the media also quoted coups taking
place in Pakistan in retrospect in support for his actions.
However, the military coups in Fiji were said to be the result
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REPORT
aspiring to be. An independent and vibrant judiciary need

support from an independent Bar as both are corollary to
one another. He observed that an independent judiciary,
considered to be the cornerstone of democracy, and an
independent Bar would provide a strong check on abuses
by the executive. He said that it was a wishful thinking to
believe or even hope that the process of change could be
completed overnight. He said we will have to face long and
hard difficulties to reclaim the freedom of judiciary in
countries such as Pakistan and Fiji.
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.
For countries like Pakistan and Fiji, where the notion of

democracy has been planted recently, it will require
constant vigilance and struggle for us to save our nascent
and fledgling democracies. Many countries were
undergoing similar transformations which required ethics,
courage and a great deal of perseverance. Nelson Mandella
has inspired Africa and the world of how long the struggle
for freedom can be.
In any civilized country, he said, there were provisions that

relate to dealing with judicial misconduct. In Fiji, however,
the President must file a reference and there must be a
tribunal of three eminent judges from outside Fiji to hear the
charges of misconduct against the Chief Justice. He said
despite the passage of six months, no tribunal had been
convened and no charges had been levelled against him of
specific nature.
Under the constitution of Fiji, he said, in the event that the
Chief Justice is unable to discharge his duties or is overseas
due to illness, the judicial services commission is able to
appoint an acting chief justice, but only in narrowly defined
situations. The judicial services commission comprises the
Chief Justice as the chairperson, the chairperson of the
Public Service Commission and the Fiji Law Society.
Interestingly, a senior substantive judge of the Supreme
Court of Fiji was prevailed upon and she agreed to chair the
Judicial Services Commission while under the Fiji law only
Chief Justice could chair that Commission.
He said the judicial matters being compromised in Pakistan
had great resemblance with the developments taking place
in Fiji. The judiciary here has been subverted by the
outsiders like Fiji. He said it was a tragic development when
masses stand up for rule of law to be blinded by personal
agendas and egos. This happened, he said, when there was
influence of the military or some extraneous influence to
prevail and ultimate submission of the judiciary. Unlike Mr.
Shahid Hamid, he said considered that the great tragedy in
Fiji, Pakistan and other countries of the world where the
judiciary is under threat is the fact that judges have been
complacent or not as vigilant they ought to be.
The role of the Bar is critical to the rule of law as well as to
democracy. Unless a country has a strong, independent,
courageous and incorruptible Bar, it will be much harder to
improve the judiciary and the kind of country we are
38
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REPORT
Concluding Remarks
ustice (Retd.) Saeed uz Zaman Siddiqui said that military

coups, worldwide, were always justified under the
doctrine of necessity. He said the doctrine of necessity was
first introduced in Pakistan through Governor General
Reference No 1 and it was in very strange circumstance. He
said the Supreme Court of Pakistan in the case of Maulvi
Tameez-ud-Din Case declared that unless the law was
ascented to by the Governor General, it did not become the
valid law. The result of that judgment was that all the
legislation passed by the assemblies which came into
existence on August 14, 1947, from that date up to the date
of the Maulvi Tameez-ud-Din Case, became invalid and
non-enforcible. This led to a critical condition in the country.
Now to overcome that, he said, the Governor General came
up with a legislation whereby he gave his ascent
retrospectively that all those laws which were passed by the
constituent assembly between the periods of August 14,
1947 to the date of the judgment of Maulvi Tameez-ud-Din
Case. However, the impression prevailed that there was no
rule of law in the country and all the legislation done in the
period became ineffective.
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Following that, the Governor General made a reference to

the federal court seeking his advice as to what to do in such
circumstances. It is called Governor General Reference No
1 of 1955. It was in this case for the first time that the
doctrine of necessity was introduced. It is entirely different
from the references regarding doctrine of necessity that are
documented in our present national history. In that
reference, the court granted validation to all those laws
which were enacted from 1947 to 1954 on the ground that
there was a constitutional vacuum in the country.
He said that the doctrine of necessity is a doctrine of
condonation and not a doctrine of legitimisation. What the
courts have done in the cases of Nusrat Bhutto and Syed
Zafar Ali Shah is enlarged the scope of the doctrine of the
necessity and converted a doctrine which has been evolved
for the purpose of condoning certain wrong acts. But
through this doctrine they have legitimised their
unconstitutional acts. This is how the doctrine of necessity
came to Pakistan.
Quoting an observation of the court in the case of Zia-urRehman versus the State, he said that the Supreme Court
laid down the functions and the scope of the authority of the
Supreme Court of Pakistan. He said that we have mutilated
the entire concept of judicial authority and now we have
seen that after that case there were four Martial Laws in our
country and each one of the Martial Laws was validated by
the Supreme Court of Pakistan under the doctrine of
necessity, which was a perversion of the doctrine of
necessity.
40
REPORT
PILDAT

REPORT
Session 3
Jirga System in the

Tribal Areas of Pakistan:
How Fair and How Effective?
Barrister Zafar ullah Khan
Managing Partner, Jurist Consults
n his presentation Barrister Zafar ullah Khan said that the

tribal areas were considered a separate territory under
Article 1 of the Constitution. He said that the tribal areas
consisted of seven agencies: Khyber, Kurram, Bajuar,
Orakzai, North Wazirastan, South Waziristan, Mohmand
and five frontier regions namely F.R Peshawar, F.R Kohat,
F.R Tank, F.R Bannu and F.R Dera Ismael Khan with an area
of 27,220 square kilometres and a population of over 3.3
million. He said it constitutes less than 2 per cent of the
Pakistani population and 3.1 per cent established in
townships.
According to Article 2 of the Constitution of Pakistan, laws
made by the Parliament were not applicable in the tribal
areas unless they were authenticated by the President. The
Frontier Crime Regulations were introduced by the British to
counter the opposition of the local Pushtuns and to protect
the British interests. The Frontier Crimes Regulation 1901
prescribed special procedures, distinct from criminal and
civil laws and give the idea of collective responsibility,
dispute resolution through a Jirga and the executive
41
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REPORT
The political agent has unlimited powers to impose the fine,

order whipping of the accused, or award 7-14 years
imprisonment but there was no life imprisonment or death
penalty even for murder in the tribal areas. In case of
murder, if a person is convicted and sentenced, the
property of the accused could be forfeited to the
government. He said there were certain other types of
penalties; for example, if it was felt that some tribes were
hostile or unfriendly towards the government, the property
of the whole tribe could be seized, their persons could be
detained, they could be debarred from going to the settled
areas and their communication could be prohibited.
authority which has all the judicial powers. He said an

agency was administered by a Political Agent vested with
wide powers. The Political Agent provides funds in order to
have loyalties with the influential members of the area.
Maliks (Local chieftans) assist the government as
intermediaries between the government and members of
the individual tribes to assist the implementation of the
government policies.
Interestingly, he said, FATA was divided into two
administrative areas. Protected Areas are regions under the
direct control of the government while Non-Protected Areas
are administered directly through the local tribes. He said
there were different laws in the protected and non-protected
areas. He said Jirga, a Council of Elders, decides matters in
the protected areas. He said the Political Agent could refer
any matter likely to cause murder, blood feud, mischief or
breach of peace to the Jirga. Then a reference would be
formulated by the Political Agent and he will constitute the
Jirga who will listen to the parties to examine the evidence
and issue a verdict which may be split or unanimous.
Another corrective type of punishment may occur if a

political agent believes that there are accomplices to a
crime, in which case the entire community may be fined an
amount determined by the political agent. In the case of
murder in the tribal areas, or of grievous bodily harm, then
the entire tribe may be held liable to compensate with a fine..
If it is proven that they had no opportunity to prevent this or
used reasonable means to bring the offender to justice, it is
possible that no fine will be imposed.
Interestingly, that verdict was not binding on the political

agent and could remand back to that council if it was
contrary to customary law or could send the second
council and could pass a decree to authenticate the
decision of the elders. The decision has to be supported by
three-quarters of the members and would be perceived as a
decision of the civil court. Even then if the Political Agent
thinks that the decision was against the good of the public, it
will not be enforced. The aggrieved party may challenge the
decree before an appellate court, consisting of the Home
Secretary and Law Secretary of the Federal or provincial
government. Execution of the verdict is the responsibility of
the political administration in the protected areas.
The law related to preventing authority was also very strong

in the tribal areas. The political agent under that law has the
power to prohibit erection of new villages, direct removal of
villages, demolition of buildings used by robbers and power
to require persons to remove certain areas. They have a
similar system in Pakistan. They take securities to prevent
murder, sedition, etc., and bond for good behaviour with
securities for three years and security from the families
when there was a blood feud. If there was no security, the
accused would be sentenced to three years imprisonment.
It was called section 40 in the FCR which is very commonly
misused and abused. Most of the time the persons were
detained for failing to provide sufficient evidence to prove
their innocence, explained Barrister Zafar ullah Khan.
In criminal matters, he said, the situation was slightly

different; for example, when a political agent was of the
opinion that a case required expedient attention, he would
inform the Jirga. The accused in this case has the right to
object to the participation of particular elders but it too must
be approved by the Political Agent. If the Jirga reached a
decision, which again was not binding on the political
administration, the political agent could remand back to
reconsider or refer to the second council to discharge or
acquit that person. He will only be able to convict the person
after three-quarters support in favour of conviction by the
council.
In non-protected areas the situation is even more

interesting. In cases of criminal matters, the local Jirga
would be made to achieve a truce between the parties and
before starting proceedings the Jirga would receive
securities in cash and kind for civil or criminal disputes.
Thereafter, parties must arrive at a consensus concerning
the mode of settlementarbitration, Riwaj (customary laws)
or Shariah laws. Once the mode is agreed upon, mediators
arrange for the selection of the Jirga with the consent of the
parties. The Jirga is given unlimited time to decide the case
and its decision is final. Where arbitration is selected, a
Jirga is nominated by consensus and given an open
Even the sentencing system in tribal areas was different.

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mandate and the decision is unchallengeable. An aggrieved

party could challenge the Jirga's decision before another
Jirga of their own choice. While most disputes are settled
internally, more serious matters might require the calling of
a larger Jirga made up of Maliks, National Assembly and
Senate members and occasionally even representatives
from the neighbouring agencies. Now, he said, the accused
could approach the Apex Courts with a constitutional writ
challenging a decision issued under 1901 Regulations.
Barrister Zafar ullah Khan said that the system, which
enjoys widespread favour and justice by peers, is timeeffective and less expensive with simple and quick
implementation. However, there are also some problems
afflicted with the system. Corruption has made inroads in
the system. The impoverished and most vulnerable
segments of the society cannot afford to convene a Jirga.
There are a number of requirements for a Jirga to be held,
including hospitality, which are increasingly beyond the
reach of most of the ordinary people.
It was the issue of collective responsibility under the
modern law that whosoever has committed the offence
should be punished and not his relatives or the entire tribe.
The political agent finally decides the case with wide
powers against the findings of the elders. He should not
have such wide powers in case of the decision of the elders.
The sureties being taken for three years were too much and
in this system there was no appeal, he concluded.
43
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REPORT
Punchayets in Rural Areas:

What makes them stay?
Justice (Retired) Nasira Iqbal
Member Pakistan Law
and Justice Commission
aws are a major tool in promoting and protecting

human rights and they play a vital role in the well being
of any society. Just as fair laws can dispense justice
equally, unfair laws can lead to grave violations, turning the
justice delivery system into a travesty of itself. On the other
hand, a legal system in any society is itself a product of the
existing economic system and social conditions. It
simultaneously mirrors the socio-economic realities,
political attitudes/institutions as well as sexual and ethical
codes of conduct of its members.
At present there are three parallel formal and informal legal
systems prevalent in Pakistan: Pakistan has inherited the
Common Law system of civil and criminal laws from the
British. This system is still in force, and judges are expected
to decide cases on the principles of Precedent, Justice,
Equity and Good Conscience. General Ziaul Haq added
1 Violence, Law and Women's Rights in South Asia Ed. by Savitri Goonesekere, Saga
Publications India (Pvt) Ltd. Delhi 2004. Pg. 7.
2 Tahira S. Khan; Beyond HonourA Historical Materialist Explanation of Honourrelated Violence. Oxford University Press, 2006. Pg. 242.
45
PILDAT

Islamic Law to this system by making the Objectives

Resolution a substantive part of the Constitution. He
established the Federal Shariah Court which examines all
existing laws and ensures that any law repugnant to Islamic
injunctions is repealed. The Federal Shariat Court also has
jurisdiction to decide cases arising out of Hudood Laws,
such as the Zina Ordinance. Thus Zia established a parallel
hierarchy of civil and criminal jurisdiction alongside the
ordinary court system, which can result in contradictory
judgments.
REPORT
adopted and developed by the British, who made alliances

with the tribal/feudal elite. In return, for their loyalty and
allegiance, they granted them absolute power over the lives
of their people. All decisions regarding criminal conflicts,
civil, property and other disputes, financial transactions
and trade were made by the local lords. Customary laws
created misogynistic perceptions regarding control of
female sexuality. Ritual killing of women in the name of
honour after accusing them of moral corruption became
common practice. This custom was labeled as Sia-kari in
Balochistan, Karo-kari in Sindh and Southern Punjab, and
Tora Tor in the North Western areas of today's Pakistan. The
common factor behind the deadly custom was the
unchecked power of the Jirga/Panchayat during the British
period.
The statute laws of British origin and the formal Shariah

laws, are not uniformly applied in all areas of Pakistan. In the
rural areas where sixty percent of the population resides,
the feudal Jirga/Panchayat system still prevails, whereby
the feudal elite of the village pass judgment in disputes
among village residents. (Similar practices are known as
Panchayats in Punjab and Sindh and Jirgas in NWFP and
Balochistan) Their judgments are based on customary
practices and are often illegal on the standard of Common
law principles as well as Shariah Law principles.
Customary practices are also followed by some families of
those rural ethnic communities who live in urban centres
such as Lahore, Karachi and Islamabad, especially on
issues related to the control of women's sexual and moral
lives. The Panchayats/Jirgas consider women as
commodities, to be exchanged and murdered to settle
disputes or to earn money and respect for the family.
Even today, a variety of issues and disputes are put before

Panchayats and Jirgas; including women's immorality,
property or land disputes, water conflicts, theft of money or
animals, murder and arbitration between two warring
parties. A Jirga can be requested by the complainant party
and the head of the Jirga or both. In some tribes of
Balochistan and Punjab, the Jirga or Panchayat makes the
accused walk on hot coals to prove his innocence. All the
participants of the Jirga/Panchayat are exclusively men of
the community.
No appeal is allowed against the verdict of a
Jirga/Panchayat and no poor person can afford to reject it
as it is bound to be followed by persecution of his family by
criminals and police at the instance of the tribal/feudal lord
who will also enforce their social boycott in the village.
These tribal courts flourish with the blessing of the local
police and civil administration that are happy the crimes are
not put on their record. Feudal lords, politicians, police
officers, the bureaucracy and parliamentarians all join
hands to keep the tribal justice system alive and flourishing.
This is because all collectively and individually benefit from
such a system. The losers and sufferers are the
impoverished serfs. Women are not allowed to attend the
Jirga meetings. They may only be represented by male
relatives. In case of charges of adultery, women are called
Panchayat refers to a council of elders taking decisions on

issues key to a village's social, cultural, and economic life:
A panchayat may also be a village's body of elected
representatives. The council leader is named sarpanch, and
each member is a panch. The panchayat acts as a conduit
between the local government and the people. Decisions
are taken without lengthy legal procedures and the process
is supposed to be fair and transparent. In ancient India
Panchayat meant Five Persons with a Headman. Today it is
approved by the Indian Constitution and in almost every
state there is Panchayati Raj.
In 1912, the traditional Jirga/Panchayat system was
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.
46

PILDAT
to hear the punishment decided by the Jirga.
and inequalities, such as poverty, lack of resources and the

prevailing social taboos that expect women to endure rather
than rise against injustice. Moreover, 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.
The following chart shows the parallel formal and informal

legal systems in Pakistan.
Parallel legal systems in Pakistan
Nature and mechanism
Formal Laws
Statute Laws
Tribal Laws
Enacted Shariah Law
All three legal systems are interpreted by judges or decision

makers (tribal, or religious leaders), according to their own
cultural and social biases, and gender perceptions. Legal
discrepancies in the penal codes facilitate compromises
leading to minimal penalties for powerful perpetrators.
Such compromises are made through the judges and law
enforcers, either through bribery or due to their own
personal bias. Male Judges of the subordinate courts are
also biased against female litigants. They are reluctant to
grant them divorce. They condone Honour Killings and
death sentence has not been executed against any rapist.
Female judges are few since they are not given proper
facilities or protection, are often transferred to remote areas
and not given maternity privileges. Five women judges were
appointed to the High Courts in 1994 and only two women
were appointed thereafter. No woman judge was elevated to
the Supreme Court of Pakistan.
Informal Laws
Customary Laws
Implementation through
Civil & Criminal Courts
Lower. High, Supreme
Federal Shariat Court
Jirga or Panchayat,
Enforcement through
State Police
Department
Enforcement through
State Police Department
Enforcement through Agents

of Tribal Leaders, Feudal
Lord's Henchmen
REPORT
Vulnerable groups, particularly women, are the main
To ensure impartial justice and to see that the rights of all

women, men and children are respected equally, it
becomes necessary to ensure that the laws themselves are
impartial, free of gender bias and discrimination. Existing
laws need to be subjected to a process of review and
critique from time to time, and reformed to respond to
changing legal requirements. Justice is subverted if
archaic, patriarchal, or discriminatory laws and practices
are adhered to.
victims of the contradictions arising out of the enforcement

of these parallel legal systems within the same society. A
prime example is the case of Mukhtaran Mai who was gang
raped in Mirwala village in June 2002 on the orders of the
Panchayat of elders of the powerful Matsoi tribe, as
punishment for the alleged affair of her twelve year old
brother with a Matsoi girl.
The hold of Jirga and Panchayat in the rural areas is

continuing although their judgments frequently unjustly
victimize women and the rural poor, because they rarely
have access to any other judicial forum. The Sindh High
Court declared in 2005 that Jirgas and Panchayats were
illegal. However, the executive branch of government tried
to nullify this judgment. In all the other provinces, these
systems operate with relative impunity. Injustices will
prevail unless and until Jirgas and Panchayats are declared
illegal and holding of Jirgas/Panchayats is made punishable
by law.
Why is the outmoded tribal Jirga/Panchayat system still

followed? 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. Taking legal recourse to claim one's
right is often associated with a peculiar stigma. The family
feels disgraced and the family honour is perceived to be
tarnished. So every device, including emotional
blackmailing, is used to prevent the aggrieved party,
particularly if it is a female, from seeking redress through
litigation. Women are further impeded by social barriers
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
47
PILDAT

In 2006-2007, the Supreme Court of Pakistan presided

over by Chief Justice Iftikhar Chaudhry declared that
Panchayats and Jirgas throughout Pakistan should be kept
under strict scrutiny by the local administration and the
police to ensure that their illegal decisions are not enforced.
Unfortunately, the law enforcement agencies have not
implemented this declaration and this parallel system of
justice continues throughout Pakistan.
REPORT
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.
Samar Minhalla says that this level of resort to parallel

justice as a viable means of conflict resolution is due to lack
of faith in the effectiveness of the formal institutions. This
leads a certain segment of society to even handing over of
daughters to make amends for crimes if decreed by Jirgas.
People from rural areas generally find it difficult to access
the formal justice system because of the prohibitive costs
and time associated with litigation. The police are viewed as
partial in favouring the influential. Hence, people prefer to
have their disputes resolved locally through the Jirga. Even
if some do approach the formal legal system, they are often
forced to abandon it due to impediments.
The MA, if properly implemented, can prove invaluable

replacement for Jirgas and Panchayats by resolving
disputes outside the court through conciliation. It can also
act as a forum of referral from overburdened courts. Thus
resolution of disputes through MA can reduce the burden on
the already congested courts and provide speedy redress
for grievances to the rural population free of charge at their
doorstep.
From an informal community based body that was meant to

settle small claims, the 'Jirga', or council of tribal elders, has
in Pakistan been allowed to emerge as a powerful force
protecting the interests of the powerful. This all male body
is often called upon to adjudicate on matters pertaining to
women whose views are never sought. Since our
democratic institutions are dominated by feudal chiefs or
Sardars who themselves conduct Jirgas in their localities
how can one expect that they will legislate against these
vices which will ultimately restrain their own powers and
influence over the weaker section of the society.
In 2002, in 'Aba Khel Vanni Case (2002)' in Mianwali Nawab
of Kalabagh played a vital role in the decision of handing
over eight girls as compensation to resolve an age old
dispute. The victims of an age old custom called 'vanni'
were rescued by suo-moto action of the Supreme Court of
Pakistan. In June 2006, an incident took place in Kashmore
Sindh, where five minor girls were to be handed as
compensation to the rival party. Again, a parliamentarian
and the District Nazim were part of the members of the tribal
council. The Supreme Court once again took suo-moto in
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
48

PILDAT
REPORT
Q & A / Discussion
Muhammad Matloob Khan
Ph.D Scholar, University of Karachi
Ms. Farzana Malik

Barrister Zafar ullah Khan mentioned that hospitality is

necessary for holding a Jirga but it means there is no justice
for the poor. You know very well that we are living in a
society where Chief Justice is seeking justice and Chief of
the Army Staff needs security and President desires
uniform. So how is it possible to give justice to the poor
living in such a society?
My first question is that how do you relate the systems of

Jirga and Panchayat with the issues of human rights and
fundamental rights of the citizens? Secondly, it is good to
know that there is some replacement to the system like
Masalhiyat Anjuman. What other steps can be taken for
other institutions to replace the Jirga and Panchayat
systems?


It is certainly costly to host the Jirga but sometimes it is not

that costly. In that culture, with clans, sub-clans and
families, and it is difficult to decide who should or should
not attend the Jirga.. Similarly, it was difficult to choose who
should or should not host the Jirga. It was one of the
drawbacks of the system. He said the Political Agent had
ample power as well as funds without any audit. The
system could be built and all the administrative expense in
the dispensation of justice by the Jirga ought to be born by
the Political Administration.
Human rights question are very relevant and Amnesty

International and other human rights organisations have
always repudiated the system of Jirga and Panchayat and
urged they should be abolished. On the other hand they
continue because the administration perpetuates its
continued influence by getting into league with the
dominant people of the area.
The local government system was the brainchild of
someone in the National Reconstruction Bureau, sitting
there like Radcliffe who cut the line between India and
Pakistan arbitrarily. The devolution plan was worked out
without any participatory consultation. Unless we have
participatory consultative consideration from grassroots to
49
PILDAT

the top governmental level, we could never arrive at a

satisfactory substitute for any of these oppressive
practices. Non-par ticipatory governance actually
depended on these very practices and it was the reason
they were continuing. The chances of the success of the
Local Government System adopted without any
consultative process were diminished right from the
beginning.
REPORT
right to any kind of representation. For example somebody

appearing before a Jirga or Panchayat would have the right
to have an elder with them or have somebody there to help
guide them through the process?
My second question is about the impact of these
mechanisms on children. There has been a detailed
discussion on their impact on the women and impoverished
people in the society. I was wondering whether children
have any rights or any possibility to participate in the
decisions that affect their lives, as required by the
Convention on the Rights of the Child?
Mr. Rafique Goraya

Journalist
Panchayat System is based on social pressures rather than
on coercing powers. It has served the people of the
subcontinent well for several decades. It is still serving the
people, particularly in the rural areas. Instead of doing away
with this system, we should reform it as it provides most
inexpensive justice to the people at their doorsteps. I have
seen the panchayat System working and it is not based on
Jagirdars and Waderas.

Who this Jirga is composed of? I mean who are those
people? Is it the entire population of a village or are there
certain qualifications for the members of Jirga? Who is
entitled to be called an elder?

My second question is that Jirga and Panchayat systems

are still popular among the people of the rural areas due to
inexpensive and accessible justice at the doorstep of the
masses. Is it a myth or a reality?
There was a statuary provision in the law which dealt with

such things and that was Conciliation Court Order. It was
enacted in 1961 during the Ayub regime. Under that Act, the
parties had the right to nominate their own people and the
reconciliation committee was formed to decide the
disputes. It was still on the statute books. The Act was
amended in 1981 but thereafter it has never been put into
practice. The Local Government System has been
implemented in the country since 2002. The Conciliation
Court Order had a useful provision of providing justice at the
doorstep of the people. There is a large scope to develop
this Act and provide cheaper justice to the people.

To begin with the question of Ms. Alison Smith, it is Article
10 of the Constitution of Pakistan that guarantees the rights
of a legal council of choice by every accused of a criminal
offence. This was the tradition followed from the common
law. So in every criminal court in Pakistan including the
Federal Shariah Court, there are lawyers and if a person
cannot afford representation, a court appointed defence
council would be provided at the expense of the state. As for
Panchayats, the tribal areas do not prohibit the presence of
lawyers, though there has never been such a presence, to
date.
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.
According to my interpretation, if someone in tribal areas

was charged of a criminal offence, Article 10 of the
Constitution shall apply with certain exceptions to the
extent of the law made by the Parliament. So under the law
they have right to have a council of their choice but it was
not known to them. Lawyers are also available in the
military tribunals, though in Panchayat no such facility is
available to the accused. Likewise, if a government official
in departmental inquiry did not have the right to have a
Ms. Alison Smith

Justice Program
What is the situation with respect to the right of legal
representation in the common law system and Shariah
System and the traditional system? Whether there is any
50
PILDAT

council but when the case was challenged in a court of law,

then they had the right to have a council.
Coming to Mr. Ahmed Bilal Mehboob's question regarding
the composition of Jirga, there is no bar on who can be the
member of the Jirga. The elders of the Jirga are titled as
Maliks like we have Chaudhries in Punjab. Practically, it was
a complex system of rules and regulations regarding Jirga
and it was the sole will of the political agent who is more
powerful than Governor General and Viceroy. But with one
exception in the criminal Jirga, he had the right to object,
also subject to the approval of the Political Agent. To tribals,
it was the most efficient system of dispensation of justice
and it was a common perception.
Pakistan is signatory to the Convention on the Rights of the
Child and we have a Juvenile Justice System Ordinance in
place since 2000. Very few people have any idea regarding
this ordinance. However, there was a provision in the law
that a juvenile offender could not be given the same
punishment as that of an adult. People still go to panchayat
in certain parts of the Punjab province. In certain areas of
the Punjab and Sindh, it was virtually impossible for the
people to reach courts due to road access and other social
taboos and had to depend on Jirga and Panchayat systems.
51
REPORT
PILDAT

REPORT
Special Remarks
Mr. Abdul Rahim Kamara
Executive Director Manifesto 99
Sierra Leone
hanking PILDAT for inviting him among an array of

judicial experts and civil society activists, Mr. Abdul
Rahim Kamara said his organisation, Manifesto 99, and
PILDAT were working together, alongside NPWJ on a
project of ICC complementarity. He had learnt a great deal
from the first roundtable held by PILDAT in Pakistan.
Like Pakistan, he said that Sierra Leone was a British colony
with an area of 27,000 square kilometres and a population
of 4.5 million. Sierra Leone has the distinction of being the
first country in the post independence Africa in which an
opposition party defeated a ruling government in free and
fair elections. But unfortunately, he said, that distinction
was marred by the military might which jumped into the
politics of the country. As soon as the election results were
announced, the then Governor General who was military
officer got instruction from the commander to assist the
opposition leader, but a couple of years later formed a one
party dictatorship.
Giving an overview of the military regimes and transition of
53
PILDAT

governments in his country, he said there was a great

influence of the military in the country. In 1978, Sierra
Leone became a one party state. Unfortunately, for them,
he said, the commander of the military was a very inept
individual. He did not have the capacity to become the head
of the state in a country they had to move forward quickly.
But, he said, we were thankful to him that he came to realize
that one party dictatorship was not going to work, so he led
the campaign of restoring multi-party democracy in the
country. He said it was actually in his tenure that they had a
constitution under which they are now living. So civil
society, including the legal profession, can make real
changes in systems that do not respect human rights, in
systems where changes need to be made. The war lasted
for ten years and brutality was unleashed on the people of
Sierra Leone. It was during the war that the military came in
contact with politicians and this is where the real problem
lies.
Another problem was with the granting of amnesties in
peace agreements, which is simply rewarding impunity, but
when that happens, it is bound to return in the future. Sierra
Leone is addressing this now through the Special Court,
which is trying those who bear the greatest responsibility
for the crimes committed during the war, and through the
Truth and Reconciliation Commission. However, there
remains the problem of the impunity gap, of all the other
people who committed crimes. This is a problem that needs
more thought, whether through traditional mechanisms or
other approaches, but an important part of that is the
campaign currently underway to have the Rome Statute of
the ICC implemented in local laws.
54
REPORT
PILDAT

REPORT
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,
55
PILDAT

REPORT
the executive and the judiciary. Each organ of the

State was to function/operate within the bounds
specified in the Constitution. The judiciary was
assigned very important role to play, namely, to
act as the Watch Dog and to ensure that none of
organs or the Government functionaries acts in
violation of any of the provisions of the
Constitution or of any other law. Since the above
role entrusted to the judiciary under the
Constitution was very delicate, it was envisaged
that the judiciary would be independent and
separate from the other organs of the State4.
commerce, business, real estate and corporate leadership.

Even Universities, fountains of academic intellect, ideas,
energy, innovation and freedoms have been placed under
the regimented leadership of military Generals. The result
is, that today 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 ahead1.
Each of the Constitutions provided an unequivocal vision for
this country: a system of governance dedicated to social
justice, fundamental rights, inter-provincial co-ordination
and harmony and anchored on principles of federalism and
on separation of powers between the Executive, Legislature
and the Judiciary. A specific and separate role was
visualized and provided for each of these important organs
of the State. The landmark case, Al-Jehad Trust vs.
Federation of Pakistan2, explains the doctrine of separation
of powers in the following words:
This important watch dog role is, crucially, enabled by

provisions in the Constitution that secure the independence
of the judiciary.
But Chief Justice Hamoodur Rahman, speaking for the
Supreme Court of Pakistan in State vs. Ziaur Rahman5,
explained that the power of judicial review given to the
superior courts under the Constitution is not to be
construed as the supremacy of the judiciary over the
Executive or the Legislature:
the Legislature has to legislate, the Executive

has to execute laws and the Judiciary has
to interpret the Constitution and laws. The
success of the system of governance can be
guaranteed and achieved only when these pillars
of the State exercise their powers and authority
within their limits without transgressing into the
field of the others by acting in the spirit of
harmony, cooperation and coordination3.
In exercising this power [of review], the judiciary

claims no supremacy over other organs
of the
Government but acts only as the
administrator of the public will. Even when it declares a
legislative
measure unconstitutional and void, it
does not do
so, because, the judicial power is
superior in
degree or dignity to the
legislative power; but
because the
Constitution has vested it with the
power to
declare what the law is in the cases
w h i c h
come before it. It thus merely enforces the
Constitution as a paramount law whenever a
legislative enactment comes into conflict with it
because, it is its duty to see that the Constitution
prevails. It is only when the Legislature fails to
keep within its own Constitutional limits, the
judiciary steps in to enforce compliance with the
Constitution6.
But it was the Judiciary which was made responsible for

checking the transgressions of the Constitutional
provisions by either the Executive or the Legislature. As
commented by Mr. Ajmal Mian, Chief Justice of the Sindh
High Court, as he then was (and later to be the Chief Justice
of Pakistan):
I may observe that 1973 Constitution was framed
with consensus of all the political parties and the
members of the National Assembly. It
contemplated trichotomy of power between the
three organs of the State, namely, the legislature,
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.
6. Ld. At 70.
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PILDAT

The Objectives Resolution, the preamble, Article 2A, and

Article 175 of the 1973 Constitution provide for the
independence of the judiciary. There are other provisions
that support and further such independence. These include
the detailed provisions with regard to the composition of
superior courts, the qualification and eligibility for
appointment of judges, and the conditions of their service.
Even the removal of judges is specifically provided through
the Supreme Judicial Council under Article 209.
REPORT
understanding of the law without

improper influences, inducements or
pressures, direct or indirect, from any
quarter or for any reasons; and
b) that the judiciary is independent of the
Executive and Legislature, and has
jurisdiction, directly or by way of review,
over all issues of a judicial nature9.
A former Chief Justice of Pakistan, Mr. Saiduzzaman

Siddiqui, emphasised the central role of the appointment of
judges in the independence of the judiciary in Asad Ali vs.
Federation of Pakistan7:
The matter of the separation of the judiciary and its

independence from the executive came up for
consideration before the Sindh High Court at Karachi in
Sharaf Faridi vs. Federation of Pakistan10. The Court held in
this case that it is incumbent upon the Government, under
Articles 175 and 203 of the Constitution, to bifurcate the
magistracy into judicial and executive branches and to
place the magistracy under the exclusive administrative
control of the relevant High Court. The Court also dealt with
the matter of the transfer of judges which could be used to
victimize independent judges. It held that the transfer of
judges from one High Court to another or to the Federal
Shariat Court should be with the consent of the judges. The
decision of the Sindh High Court was upheld by the
Supreme Court of Pakistan in Government of Sindh vs.
Sharaf Faridi11. The Supreme Court highlighted the need for
the financial autonomy of the judiciary as an important
element in its meaningful independence.
Right of access to impartial and independent

Courts/Tribunals is a fundamental right of every
citizen. The exercise of this right is dependent on
the independence of judiciary which can be
secured only through appointment of persons of
high integrity, repute and competence, strictly in
accordance with the procedure prescribed under
the Constitution to the high office of the Judges of
superior Courts. The selection of a person to the
high office of the Chief Justice of Pakistan is a
pivotal appointment for maintaining the
independence of judiciary and for providing a free
and unobstructed access to impartial and
independent Courts/Tribunals to the ordinary
citizens. Therefore, any deviation from the
method prescribed under the Constitution for
appointment to the high office of Chief Justice of
Pakistan, would give rise to the infringement of the
right of a citizen to have free, fair and equal access
to an independent and impartial Court/Tribunal,
thus violating the rights guaranteed under Articles
9 and 25 of the Constitution8.
In Al-Jehad Trust vs. Federation of Pakistan12, and Asad Ali

vs. Federation of Pakistan13, the Supreme Court further
strengthened the independence of the judiciary by making it
obligatory for the President to accept appointments to the
vacant posts to fill vacancies in the posts of judges in the
Supreme Court and High Courts on the recommendations
of the Chief Justice unless the President recorded sound
and valid reasons to the contrary. Similarly, the
appointment of Chief Justice is to be by seniority except for
concrete and valid reasons. The Supreme Court also
held, in these cases, that the transfer of a judge from a High
Court to the Federal Shariat Court, without the consent of
the judge, shall be violative of the Constitution. All these
safeguards were intended to check political influence being
exercised in judicial appointments and transfers.
Another former Chief Justice of Pakistan, Mr. Nasim Hasan

Shah, summed up the consensus of jurists on the
independence of the judiciary:
a) that every Judge is free to decide
matters before him in accordance with
his assessment of the facts and his
8. Id. at 189
9. Government of Sindh vs. Sharaf Faridi, PLD 1994 Supreme Court 105, at 107.
10. Supra note 4.
11. Supra note 9.
12. Supra note 2.
13. Supra note 7.
57
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REPORT
Covenant on Civil and Political Rights and the International

Covenant on Economic, Social and Cultural Rights, both
adopted in 1966.
The classical formulation of the supremacy of the rule of

law is included in Article 4 of the Constitution:
4. Right of individuals to be dealt with in
accordance with law, etc.
(1) To enjoy the protection of law and to be treated
in accordance with law is the inalienable right
of every citizen, wherever he may be, and of
every other person for the time being within
Pakistan.
In the meantime, at regional levels, the European

Commission and the European Court of Human Rights had
developed extensive jurisprudence, under the European
Convention of Human Rights, to internationalize the
protection of human rights. Similarly, the Inter American
Commission and the Inter American Court of Human Rights
had promoted the Inter American Convention of Human
Rights across national boundaries in the region.
a) no action detrimental to the life, liberty,

body, reputation or property of any
person shall be taken except in
accordance with law;
Human Rights had, therefore, come a long way and, when

the National Assembly undertook the drafting of the
Constitution in the early 1970's, it was inevitable that it
could not be oblivious to the international trends towards
strengthening rule of law in domestic regimes. Influenced
by these developments, at the regional and international
level and, undoubtedly, by national experiences, the 1973
Constitution made a commendable commitment to the
declaration and protection of a broad range of fundamental
rights covering the right to life, safeguards against arrest
and detention, right to dignity, freedom of movement,
freedom of association and assembly, freedom of trade,
business, or profession, freedom of speech and freedom to
profess religion, and the right to acquire, hold and dispose
of property. Equality of citizens and provisions on non
discrimination are also included in the Fundamental Rights.
B) no person shall be prevented from or be

hindered in doing that which is not
prohibited by law; and
c) no person shall be compelled to do that
which the law does not require him to
do.
It is one of the most valuable virtues of the Constitution that
it provides extensively for the powers and functions of the
superior judiciary. The power of judicial review and the
other wide-ranging powers under Article 199 and Article
184 with respect to fundamental rights have given a broad
sweep to the role of the superior courts. A complete
Chapter I in Part II deals with Fundamental Rights that are
enforceable by the High Courts under Article 199(1)(c) and
by the Supreme Court when the Fundamental Rights
present questions of public importance (Article 184).
These rights cannot be abridged (Article 199(2)).
For individuals and members of our civil society, the

superior courts have been a major bulwark against
encroachments of their fundamental rights. Our law reports
are replete with examples when the judiciary used the
Constitutional provisions to prevent oppression, usurpation
and injustices. Particularly commendable has been the
activist suo moto interventions of our superior courts, in
public interest litigation14, to protect the poor, voiceless and
marginalized sections of our communities, or address
pressing social issues such as environmental degradation,
malpractices in our educational system, bonded labour,
child abuse, and victims of gender exploitation. In many
ways, this experience in the protection of Fundamental
Rights15 and the rule of law has been the finest hour of our
judiciary.
The Universal Declaration of Human Rights, adopted by the

United Nations General Assembly in 1948 had set a
common standard of achievement for the global
community and had catalysed the formulation and
development of the international protection of human
rights. Included in this catalogue of human rights were
rights to life, liberty, security, freedom from arbitrary arrest
and detention, right to a fair trial, freedom of association,
religion, and expression. These declaratory principles were
concretized in treaty obligations under the International
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.
58

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But in spite of these welcome gains introduced by the

Constitutional framework on Fundamental Rights and the
equally salutary jurisprudential interpretations and rulings
of our superior courts, the recent reference by General
Musharaf against the Chief Justice of Pakistan, in an
allegedly illegal and unconstitutional manner, highlighted
the fragility of the rule of law in Pakistan.
REPORT
subverts or attempts or conspires to

subvert the Constitution by use of force or
show of force or by other unconstitutional
means shall be guilty of high treason.
2.
Any person aiding or abetting the acts

mentioned in clause (1) shall likewise by
guilty of high treason.
The Way Forward

3. [Majlis-e-Shoora (Parliament)] shall by law
provide for the punishment of persons
found guilty of high treason.
Demilitarization of Politics and Economy

Beginning with the founding inspiration and vision of the
Quaid-e-Azam, Mohammad Ali Jinnah, and the Objectives
Resolution, 1949, the rule and supremacy of the law found
abundant recognition in the various compacts evolved over
the last sixty (60) years. Each of the Constitutions, as noted,
made a profound commitment to the separation of the three
(3) branches of the Government. With the justiciability of
fundamental rights and the independence of the judiciary
guaranteed in the Constitution, this nation was all set to
structure its national life and policies on the equality of all
citizens, on their free accesses to courts and on a
predictable jurisprudential regime based on the binding
nature of precedents of the superior courts. Article 189
binds all courts in Pakistan to any decision on law of the
Supreme Court. Article 201 mirrors a parallel provision
binding the subordinate courts to the decisions of the High
Courts. In normal times, this was a sure recipe for success
but, unfortunately, our military Generals intervened, time
and again, and for long durations, to distort and destroy the
founding dream. The encroachment of the military in all
aspects of our national life has distorted the national
landscape. The civil-military imbalance, today, is the most
important hurdle in the way of the rule of law. The military in
Pakistan is the Big Bully on the Block and no meaningful
effort can be made to energize and strengthen the rule of
law in Pakistan unless the military is, first and foremost,
defanged. In any recommendatory action in this regard,
priority needs to be given to reining in the secret intelligence
agencies which have, illegally and unconstitutionally,
intruded in private lives and national institutions and, as is
well known, manipulated and rigged elections.
Importantly, Article 6 covers both the abrogation and

subversion or attempts or conspiracy to subvert the
Constitution. This formulation, arguably, is broad enough
to cover the actions of General Musharaf against the Chief
Justice of Pakistan.
No objective of the country can be more important, and
more pressing, than to restore civilian supremacy the
supremacy of the Constitution, the laws and the Parliament.
The military has been allowed, with the questionable
support of our judiciary, to subvert constitutional
processes time and again. With the new-found and streetled popularity of the judiciary in the expression of
opposition to the President in uniform, the judiciary should,
in the future, interpret Article 6 of the Constitution to better
accord with the intention of its draftsmen.
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 our
National Assembly. For too long, this sacred cow has
remained outside the mainstream of public review and
approval and this secrecy and confidentiality has fed
uninformed debate and criticism which has eroded the
image of the armed forces. Of course, allowances can be
made for in-camera proceedings and hearings in respect of
classified information.
Constitutional Governance
A second important recommendation is the need to declare
and practice, as a national priority, constitutional
governance. Dr. Tariq Hassan, in a recent article16,
highlighted that this country can be steered to its rightful
destiny if the governance in the country is based on the
provisions of the Constitution. The adoption of the
Constitution, in 1973, represented a consensus between all
A possible way to move to demilitarize our politics and

economy is to capture the potential of Article 6 of the
Constitution:
1. Any person who abrogates or attempts or
attempts or conspires to abrogate,
16. Constitutional Governance, The News, 27 April 2007
59
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the Provinces that joined federal Pakistan. The rule of law

may mean different things to different stakeholders. Thus,
for individuals, as noted earlier, the important safeguards
against abuse, oppression and injustices are to be found in
the comprehensive catalogue of fundamental rights
enshrined in the Constitution. For the Provinces, on the
other hand, the rule of law would require that the fora
established in the Constitution to safeguard and protect
provincial interests such as the National Finance
Commission (Article 160), National Economic Council
(Article 156), and the Council of Common Interests
(Articles 153 and 154), be activated and enabled to
function in accordance with their Constitutional mandates.
It follows that for the Provinces, important stakeholders in
the Constitution, rule of law would mean facilitating their
rights to natural resources as per Article 158 and their voice
in economic and financial planning in the Council of
Common Interests and the National Finance Commission.
REPORT
Governance as per the imperatives of the Constitution

would further encompass the generally accepted principles
of good governance17, compliance with which will facilitate
and strengthen the rule of law in Pakistan in the years
ahead. These include:
(1) the periodic holding of elections to elect
the representatives of the peoples in the
Parliament and Provincial Assemblies.
(2) the process of elections should be free and
fair.
(3) the elections should not exclude any person
or political party except in accordance with
the Constitution.
(4) elections be held under an Election
Commission that is impartial and effective.
Constitutional governance also 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. Thus, the promotion
of the social and economic being of the people, promotion
of social justice and eradication of social evils, the
participation of women in all spheres of national life, the
protection of minorities, the removal of illiteracy, ensuring
inexpensive and expeditious justice, provision of just and
humane working conditions, provision of basic amenities of
life including food, housing, education and medical
services, promotion of the education and economic
interests of the disadvantaged or areas and decentralision
of the Government are important guidelines for all national
decisions and decision makers. The National Economic
Council is, particularly, obliged to take into account the
Principles of Policy in formulating plans in respect of the
financial, commercial, social, and economic policies for the
country.
(5) the electoral process should be open and

transparent supported by a free and
independent press.
(6) Freedom of Information legislation should
ensure access of the public to information
that will facilitate transparency in
governance. Access to information also
enhances accountability and reduces mala
fide, corrupt and arbitrary decisions18.
(7) the empowerment of women and their
protection against the cruelest forms of
gender discrimination enabled in certain
tribal customs and
against domestic
violence and sexual crimes will provide
dignity, confidence and self-esteem to a
majority of our population.
Particularly with economic empowerment
facilitated by micro-credit schemes such as
the ones initiated by the Nobel Laureate
Muhammad Yunus with Grameen Bank in
Bangladesh, Pakistan can look to the
effective participation of its women in the
economic and social justice necessary for
In the past, many requirement of the Constitution in respect

of the Principles of Policy have not been respected. A
dedicated commitment to prioritise these in the future will
facilitate economic and social justice and anchor the rule of
law.
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].
60
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REPORT
This was eloquently acknowledged by the

Supreme Cour t of Pakistan in the
internationally-acclaimed Shehla Zia vs.
WAPDA 19 case which held that the
constitutionally protected Fundamental Right
to Life included, for each citizen of Pakistan,
the right to a clean and healthy environment. I
was privileged to be the counsel in this case
and to have assisted the Supreme Court in
this landmark pronouncement which has
spawned welcome initiatives to protect the
environment before many courts and
tribunals in Pakistan20. Good governance
will, therefore, require our decision makers
to increasingly factor environmental
considerations to promote economic and
social justice21.
the rule of law. The youth of this country

also deserve our special attention,
particularly against child abuse and
malpractices and child labour.
(8) Rule of law and economic and social justice
ordained by the Principles of Policy of the
Constitution will also depend on the
success, in the future, of our efforts towards
poverty alleviation and eradication, through
affirmative action programs, if necessary.
The poor, the deprived, the voiceless and the
marginalized would have to be
mainstreamed in our quest for human
dignity. All the strategies focused towards
poverty alleviation should be conceived
within a participatory strategy which
accords priority to the needs of the poor. It is
also important to bring the poor onto the
center stage of development and make them
involved in a close partnership with the
federal and local governments, NGO's,
grass-roots institutions and other private and
commercial entities. Only by forging such a
partnership can the poor have a more
facilitative participation in their management
and enhancement. Of equal importance is
the need to reduce economic and
opportunity disparities between the different
areas and provinces of the country.
Legal Infrastructure Development

We come to our next recommendation. Lawyers as
prosecutors and defenders, as judges, as leaders of the bar
associations, as draftsmen of laws, as leaders of public
opinion and causes, play a pivotal rule in the development
of the rule of law. And, the nation needs to make a dedicated
commitment to nurture and facilitate a qualitative capacity
to handle this role. If the edifice of the rule of law, as
guaranteed by the Constitution, is to become effective and
meaningful in the years ahead, Pakistan needs to make a
massive and urgent investment in the quality of its legal
fraternity. The legal training of lawyers and judges
undoubtedly influences the quality of the rule of law. Only if
both the bench and the bar two wheels of the same
proverbial chariot are to lead Pakistan to its rightful destiny,
we must ensure that such important actors on the national
stage receive a qualitative legal education. Unfortunately,
our law schools, are mostly based on part-time teaching
and driven by syllabi that have not kept current with
changing times and challenges.
(9) It is important to accept the principle of

subsidiarity and decentralize decisionmaking from the central government to
participants and institutions at lower levels in
the political-administrative hierarchies.
Governance by remote control from a distant
capital ignores the role of locals and local
communities that are affected by such
decisions. There is improved efficiency and
equity resulting from increased popular
participation in public decision making.
Our legal education must include a strong emphasis on

legal ethics which promotes higher forms of
professionalism, integrity and tolerance. Codes of Conduct
of Bar Associations should also strengthen ethics and
professional responsibility. I am constrained to make these
remarks because the rampant use of the facility of seeking
adjournments by lawyers has been a factor in the delays of
(10)As an environmentalist, I have always

emphasized the close connect between the
environment and sustainable development.

20. Dr. Parvez Hassan, Shehla Zia vs WAPDA: Ten Years Later, PLD 2005 Journal 48, and also Published in International Environmental Law Committee Newsletter of the American
Bar Association's Section on Environment, Energy and Resources 13-19 May 2005.
21. See, generally, Dr. Parvez Hassan, The Role of the Judiciary and Judicial Commissions on Sustainable Development Issues in Pakistan, a paper presented at the Pakistan
Development Forum 2006 held in Islamabad on 10 May 2006.
61
PILDAT

our judicial system. A litigant, some times supported by

counsel, abstains from attending a court proceeding after
obtaining a stay order to prolong the fruits of the stay order.
Similarly, lawyers routinely obtain adjournments to
procrastinate a favourable status quo which is under
challenge before a court of law. There are several important
reasons for delays in courts such as the number of judges,
lack of resources, and the backlog of cases but my
observation is that the adjournment culture before our
courts has also hampered timely justice. And, justice
delayed is justice denied. The corollary follows that there
can be no rule of law when justice is routinely delayed.
REPORT
ahead cannot ignore the recent developments in some

parts of Pakistan including the federal capital where
certain religious and militant members of our society have
sought to demand and impose an Islamic way of life as per
their own view of Islam. An important feature of this
campaign is the coercive nature of compliance. This
development fundamentally assaults the freedom of choice
so importantly embedded in the Fundamental Rights
guaranteed by the Constitution and so important for the rule
of law.
The Constitution declares, in its Article 2, that Islam shall be
the State religion of Pakistan and, in fairness to its historical
roots, this is the way it should be. But there is a fundamental
difference in Islamizing and Talibanising our polity. Any way
forward which diminishes the free choice of our people will
erode the edifice of Fundamental Rights and the rule of law
enshrined in the Constitution.
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
62
PILDAT

REPORT
Establishing an Effective
Rule of Law in Pakistan
the Way Forward
Mr. Hamid Khan
Former President;
Supreme Court Bar Association, Pakistan
r. Hamid Khan said that we as a nation had suffered

for the last 60 years in a non-system or a set which
did not promote rule of law. There are three factors
considered essential for the rule of law. The first and
foremost is the supremacy of the Constitution. We did not
give real respect to the Constitution it deserved and that was
the way of governance. There are two sections of the
society who really were the obstruction in the way to
supremacy of the Constitution.
Both these factors somehow coalesce at some point or
place. The most important factor noted by Dr. Parvez
Hassan was the military. The military mind in the country
has destroyed the constitution of Pakistan which started
with the feudal mindset of the West Pakistan where certain
feudal interests came together along with the bureaucracy
of that time to protect their vested interest. That was where
the formation of establishment came about in 1950 and
they started asserting themselves. The politicians in Sindh
and Punjab did not want land reforms as they wanted to
protect the lands and the political influence that brings with
it. Against that, East Pakistan had those land reforms. There
63
PILDAT

were not large tracts of land under the Muslim ownership.

There was not any resistance to land reforms as in the West
Pakistan and since they felt threatened they took the
protection of the bureaucracy.
REPORT
changes in the Constitution which suit for the prolonging of

his barbaric rule. As long as military holds the power in the
country, there can never be rule of law. It would remain to be
one-man rule and the Constitution would continue to suffer
at hands of the military. The military dispensation was the
biggest threat to the Constitution. The other threat was
those promoted by the military, the religious parties, the
Mullah who believe that they, in the name of Islam, could
pass decrees of their own choice. The people from the Red
Mosque or other such places believe that the Shariah is
what they believe. The other two subservient to these two
were ineffective legislature and independence of judiciary.
Army sycophants like Shujaat Hussain can say that
anybody who criticises the army should be shot dead. That
is the kind of statement we could expect from the people
who are the face of the current government. They are here
only to protect the army's and their own interests. The
country was being run by a gang led by the military regimes
and joined by these kind of so-called politicians, ultimately
for personal gain.
The then PM Khawaja Nazim-ud-Din, who was incidentally

one of the founding fathers of Pakistan, without any rhyme
or reason, dismissed the Assembly. It was followed by
another civilian coup in 1954 when another Assembly was
dissolved without any reason. Then the establishment
stepped into the third sector and that was the judiciary. They
upheld the actions taken by the Governor General. Now
three forces came together and around the same time, the
military also intervened in the formation of an establishment
in the West Pakistan by denying the rights of a common
man to determine who should govern this country.
It was for the first time in 1954 when Commander-in-Chief
of Pakistan General Ayub Khan was made the Defence
Minister. Within a couple of years, Ayub Khan thought
ultimately that the military was in power so why should they
provide any assistance to the bureaucracy and so-called
feudal politicians to run the country. This started the
dominance of the military.
The military rulers think that an independent judiciary was a

nuisance to them, because they think that some judgment
could come from somewhere thwarting their rule. In the
early days when Gen. Musharraf took over, someone asked
him why he had taken Sharif-ud-Din Pirzada as his Advisor
on Law? Gen. Musharraf replied that he did not understand
much but he had been advising the previous military rulers.
In military terms he said that he was told that this judiciary
was likely to lay down some legal minefield and therefore
this man was capable enough to bring us out of this
minefield. Gen. Musharraf did not want judiciary and
people to question his deeds. He said Gen. Musharraf
wanted only sycophants like Parvez Elahi, saying that they
will elect him in the uniform even for next 50 years. Gen.
Musharraf had a B team of judges like Sheikh Riaz who
always gave decisions in favour of the General. The Chief
Justice struck down the privatisation of the steel mills and
Gen. Musharraf said that he could also have courage
tomorrow to question Gen. Musharraf's authority. That is
why Gen. Musharraf decided to get rid of the CJP.
With the passage of time, the military's greed towards

political power continued to exceed. Initially there were a
few Generals sitting over there to control the situation with
the help of bureaucracy. With every new coup they would
bring in new faces. Gen. Musharraf had done the ultimate.
The establishment has a few factors like feudal politicians,
bureaucrats, military, and judiciary and to some extant
Mullahs. These five factors became one factor - the military
establishment who call the shots in the country. Other
factors are only subservient to them. This is the message
which military always passes on to these four factors. They
treat these so-called feudal politicians as their errand boys
and make them apologise for the army. The Parliament is
there as is the Prime Minister but all of them are ineffective,
participating only in the loot and plunder that military
regimes are known for. He said the army budget under any
head remains un-audited. Army generals think that the
Constitution is nothing and a useless paper. They make the
Constitution on their own instead of giving the people of the
country this auspicious right. They bring in amendments
only to protect their misdeeds and for continuation of
power. Army generals need unhindered power to perpetuate
a horrific rule .
Like his predecessors Gen. Musharraf has brought
64

PILDAT
REPORT
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
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.
Dr. Parvez Hassan

Partner Hassan & Hassan Associates
I agree with these bitter realities in the Northen Areas and I
have experienced this. I was the President of Lahore High
Court Bar Association in 1993-1994. A delegation of
lawyers from NA visited Lahore and they said that neither
they had judiciary nor administrative set up or any
institutions. They said that northern areas were not the part
of Kashmir but part and parcel of Pakistan. They are the
Federally Administered Northern Areas (FANA). They said
the NAs should be incorporated in the Federation of
Pakistan. I took the delegation to the then Chief Justice Mr.
Justice Nasim Hassan Shah and requested him to do some
thing. Mr. Nasim Hassan Shah said that the legal difficulty
was that they were struck from 1949 when Kashmir
resolutions were passed and NAs were declared the part of
Jammu and Kashmir. He said that they are being kept in the
political vacuum. There may be plebiscite tomorrow and we
would be needing their vote and if their vote was excluded
This political vacuum has led to sectarianism and caused

conflict in the region. The executives and the military are
ruling us as per their own wishes. My question to Dr. Parvez
Hassan is that the Supreme Court, in its judgment in
Muhammd Miskeen versus the State case, clearly directed
the government to empower the so-called democratic
institutions in Northern Areas but the Supreme Court
expressed its inability to take any steps to bring the
Northern Areas in the Constitutional ambit. My question is
65
PILDAT

we could lose in the plebiscite. He said that the two million

votes could be decisive in case of the plebiscite on Kashmir.
I, however, believe that the northern areas should be
incorporated in the federation to mitigate the sufferings of
the two million people.
REPORT
be disastrous if the Parliament had the ability to remove the

judiciary.
When the judiciary validates the actions of dictators the
remedy in the constitution was that the decisions of the
Supreme Court are final and binding. There was a process
of appeals and purviews. Once the process was over they
were open to Supreme Court in any jurisdiction.
Mr. Ommar Abbasi

If judges give unconstitutional decisions, then who is going
to watch/rectify those judgments? Given our previous
history, the judiciary has always supported the abrogators
of the Constitution. Are there are any provisions in the law or
the Constitution to check the judiciary? Under the 1972
constitution, the Parliament was empowered to impeach
the judges but that clause has been replaced. Can we now
go again on the clause and the judiciary will have no
objection?
Mr. Hamid Khan

Pakistan
It was not the 1972 Constitution that provided for the
impeachment of the judges by the Parliament. It was the
1951 constitution which provided this facility because that
was designed on the pattern of the Indian Constitution of
1950 which provides that the Supreme Court judges could
be impeached by the Parliament and judges of the high
court could be removed by the Supreme Court. The idea of
Supreme Judicial Council was the brainchild of a prominent
lawyer. But corrupt to the core judges have led the courts
but it has never taken any action against the erring and the
most corruptible of the judges. Today, a judge who should
be actually tried is sitting in the Supreme Judicial Council to
deliver judgment. Most of the corrupt judges are sitting in
the Supreme Judicial Council and a judge who is an
accused is there to decide the case. Problem with our
legislature is that it has not stabilized.
Dr. Parvez Hassan

Justice Ajmal Mian said that if you were dealing with three
branches of the government on a principal of parity or
separation of power, then there must be one amongst them
that could police the other. If the three branches be
legislative, executive and judiciary, and if they were made
arbiters of their own future, they would interpret what
powers they would have. This may lead to chaos in any
society. For that reason, most systems globally give the role
of facilitator or interpreter to the judiciary and it was in that
spirit, explaining principles of separation of power, that
Justice Mian Ajmal used that word of 'Watchdog.' It is
extremely important for the judiciary to have that role
because excesses were usually committed by the other
branches of the government.
On behalf of the Bar Council, we have always offered a

solution of constitutional amendment which has been
moved though as a Private Members Bill that we should
have a Judicial Commission instead of Supreme Judicial
Council which should be manned three-way. The Bar
should be a part of it. People should be part of it and there
we should have 19-member commission, seven from
judiciary, and six from the Bar and as many from the
Parliament. It should be responsible for the appointment
and removal of judges.
In India and many other countries, the judges had gone

ahead to say that a certain act of the Parliament was
unconstitutional. In the scheme of things we have to accept
some thing. In our religion it is the Holy Book; in the life of a
citizen it is the constitution which is the supreme law of the
land and the judiciary in the most civil societies is given the
role to interpret the constitution. In case the Parliament or
other institutions step out of their bound, the judiciary
strikes down a constitutional action. The strength and
survival of the rule of law is due to the continued role of the
judiciary. The Judiciary has the most important and sacred
role to play and it must be enabled to enact it freely. It would
Ms. Mariam Zaidi

If the Chief Justice wins the war of principals and is restored
then what role will he have? How will he act? My second
question is that Gen. Musharraf was brought up by Mian
Nawaz Sharif and he was representing an institution. After
the takeover he became the Chief Executive/President. We
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perceived it as an event. Chief Justice was also brought up

by Gen. Musharraf. Do you think that this is a war of
principles or something else?
REPORT
because they have an agenda, do not simply care about the

noble ideals or what it means to be a lawyer, many of the
high ideals of the profession are sacrificed. Unfortunately
also, usurpers and individuals whose intention is to subvert
the rule of law and constitution for political ends, these
persons can not achieve their ambitions without support of
lawyers.
Mr. Hamid Khan

Pakistan
Speaking from the experience of my own country, the

shameful sidelining of the Chief Justice was a good
example of how members of the same bench junior to him
felt able, despite the fact that the CJP was disabled and
marginalized, to take a judicial oath as the Acting Chief
Justice and chair the judicial services commission. He said
that this was a sad indictment of the individuals concerned.
We are not in a position to decide that the CJP was an angel.

He does not have an enviable record. He is the one who took
an oath under the PCO. He is the one who signed many a
judgments that were unconstitutional. The issue today is
not that of the CJP but that he has become a symbol of
resistance to a military dictator and that is what we are
fighting today. The military dictator has openly and brazenly
attacked the judiciary and its independence. Justice Iftikhar
has done one thing and that is standing up against a military
dictator and that act should be supported. We are not
fighting for an individual, but for the independence of
judiciary.
I believe the only way forward is that lawyers should

continue the effort for freedom of judiciary which is going to
be long and arduous in my view. There are many young
lawyers in Fiji who are the source of inspiration and who
challenged the suspension of the Fijian Chief Justice. Many
of the older practitioners were mesmerized by the young
lawyers' spirit as they were the future. The older generation
was quite unable to make the sacrifices.
One of the biggest challenges we face is the ability of all of

us to develop a system in which people could have access
to justice in a meaningful and cost-effective manner. One of
the biggest disappointments of the people of Pakistan is
denial of speedy justice. Lawyers' community too is
responsible for the sorry state of affairs. We shall have to
raise the level of education of the lawyers' community. The
whole story includes all of us as contributing to the dismal
state.
What I could say was that we leave this roundtable much

enlightened about the legal scenarios in Pakistan. With
today's recommendations, we have come to know what
steps are needed to be taken as a way forward.
I have a question to add here. It has been pointed out that
legislature and judiciary are the two weaker organs of the
state which have been influenced by the executive. Could
legislature and the judiciary join forces on this front to
reclaim their freedom?

I would like to benefit from the presence of the enlightened
people like Mr. Graham Leung and Mr. Niccolo FigaTalamanca to request them to share the state of rule of law
in specific context of their respective countries.
Dr. Parvez Hassan

Instead of really developing as a conscious model the
partnership of the two against the third would probably be
quite unholy in the civil society. You are looking at three
branches of the state and your hope and effort should
always be that each of them remained within the
constitutional guidelines to perform to their best potential.
The superior judiciary had said that practical relationship
among the three ideally be one of cooperation and
coordination. There was a lot of wisdom in that approach
because you wanted to have a society where every body
Mr. Graham Everett Leung

Fiji
Many of the problems being faced in Pakistan and
eloquently commented upon during the last couple of days,
resonate very strongly in my country. The rule of law and
constitution are very sacrosanct and lawyers by virtue of
their training protect and nurture rule of law and democracy.
Unfortunately when you have some lawyers and jurists in
the profession who, for reasons or lack of moral courage or
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functions for the one common good. If we start making

alliances between two against the third, it would not be the
vision of the fathers of our constitution.
There are tensions in every society among the three
branches of the state and it is a part of life. But what is
discouraging here is the scale at which things have
happened in Pakistan repeatedly. It is one of our greatest
concerns at the national level. If this friction among the three
was removed we could move smoothly. The only thing
needed really is to restore the role of the army to its
constitutionally-defined duties; not to intervene in the
political affairs; not to subvert the constitution; not to have
the midnight coups; not to militarise the universities; not to
militarise the real estate, etc., and most things will fall back
into normalcy. I do not mind army doing business but not at
the expense of the common taxpayers' money.
Mr. Hamid Khan
Pakistan
The media, considered to be the fourth organ of the state,
has shown a lot of courage despite the fact that army had
been trying to block the television channels covering the
movement of the Chief Justice. It was a compliment to the
media as to how they had covered the entire issue. Today in
Pakistan the electronic media could be a vehicle of change
and harbinger of democracy in the country. The common
person was supporting the struggle only because of the
fact that the media had brought every sort of information in
their bedrooms.
68
REPORT
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REPORT
Concluding Remarks
Ms. Alison Smith
Legal Counsel and Coordinator,
International Criminal Justice Program
umming up the roundtable and the concluding session,

Ms. Alison Smith said that similar situations regarding
the rule of law was prevailing in many other countries. In
agreement with Mr. Hamid Khan's recommendations, she
said the demilitarisation of politics and demilitarisation of
the administration of the country were the need of the hour.
She said that one of the possible starting points was
accountability of the military especially with relation to
financial matters and explanation of the defence budget,as
money is a power ful language. The second
recommendation was to uphold the constitution in letter
and spirit. She said this not only applied to Pakistan but
globally as well. For example, she said that International
Criminal Court must uphold the Rome Statute in letter and
spirit. The third recommendation was made in relation to the
development of the legal infrastructure as only a strong
judiciary could buttress and protect the rule of law and
democracy. The fourth recommendation was made by Dr.
Hassan that a reconciliation commission should be set-up
allowing for public admission of wrongs and promises not
to re-offend. It was the need of the hour to replicate the good
aspects of the quick and accessible justice in the legal and
constitutional institutions of the country. The final
recommendation, she said, was made to address
challenges of the Talibanisation of the country which was
not only confined to Pakistan but also taking roots in other
countries.
69

Justice Account Ibility and International Experience

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May 2-3, 2007

Non c' pace senza giustizia

This project is funded by the

May 2-3, 2007

Non c' pace senza giustizia

This project is funded by the

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Pakistan Institute of Legislative Development and Transparency

Justice, Accountability and International Experience

Abbreviations & Acronyms

An International Perspective of Justice and Accountability with special reference to the

Mr. Shahid Hamid, Former Governor Punjab

Concluding Remarks by the Session Chair

Session 3: Quasi- Judicial and Neo-traditional Accountability Mechanisms in Pakistan

Punchayets in Rural Areas: What makes them stay?

Justice, Accountability and International Experience

Session 4: Establishing an Effective Rule of Law in Pakistan the Way Forward

Concluding Remarks by the Session Chair

Justice, Accountability and International Experience

Abbreviations and Acronyms

Chief Justice of Pakistan

Justice, Accountability and International Experience

Justice, Accountability and International Experience

Justice, Accountability and International Experience

Justice, Accountability and International Experience

Justice, Accountability and International Experience

Welcome and Introduction

n his introductory remarks, Mr. Ahmed Bilal Mehboob

Justice, Accountability and International Experience

s. Alison Smith said that she was honoured and

Justice, Accountability and International Experience

similar recognition of the rights of the victims. The preamble

was being called to account and by whom and according to

Before the existence of the International Criminal Court in

Justice, Accountability and International Experience

r. Mr. Ahmer Bilal Soofi said that international law is

Justice, Accountability and International Experience

internationally accepted. He said the problem with Geneva

Explaining the background, Mr. Soofi said that certain

Commenting on the events which have taken place more

Justice, Accountability and International Experience

Mr. Soofi believed that there was no norm in Pakistan or

Justice, Accountability and International Experience

agreements with all the countries, which it has now. The US

How could the ICC bring to justice the personnel of the

Mr. Yasir Abbasi

Mr. Ahmer Bilal Soofi

Jurisdiction is always governed by the text of the treaty and

Mr. Ahmer Bilal Soofi

Justice, Accountability and International Experience

Mr. Ahmer Bilal Soofi

Ms. Asiya Nasir

Mr. Niccolo Figa-Talamanca

In certain parts of Pakistan some operations are carried out

Mr. Shahid Hamid

Mr. Ahmed Bilal Mehboob

Justice, Accountability and International Experience

intrinsically because it cannot disassociate from the

Justice about construction of the wall. So there is plenty of

Ms. Alison Smith

Pakistan has not ratified the treaty. So what happens if