In this report – the third in a series of national studies focusing on Authority without Accountability in South Asia – the International Commission of Jurists (ICJ) assesses the Supreme Court’s efforts to bring accountability to a government and military that have long failed to protect and respect the rights of millions of people in Pakistan. During his eight years as chief justice, Justice Iftikhar Chaudhry has helped transform the Supreme Court of Pakistan into a robust institution capable of exercising its power independently and impartially, safeguarding the constitution and acting as a check on the power of other institutions of the state. One of the Supreme Court’s main tools in this regard has been the rare authority to exercise its ‘original jurisdiction’ to hear important matters relating to human rights, even on its own initiative (so-called suo motu jurisdiction), as granted under Article 184(3) of the Pakistan constitution.
There remain, however, areas of concern, particularly regarding the Supreme Court’s exercise of its original jurisdiction under Article 184(3). As set out more fully below, ICJ’s analysis shows that at times the Supreme Court has exercised its original jurisdiction, particularly its suo motu powers, in a manner that has not always been coherent or consistent with its own jurisprudence or with international human rights law.
The following is an excerpt from the report.
Interpretation of Fundamental Rights
Part II of the Constitution of Pakistan, entitled ‘Fundamental Rights and Principles of Policy’, enshrines a number of human rights. The Fundamental Rights chapter, however, does not enumerate all of Pakistan’s rights obligations as a State party to international human rights treaties. Many civil and political rights as well as economic, social and cultural rights are absent in the Fundamental Rights Chapter of the 1973 Constitution of Pakistan. For example, the Constitution does not expressly guarantee the right to form and join trade unions; the right to equal pay for equal work; or the equality of rights and responsibilities of spouses to marriage, during marriage and at its dissolution.
An important aspect of public interest litigation in Pakistan has been to expand the ambit of ‘fundamental rights’ under Article 184(3) of the Constitution. The ICJ commends the Supreme Court for providing a more expansive interpretation of constitutional rights in a manner consistent with Pakistan’s obligations to respect, protect and fulfill human rights under international law. For example, in 1994, the Supreme Court in Shehla Zia v. WAPDA held that the right to life guaranteed by Article 9 of the Constitution of Pakistan included the right to a healthy environment. The Court justified this interpretation by viewing the Constitution as a living document, demanding legal principles to be construed broadly to meet the needs of an evolving society. The ICJ commends such an approach to interpreting rights under the Constitution.
However, there are concerns that in some more recent cases the Court has exercised its original jurisdiction based on political considerations rather than a bona fide and appropriate (even if expansive) legal interpretation of ‘public importance’ or the identification or clarification of ‘fundamental rights’. Such inconsistent or incoherent exercise by the Court of its original jurisdiction, including on the basis of broad interpretations of ‘fundamental rights’, could foster the appearance of arbitrariness in the Court’s exercise of its powers under Article 184(3). In Pakistan, where there are many issues of public importance which relate to the enforcement of human rights, and in view of available judicial resources, the Court must exercise and must be seen to exercise its extraordinary jurisdiction judiciously, as well as in a manner that is consistent with rule of law, separation of powers and respect for human rights.
(1) ‘Memogate’ case (2012)
The Supreme Court’s decision to exercise suo motu jurisdiction under Article 184(3) in what became known as the ‘memogate’ case was one of the more controversial uses of Article 184(3) jurisdiction because it seemed to expand the notion of the right to life in an unprecedented manner that is inconsistent with human rights law.
On 10 May 2011, a memorandum allegedly containing promises of greater cooperation with the United States Government in counter-terrorism operations from the PPP-led Government in exchange for support from the United States to subvert a potential military coup d’état was reportedly delivered by a Pakistani source to the U.S. Chairman of the Joint Chiefs of Staff, Admiral Mike Mullen. An American-Pakistani businessperson, Mansoor Ijaz, leaked news of the memo to the media in early October 2011. Mansoor Ijaz claimed the alleged memorandum had been dictated to him by Hussain Haqqani, Pakistan’s Ambassador to the United States, on orders from former President Zardari. In November 2011, Hussain Haqqani was recalled to Islamabad and he resigned from his diplomatic post.
On 23 November 2011, the Chairperson of Pakistan Muslim League (Nawaz) (PML(N)), at the time the PPP-led Government’s main political opponent, petitioned the Supreme Court to take up the matter under Article 184(3) of the Constitution. In the interim, the Government tasked the Parliamentary Committee on National Security to investigate the allegations made by Mansoor Ijaz.
Notwithstanding the ongoing investigation by the Parliamentary Committee, on 30 December 2011, the Supreme Court, in a short order, held that the petition was maintainable and established a judicial commission to probe into the origin, authenticity, and purpose of the memo. The case became known as the ‘memogate’ case.
The Supreme Court accepted jurisdiction under Article 184(3) invoking a novel interpretation of Article 9 of the Constitution, whereby it reasoned that the right to life included ‘life with dignity’. The Court held that a threat to ‘security, sovereignty and independence’ of the State compromised the collective dignity of the people of Pakistan, who deserved an ‘honorable’ existence in the comity of nations. The Court further reasoned that the content of the memorandum, if found to be authentic, was tantamount to threatening Pakistan’s sovereignty, security and independence and thus held that the petition was within the purview of fundamental rights under Article 184(3).
(2) Revision of Presidential Elections case (2013)
Recently, the Supreme Court took up a petition under Article 184(3) filed on behalf of the ruling party, the Pakistan Muslim League (Nawaz), seeking to change the date of the Presidential elections. The Court took up the petition on the basis of protecting and promoting the right to religion, but its ruling in the case did not elaborate or provide any sufficient reasoning to show how holding elections on the original date that had been set by the Electoral Commission implicated the right to religion.
The Election Commission of Pakistan had scheduled Presidential elections for 6 August 2013. Raja Zafarul Haq, Chairman of the Pakistan Muslim League, Nawaz (PML-N) applied to the Election Commission to revise the election date to 30 July 2013. The PML-N claimed that elections should not be held in the last ten days of the holy month of Ramadan as some parliamentarians may choose to go for Umra and some may also choose to go on Aitekaf. The Election Commission rejected the application, claiming that the choice of some parliamentarians to observe non-obligatory religious practices is not a sufficient reason to warrant the date of the Presidential elections to be changed.
Raja Zafarul Haq then petitioned the Supreme Court under Article 184(3) seeking to have the election dates changed claiming that the right of all parliamentarians to participate in non-obligatory religious practices would be violated if elections were held in the last ten days of Ramadan. The petition also claimed that the Court was required to take measures to ensure that all parliamentarians had the opportunity to vote in the Presidential elections. The Court agreed to exercise its original jurisdiction over the petition under Article 184(3) of the Constitution and on 25 July 2013, after a single hearing, and ordered the Election Commission to change the election date to 30 July 2013.
The right to observe religious practices is recognized by Article 20 of the Pakistani Constitution and international human rights law, notably Article 18 of the ICCPR. However, in its five-page order, the Supreme Court did not provide any reasoning to explain why holding elections on the original date would violate the right to profess religion.
In changing the election date, the Supreme Court appears to have adopted an interpretation of freedom of religion that requires the State to ensure that all individuals, including parliamentarians, have a right to observe non-obligatory religious practices, which cannot be disturbed either for the purposes of elections or any other reason.
Such an interpretation could have a number of practical implications. For example, Friday is considered a holy day in Islam. Would it violate a parliamentarian’s right to observe his or her religion if sessions of Parliament prevented them from non-obligatory prayers on holy days? Similarly, many Muslims consider it auspicious to fast on Thursdays. Would it violate an individual’s right to observe the non-obligatory practice of fasting if elections were held on a Thursday?
The Supreme Court’s decision in the Presidential Elections case demonstrates some of the concerns over interpreting rights with unclear parameters. Such an interpretation has left the law in a state of uncertainty, and provided little guidance to lower courts on how such rights should be interpreted and implemented in future cases.
The Supreme Court, in its interpretation of the criteria of ‘public importance’ and ‘fundamental rights’ has not always been coherent or consistent with its own jurisprudence or with international human rights law. This has fostered the appearance of arbitrariness in the Court’s exercise of its original jurisdiction under Article 184(3). It has also opened the Court up to criticism that it has exercised its human rights jurisdiction based on political considerations rather than a bona fide and appropriate (even if expansive) legal interpretation of ‘public importance’ or the identification or clarification of ‘fundamental rights’. The development by the Court (including within its jurisprudence), of guidelines for the exercise of its original jurisdiction under Article 184(3) would assist in ensuring consistency of the use of this extraordinary power. It could bolster public confidence that this extraordinary jurisdiction was being used judiciously and in accordance with the Constitution to ensure respect for human rights in a manner that is consistent with the separation of powers and the rule of law.
The full report can be found at: http://www.icj.org/pakistan-retiring-chief-justice-chaudhry-leaves-legacy-of-robust-yet-inconsistent-action-on-human-rights/