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United Nations Special Rapporteur on the independence of judges and lawyers, Ms Gabriela KNAUL, Preliminary observations on the official visit to the Islamic Republic of Pakistan - Islamabad, 29 May 2012

Members of the press, ladies and gentlemen,

I am very happy to be here with you today and share my observations at the end of my 11-day official mission to Pakistan.

Let me begin by warmly thanking the Government of Pakistan, and in particular officials at the Ministry of Foreign Affairs, for inviting me to conduct an official mission and for facilitating a rich and interesting programme of meetings and visits in Islamabad, Karachi and Lahore. I am honoured to be the first mandate holder of a Special Procedure of the Human Rights Council to undertake an official mission to Pakistan after 13 years. I hope that the doors will remain open for other mandate holders of the Special Procedures who have expressed interest in coming to visit Pakistan. This would certainly confirm the commitment of the Government to comply with the United Nations human rights monitoring system.

During my visit, I had the privilege to meet the Chief Justice of Pakistan, Honourable Justice Chaudry Iftikhar and the Minister of State of the Ministry of Foreign Affairs, Honourable Nawabzada Malik Ahmed Khan. I also had the privilege to meet the Ministers of Law, Justice and Parliamentary Affairs of Pakistan and Punjab, Honourable Farooq Hamid Naek and Honourable Rana Sanaullah Khan. I also held meetings with a number of senior Government officials, judges of the Supreme Court, High Courts and the district courts, lawyers, members of professionals’ organizations, representatives of international organizations, academics and civil society representatives. Throughout my visit, I have experienced warm hospitality, courtesy and openness. I would like to take this opportunity to thank all those who have given my colleagues and me the benefit of their precious time and experience.

I would also like to thank the United Nations Resident Coordinator and the UN Country team for their support, before, during and, I am sure, also after this mission.

You will find in this room copies of a short official UN document that explains my responsibilities as Special Rapporteur on the independence of judges and lawyers. Briefly, I am an independent expert who reports to, and advises, the UN Human Rights Council and the UN General Assembly. Although appointed by the Human Rights Council, I am not employed by United Nations and the position I hold is pro bono. As an independent expert, I exercise my professional assessment and report directly to the Member States of the United Nations.

Today, I will confine myself to a few preliminary remarks on some of the issues that, along with others, will be explored in more detail in the final written report once I have studied materials and documents that I have gathered and been referred to. The report will be presented at the 23rd session of the Human Rights Council in Geneva, which will be held in June 2013.

As indicated in the note on my mission, copies of which are also available in the room, the purpose of my mission is to understand, in the spirit of co-operation and dialogue, how Pakistan endeavours to ensure the independence of the judiciary, magistrates, prosecutors and lawyers, as well as their protection, and the obstacles encountered which impede actors of the judicial system to discharge their functions effectively, adequately and appropriately.

At the outset, I would like to commend Pakistan’s transition from a military-based dictatorship to a Parliamentary Democracy. I have heard of commendable work carried out in the last years, which has had a great impact in improving the independence of the judiciary. I believe that this constitutes a positive sign. Transitions, however, always come with challenges, and very often more challenges are encountered along the way. There is always room for improvement, and this is the reason why while the situation of the judicial system today in Pakistan has improved, challenges to the independence of judges, prosecutors, court officials and lawyers remain. Those should be assessed and addressed as a matter of urgency.

An independent and impartial judicial system will contribute, without doubt, to strengthening the rule of law and contribute to effectively combating impunity for human rights violations, thereby reinforcing this young democracy. This should be an ultimate objective for any judiciary, and Pakistan can achieve it.

In the realm of international human rights law, Pakistan has recently ratified two important human rights treaties, namely the Convention against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR), which include many provisions relating to the administration of justice, fair trial, equality before the law and non-discrimination.

An independent judicial system should be free from political or any other pressure. This is established in the principle of separation of powers, which grounds democracy. The judiciary must be enabled to discharge their functions under conditions which will allow them to be independent and decide on matters impartially, both at an individual and institutional level.

I am concerned that since the jurisdiction of the highest courts enshrined in the Constitution does not apply to the whole territory of Pakistan many could be deprived of their constitutional rights. I believe that a uniform legal system enshrined in the Constitution is necessary, in order to avoid ambiguities and discrepancies in the administration of justice.

Another issue that creates ambiguity is the recognition in the Constitution of another superior court, namely the Federal Shariat Court. I believe that the existence of two superior courts in the Constitution is problematic and leaves space for interpretations which might be contradictory.

In addition, I am also concerned about reports of conflicts being resolved by informal systems, often at the grass-root or community level. Such informal dispute settlement systems are deeply rooted in conservative interpretations of tradition and/or religion and lead to conflict resolution and punishments which are in contradiction with laws in Pakistan, fundamental rights recognized in the Constitution, and international human rights standards. The Supreme Court itself has declared on several occasions that “jirgas” and “panchayats” are unlawful assemblies and that their decision have no legal validity. Such fora for apparently judicial adjudication, which often are more accessible, inexpensive and speedy, as compared to formal first instance courts, should be effectively discouraged and combated in practice. The formal legal system must urgently be improved in order to avoid the persistence of such informal systems.

In order to deliver justice and uphold the rule of law, the judiciary must be properly equipped and adequately financed. Regrettably, according to the information I have received, the percentage of the budget allocated to the judiciary is minimal and far below that of other institutions of the State. With less than 1 per cent of the total federal budget attributed to the judiciary, improvements will be slow and conditions of work of the judiciary will remain unsatisfactory. The same issue applies at provincial level, even more so, since it has been reported to me on several occasions that the district level judiciary is the one which suffers the most from lack of financial support.

Over the last four to five years, a lot of effort has been undertaken to improve general conditions of work in the judicial system. I have visited the district court of Islamabad where I was struck by the conditions in which judges, prosecutors and lawyers work and how the parties and witnesses to a case are received. Judges and other actors of the judicial system at the lower level of the judiciary are missing adequate facilities, such as electricity, water and sanitation, chambers, separate offices, waiting rooms, libraries, equipment, and support staff.

I call upon the Federal Government, as well as the Provincial Governments to increase the financial resources of the judiciary and bar associations at all levels, but especially at lower level where this will have a direct impact on people who expect a reasonably timed and priced delivery of justice.

In order to ensure the independence of judges, their appointments should follow objective criteria clearly defined and set up in the rules and procedure of appointment. Such objective criteria should exist at all levels of the judicial system and should not be subjected to the vested interests of political and other actors.

Furthermore, it was brought to my attention that there exists a considerable back-log of cases at all levels, but especially in the lower courts. The number of cases per judge reported to me is alarmingly high and contribute to the further delay of the delivery of justice. I believe that the insufficient number of judges at lower court level has a significant impact on the confidence of the public in the functioning of the judiciary. There must be a sufficient number of judges to be able to deal with the cases registered before the courts. I call upon the Government to provide the necessary resources for new judges to be appointed and to ensure conditions which will be conducive to an independent, appropriate and impartial delivery of justice.

In addition to the lack of judges in the lower courts, it seems that the situation is somewhat similar in High Courts. I noted  the number of long-term vacancies found in some High Courts. While the appointment of judges to these vacant positions must respect established rules, I encourage relevant actors to take all actions necessary, within the prerogative defined by law, to remedy to this situation and thereby avoid further increase of back-log at the High Court level.

I am worried by the number and nature of reported cases of serious threats and attacks of judges. Physical security is an essential condition for judges to be able to carry out their duties without hindrance or interferences. I encourage the Government to consider setting up a special system of protection for judges in consultation with professional bodies and other associations of judges.

I would like to commend the use of inherent powers of the Supreme Court in recent cases related to gross human rights violations, for instance in the case of enforced disappearance referred to as “missing persons” in Balochistan. I believe that by using this procedure in some cases, the Supreme Court is upholding human rights law and contributing to combating impunity. However, I am concerned by the lack of clear criteria guiding the use of suo moto, which can undermine its own nature and may jeopardize other pending cases from being timely considered by the Supreme Court.

I would like to address now the particularly difficult situation in which the prosecutorial services are, and particularly the ones at the district courts level. It seems that inadequate remuneration and missing recognition of the prosecutor’s work, greatly contribute to the lack of interest for such post, and consequently qualified people stay away from prosecutorial positions. Different sources have informed me about the poor quality of these services, which results in an extremely low conviction rate. Issues related to the procedures for providing evidence, especially in criminal cases, also contribute to poor conviction rates, thereby raising a feeling of impunity among the general public. In order to ensure quality prosecution services the necessary financial resources and adequate professional trainings should be provided.

Furthermore, the rules of procedure relating to evidence must be revised in light of legal and social development, as well as modern technologies. This must be applied uniformly to all witnesses.

I am aware of the difficulties faced by prosecution services due to the poor quality of investigations carried out by police services. While I am aware that a direct assessment of the functioning of the police falls outside of the prerogative of my mandate, I wish to underline that when investigation services fail to deliver properly, it has a direct negative impact on the ability of prosecution services to take cases forward and, consequently, on the delivery of justice.

I was very interested to learn about the role played by lawyers in restoring the rule of law and contributing to the establishment of democratic governance. I believe that this role is commendable and felt impressed by the enthusiasm and dedication expressed by all the lawyers I have met. Nevertheless, accountability of lawyers for their conduct should not be jeopardized and they should not be exempted to abide by the codes of conduct and ethics set by their professional associations.

I am concerned that a limited number of lawyers might still be surfing on the wave of respect which arose of the Lawyers’ Movement while misconducting themselves vis-à-vis their clients, judges, and the police. Such behaviours call for a rigorous enforcement of the existing disciplinary measures. Codes of conduct might also need to be revised in order to fill in gaps that might have been left.

Guaranteeing security for lawyers is also of utmost importance. Threats, attacks, kidnappings and killings of lawyers should not be tolerated. It was brought to my attention that some lawyers refuse to take up cases which are deemed sensitive as regards religion, customs or tradition out of fear of reprisals against themselves or their families.

Moreover, I am especially concerned regarding cases brought under the so-called ‘blasphemy law’ as it was reported to me that judges have been coerced to decide against the accused even without supporting evidence; as for the lawyers, in addition to their reluctance to take up such cases, they are targeted and forced not to represent their clients properly. In addition, judges, prosecutors and lawyers working on cases related to terrorist acts and organized crime are also often the target of serious threats and attacks from various actors, including non-State actors.

As indicated in the note on my mission, I paid particular attention to the integration of a gender perspective and women’s rights in the justice system. I am concerned that there are currently no women on the Supreme Court and only two women in the High Courts. I was further struck by reports of existing laws, such as the so-called ‘blasphemy’ law, being misused to target women and strip them of their fundamental rights. Many stages of the justice system, starting with filing a case with the police, to accessing lawyers and appearing and testifying before courts, are gender-biased, and thisimpedes the full functioning of justice for women.

Finally, I wish to underline the importance of quality education, training, including continuing training, and other kinds of capacity-building for all the actors of the judicial system. I have visited the Judicial Academy and noticed the dedication of both faculty and students. Yet, I believe that trainings provided by the Academy need to be strengthened by introducing more courses, including specific courses on human rights law and its application at the domestic level. Professional trainings also seem to be lacking. Judges, prosecutors and lawyers should have access to quality continuing education, including specialized training on gender equality and women’s rights, international human rights law, and the human rights mechanism. Such trainings must be accessible to all judicial actors including Bar associations, regardless of the level at which they operate.

In this context, I would take this opportunity to encourage further strengthening of technical cooperation with international and regional actors such as the European Union, United Nations Office on Drugs and Crime, United Nations Development Programme and civil society organizations, in developing quality education curricula and professional trainings.

To conclude, I am grateful to the Government of Pakistan for inviting me to visit, enabling me to deepen my understanding of the issues related to the independence of judges and lawyers. The Government’s invitation – and much of what I have learnt during my visit – confirm how seriously the issue of independence of judiciary is taken in Pakistan. While it is doing much, much more must be done.

Thank you.