Ali Dayan Hasan, country representative of Human Rights Watch, spoke with Newsweek Pakistan's Fasih Ahmed recently. Excerpts:
The judges sacked by former president Pervez Musharraf were restored to office in March 2009. Have they lived up to your expectations? Rights-respecting rule of law is impossible in the absence of an independent judiciary. We advocated and lobbied‚ internationally and in Pakistan‚ for this‚ and welcomed the restoration of independent judges. Now that judicial independence has been achieved‚ it is our view that judicial conduct has to be scrutinized thoroughly‚ and the judiciary has to be held to the highest standards.
With a free media in Pakistan‚ is it really that difficult to scrutinize judicial conduct? No government institution should be immune from public debate in a democratic society. It is the function of the media, lawyers' bodies‚ and other civil society groups to provide this scrutiny. Independence does not mean that judicial decisions‚ or even judges themselves‚ should not be subject to valid public criticism. However‚ it is increasingly evident that the media is unable to scrutinize judicial conduct for fear of overbroad "contempt" proceedings. Human Rights Watch has been told as much‚ off the record‚ by many journalists. We have documented cases of stories being retracted as a consequence of such pro ceedings. It is disturbing that fear of blowback from the judiciary is muzzling the media. Whether a threat to media freedom emerges from the political government or intelligence agencies or judicial pressure‚ it is unacceptable.
But the restored judiciary has played an important role in creating and strengthening the rule of law. That is our hope. But unfortunately‚ it is also the case that the courts have engaged in controversial incursions into the constitutional domain of the legislature and the executive. The judiciary's entertainment of challenges to [Asif Ali] Zardari's presidential election‚ the 18th Amendment-which restored Pakistan to parliamentary democracy-and unwarranted intrusion in administrative matters exacerbate the crisis of governance and damage the edifice of constitutional rule.
Can you cite any specific instance of such intrusion? Very recently‚ the Lahore High Court restrained the president from pardoning blasphemy-law victim Aasia Noreen. In doing so, the court is seen by Human Rights Watch and many legal experts in Pakistan‚ including [Supreme Court Bar Association of Pakistan President] Asma Jahangir‚ as having overstepped its constitutional authority and exacerbated the suffering of a person unjustly convicted under a discriminatory law. The Constitution is very clear: the president can pardon any sentence passed by any court or other authority.
The blasphemy law is part of the Islamic provisions of the Constitution. On Aug. 16‚ Supreme Court judges opined that Parliament does not enjoy "unfettered" powers to amend the Constitution‚ particularly with reference to Islam. The fact is that some provisions which are actively discriminatory were included in the basic law at the behest of [former military dictator] Gen. Zia-ul-Haq. Parliament does have the unfettered right to amend or repeal laws‚ unless it legislates in violation of the fundamental-rights provisions of the Constitution. Only in the latter case could one expect a court to strike down laws that discriminate on the basis of religion‚ sect‚ and gender. The courts should not appear to be acting in favor of and arguing the opposite.
What would you like to see happen? It is crucial that the judiciary focus more on urgently-needed internal reform and capacity building‚ resisting and rejecting populist cries and pressure. The true test of judicial independence lies in the efficient and nonpartisan dispensation of justice. This is not a given. It has to be carefully nurtured and supported.
Ali Dayan Hasan is a senior researcher in the Asia Division of Human Rights Watch.
