Research Digest · Pakistan Institute for Parliamentary Services 2015 PIPS Research Digest- Volume:...

Research Digest M A Y , 2 0 1 5 V O L U M E 2 , I S S U E 5

I N SI DE THI S

I SSU E:

Demographic Data/

Economic

Indicators of Pakistan

Page 07

CONCEPT &

OPINION

Independent

Judiciary

Page 08

ANALYSIS

Trade

Agreements and

their various

Types

Page 01

Editorial The Pakistan Institute for Parliamentary Services (PIPS) commenced 2015 with renewed zeal to provide legislative, research and training services to Members of the Parliament. This May 2015 has been a month of pro-active services and landmark new initiatives. In March 2015, the Honourable Chairman Senate/PIPS President Board of Governors guided PIPS to enhance its outreach to school and college youth in addition to its existing engagement with university youth since 2012. Accordingly PIPS held memorable series of Seminars on Constitution, Parliament and State-building – role of youth with Is-lamabad Model Colleges in Islamabad which were participated by around 300 school girls and boys and their faculty. PIPS also hosted the Secretary General of Inter Parliamentary Union (IPU) H.E Mr Martin Chungoung who termed PIPS as an exemplary facility of international standards vis a vis its parliamentary research and capacity services. He added that IPU will take up the case study of development of PIPS for num-ber of countries who are trying to build similar institutions. It is imperative to acknowledge that Kenyan Parliamentary Centre has already studied PIPS in their feasibility as a standard-example. PIPS also signed significant MoUs with the Advanced Research and Library wing of Higher Education Commission (HEC) and country’s top economics research school Pakistan Institute for Development Economics that will enhance quality of research backing available to the Institute. PIPS closely follows up with universities regarding the initiative of Parliamentary studies programme launched by the Hon-ourable Speaker National Assembly Sardar Ayaz Sadiq at PIPS earlier in February 9th, 2015. We are pleased to inform that nine reputed universities including GC University, Faisalabad, University of Balo-chistan, Quetta, SZABIST, Bahauddin zakariya university Multan, Ripah University, Bahria University Deptt of Law, International Islamic University, Islamabad, Deptt of Politics and IR, University of Guj-rat, Fatimah Jinnah Women University Rawalpindi are commencing the certificate course in parliamen-tary studies designed by PIPS and HEC in guidance of National Parliament. This May 2015 issue of the PIPS Research Digest comprises an opinion piece on Judicial Reforms that has been on recent agenda in the Parliament in addition to important National demographic and eco-nomic indicators as well as an analysis article by trade agreements as special features before the budget in June 2015. We are confident that the digest would assist honorable MPs to develop insights regarding the issues at hand and help them seek solutions and make informed decisions. For any specific areas of importance that you want PIPS to send you research or briefing papers, don’t hesitate to contact us at [email protected]. Profound Regards and Happy Reading!

Muhammad Rashid Mafzool Zaka Director (Research and I.T)

mailto:[email protected]

Pakistan Institute for Parliamentary Services 2015

PIPS Research Digest- Volume: 2, Issue: 05 Page 1

ANALYSIS

TRADE AGREEMENTS AND THEIR VARIOUS TYPES

Mr. Muhammad Rizwan Manzoor,

Research Officer, PIPS

Introduction:

During the second half of the 1990’s, trade liberalization and the quest of global free trade underwent a vibrant change. This shift in trends was largely because of the establishment of World Trade Organization (WTO) which provided a new set of rules and regulations for international trade. The World Trade Organization was established in 1995 and it was signed by 128 countries. The establishment of WTO gives birth to a burst of trade agreements.

Trade agreement means a pact or contract between two or more countries to grant tariff1 or non-tariff2 concessions with the ambitions of trade promotion. Under this, two or more countries can go for economic integration by partial or full removal of tariff and non-tariff barriers taking place among them. The key objective of this integration is to increase the combined economic productivity of the countries by economic cooperation allowing free trade among their industries. This integration may lead to welfare of the people of the member economies by providing them (i) enhanced industrial growth (ii) variety of products (iii) lower price levels; and (iv) effective allocation of resources. The other by-product of this kind of economic integration is competitiveness. The member countries stay regionally and globally competitive, as the goods of the states outside economic blocks become more expensive comparatively. This price variation occurs in a result of tariff relaxation among the member states. Before explaining the various types of trade agreements in practice, the concept of two widely discussed terminologies of international trade is given in following two headings.

Status of Most Favored Nation (MFN):

This status is granted by one country to another country if it is interested in increasing trade with that country. It would be either unilateral or bilateral. After the grant, this status is enforced by World Trade Organization (WTO). Countries achieving most favored nation status are given specific trade advantages such as reduced tariffs on imported goods.

Generalized System of Preferences (GSP):

This is unilaterally granted concessions under which developed countries allow tariff free or low-tariff entry to imports from selected developing or least developed countries up to a certain limit (i.e. quota). This is also referred as Generalized Preferential Tariff (GPT).

There are various types of trade agreements with respect to tariff concessions3, area and level of economic integration4. In this paper, different types of trade agreements depending upon tariff concessions, complexity5 and the level of economic integration are elaborated.

LEVEL – I: REMOVAL OF DISPUTES

It is the least complex level of integration. Before going for some tariff concession under some formal trade agreement, countries attempt to remove trade related conflicts and disputes by signing this stage of agreement. Two

1 Tariff means a tax imposed on imported goods and services. Tariffs are used to restrict trade, as they increase the price of imported goods and services, making them more expensive to consumers. 2 It means a non-tax barrier on trade which may include quotas, systematic hurdles, tough procedures and trade sanctions 3 Tariff concessions mean the removal or lowering of tariffs as a result of trade agreement between countries. 4 Economic integrations means how many trade components are covered under trade agreement. These components include trade in goods, trade in services and trade in investments. 5 Complexity means how many countries involved in trade agreement and how much products are covered under it



categories which fall under this level i.e. Trade and Investment Framework Agreement (TIFA) and Bilateral Investment Treaty (BIT) are given as under.

Trade and Investment Framework Agreement (TIFA):

TIFA refers to a trade treaty between two or more countries which establishes a framework for increasing trade and resolving outstanding trade disputes between countries. TIFA is the first step towards a free trade agreement (FTA). The best example of a TIFA is the one signed by member states of Association of South East Asian Nations6 (ASEAN) and the United States in 2006 that opened opportunities to enhance trade and commercial ties. Later on, these countries entered into a free trade agreement (FTA) in 2009. Pakistan has signed trade and investment framework agreement (TIFA) with United States of America on June 25, 2003.

Bilateral Investment Treaty (BIT):

It is a bilateral agreement in which two countries agree to encourage private investments by citizens and firms subject to conditions agreed upon. The investment discussed under BIT means foreign direct investments (FDI). Pakistan and Germany signed world’s first BIT in 1959. Pakistan has signed BITs with 50 countries so far. Today, most countries have signed BITs with other countries and the numbers of BITs prevalent globally are more than 2500.

LEVEL II: APPROACHING TOWARDS TRADE FREEDOM

At second level of trade integration, trade agreements like preferential trade agreements (PTAs) and free trade agreements (FTAs) provide preferential market access to member countries with lower tariff rates and reduced non-tariff barriers.

Preferential Trade Agreement (PTA):

In the preferential trade agreement, the participating countries give preferential market access to certain products for trade among themselves. It is attempted in PTA that member countries may receive low tariff rates and reduced non-tariff barriers from each other. PTA is also called the first stage of economic integration among countries. Prior to entering into some comprehensive trade agreement such as free trade agreement (FTA) many countries used to go for a PTA which has less scope or concessions. Similarly, the products covered under PTA are usually far less than under FTA.

In last twenty years, the trends of signing PTAs between countries have increased. Every WTO member except Mongolia7 is now a member of some PTA. The spread of PTAs has no signs of slowing down in the near future. Pakistan is the signatory of three preferential trade agreements i.e. Pakistan-Iran PTA (2004), Pakistan-Mauritius PTA (2007) and Pakistan-Indonesia PTA (2012). The Pakistan’s trade with the member countries under these PTAs is given as under in tabular and info-graphic form. The data source used for all the analysis is ITC Trademap8.

6 ASEAN is the regional block of South East Asian Countries. It has 10 members i.e. Indonesia, Malaysia, Philippines,

Singapore, Thailand, Brunei Darussalam, Viet Nam, Lao PDR , Cambodia and Myanmar 7 Mongolia is a landlocked country in east-central Asia. It is following protectionist trade policy. 8Data Source: International Trade Center’s database for trade data (www.trademap.org)



Pakistan's Trade with Indonesia

(Values in US$ billions)

Years

Pakistan's

Imports

from

Indonesia

Pakistan's

Exports to

Indonesia

Pakistan's

Total

Tarde

with

Indonesia

2003 0.27 0.05 0.31

2004 0.47 0.06 0.53

2005 0.68 0.07 0.75

2006 0.81 0.06 0.87

2007 0.88 0.07 0.94

2008 1.19 0.06 1.25

2009 0.65 0.07 0.72

2010 0.68 0.07 0.75

2011 0.93 0.19 1.12

2012 1.35 0.24 1.59

2013 1.21 0.14 1.35

2014 2.11 0.14 2.25

Pakistan's Trade with Mauritius

(Values in US$ millions)

Years

Pakistan's

Imports

from

Mauritius

Pakistan's

Exports

from

Mauritius

Pakistan's

Trade

with

Mauritius

2003 3.88 33.56 37.44

2004 0.97 35.50 36.47

2005 0.95 34.12 35.07

2006 1.17 34.42 35.58

2007 0.54 35.54 36.08

2008 0.57 40.16 40.74

2009 0.95 26.51 27.46

2010 0.98 34.17 35.14

2011 3.49 33.99 37.48

2012 7.65 23.59 31.24

2013 16.98 28.29 45.27

2014 22.54 28.35 50.89

Pakistan's Trade with Iran


Years

Pakistan's

Imports

from Iran

Pakistan's

Exports to

Iran

Pakistan's

Total

Trade

with Iran

2003 0.30 0.08 0.38

2004 0.27 0.10 0.37

2005 0.36 0.18 0.54

2006 0.44 0.18 0.62

2007 0.44 0.15 0.58

2008 0.74 0.43 1.16

2009 0.96 0.25 1.21

2010 0.88 0.18 1.07

2011 0.30 0.15 0.46

2012 0.12 0.14 0.26

2013 0.17 0.06 0.23

2014 0.19 0.04 0.23



Free Trade Agreement (FTA):

Under free trade agreement (FTA) the member countries agree to eliminate tariffs, import quotas, and preferences on most of the goods and services traded between them. The aim of establishing a free trade area is to reduce barriers to exchange so that trade can grow as a result of (i) specialization, (ii) division of labor and (iii) through comparative advantage.

A free trade agreement (FTA) can be an agreement between two countries (bilateral FTA) or many countries (multilateral FTA). For example, Pakistan-China FTA is a bilateral free trade agreement between China and Pakistan which was signed in 2006. Similarly Pakistan is signatory of a multilateral FTA i.e. South Asia Free Trade Agreement (SAFTA) which was signed in 2004 and it has eight member countries.

It is pertinent to mention here that one cannot distinct PTA and FTA by just saying that the former has fewer barriers and later has no barriers at all. FTA does not mean everything is free. There is distinction between FTA and PTA. However, one can say that almost every PTA has a main goal of becoming a FTA or PTA is the primary stage towards an FTA. The most relevant example here is of South Asia Preferential Trade Agreement (SAPTA) which was signed by the South Asia Association for Regional Cooperation (SAARC) member countries in 1993 and it is upgraded to South Asia Free Trade Agreement (SAFTA). It created a free trade area for 1.6 billion people in Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. Presently, Pakistan is the signatory of two bilateral FTAs i.e. Pak-China FTA (2007), Pak-Sri Lanka FTA (2005) and one multilateral FTA i.e. SAFTA (2006)9. Tables and graphs show Pakistan’s trade with FTA partner countries i.e. with China and Sri Lanka.

9 Source: Ministry of Commerce Pakistan. http://www.commerce.gov.pk/

Pakistan's Trade with China


Years

Pakistan's

Imports

from

China

Pakistan's

Exports to

China

Pakistan's

Total

Trade to

China

2003 0.96 0.26 1.22

2004 1.49 0.30 1.79

2005 2.35 0.44 2.79

2006 2.91 0.51 3.42

2007 4.16 0.61 4.78

2008 4.74 0.73 5.46

2009 3.78 1.00 4.78

2010 5.25 1.44 6.68

2011 6.47 1.68 8.15

2012 6.69 2.62 9.31

2013 6.63 2.65 9.28

2014 9.59 2.25 11.84

Pakistan's Trade with Sri Lanka


Years

Pakistan's

imports

from Sri

Lanka

Pakistan's

exports to

Sri Lanka

Pakistan's

exports to

Sri Lanka

2003 0.04 0.08 0.13

2004 0.05 0.13 0.18

2005 0.06 0.15 0.21

2006 0.07 0.18 0.25

2007 0.06 0.21 0.27

2008 0.07 0.22 0.28

2009 0.06 0.22 0.27

2010 0.05 0.28 0.34

2011 0.06 0.35 0.41

2012 0.08 0.30 0.38

2013 0.06 0.32 0.38

2014 0.06 0.27 0.33



LEVEL III: COMPREHENSIVE COOPERATION

When the member countries go beyond FTA and agree for a greater degree of economic integration which includes improving the attractiveness to capital and human resources, and to expand trade and investment, it would result in comprehensive economic cooperation agreement (CECA) or comprehensive economic partnership agreement (CEPA).

The CECA and CEPA are similar to a free trade agreement (FTA), with a more comprehensive coverage of trade in goods, trade in services and flow of investments as well as intellectual property rights (IPRs). While comparing CECA and CEPA, it comes forward that CEPA is a wider term than CECA but still there is not much clear distinction except some extensive objectives in CEPA. CECA is a stepping stone for CEPA. The objectives of two important CECA and CEPA are given as under which may help to differentiate the degree of integration between two.

Objectives of CECA:

Liberalize and Promote trade in Goods and services To establish a transparent, predictable and facilitative investment regime To explore new areas of economic cooperation

Objectives of CEPA

Liberalization of trade in goods and services Expansion of Investment Establishment of a cooperative framework Promote conditions for fair competition Explore new areas of economic cooperation Expand the cooperation agreement to other

countries.

Pakistan's Trade with Malaysia


Years

Pakistan's

Imports

from

Malaysia

Pakistan's

Exports

from

Malaysia

Pakistan's

Total

Trade

with

Malaysia

2003 0.60 0.09 0.70

2004 0.63 0.07 0.70

2005 0.73 0.07 0.80

2006 0.77 0.06 0.83

2007 1.16 0.08 1.24

2008 1.69 0.14 1.83

2009 1.61 0.16 1.77

2010 2.05 0.15 2.20

2011 2.73 0.24 2.97

2012 2.13 0.23 2.37

2013 1.92 0.20 2.12

2014 1.28 0.23 1.51



Pakistan has its only closer economic partnership agreement (CEPA) with Malaysia that was signed in 2007. This is only trade agreement of Pakistan which covers all the three components of trade i.e. trade in goods, trade in services and trade in investments. India has signed comprehensive economic cooperation agreement (CECA) with Singapore and Japan in 2005 and 2006 respectively. LEVEL IV: COMPLEX INTEGRATION

If the level of economic integration moves ahead of trade of goods, services and investments to common policies on product regulation, free movement of factors of production (capital and labor) and common currency then it becomes the common market.

Common Market

A common market is a type of trade bloc which is composed of a free trade area. It removes the economic and financial barriers due to geographic borders of the countries providing unanimous policies regarding tariffs, currency, exchange rates and mobility of labor. The goal of a common market is to assure the movement of capital, labour, goods, and services between the members as easy as within a single country. The physical, technical and fiscal barriers among the member states are removed to as maximum possible. European Union (EU) is the best example of common market today. It has 28 member states which have same currency and all the member countries

follow unanimously agreed policies related to movement of capital, labour, goods, and services as per EU Charter. Pakistan’s trade with European Union (EU 28) may be seen in following table and info-graph.

Bibliography: 1. Baccini, Leonardo, Andreas Dür, Manfred Elsig, and Karolina Milewicz. The design of preferential trade agreements:

A new dataset in the making. No. ERSD-2011-10. WTO Staff Working Paper, 2011. 2. Chacholiades, Miltiades. International Economics McGraw Hill. Inc, 1990. 3. Krugman, Paul, E. Helpman, and A. Razin. "International Trade and Policy." (1991).

Pakistan's Trade with European Union (EU 28)


Years

Pakistan's

Imports

from

European

Union

(EU 28)

Pakistan's

Exports to

European

Union

(EU 28)

Pakistan's

Total Trade

with

European

Union

(EU 28)

2003 2.22 3.44 5.67

2004 2.73 4.04 6.77

2005 4.42 4.28 8.70

2006 4.94 4.55 9.49

2007 4.78 4.79 9.58

2008 5.78 5.23 11.01

2009 5.10 4.33 9.43

2010 4.31 5.21 9.53

2011 4.55 6.35 10.89

2012 4.49 5.31 9.80

2013 4.44 6.27 10.71

2014 4.40 7.22 11.63



Demographic Data/ Economic Indicators of Pakistan (Summary) Ms. Tehseen Khalid (Senior Research Officer) & Mr. Rizwan Manzoor (Research Officer)

1 Millennium Development Goals Report 2013, Planning Commission of Pakistan

2 Pakistan social and living standards measurement Report 2012-13, Pakistan Bureau of Statistics.

Data Category Latest Data Period of Data Data Source

Population

Population 188.02 Million FY 2013-14 Economic Survey of Pakistan

Male 97.16 Million FY 2013-14 Economic Survey of Pakistan

Female 90.86 Million FY 2013-14 Economic Survey of Pakistan

Crude Birth Rate 26.4 Per Thousand FY 2013-14 Economic Survey of Pakistan

Crude Death Rate 6.9 Per Thousand FY 2013-14 Economic Survey of Pakistan

Population Growth Rate 1.95 Percent FY 2013-14 Economic Survey of Pakistan

Life Expectancy (Year)

Male 64.9 Years FY 2013-14 Economic Survey of Pakistan

Female 66.9 Years FY 2013-14 Economic Survey of Pakistan

Unemployment Rate 6.2 Percent FY2012-13 Economic Survey of Pakistan

Health

Federal Health Expenditure

Rs. 10,017 Millions FY2014-15 Economic Survey of Pakistan

Maternal Mortality Rate 276 Per Thousand FY 2012-13 MDG Report 2013, PC1

Infant Mortality Rate 74 deaths per 1000 live

births FY2012-13 MDG Report 2013, PC

Education

Expenditure Rs. 64,014Million FY 2013-14 Economic Survey of Pakistan

Literacy 58 Percent FY 2012-13 MDG Report 2013, PC

Net Primary Enrollment Ratio( 5-9 Years) 57 Percent FY 2012-13 PSLM 2012-13, PBS2

Teachers 427.7 Thousand FY 2012-13 Economic Survey 2013-14

Economy

GDP ( current Prices) Rs. 25,401.89 Billion FY 2013-14 Pakistan Bureau of Statistics

Agriculture Rs. 6,051.01 Billion FY 2013-14 Pakistan Bureau of Statistics

Industry Rs. 5,126.29 Billion FY 2013-14 Pakistan Bureau of Statistics

Services Rs. 12,907.80 Billion FY 2013-14 Pakistan Bureau of Statistics

Trade

Trade of Goods & Services

Exports US$ 22.77 Billion July-Mar FY2015 State Bank of Pakistan

Imports US$ 36.90 Billion July-Mar FY2015 State Bank of Pakistan

Trade Balance US$ (14.13) Billion July-Mar FY2015 State Bank of Pakistan

Workers Remittances US$ 13.33 Billion July-Mar FY2015 State Bank of Pakistan

International Reserves/ Foreign Reserves

Official Reserve Assets US$ 15.38 Billion 31-March-2015 State Bank of Pakistan



CONCEPT & OPINION

INDEPENDENT JUDICIARY

Ms. Asma Nasir,

Research Officer, PIPS

“O ye who believe! Be steadfast witnesses for Allah in equity, and let not hatred of any people seduce you that ye deal not justly. Deal justly, that is nearer to your duty. Observe your duty to Allah. Lo! Allah is

Informed of what ye do. 1

(Surat Al-Maidah, Verse:08)

1. Definition

Judicial independence is the ability of courts and judges to perform their duties free of influence or control by other actors, whether governmental or private.2

An Independent Judiciary guarantees everyone suspect of crimes that their case will be heard by an independent and impartial tribunal.3 It results in better performance of the courts. Hence, independence is vital to develop public confidence in the fairness and objectivity of the justice system.

2. Independent Judiciary and Islamic Law

The concept of judicial independence and impartiality has always been an integral part of Islamic law as the free, fair and impartial dispensation of justice is a key principle of Islamic system of governance. Regarding the administration of justice, the Quran declares:

“Lo! We reveal unto thee the Scripture with the truth, that thou mayst judge between mankind by that which Allah showeth thee. And be not thou a pleader for the treacherous;” 4

(Surat An-Nisa, Verse 105)

The Quran has stressed the importance of “Adl” in various contexts on various occasions. In the light of chapter Al Hadid from the Holy Quran, it is the objective of all the Holy Prophets of Allah to establish a system of justice and goodness on earth.5

The Prophet Hazrat Muhammad (SAW) (May Peace Be Upon Him) the most remembered and loved human being was known for his fair and impartial administration of justice in the entire history of mankind. He strictly implemented the Quranic instructions regarding equality before the law. Most importantly, he laid down the rule that even the Head of State may be challenged. His (SAW) (May Peace Be Upon Him) following statement demonstrates it all:

“Verily, those who were before you, were destroyed because when a man of stature from among them committed theft, they passed no sentence on him.” 6

1 Al- Quran, The Meaning of The Glorious Qur’an, Text and Explanatory translation by Marmaduke Pickthall, Surat Al-Maida,Verse 08, p.101. 2 Encyclopedia Britannica, “Judicial Independence.” http://www.britannica.com/EBchecked/topic/1988459/judicial-independence, accessed February 13, 2015. 3Canadian Superior Courts Judges Association, “An Independent and Impartial Judiciary.” http://www.cscja-acjcs.ca/independent_impartial-en.asp?l=5, accessed February 09, 2015. 4 Al- Quran, The Meaning of The Glorious Qur’an, Text and Explanatory translation by Marmaduke Pickthall, Surat An-Nisa,Verse 105, p.89. 5 Mazlan, Ibrahim., Ata-ur-Rehman and Ibrahim Abu Bakar. “ The concept of Independence of Judiciary in Islam,” International Journal of Business and Social Science,” Vol.4 no.2 (2013): 70 6 Syed Imad-ud-Din Asad, “Independence of Judiciary,” The Dawn, May 11, 2012. http://www.dawn.com/news/717384/independence-of-judiciary

http://www.britannica.com/EBchecked/topic/140637/court

http://www.britannica.com/EBchecked/topic/307447/judge

http://www.britannica.com/EBchecked/topic/1988459/judicial-independence

http://www.britannica.com/EBchecked/topic/1988459/judicial-independence

http://www.cscja-acjcs.ca/independent_impartial-en.asp?l=5

http://www.cscja-acjcs.ca/independent_impartial-en.asp?l=5



In short, in an Islamic state, the judiciary plays a very important role in good governance. The Divine law is already in place. All that is required is its implementation and interpretation while in a secular state even basic principles for laws have to be made and then they are implemented.

3. Need and Benefits of an Independent Judiciary

The need for an independent judiciary is directly related to the authority of the judiciary. If the judicial branch is not expected to play a major role in the Constitution, its independence is of less importance. Judges independence is necessary to challenge political will and bureaucratic status quo.

i. Good Governance

Governance is the process of decision making and the process by which decisions are implemented. The characteristics of good governance include the rule of law, transparency and accountability. Good governance requires fair legal frameworks that are enforced impartially. Therefore, a well-functioning, efficient and independent judiciary is an essential requirement for a fair, consistent and neutral administration of justice which then ensures good governance.7

ii. Separation of Powers

Judicial independence rests on the idea of separation of powers between organs of states. The organs are: i) legislature; ii) executive and iii) judiciary. Separation of powers refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. For example,

Legislature is the organ of the state that makes laws to regulate the conduct of the people.8 In Pakistan will of the people is expressed through their elected representatives who perform the function of law making.

The executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch.

The judicial branch is responsible for interpreting the constitution and laws and applying their interpretations to controversies brought before it.9

iii. Safeguard of the freedom and rights of the citizens

The independence of the judiciary is important to safeguard the freedom and rights of the citizen because a free society only exists if it is governed by the rule of law. 10 Each judge must be able to decide cases solely on the evidence presented in court by the parties and in accordance with the law. Only relevant facts, law and divine guiding principles should form the basis of a judge’s decision. Only in this way judges can discharge their constitutional responsibility to provide fair and impartial justice. Main thing is the welfare of the people and development in all spheres of life in a democratic manner where rule of law is observed.

“If we do not maintain justice, justice will not maintain us”

(Francis Bacon)

iv. Strengthening of Democracy

Ensuring judicial independence also strengthens the transition to democracy at a time when democratic process is being undermined. Pakistan’s democratic transition offers an opportunity to reestablish judicial independence and restore constitutionalism, including guarantee of religious and gender equality.

7 Secretariat Law & Justice Commission of Pakistan, “Report on International Conference (13-15 April 2012), Islamabad, Pakistan,” 2012, p. 272 8 Encyclopedia Britannica, “Separation of Powers.” http://www.britannica.com/EBchecked/topic/473411/separation-of-powers, accessed February 13, 2015. 9 National Conference of State Legislatures, “Separation of Powers - An Overview.” http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx 10Annual Report of the Delaware Judiciary, “Why a Fair and Independent Judiciary Matters,” 2007. http://courts.delaware.gov/AOC/AnnualReports/FY07/FairandIndependentJudiciary.pdf

http://www.britannica.com/EBchecked/topic/473411/separation-of-powers

http://www.britannica.com/EBchecked/topic/473411/separation-of-powers



v. Strengthening of Enforcement Agencies/Offices

Judicial independence plays an important role in providing a ground to enforcement agencies to exercise their duties. There can be no Rule of Law without an independent judiciary and strengthened and independent law enforcement agencies.

vi. Recognition of the Judicial Branch

A fair and independent judiciary requires not only the freedom for judges to make case decisions without any influence, but also the recognition of the judicial branch as a branch of government that is separate from the legislative and executive branches. Furthermore, it is responsible for governing itself and accountable to the public.11

4. International Principles on the Independence of the Judiciary

In 1985, Basic Principles on the Independence of the Judiciary were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders at Milan, Italy and endorsed by General Assembly resolutions 40/32 of November 29, 1985 and 40/146 of December 13, 1985.12

i. Independence of the Judiciary

1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.

5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.

6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.

ii. Freedom of Expression and Association

8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.

11Annual Report of the Delaware Judiciary, “Why a Fair and Independent Judiciary Matters,” 2007. http://courts.delaware.gov/AOC/AnnualReports/FY07/FairandIndependentJudiciary.pdf 12 United Nations Human Rights, Office of the High Commissioner for human Rights, United Nations, “Basic Principles on the Independence of the Judiciary.” http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx



9. Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.

iii. Qualifications, selection and training

10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

iv. Conditions of Service and Tenure

11. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

13. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.

14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.

v. Professional Secrecy and Immunity

15. The judiciary shall be bound by professional secrecy with regard to their deliberations and to confidential information acquired in the course of their duties other than in public proceedings, and shall not be compelled to testify on such matters.

16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.

vi. Discipline, Suspension and Removal

17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.13

5. Status of Independent Judiciary in Pakistan

Pakistan’s judicial history has incidents where the independence has been questionable.

i. The Judiciary and The Constitution

Impartiality and independence of the judiciary is not easy to achieve because court's authority is established through supremacy of the Constitution. Before framing of a Constitution for our homeland the founding fathers had

13 Ibid.



resolved in the Objectives Resolution of 1949 to frame a Constitution which establishes an order that the independence of the judiciary shall be fully secured. The said aspiration of the founding fathers translated into the main body of the Constitution of Pakistan and forms a substantive part of the same.14 Expeditors and inexpensive dispensation of justice is the mandate of the Constitution.15 However, the role of judiciary in Pakistan in upholding the Constitution and rule of law has not been impressive. Consequently there is not only frequent violation of the constitution but also a general decline in the honesty and performance of the judiciary, which ultimately affects every segment of the society.

Whereas, Quaid-e-Azam said:

I shall always be guided by the principles of justice and fair play without any, as is put in the political language, prejudice or ill-will, in other words, partiality or favouritism. My guiding principles will be justice and complete impartiality, and I am sure that with your support and co-operation, I can look forward to Pakistan becoming one of the greatest Nations of the world.

(Presidential Address to the Constituent Assembly of Pakistan at Karachi, August 11, 1947)

ii. Improvement in the Judicial System of Pakistan

After enactment of the 18th amendment, a Judicial Commission has been established to recommend the Appointment of Judges of the Superior Courts in Pakistan. Article 175A details out the procedure for Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court.16 Rules about proceedings of the commission are discussed in Judicial Commission of Pakistan Rules, 2010.17 One of the key features of National Judicial Policy, 2009 is strengthening the independence of the judiciary by its separation from the executive in addition to other elements like removing the risk of corruption from the courts.18

14 Asif Khosa, “Independence of Judiciary, ” Supreme Court of Pakistan. http://www.supremecourt.gov.pk/ijc/Articles/2/9.pdf 15 National Assembly of Pakistan, “The Constitution of the Islamic Republic of Pakistan,” 2012, p. 18 16 Supreme Court of Pakistan, Article 175 (A), “Appointment of Judges.” http://www.supremecourt.gov.pk/web/page.asp?id=432 17 Supreme Court of Pakistan, “ Judicial commission of Pakistan Rules, 2010.” http://www.supremecourt.gov.pk/web/page.asp?id=463 18 Supreme Court of Pakistan, “National Judicial Policy, 2009 (Revised Edition, 2012).” http://www.supremecourt.gov.pk/web/user_files/File/NJP2009.pdf

Appointment of Judges in Superior Courts as per the Constitution of Islamic Republic of Pakistan 1973

Judicial Commission Parliamentary Committee

Position in Judicial Commission

Supreme Court of Pakistan

High Court of Pakistan

Islamabad High Court

Federal Shariat Court

Parliamentary Committee comprise of eight (08) members

four members from the Senate; and

four members from the National Assembly.

Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from

Chairperson Chief Justice of Supreme Court of Pakistan

Chief Justice of Supreme Court of Pakistan



Members

Four most senior Judges of the Supreme Court

A former Chief Justice or former Judge of the Supreme Court of Pakistan

Federal Minister









Source: Supreme Court of Pakistan, Annual Report April 2013-April 2014

The Judicial Commission by majority of its total membership shall nominate to the Parliamentary Committee one person for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court as the case may be under Article 175A (8). The Parliamentary Committee on receipt of a nomination from the commission may confirm the nominee by majority of its total membership within fourteen days and send the name to the Prime Minister who shall forward the same to the President for appointment under Article 175A.(13).

iii. Flaws in Judicial System

In American system, Constitution is the highest source of law, therefore, any law in conflict with Constitution is considered null and void. This system is based on the belief that power is vested in people. Whereas, in Islam the belief is that all power is vested in Allah (SWT) alone and not in people or institution. The second belief is that the Quran and Sunnat are the ultimate source of law. In Pakistan, therefore, any law which is repugnant to Islam is null and void. And the sacred task of ensuring this rest with judiciary.19

In spite of all these properties, where Allah (SWT) is the supreme authority and none other, who has given the power to the people only to test them whether they do justice or not. There are a lot of hurdles and anomalies in the execution of this Divine Law in Pakistan.

19 Secretariat Law & Justice Commission of Pakistan, “Report on International Conference (13-15 April 2012), Islamabad, Pakistan.” 2012, p. 267

for Law and Justice

Attorney General for Pakistan

A Senior Advocate of the Supreme Court of Pakistan for a term of two years.

Federal Minister for Law and Justice



Chief Justice of the High Court (to which the appointment is being made)

The most senior Judge of that High Court

Provincial Minister for Law

Advocate having not less than 15 years of practice in the High Court to be nominated by the concerned Bar Council for a term of two years.




Chief Justice of the Islamabad High Court

The most senior Judge of the High Court




Chief Justice for Federal Shariat Court

Most senior Judge of the Federal Shariat Court

each House.



a. Executive Influence In Pakistan, we don’t have confidence on our Judicial System. The only reason for this is the lack of trust on judiciary as our judiciary is strongly under the influence of political institutes and the other powers like executive, bureaucrats and technocrats. Judges are pressurized by the executive for getting a decision of its own choice, for example, Moulvi Tamizuddin case. The Federal Court reversed the decision of the Chief Court of Sindh and upheld the Governor General’s order dissolving the first Constituent Assembly of Pakistan. The only dissenting judge, Justice Cornelius revealed later that the Governor General Ghulam Muhammad had pressurized and influenced the other judges when the case was being argued before the court. Pakistan’s history is full of such incidents.20 “There is no better test of the excellence of a government than the efficiency of a judicial system; for nothing more clearly touches the welfare and security of the average citizen than the feeling that he can rely on certain and prompt administration of justice.”

(Lord Bryce) b. Military Autocratic Rule

Another common aspect is that autocratic rulers consider the judiciary the biggest obstruction in their way to take over.21 Military executive also kept judiciary under pressure and the difference between civil government and military regime is: i) extent of interference in the affairs of the judiciary and ii) the method of interference.22 Manipulations of the judges for getting favorable decisions have been practiced by all successive military governments. For instance, General Yahya’s Martial Law Government reacted by promulgating the Courts Order 1969, just to remind the judges the limitations of their powers. Similarly, in Begum Nusrat Bhutto’s case, President General Muhammad Zia ul Haq tightened restriction on the Superior Courts in October 1979, by inserting a new Article 212A in the Constitution. By this amendment the power of judicial review, reserved for the Superior Courts by the Supreme Court in the Judgment of Begum Nusrat Bhutto’s case was completely nullified.

c. Shortage of Number of Judges

Another problem that Pakistan is facing is the dearth of Judges in High Courts. The condition of hearing of cases is critical with reference to shortage of Judges and due to inadequate strength of support staff with improper expertise in lower courts. Due to the shortage of strength of judges it’s not possible for them to expedite the cases. As a result, cases are not disposed off timely. However, condition is improving as mentioned below. In Islamabad High Court, currently five sitting judges are performing their duties while the approved strength is seven (07)23

High Courts Approved Strength24 Sitting Judges

(2012)25

Sitting Judges

(2015)

Lahore High Court 60 37 5726

High Court of Sindh 40 24 3127

Peshawar High Court 20 14 1928

High Court of Balochistan 11 08 0829

20 Allen McGrath, “The Destruction of the Pakistan’s Democracy.” Ed.1, (1996):177. http://trove.nla.gov.au/work/20908166?selectedversion=NBD13201099 21 Institute of Policy Studies, “Revival of the Constitution and Judiciary in Pakistan.” http://www.ips.org.pk/politics/1186-revival-of-the-constitution-and-judiciary-in-pakistan, accessed on February 20, 2015. 22 Aman Ullah Shah, “Critical Study of the Factors undermining Independence of the Superior Judiciary in Pakistan: Executive Impact on the Independence of Judiciary in Pakistan,” Higher Education Commission Pakistan, 2009, p. 210. http://prr.hec.gov.pk/Chapters/56S-8.pdf 23 Islamabad High Court, http://www.ihc.gov.pk/sitting-judges.html 24Supreme Court of Pakistan, The Judicial System of Pakistan (Revised Feb.2011). http://www.supremecourt.gov.pk/web/user_files/File/thejudicialsystemofPakistan.pdf 25 High Court Facing Dearth of Judges, The Nation, August 23, 2012, http://nation.com.pk/national/23-Aug-2012/high-courts- facing-dearth-of-judges. 26 Lahore High Court, http://sys.lhc.gov.pk/?page_id=45 27 High Court of Sindh, http://www.sindhhighcourt.gov.pk/sitting_judges.php 28 Peshawar High Court, http://www.peshawarhighcourt.gov.pk/sitting_judges_list.php

http://www.ips.org.pk/politics/1186-revival-of-the-constitution-and-judiciary-in-pakistan

http://www.supremecourt.gov.pk/web/user_files/File/thejudicialsystemofPakistan.pdf

http://nation.com.pk/national/23-Aug-2012/high-courts-%20facing-dearth-of-judges

http://nation.com.pk/national/23-Aug-2012/high-courts-%20facing-dearth-of-judges

http://sys.lhc.gov.pk/?page_id=45



Even now, both houses of the Parliament approved the 21st Amendment i.e. setting up of military courts to prosecute the terrorists and to ensure timely disposal of the cases. And recently, President has promulgated an ordinance, further revising the recently amended Army Act to aid the functioning of military courts. The question is that for empowerment of military courts new amendments are being made, so why not for civil and military courts?

d. Inadequate Accountability of Judicial System

Judicial System is not that much accountable. Sometimes, judges are not that efficient to decide the case expeditiously and are not faithful to their work. However, it is written in National Judicial Policy that judges should take all necessary steps to decide cases within the shortest time. Also, it is mentioned in policy that Chief Justice of concerned High Court may report cases of violation of cases of Code of Conduct including incidents of unusual delays and inefficient performance to the Chairman, Supreme Judicial Council for action.

e. Impartial Appointment of Judges

Impartial appointment process of the judges is another obstruction in the path of Independent judiciary in Pakistan. Every government repeatedly manipulated the system of appointment of judges whether civilian executive or military dictators.30 But now, the condition has been improved after 18th Amendment. According to that Judicial Commission is proposed for the appointment of judges. Prior to the said amendment the judges were appointed by the President after consultation with Chief Justice of Supreme Court of Pakistan under article 177. Impartiality of judges shall also be considered in case of appointment of session and civil judges in Lower Courts.

f. Insufficient Physical Security

Another systematic issue that affects the proper functioning of the judiciary is the insecurity aspect to Judges while penalizing a person in accordance with law.

Insecurity to witnesses when testifying against the criminal is inadequate and discourages society from appearing in court to provide evidence or testimony.

6. Way Forward

In short, the factors affecting the independence of the judiciary have been classified into:

i. structural factors affecting the independence of the judiciary;

ii. judicial commitment to independence of the judiciary;

iii. role of the lawyers in protecting and preserving the independence of judiciary; and

iv. the impact of the executive on the independence of judiciary.31

In this context, a truly independent judiciary will flourish and judicial reform will prevail, if following steps are ensured:

i. The system of appointment of judges is of paramount importance to ensure independence of judiciary because it is primarily the human being that makes the institution. A dishonest government never prefers an efficient judiciary and, therefore, competent persons are never appointed to judicial posts. It must be made competitive and transparent. Although, government appoints and pay judges, but once appointed, judges must be shielded from bureaucratic control.

ii. No place for dictators and abettors.

29 High Court of Balochistan, https://bhc.gov.pk/#judges 30 Amanullah Shah, “Critical Study of the Factors undermining Independence of the Superior Judiciary in Pakistan: Impact of Army on independence of the Judiciary in Pakistan.” Higher Education Commission, Pakistan, 2009, p. 227. http://www.gu.edu.pk/New/GUJR/PDF/Dec-2009/7%20Amanullah%20Shah-Impact%20of%20Army%20on%20the%20Judiciary.pdf 31 Office of the High Commission on Human Rights, “Independence and Impartiality of Judges, Prosecutors and lawyers,” Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, 2008, p. 116. http://www.ohchr.org/Documents/Publications/training9chapter4en.pdf

https://bhc.gov.pk/#judges



iii. Zero tolerance for political kings, executives and other institutions through scheme of checks and balances and framing of better new policies i.e. not only freedom from interference in decision making but also executive support to enforce judgments even against itself etc.

iv. Establishing Rule of Law in the country and judges commitment to administer justice. As, former Chief Justice of Pakistan, Honourable Tassaduq Hussain Jillani said that there would be no compromise on the enforcement of the Rule of Law and Constitution.32

v. Assistance from the international community, so that, it can introduce the necessary reforms to the judiciary.

vi. Full court meetings should be held time to time to devise an effective mechanism to administer judicial independence for expeditors and impartial justice to litigants.

vii. Strength of the judges should be enhanced and vacancies of judges should be filled. Moreover, proper succession plan should be in place to avoid unnecessary delay to justice.

viii. To protect witnesses from threats and security of the judges in addition to enforcement of the orders of the court.

ix. Judicial action should be taken against corrupt and inefficient judicial officers as written in National Judicial Policy, 2009.

x. Constitution should be safeguarded and we must get rid of the violators of the Constitution. Executive and other government branches also have to learn to accept the role of judiciary in Pakistan's Constitutional Democracy as the Supreme Arbitrator of the content of the Constitution.

xi. An institutionalized ALTERNATE DISPUTE RESOLUTION SYSTEM utilizing service of former judges and respected members of society to hear cases such as family cases etc. This will help resolve many cases locally and ease undue burden of unnumerable number of cases to be sorted out by Courts leading to delay in justice.

xii. Civil society and media can also play a vital role in sensitizing the significance of independent judiciary because If a message goes to the common man that the judges have no tolerance for fraud, corruption and all other crimes, they will earn the respect and gratitude of the people, consequently resulting in independence of judiciary and justice for all.

32 No compromise on rule of law: Justice Tassaduq, The News, February 27, 2014. http://www.thenews.com.pk/article-139291-No-compromise-on-rule-of-law-Justice-Tassaduq.

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