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III. BACKGROUND

The legal and administrative regimes that General Musharraf has put in place have clear antecedents in the previous administration. Backed by a comfortable two-thirds majority of the federal legislature, Nawaz Sharif's second term in office was marked by increasing centralization of authority. Sharif undermined judicial independence by pressuring the Supreme Court to remove its chief justice, introduced monitoring teams-staffed mainly by supporters of his Pakistan Muslim League-to oversee the civilian bureaucracy, established an accountability bureau that targeted opposition politicians, and weakened civil society through a protracted crackdown on the press and NGOs.

In his bid to increase his own power, however, Sharif pursued what proved to be an untenable strategy: relying on the army as an instrument of governance while attempting to assert control over the army itself. The army was given administration of the country's largest public sector utility, army-run organizations were awarded a contract for all major development projects in Punjab, and troops were called out to conduct the census.1 A 1998 ordinance also authorized military courts to try civilians charged with committing acts of terrorism, causing a "civil commotion," or other specified criminal offenses. The Supreme Court ended this use of military courts in February 1999 when it declared portions of the ordinance unconstitutional. Sharif nevertheless alienated important constituencies within the military through the coerced resignation of General Jahangir Karamat as army chief in October 1998, the passage of legislation stripping the President of his power to dissolve parliament (a device that the military had previously relied on to overthrow elected governments), and most critically, his withdrawal of support in July 1999 for Islamist guerrillas who had seized strategic locations in the Indian-held portion of Kashmir with the backing of the Pakistani military.

By the fall of 1999, Sharif was under mounting pressure from a newly unified political opposition to call elections, just as the International Monetary Fund (IMF) was demanding that he adopt unpopular economic reforms in order to secure a desperately needed loan installment. Meanwhile, discontent within the military was palpable enough to prompt a statement by the United States that it would take a dim view of any armed intervention. Sharif's dismissal on October 12, 1999, of General Pervez Musharraf, Karamat's successor as army chief, and the coup that reinstated Musharraf brought an abrupt end to the confrontation. In the immediate aftermath of the coup, Musharraf declared a state of emergency, designated himself chief executive, and detained Sharif, his brother Punjab Chief Minister Shahbaz Sharif, and other senior office holders.

Musharraf's Stated Objectives
In a televised speech to the nation on October 17, 1999, General Musharraf attempted to justify his coup. He said that Pakistan had reached a stage where its economy had crumbled, the government had lost its credibility, and state institutions lay demolished. In addition, he accused the Sharif administration of having tried to destroy the army, which he termed "the last institution of stability in Pakistan." Musharraf went on to declare that the armed forces had "no intention to stay in charge any longer than is absolutely necessary to pave the way for true democracy to flourish in the country." 2 As remedial measures, Musharraf laid out the following policy objectives for his government:

Since assuming power, General Musharraf has taken pains to portray his government as having a socially progressive agenda. At a government-organized national convention on human rights on April 21, 2000, Musharraf announced the initiation of reform in two areas of longstanding concern to Pakistani and international NGOs: juvenile justice4 and violence against women.5 Musharraf also pledged to adopt an administrative procedure to limit the application of Pakistan's blasphemy law.6

On July 1, President Rafiq Tarar announced the promulgation of a juvenile justice ordinance that incorporated a number of recommendations made by local and international nongovernmental organizations and the official Pakistan Law Commission.7 The ordinance's salient features include prohibiting imposition of the death penalty on persons for crimes committed while they were under the age of eighteen, providing a right to legal assistance at the state's expense, authorizing the creation of juvenile courts with exclusive jurisdiction over juvenile cases, prohibiting joint trials of adults and children, and requiring probation officers to prepare a report on the child's circumstances prior to adjudication. On September 2, the government announced the establishment of the National Commission on the Status of Women, whose mandate is to safeguard and promote women's interests. The first issue that the government has directed the commission to examine is violence against women.8

Despite these positive and welcome steps, however, the government has failed to implement other intended reforms. In April, General Musharraf introduced a modest procedural safeguard against the application of Pakistan's controversial blasphemy law: a First Information Report would be registered in a blasphemy case only after preliminary investigation and scrutiny by the local deputy commissioner, a measure that was seen as being less prone to abuse than the previous procedure of filing a complaint with a police station house officer.9 On May 16, however, Musharraf announced that the previous procedure for registering a report would be reinstated, "[a]s it was the unanimous demand of the Ulema [clergy], Mashaikh [notables], and the people."10 The announcement came three days before a number of Islamist groups had planned to hold demonstrations against the reform.11

The government similarly acquiesced to two demands that were voiced by an alliance of Islamist parties in a June 5 communiqué: incorporating Islamic provisions of the constitution into the Provisional Constitution Order (PCO)12 and preserving the existing electoral system for members of religious minorities.13 Musharraf advisor Javed Jabbar had said in April that the government planned to repeal the system of separate electorates for religious minorities,14 a measure that the country's Election Commission had recommended the month before.15 Introduced by Pakistan's last military ruler, General Mohammad Zia-ul-Haq, the separate electoral system reserves a limited number of seats in the national and provincial assemblies for each minority community and limits the franchise of non-Muslim citizens to the seats that have been allotted to their respective communities. It has been widely denounced by minority community leaders and human rights organizations as having contributed to the marginalization of religious minorities in Pakistan. The local government elections plan unveiled by Musharraf in August retained the system of separate electorates, with seats reserved for minorities in districts where they form more than 10 percent of the population.16

Far more significant than the failure of parts of Musharraf's reform agenda has been the further institutionalization of the political and social role of the military and the consolidation of political authority in the military's hands. Rather than creating conditions that are conducive to a functioning democracy, General Musharraf has moved Pakistan further away from public accountability and the rule of law. In the process, his administration has made further incursions upon judicial independence, denied political party leaders and activists their fundamental rights of assembly, association, and expression, and in several documented cases, subjected political opponents to torture, ill treatment, and illegal detention. And like Sharif before him, Musharraf has established parallel judicial structures that deny detainees due process of law.

1 Zahid Hussain and Amir Mir, "Army to the Rescue," Newsline (Karachi), May 1998, pp. 18-23.

2 "Excerpts from General Musharraf's address," BBC News Online, October 17, 1999.

3 "Aims and objectives of the government," Report on the Work of the Government: 12 October, 1999 to January 2000, Directorate General Films and Publications, Ministry of Information and Media Development, (Islamabad: Government of Pakistan, 2000).

4 A Human Rights Watch investigation of the treatment of children in Pakistan's criminal justice system revealed a pattern of abuse. Children are held together with adults in police lockups, usually remain in police custody without production in court well beyond the legally permissible twenty-four hours, and like adults detainees, are usually subjected to custodial torture. While their trials are pending, children languish in overcrowded, often harsh detention facilities that offer few educational or recreational opportunities, and where there is a serious risk of sexual abuse by prison warders or adult inmates. See generally Human Rights Watch, Prison Bound: The Denial of Juvenile Justice in Pakistan (New York: Human Rights Watch, 1999).

5 Women in Pakistan face staggering levels of violence, including domestic violence and sexual assault, and have virtually no access to justice or redress for these crimes. Officials at all levels of the criminal justice system do not consider domestic violence a matter for the criminal courts. Women who attempt to register a police complaint of spousal or familial physical abuse are invariably turned away and sometimes pressured by the police to reconcile with their abusive spouses or relatives. Women who report rape or sexual assault by strangers fare marginally better, but they too face harassment by officials at all levels. They must contend with abusive police, and a discriminatory and deficient legal framework. See generally Human Rights Watch, Crime or Custom? Violence Against Women in Pakistan (New York: Human Rights Watch, 1999).

6 Consulate General of Pakistan, New York, "Human Rights Convention in Pakistan," April 24, 2000; "Honour killings condemned: Chief Executive unveils Human Rights package," Dawn (Karachi), April 22, 2000.

7 "Pakistan abolishes death penalty for children," Pakistan Link, July 2, 2000, www.pakistanlink.com/headlines/July/02/42.html (visited July 2000).

8 "Commission launched to promote women's interests," Dawn, September 13, 2000; "Boost for Pakistan's Women," BBC News Online, September 2, 2000. While welcoming the establishment of the commission, local human rights activists have cautioned that previous women's commissions in Pakistan have proven ineffectual due to a failure to implement their recommendations. Asma Jahangir, "Democracy and Human Rights in Post-Coup Pakistan," speech delivered at the Asia Society, New York, April 20, 2000.

9 Consulate General of Pakistan, New York, "Human Rights Convention in Pakistan," April 24, 2000. The First Information Report (FIR) is a record of the information available to the police regarding the commission of a cognizable offense-that is, an offense where the police may effect an arrest without a warrant. A FIR is ordinarily the starting point of a criminal investigation, but it is not required in order for an investigation to commence.

10 "Blasphemy law: Old FIR procedure restored," Dawn, May 17, 2000.

11 "Pakistan's blasphemy law U-turn," BBC News Online, May 17, 2000.

12 Shakil Shaikh, "Provisional Constitution Order Amended: Islamic Clauses not in Abeyance," News International (Karachi), July 16, 2000.

13 "Pak religious parties oppose joint electorate system," Deccan Herald (Bangalore), June 5, 2000.

14 Javed Jabbar, Advisor to the Chief Executive of Pakistan on National Affairs, Information and Media Development, "Pakistan: New Government, New Agenda," speech delivered at the Asia Society, New York, April 20, 2000.

15 "EC suggests joint electorate to ensure proper representation," Associated Press of Pakistan, March 3, 2000.

16 Local Bodies Elections 2000, Sec. 19, 49, 67, 133.

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