publications

Map of Pakistan

Courtesy of University of Texas at Austin © 2007


I. Summary

At the police station, the SHO started beating me and telling me to shout slogans in support of Musharraf. I refused. So he punched me and kicked me and beat me with a stick and something else. Other police officers present also joined in at the SHO’s urging. They kept taunting me and telling me to call [Chief Justice] Iftikhar Chaudhry for help and ordering me to shout slogans in support of Musharraf. They kept beating me like this until I passed out.

—Hassan Tariq, District Bar Association executive committee member in Nawabshah, Sindh province, describing his arrest on November 8.

From the Bar Rooms [lawyers’ lounges], the library, the study and the news room—lawyers were arrested from everywhere. And no one was arrested without being beaten up and humiliated. The senior lawyers—elderly individuals—were the worst affected. They were having breathing problems because the atmosphere filled with teargas. Some of them were lying on the ground and were gasping for air. Even they were hauled up.

—Abid Saqi, a lawyer describing the police raid on the Lahore High Court on November 5.

At 5 p.m. on November 3, 2007, Pakistan’s president, General Pervez Musharraf, acting in his capacity as army chief, suspended the constitution and declared a state of emergency, replacing the constitution with a Provisional Constitution Order (PCO).

Musharraf announced in a televised address to the nation in the early hours of November 4 that he had been forced into subverting the constitution to combat terrorism and Islamist extremists. He also made this clear in his official proclamation suspending the constitution:

There is visible ascendancy in the activities of extremists and incidents of terrorist attacks, including suicide bombings,… rocket firing and bomb explosions and the banding together of some militant groups have taken such activities to an unprecedented level of violent intensity posing a grave threat to the life and property of the citizens of Pakistan.… I, General Pervez Musharraf, Chief of Army Staff, proclaim emergency throughout Pakistan. I hereby order and proclaim that the constitution of the Islamic Republic of Pakistan shall remain in abeyance.

In the name of fighting terrorism and Islamist extremism, Musharraf instead mounted what was effectively a coup against Pakistan’s civil society. Targets of the crackdown included lawyers, judges, human rights activists, opposition political party members, journalists, students, and academics. 

The declaration of the state of emergency itself was not, as Musharraf claimed, necessitated by new terrorism threats, but by perceived threats to his own continued rule by an energized, principled lawyers’ movement calling for genuine respect for independence of the judiciary and the rule of law. Scores of government opponents including lawyers remain in prison across the country today; the leaders of the lawyers’ movement and senior judges of the Supreme Court remain under house arrest. Thousands have been released, but the fear of being re-arrested hangs over them as charges against them under the Anti-Terrorism Act remain on file. Under the restored constitution, lawyers have to contend with the possibility of being banned from their profession should they earn the governments ire. And all government opponents face the very real possibility of finding themselves in “legal” military custody and facing prosecution by military courts under the amended Army Act.

This report provides an analysis of the crackdown on lawyers and judges and its significance, based on interviews with eyewitnesses and victims. It is the most detailed empirical account to date of what happened during the November crackdown and ensuing events.

It shows how Musharraf tried to dismantle a movement of the nation’s lawyers and judges that had been making genuine progress in putting Pakistan back on the path to democracy. In the eight months prior to the crackdown beginning November 3, the lawyers’ movement had done more to challenge the pillars of military rule than the political opposition had done in eight years. If not reversed, this blow against Pakistan’s legal institutions, will have long-lasting consequences for human rights and the rule of law in the country.

The issue is not the state of emergency itself, which was lifted on December 15, but the manner in which Musharraf used the emergency and the frontal assault on the judiciary, the legal profession and civil society in order to secure his continued rule. While the active phase of the crackdown on lawyers may have passed, Musharraf has used it to insulate all of the repressive measures he enacted during the period from future challenge. The emergency has formally ended; the repressive measures Musharraf introduced under cover of the emergency remain the law of the land today. And the lawyers and judges, though still defiant, continue to face arbitrary arrest and imprisonment by a hostile government and the military establishment.

Musharraf’s biggest backers, the United States and United Kingdom, both issued formulaic statements urging Musharraf to end the state of emergency prior to December 15 and repeatedly emphasized free and fair elections as the way out of the crisis. However, to date, there has been no action to match these words in terms of sanctions or the withholding of aid, and these countries continue to prop up Musharraf with substantial military and financial assistance.

The United Kingdom has reiterated its support to Musharraf in the aftermath of the crackdown. Addressing a meeting of Pakistani students in Islamabad on December 6, the British High Commissioner to Pakistan Robert Brinkley said that Britain had chosen not to press Pakistan to restore the deposed judges because “the clock cannot be turned back; we have to move forward.”

The Bush administration has provided even stronger political support for Musharraf. The United States has notably failed to press strongly for human rights improvements in the country, a return to the constitution as it stood on November 3, 2007 or the release and restoration of ousted Supreme Court chief justice Iftikhar Mohammad Chaudhry and other judges. On December 16, when asked if there should be a reinstatement of the ousted judges, US Secretary of State Condoleezza Rice responded that the United States supported the idea of an “independent judiciary in Pakistan” but added that the January 8 elections would herald a “different and new day” in Pakistan and the issue of the judiciary would be “resolved” in that “context.” 

Rice’s notion that elections will cure the Musharraf government’s broad attack on democratic institutions such as the judiciary is mistaken. Free and fair elections and a genuine transformation to a parliamentary government are unlikely so long as the judiciary cannot function as an independent branch and laws remain on the books that allow Musharraf to manipulate the political environment on whim.

In a country with a long and well-documented history of election-rigging by a partisan military, the emergence of an independent judiciary provided the best hope for a free and fair election. A military-backed ruler who found himself unable to cohabit with such a judiciary, and dispensed with the constitution in order to get rid of it, is unlikely to preside over an electoral exercise that, in all likelihood, would bring his political opponents to power. Nor is a meaningful democracy viable without lawyers able to operate freely within an equitable legal system.

Genuine election campaigns are impossible when the media remains muzzled, leaders of the lawyers’ movement—the most potent symbols of political opposition to the government—remain under arrest, and when the legitimate judiciary of the country has been deposed and replaced by hand-picked supporters of the government.

The conduct of the crackdown lends insights into the Musharraf government’s disregard for the country’s democratic institutions. Musharraf started his crackdown by dismissing the judges who refused to recognize the state of emergency and placing them under house arrest. On the evening on November 3, a seven-member bench of the Supreme Court headed by Chief Justice Iftikhar Mohammad Chaudhry convened to issue an order barring the government from proclaiming emergency rule and urging government functionaries not to implement emergency orders.

A few hours later, these judges were removed from the Supreme Court premises which were sealed by army troops, and the judges detained. Musharraf summarily fired Chief Justice Chaudhry. Much of Pakistan’s senior judiciary was taken into custody and two-thirds of them were put under de-facto house arrest.

Lawyers arrested in the first sweep on the night of November 3 included Aitzaz Ahsan, president of the Supreme Court Bar Association; Munir Malik, his predecessor; Justice (retired) Tariq Mehmood; Ali Ahmed Kurd, a senior lawyer from Balochistan and one of Musharraf’s most vociferous critics; as well as office bearers and presidents of provincial bar associations across the country, and virtually all leading lawyers associated with the movement for judicial independence.

Asma Jahangir, chairperson of the nongovernmental Human Rights Commission of Pakistan and a United Nations Special Rapporteur, was served a 90-day detention order on the night of November 3 and her home was officially deemed a sub-jail. Jahangir was released from house arrest on November 16, only after Musharraf came under severe international pressure. As of this writing, the central leaders of the lawyers’ movement remain under arrest or in detention.

In the following two days and beyond, the police and the army arbitrarily arrested, detained, and assaulted thousands of lawyers from Lahore, Karachi, Islamabad, Peshawar, Quetta, and scores of Pakistan’s smaller cities. Lawyers who gathered at the Lahore High Court, the Sindh High Court in Karachi, and district courts across the country were unceremoniously beaten, tear-gassed, bundled into police vans, and locked in police stations or jails in their thousands. Some were placed under house arrest.

Lawyers and judges were the focus of the crackdown because Musharraf perceived the Supreme Court, which had successfully struggled for its independence in the preceding eighteen months, as standing in the way of his re-election as president. And lawyers had been at the forefront of a new movement agitating for a return to constitutionalism and the rule of law. This movement began on March 9, 2007, with Musharraf’s attempted ouster of Supreme Court Chief Justice Iftikhar Mohammad Chaudhry. Although the emergency was ostensibly claimed to fight religious extremism, the lawyers’ movement had not made even tangential use of religion or religious rhetoric or politics and has had no links to religious extremists. Events make clear that Musharraf felt threatened by people armed with ideas and words, not the armed militants operating in the tribal areas and the North West Frontier Province.

By November 10, one week after the suspension of the constitution, the government admitted it had arrested some 5,400 persons. Human Rights Watch believes the true number may have been twice as high.

Musharraf also imposed sweeping censorship rules on the media. All private television channels and international media were taken off the air. This made it more difficult for people within and outside Pakistan to comprehend what was happening to the lawyers and judges.

Over the next week, hundreds of those arrested were charged under provisions of the Anti-Terrorism Act (ATA) or detained under the colonial-era Maintenance of Public Order Ordinance. Thousands more were simply held without charge.

A Lahore High Court judge told Human Rights Watch, “Anytime they [the government] want to intimidate or scare people they use the ATA.” A prosecutor in the anti-terrorism court in Lahore admitted that the ATA is used to harass politicians: “Filing of false cases against politicians is routine. The ATA is another tool for those in power to harass opposition.”

Similarly, the broad and vaguely worded Maintenance of Public Order (MPO) Ordinance allows the government to “arrest and detain suspected persons” for up to six months for a range of offenses, “with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order.” As of mid-December, scores remain in detention under the MPO.

Human Rights Watch has gathered accounts of unlawful police violence, arbitrary arrests and mistreatment in custody of lawyers from across Pakistan since November 3, 2007. The accounts, mostly gathered from Pakistan’s major cities, provide a glimpse of the scale, scope, and tenor of the crackdown against the legal community. Those interviewed are lawyers who have been released, and the family members of lawyers who are still in detention.

Crucially, many of those released have charges under the ATA or MPO remaining on file against them—a constant reminder that the authorities can always haul them for trial. The government has also arbitrarily amended laws to assume powers to de-license lawyers, effectively depriving them of a livelihood if they continue with active protests against the government.     

Only four of the Supreme Court’s 17 judges took an oath of allegiance to the November 3 Provisional Constitutional Order, which immensely broadened Musharraf’s authority under the law. Musharraf claimed he was building the rule of law, but in his single-minded determination to cling to power he had eviscerated the judiciary, if not the judges’ determination to uphold the rule of law.

Musharraf has used the state of emergency to arbitrarily change laws and amend the constitution. These amendments seek to institutionalize severe restrictions on individual rights, provide immunity to Musharraf and other officials for human rights violations, and subvert the rule of law—even after the state of emergency is lifted and constitutional rule is restored. These laws, among others, serve the purpose of marginalizing the judiciary, and muzzling lawyers.

As part of his effort to institutionalize the military’s power even after a return to civilian rule, on November 10 Musharraf amended the 1952 Army Act to allow the military to try civilians for a wide range of offenses previously under the purview of the country’s civilian judiciary. Under the amended Army Act, civilians can now be tried in military courts for acts of treason, sedition and less specific offenses such as “giving statements conducive to public mischief.”

In his capacity as army chief, Musharraf amended the constitution on November 21 and again on December 14 through executive orders to provide blanket indemnity for all actions taken while the constitution is suspended. The orders included a number of amendments that would normally require a two-thirds majority in parliament to become law. Crucially, he withdrew the power of judicial review by Pakistan’s courts of all actions taken under the Provisional Constitution Order. The November 21 order states that, “All proclamations, president’s orders, ordinances, Chief of Army Staff orders, laws, regulations, enactments, including amendments to the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which the emergency was revoked, will continue in force until altered, repealed, or amended by the ‘competent authority.’” In effect, Musharraf has given his arbitrary tampering of the constitution the force of law, and placed it beyond judicial review or the need for parliamentary approval. Even after the constitution is restored and the state of emergency officially ends, all the regulations rushed out since November 3 will continue to be in force unless opposition parties win a two-thirds majority in parliament and repeal them. Given the lengths Musharraf has gone to in order to impose these changes to the basic law—suspending the constitution itself—it is unlikely that Musharraf will allow such a situation to arise.

Musharraf also amended the Legal Practitioners and Bar Councils Act on November 24.  Effectively, this amendment allows the government, at its discretion, to revoke any lawyer’s professional license to practice. It also provides the courts, now heavily politicized by Musharraf’s dismissals of justices of the Supreme Court, the power to do the same.

On November 28, Musharraf retired as army chief and the following day he took the oath of office as president under the suspended constitution for a five-year term. However, Musharraf’s election as president is widely regarded as illegal, and the country remains effectively under military control.

On December 15, he lifted the state of emergency and “restored” the constitution. But the constitution, burdened with the restrictions put in place by the new laws described above, has been effectively transformed into an instrument of coercion, rather than a document upholding basic rights.

Chief Justice Chaudhry remains under strict house arrest along with his sixteen-year-old daughter, seven-year-old son, and other members of his family. Most of the other judges of the Supreme Court who refused to accept Musharraf’s subversion of the constitution also remain under house arrest.

The US and the UK are muting their criticism on the grounds that Pakistan's central role in the US-led “war on terror” makes Musharraf an indispensable ally. This policy is as dangerous as it is flawed. It seeks to appease the power ambitions of the Pakistani military at the expense of much of Pakistani society, most notably those who share the values of respect for human rights and the rule of law that the West espouses.

Terrorism is a grave threat facing Pakistan as Musharraf pointed out on November 3 while suspending the constitution. But the Pakistani government’s efforts to combat terrorism are doomed to fail when the government is focused on detaining and harassing judges and lawyers.

If influential actors such as the United States and United Kingdom are genuinely interested in fostering democracy and human rights in Pakistan, or in Pakistan’s political future and stability, they should focus on restoring the judiciary and lawyers to their status prior to November 3. This would require urging Pakistan to:

  • Repeal all arbitrary laws and constitutional amendments in effect since November 3, 2007, and restore the Constitution in its entirety as it stood on November 3, 2007.

  • Release and reinstate Chief Justice Iftikhar Mohammad Chaudhry and all other judges who have refused to take oath under the November 3 Provisional Constitution Order.

  • Withdraw all cases filed under the Anti-Terrorism Act, the sedition law or other sundry provisions of the law for acts protected under international human rights law or are otherwise not cognizable criminal offenses.

  • Immediately lift all restrictions in violation of international law on the rights to freedom of expression, association, and assembly.

  • End efforts to coerce or intimidate judges and lawyers from exercising their legal functions and the rights to freedom of expression and assembly.