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Letter to US Secretary of State Condoleezza Rice on the 'Restoration of the Constitution' by Pakistan's President Musharraf

Condoleezza Rice
Secretary of State
US Department of State
2201 C St, NW
Washington, DC 20520

Via Facsimile

Dear Secretary Rice:

Pakistan’s President Pervez Musharraf has stated that in the next few days he intends to lift the state of emergency he declared on November 3. However, in the period since he proclaimed martial law, Musharraf has fired and detained senior judges, arbitrarily changed laws, unilaterally amended the constitution, and given himself and Pakistan's military blanket immunity for all actions taken during emergency rule.

These changes are intended to be permanent, and will not be lifted when the constitution is restored.

We believe that such a nominal lifting of the state of emergency will not resolve Pakistan's crisis if in practice, President Musharraf's power remains unchecked by any independent institution. Unless restrictions on free expression and on an independent judiciary are lifted, Pakistan cannot hold a free and fair election on January 8. An election held under such circumstances will not produce a legitimate government that can mobilize the Pakistani people against extremist forces. It will likely lead to greater unrest and instability in Pakistan, a deeper divide between the government and its people, and – to the extent the US government is seen as supporting an unfair election – less popular support in Pakistan for cooperation with the United States.

It is urgent that the United States act now – and that it be seen to act by the Pakistani people – to avoid such an outcome. We urge you to call on President Musharraf to lift the state of emergency, not merely in words, but in terms of its impact on the laws and freedoms in Pakistan, and to restore the basic checks on his authority that will give Pakistanis confidence that a fair vote is possible.

We outline below what we believe must be done to restore stability in Pakistan and to end the government's crisis of legitimacy. It is vital that these actions be taken immediately. If they are not, the vote may well be manipulated to elect a parliament opposed to reforms we trust you agree Pakistan needs. At that point, the majority of Pakistanis who want change will have no recourse other than to continue protest on the streets. We hope, therefore, that you will urge President Musharraf to take the following steps before the elections:

1. Abolish curbs on television channels. Pakistan’s media has been muzzled through two decrees barring it from printing or broadcasting “anything which defames or brings into ridicule the head of state, or members of the armed forces, or executive, legislative or judicial organ of the state.” Pakistan’s once-vibrant private television stations, whose increasingly boisterous broadcasts were once portrayed as one of the major successes of President Musharraf’s tenure, are now subject to stringent restrictions, including a 14-page code of conduct prohibiting such things as airing any programs that put the army or President in disrepute. Television discussions on anything which is deemed to be “false or baseless” by the regulatory authorities have also been banned. Geo TV, the country’s largest private television network remains off the air in Pakistan and the media has been prohibited from any live election-related broadcasts or call-ins by viewers. In short, President Musharraf has effectively barred the media from carrying out its responsibility to provide information about the most significant exercise of civil and political rights in Pakistan.

2. Restore all members of the judiciary to their status prior to November 3, including Chief Justice Chaudhry. An independent judiciary is a pillar of rule of law and democratic governance, a fundamental principle that the United States has consistently supported in many different contexts. Before President Musharraf’s Proclamation of Emergency, Pakistan’s Supreme Court, and in particular Justice Chaudhry, was increasingly seen as a symbol of the rule of law and as a sign that Pakistan was making slow progress towards accountable government and democracy.

There will be little confidence that President Musharraf will be obliged to observe a fair election if he can fire and imprison any judge that seeks in any way to oversee the limits of his authority, as he did when he summarily and unlawfully removed a large majority of Pakistani judges. The Pakistani constitution does not allow the government to fire or forcibly retire judges of the Supreme Court and high courts.

Pakistan’s judiciary plays an essential role in supervising an election process that, as you know, has often been marred by allegations of manipulation and fraud. High Court judges comprise the election tribunals established to hear appeals regarding candidates’ qualifications and allegations of unfairness or rigging. Challenges against decisions of these tribunals end up before the provincial high courts and finally the Supreme Court. Furthermore, the Election Commission of Pakistan, which organizes and conducts all elections, is comprised of a retired Supreme Court and one serving High Court judge from each province. Serving district judges, additional district judges and civil judges supervise the actual nomination and polling process. By removing those judges who refused to renege on their oath to uphold Pakistan’s constitution, President Musharraf has made a legitimate election process impossible.

3. Restore the licensing of lawyers to the Bar Council under the Pakistan Bar Council Act. In another blow to the independence of the legal profession, one of President Musharraf’s decrees ended the independence of the bar associations and gave the government powers to disbar lawyers allegedly involved in so-called anti-government activities. The decree also gave the power of licensing attorneys to the Supreme Court that is now dominated by judges who have pledged loyalty to the military government. Thus all lawyers who challenge the government or who seek to represent victims of government abuse are subject to losing their license to practice.

4. Repeal the new provisions of the Army Act that allow the military to arrest and try civilians. Under an amendment to the 1952 Army Act, the military can now try civilians for a wide range of offenses previously under the purview of the country’s civilian judiciary, including charges as vague as causing “public mischief.” Trials will be conducted by special military courts which will not be open to the public, and will be based on investigations conducted by military officers, and the rules of evidence and procedures laid out for constitutional trials will not apply. These provisions have been applied retroactively to 2003 to give the army legal cover for trials of the many "disappearances" documented in Pakistan.

Finally, as a practical first step before the elections, we ask that the US government urge President Musharraf to immediately appoint an independent caretaker government, including an independent electoral commission. Such a step is essential to the credibility of elections, even if President Musharraf retains the presidency.

We thank you for your attention to this important matter, and look forward to learning of the steps the State Department is taking to address these concerns.

Yours sincerely,

Tom Malinowski
Washington advocacy director

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