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The Musharraf administration moved quickly after the coup to preclude any judicial challenge to its authority and took steps toward institutionalizing the army's role in governance.
Curbs on Judicial Independence
The Provisional Constitution Order (PCO), issued by General Musharraf on October 15, 1999, prohibits the Supreme Court and the provincial High Courts from making any order against the chief executive "or any person exercising powers or jurisdiction under his authority." On January 26, Musharraf issued an order requiring all Supreme and High Court judges to take an oath that would bind them to uphold his proclamation of emergency and the PCO. The move came shortly before the judges in question were due to hear petitions against the legality of the military coup; the order recalled a similar measure taken in 1981 by General Zia-ul-Haq.17
On the evening of January 25, the chief justice of Pakistan's Supreme Court, Saeeduzzaman Siddiqui, was summoned to Musharraf's offices. Musharraf asked Siddiqui to take an oath of loyalty under the newly promulgated PCO, but Siddiqui refused, saying that it was impossible for him take a fresh oath because he had already been sworn in.18 Later that night, Interior Minister, retired General Moin-ud-Din Haider, accompanied by two active-duty generals, went to Siddiqui's residence and asked him to reconsider his decision, but Siddiqui again declined.19 At 6:00 a.m. on January 26, an army colonel arrived at Siddiqui's residence and told him that he should not go to the Supreme Court that day.20 The area around his house was subsequently cordoned off and no one was allowed to enter or leave his residence. Along with Chief Justice Siddiqui, five other judges of the Supreme Court were forced to resign when they refused to take the oath, as were nine provincial High Court judges.21 Interior Minister Haider told Human Rights Watch that four of the provincial judges were not invited to take the oath "as a means of getting corrupt judges to leave."22
On May 12, the reconstituted Supreme Court issued a verdict disposing of the petitions challenging the coup's legality. The court held that the coup was justified on the grounds of state necessity, a conclusion that it reached after cataloguing Pakistan's economic, social, and political ills in a manner that echoed Musharraf's address to the nation seven months earlier. The judges stated that control by Sharif's party, the PML, of the national and provincial assemblies had prevented democratic institutions from functioning and that "an attempt was made to politicize the Army, destabilize it and create dissension within its ranks." Legitimacy was also conferred on the new military government, the court concluded, by the principle that "government should be by the consent of the governed, whether voters or not." Ignoring the ban on public rallies instituted in March, the court found that there was "an implied consent of the governed, i.e., the people of Pakistan in general including politicians/parliamentarians, etc. to the army takeover, in that no protests worth the name or agitations have been launched against the army take-over and/or its continuance."23
The court set a deadline of three years for the holding of elections to the national and provincial assemblies and to the Senate. In doing so, it took into consideration a report by the chief of the election commission stating that the preparation of fresh electoral rolls would require two years, after which there would be a need for "some time" to delimit constituencies and dispose of objections. The court reserved authority, to review the continuation of the proclamation of emergency "at any stage if the circumstances so warrant as held by the Court"-a provision that would allow the Musharraf government to seek an extension of military rule.24
While the Constitution remains in abeyance, the military government has been granted extensive powers to introduce laws and amend the Constitution itself. The Supreme Court verdict permits the government to adopt any act or legislative measure that could have been made under the Constitution and that tends to advance or promote "the good of the people," that is necessary for the "orderly running of the State," or that would "establish or lead to the establishment of the declared objectives of the Chief Executive." The court also authorized the administration to "make any law or take any executive action in deviation of" Articles 15 through 19, and 24 of the constitution, encompassing the fundamental rights of assembly, association, expression, movement, property, and trade, business, or profession, for as long as the proclamation of emergency remains in effect.25
That the government fully intends to avail itself of these powers was unambiguously stated by the interior minister. According to Haider, Musharraf believed that his reform agenda would not succeed without amendments to the constitution.26
One of the military government's first casualties was due process in the case of the deposed prime minister. On January 19, 2000, Sharif was formally charged under the Anti-Terrorism Act with kidnapping, attempted murder, hijacking, and terrorism for having denied Musharraf's plane permission to land in Pakistan on October 12. 27 On April 6, Sharif was convicted of hijacking and terrorism by an Anti-Terrorism Court in Karachi and sentenced to life imprisonment after a trial marred by intimidation of the court, procedural abuses, and the still unexplained assassination of one of Sharif's defense lawyers.28 In December 1999, as the trial was underway, the government amended the act to add hijacking and conspiracy to the list of offenses falling within the Anti-Terrorism Court's jurisdiction, which offenses were then applied retroactively to Sharif. The act was also amended to allow for the appointment of a High Court judge to hear the trial in place of Rehmat Hussain Jaffery, a Sessions Court judge who had been appointed to head an Anti-Terrorism Court under Sharif. In January, the High Court judge to whom the case had been transferred refused to continue hearing it, publicly complaining of the presence of intelligence agents in his courtroom, and returned the case to Jaffery. In March, only days before the final arguments were to be presented in the trial, Sharif's lawyer, Iqbal Raad, and two of his colleagues were assassinated in their office. Other members of the defense team charged that the government had failed to provide them protection despite repeated warnings that they were being harassed and threatened.
The Army's Role in Governance
Upon seizing power, General Musharraf instituted a seven-member National Security Council, under whose guidance the cabinet was to operate. The council included the heads of the navy and air force, and was chaired by Musharraf himself. He subsequently set up a countrywide network of army monitoring teams to supervise and assist in the functioning of the civilian bureaucracy and appointed a serving general to head a newly empowered National Accountability Bureau. Military personnel have frequently taken part in arrests ordered by the bureau, and a military fortress at Attock has been used as the site of an accountability court and a place of pre-trial detention.
The Musharraf administration has stated that the purposes of the army monitoring teams are to monitor the functioning of the civilian bureaucracy; reduce corruption; provide "assistance" to government institutions; "monitor the impact of governance on public perceptions"; and provide input to the chief executive and National Security Council for "evolving policies," restructuring government machinery, and developing "a representative and effective system at the grassroots level."29 The teams are constituted at the provincial, regional, and district levels, and consist of army personnel, Directorate of Military Intelligence personnel, and members of the Inter-Service Intelligence agency's field units. Heads of the district monitoring teams have appointed officers to supervise individual departments within each district.30 According to official figures, there are presently 207 teams with a total staff of over 3,500.31 There have been a number of reported cases of army monitoring teams exceeding the functions for which they were purportedly established, often through the abusive exercise of police powers.32
That these measures were part of an effort to ensure that any elected government would operate under army tutelage was evident from statements made by administration officials. In a speech delivered in New York in April, Javed Jabbar, a senior advisor to Musharraf, termed Pakistan a "different kind of nation-state," one that he said had been forced into existence by the refusal of the Indian National Congress-the precursor to India's Congress party-to accept a confederal structure for the subcontinent. Pakistan was "still coming to terms with itself" during the years that followed independence, he added, and in that process the armed forces were "one of the essential binding forces that made sense out of the country." Because of the military's role in nation-building, Jabbar argued, "the conventional distinction that this belongs to civilians and this to the military should not apply to Pakistan."33
As the army has expanded its role in the administration of the country, there has been a corresponding diminution of the role of political parties. The Musharraf government has pursued this objective through a range of legal measures and police actions that have been taken against party leaders and activists belonging to different parties and in different regions of the country. A principal vehicle has been the National Accountability Ordinance, introduced in November 1999, which prohibits convicts from holding political office for twenty-one years. Musharraf has since moved to ensure that many current leaders of political parties are barred from participating in any future elections. On August 11, 2000, the government amended the Political Parties Act to automatically disqualify anyone with a court conviction from holding party office, a move that would apply to all party leaders convicted in accountability proceedings. In addition, party activists and leaders have been arrested throughout Punjab and Sindh for criticizing the army in party meetings and attempting to hold public rallies. And while administration officials have said that parties will be allowed to participate in elections to the Senate and national and provincial assemblies, local government elections scheduled to be held in December 2000 will be conducted on a non-party basis.34
Denial of Freedoms of Assembly and Association
The Provisional Constitution Order promulgated after the coup stated that fundamental rights would remain in force, provided that they were "not in conflict with the Proclamation of Emergency or any Order made thereunder from time to time...."35 The significance of this caveat for the rights of assembly and association was made readily apparent on March 15, when the Interior Ministry issued a ban on all "political meetings at public places, strikes and processions with immediate effect."36 The Ministry's announcement came in the midst of a multi-city tour by Kulsoom Nawaz, the wife of Nawaz Sharif, aimed at shoring up support for her husband and opposition to the government among PML supporters. It also followed a police and paramilitary crackdown on demonstrations by two ethnically based parties in Sindh province against military rule, government policies affecting the province, and the arrest of party leaders. The ban put an end to public assemblies by opposition parties and, while it did not restrict membership in political parties or unions as such, it undermined the right to freedom of association by prohibiting legitimate, nonviolent means for parties and unions to express their views, air their grievances, and act in concert in pursuit of their common political goals. 37
In a meeting with Human Rights Watch on March 21, the interior minister said that he regarded the imposition of the ban as a mistake "because the public was staying within the parameters of holding nonviolent demonstrations." The problem, Haider said, was with specific strikes in Sindh involving the JSQM and the MQM that he claimed had resulted in violence and caused considerable damage to property. Haider told Pakistani journalists six days later that the government would review the ban in April; on April 21, Musharraf declared that the ban would be lifted shortly.38 In late June, however, Interior Ministry sources told the Karachi daily Dawn that its lifting was no longer under active consideration,39 and the ban remained in force at this writing.
Although indoor political meetings are permitted under the terms of the ban, authorities have on several occasions raided such gatherings and arrested participants. The rights to free expression, assembly, and association have also been limited by the application of broadly worded laws governing sedition and the maintenance of public order. The sedition law, Section 124-A of the Pakistan Penal Code, criminalizes speech that "brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Central or Provincial Government established by law."40 Section 16 of the Maintenance of Public Order Ordinance prohibits speech that "causes or is likely to cause fear or alarm to the public" or any section thereof, or which "furthers or is likely to further any activity prejudicial to public safety or the maintenance of public order."41 Examples of the use of these laws to silence peaceful expression of dissent are included in the cases below.
17 Aziz Siddiqui, "Why courts had to fall in line," Dawn, January 30, 2000.
18 Mubashir Zaidi, "The Missing Constitution," Herald (Karachi), February 2000.
19 Ibid.
20 Mubashir Zaidi, "Interview with Justice Siddiqui," Herald, February 2000.
21 "Judges who did not take oath under the military's Provisional Constitutional Order," Pakistan Press International, January 27, 2000.
22 Human Rights Watch meeting with Lt. Gen. (Ret.) Moin-ud-Din Haider, Minister of Interior, Narcotics Control and Capital Administration and Development Division, New York, March 21, 2000.
23 Verdict of the Supreme Court of Pakistan regarding Constitution Petitions Nos. 62/99, 63/99, 53/99, 57/99, 3/2000, 66/99, and 64/99, May 12, 2000.
24 Ibid.
25 Ibid. Articles 8 through 28 of the constitution are listed therein as fundamental rights. Constitution of the Islamic Republic of Pakistan, 1973, Part II, Chapter 1.
26 Human Rights Watch meeting with Interior Minister Haider, New York, March 21, 2000. As of this writing, the government had yet to make any amendments to the constitution.
27 Enacted under the Sharif administration, the Anti-Terrorism Act violates international standards of due process as well as the right to free expression. Although trials have rarely been conducted within the prescribed period, courts established under the act are supposed to conduct trials within seven days. Convicted persons have only seven days in which to file appeals, and these too must be heard and decided within a seven-day period. The act criminalizes, among other activities, "distributing, publishing or pasting of a handbill or making graffiti or wall-chalking intended to create unrest or fear"-an ill-defined provision that could be applied against political speech. Anti-Terrorism Act, 1997, as amended by Anti-Terrorism (Amendment) Ordinance, 1999, Sec. 7A, 19, 25.
28 A month after Sharif's conviction by the Anti-Terrorism Court in April, he was brought before an accountability court to face trial on charges of concealing assets and evading taxes in connection with his acquisition of a helicopter. He was convicted on July 22, and sentenced to fourteen years in prison, with a fine of Rs. 20 million (US$380,000).
29 "Annex-III: Monitoring Teams," 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). The teams supplanted an earlier extra-constitutional monitoring system that had been instituted by Nawaz Sharif in 1998: khidmat ("service") committees, which were staffed in the main by PML loyalists.
30 "The Situation in, and Outlook for, Pakistan under the Musharraf Administration," Global Information System, Defense and Foreign Affairs Group, Alexandria, Virginia, February 1, 2000.
31 "Annex-III: Monitoring Teams," Report on the Work of the Government....
32 A columnist for Dawn reported in March that members of the First Self-Propelled Artillery Regiment had evicted cart vendors from Chappar Bazar, a market area in Chakwal, Punjab; a significant number of these vendors, he wrote, held certificates of temporary tenancy issued by the Chakwal municipal committee. Ayaz Amir, "A Tale of a Dazed City," Dawn, March 3, 2000. A journalist in Sukkur, Sindh, told Human Rights Watch that a monitoring team headed by Colonel Zahid Majid arranged to have ten houses bulldozed in an impoverished Sukkur neighborhood known as Bhitai Nagar on March 20, 2000. The journalist said that the houses had been regularized in 1985 by the government of Prime Minister Mohammad Khan Junejo.
33 Javed Jabbar, speech delivered at the Asia Society, New York, April 20, 2000.
34 Local Bodies Elections 2000, Sec. 131.
35 Provisional Constitution Order No. 1 of 1999, Sec. 2(iii).
36 "Political rallies, strikes banned: Provinces told to enforce order," Dawn, March 16, 2000.
37 Pakistan is not a party to the International Covenant on Civil and Political Rights. However, the fundamental rights enshrined in Chapter 1 of the constitution of Pakistan include qualified rights of expression and assembly. Citizens have the right to freedom of speech and expression, "subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [or] commission of or incitement to an offence." Citizens also have rights to "assemble peacefully and without arms," to form associations and unions, and to form or join a political party, "subject to any reasonable restrictions imposed by law...." Constitution of the Islamic Republic of Pakistan, 1973, Part II, Chapter I, Sec. 16, 17. Restrictions may be imposed, with respect to assembly, "in the interest of public order"; with respect to association, "in the interest of the sovereignty or integrity of Pakistan, public order or morality"; and with respect to political parties, "in the interest of the sovereignty or integrity of Pakistan." Ibid. Even these limited rights, which fall short of internationally recognized standards, have been repeatedly violated by the Musharraf government.
38 "Ban on rallies to be reviewed, says Moin," Dawn, March 28, 2000; "Ban on Political Activities to go soon: Musharraf," Dawn, April 22, 2000.
39 "Political activities to remain banned," Dawn, June 21, 2000.
40 Persons convicted under Section 124-A "shall be punished with [imprisonment for life] to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine." Pakistan Penal Code, Sec. 124-A.
41 Persons convicted under Section 16 may be punished by imprisonment for up to three years, a fine, or both. West Pakistan Maintenance of Public Order Ordinance, 1960, Sec. 16.