V. Amendments to Laws Under Emergency RulePresident Musharraf has used the state of emergency to arbitrarily change laws and amend the constitution. These amendments seek to institutionalize serious restrictions on individual rights and provide immunity for Musharraf and other officials for human rights violations and the subversion of the rule of laweven 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. They include: Ordinance LXVI of 2007 to amend the Pakistan Army Act, 1952As part of his effort to institutionalize the militarys power even after a return to civilian rule, on November 10, 2007, 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 countrys civilian judiciary. These include offenses punishable under:
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.37 Shockingly, trials of civilians conducted by special military courts under the amended law will not be public, investigations will be conducted by military officers, and rules of evidence and procedures prescribed by law and the constitution for civilian trials will not apply. While the Pakistan security forces have long enjoyed impunity for serious abuses, the amendments to the Army Act will exacerbate the problem. First, by subjecting civilians to trial by military courts, family members of victims of military abuses will be even less willing to come forward than ever before. Secondly, the amendment to the Army Act making it retroactive to 2003 will permit the armed forces to claim as lawful the many illegal detentions for which it has been responsible in recent years. Before Musharraf dismissed Supreme Court justices and effectively took control of the Supreme Court, it was investigating some 400 cases of disappearances. While some of these cases concerned terrorism suspects, many involved political opponents of the government. The Supreme Court under Chief Justice Chaudhry publicly stated that it had overwhelming evidence that Pakistans intelligence agencies were illegally detaining terror suspects and other opponents and repeatedly urging the authorities to free such individuals or process them through the legal system. In response to pressure from the Supreme Court, scores of those who disappeared were freed, but threatened with re-arrest or worse if they spoke publicly of their ordeal. Ordinance LXIX of 2007 to amend the Legal Practitioners and Bar Councils Act, 1973Announced by Musharraf on November 24, this amendment is intended to end the independence of the Bar Association and to give the government powers to disbar lawyers involved in anti-government activities. It provides the government appointed attorney-general, in his capacity as the chairman of the Bar Association, wide powers over the Bar Association. In an attempt to muzzle the lawyers movement, the chairman is authorized to expel from or cancel the membership of any member of a bar association, who is not given adequate opportunity to defend him or her self. The ordinance also allows anyone aggrieved by any decision, order or resolution of any Bar Association or the Federal or any Provincial Bar Council to appeal to the chairman of the Pakistan Bar Council, who can then overrule the decisions. To discourage legal claims against the government, the ordinance also empowers the Supreme Court or the High Courts, now under Musharrafs control, to dismiss complaints, reprimand lawyers, suspend lawyers, and remove a lawyer's name from the roll of lawyers if the court has reason to believe he or she is guilty of professional or other misconduct. Crucially, the attorney-generals decisions (in the role of chairman) are final and hence not open to appeal in a court. Effectively, this amendment allows the government, at its discretion, to revoke any lawyers professional license to practice. It also provides the courts, which have been heavily politicized by Musharrafs dismissals of justices of the Supreme Court, the power to do the same. In the absence of an independent judiciary, effectively the government has arrogated to itself the power to expel any lawyer it deems undesirable.38 Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007)On November 21, 2007, Musharraf, in his capacity as army chief, amended the constitution through an executive order to provide blanket indemnity for all actions taken during the period the constitution remains suspended. The order included a number of amendments that would normally require a two-thirds majority in parliament to become law. Crucially, it withdrew the power of judicial review by Pakistans courts of all actions taken under the Provisional Constitution Order. 37 Pakistan Army (Amendment) Ordinance, November 10, 2007, http://www.app.com.pk/en/index2.php?option=com_content&task=view&id=20627&pop=1&page=0&Itemid=2.
38 Ordinance No. LXIX of 2007, Legal Practitioners and Bar Councils (Amendment) Ordinance, http://www.app.com.pk/en/index.php?option=com_content&task=view&id=21729&Itemid=38 (accessed December 16, 2007). 39 Constitution (Amendment) Order, 2007, http://www.app.com.pk/en/index.php?option=com_content&task=view&id=21447&Itemid=1 (accessed December 16, 2007). 40 Ibid. 41 Ibid. |