Last Updated: Friday, 19 December 2014, 13:25 GMT

Countries at the Crossroads 2006 - Pakistan

Publisher Freedom House
Author Husain Haqqani
Publication Date 3 August 2006
Cite as Freedom House, Countries at the Crossroads 2006 - Pakistan, 3 August 2006, available at: http://www.refworld.org/docid/4738691764.html [accessed 21 December 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Introduction

Weak civil society and ineffective political institutions operate in Pakistan under the shadow of a dominant national security establishment. The military has ruled Pakistan, directly or indirectly, for most of the 58 years since the country's independence. Even during periods of supposed constitutional rule, a compliant judiciary and a legislature that has rarely been allowed to function independently have allowed the over-powerful executive to ignore or sidestep fundamental rights.

Pakistan's military and security agencies have managed to retain power and influence over the country's government even during civilian rule. This is best exemplified by the 10 years of democracy, 1988 to 1999, when successive weak and corrupt civilian governments alternated in power while the military and its security arm, Inter-Services Intelligence (ISI), set Pakistan's ideological and international agenda. In October 1999, the civilian government of Prime Minister Nawaz Sharif was overthrown in a military coup led by General Pervez Musharraf. Accusing the preceding civilian governments of corruption and bad governance, General Musharraf declared the creation of "true democracy" as his objective. Pakistan's latest military regime has mixed political and economic reforms with expansion of the military's role in government, thereby consolidating Pakistan's status as a semi-authoritarian state.

Through a referendum in April 2002 – widely described as massively rigged – General Musharraf extended his presidency by five years. Parliamentary elections, viewed as deeply flawed by human rights organizations and independent observers, were held in October 2002 under a package of constitutional amendments known as the Legal Framework Order (LFO). The LFO comprised 29 amendments to the constitution and was introduced by presidential decree. The constitution as amended by the LFO gave the president the power to dismiss the prime minister and dissolve the legislature. It also created a military-dominated National Security Council (NSC) as a constitutional body.

For several months after the convening of parliament, the government failed to secure parliamentary ratification of the LFO. In order to secure parliament's approval of his arbitrary constitutional amendments, General Musharraf had promised to give up his military uniform by December 31, 2004, as part of an agreement to secure support of the religious parties for the LFO. But a few days before that deadline, Musharraf claimed that he was "indispensable" to the country, especially with respect to Pakistan's fight against terrorism and religious extremism. Musharraf extended his dual office as army chief and president by three years, until 2007. Local government elections were held in Pakistan in August 2005 on a purportedly nonparty basis in an effort to create a tier of local officials supporting the ruling party, the Pakistan Muslim League (Q). The (Q) signifies Quaid-e-Azam, the title of Pakistan's founder Muhammad Ali Jinnah, and is used by the pro-Musharraf faction of the PML to distinguish itself from the mainstream of the party headed by former prime minister Nawaz Sharif. Nonparty local elections helped the official party because individuals elected due to tribal and clan factors were coerced into declaring their affiliation with PML (Q) after the fact of their election. Distribution of local patronage and extension of local services was made conditional to elected officials joining the government party.

The Pakistani military regime's cooperation with the United States in the war on terrorism, coupled with successful propaganda against its civilian predecessors, has resulted in limited international criticism of its lack of progress in returning Pakistan to full democracy. Western governments, notably the United States, have been reluctant to criticize the Musharraf regime's record publicly.

Accountability and Public Voice – 2.15

Pakistan is currently governed by the military, with some civilian participation in government following the parliamentary elections of October 2002. Prior to the elections, the Legal Framework Order (LFO), comprising 29 amendments to the constitution, was promulgated by executive fiat. LFO enhanced the president's powers at the expense of the legislature and changed the constitutional scheme of parliamentary democracy by making the president, as opposed to parliament or the prime minister, the center of executive and legislative authority. The LFO assured General Musharraf a five-year term as president without a contested election as required by the constitution. Article 58(2)(b) to the constitution was restored, giving the president the unilateral authority to dismiss the government and the national and provincial legislative assemblies. The LFO also validated all decisions of General Musharraf and those serving in his military regime without recourse to judicial review.

The right of individuals to stand for elected office in the 2002 parliamentary election and subsequent by-elections for the current parliament has been limited by the requirement that only those with a bachelor's degree could run. Thus, while several career politicians were disqualified, retired military officers and clerics were allowed to run, as graduation from the military academy and Islamic seminaries was equated with a university degree. Criminal convicts, defaulters on bank loans or utility bills, and absconders from court proceedings were also disqualified from elections. Some of these restrictions were arguably aimed at excluding exiled former prime ministers Benazir Bhutto and Nawaz Sharif, as well as several of their loyalists, from the electoral process. The government has moved further with its strategy to marginalize the two former prime ministers and their parties with the holding of local elections.

The military regime considers political parties, especially secular ones, as a direct threat. Thus various means – legal, judicial, administrative – are often employed to discredit them and to bar them from holding office or rallies. Pakistan's political parties have been barred from holding public meetings or rallies since the 1999 coup d'etat.

In addition to limiting opposition parties' ability to reach out to the people, the military regime propped up a splinter group of former prime minister Nawaz Sharif's Pakistan Muslim League (PML), known as the Pakistan Muslim League – Quaid-e-Azam (PML-Q). Widely nicknamed the "king's party," the PML-Q emerged as the single largest party from the restricted elections of 2002 and was able to form the government with the help of smaller parties and a splinter group from former prime minister Benazir Bhutto's Pakistan Peoples Party (PPP). The ISI openly pressured individual legislators to support the king's party, denying them their right to vote their consciences.

On the more positive side, the LFO eliminated separate electorates for religious minorities, thereby enabling them to vote alongside Muslims and paving the way for their full political and civic participation. In addition, seats were reserved in the National Assembly, the lower house of parliament, for both women and religious minorities.

An alliance of Islamic parties, the Muttahida Majlis-e-Amal (MMA), dominated the provincial assembly in the Northwest Frontier Province and has run the provincial government until now. From the day the National Assembly was convened in 2002 the mainstream opposition parties (the PPP and the PML) as well as the MMA demanded the restoration of the constitution and parliament's right to review the LFO. The government's rejection of their demand led to boycotts and disruption of parliamentary proceedings.

The government initiated negotiations with the MMA, but the PPP and PML, now united in the Alliance for Restoration of Democracy (ARD), opted not to negotiate unless persecution of their parties and exiled leaders ends. The ARD also protested against the interference of the ISI in the political process. The proceedings of parliament have, since its inception, been marred by the government's generally ignoring the opposition and the opposition's periodically disrupting the legislature's functions.

There are no effective means for citizens to obtain information about the conduct of government in Pakistan. Legislation by decree or ordinance precludes the possibility of open debate prior to enactment of laws, although groups do selectively comment on government policies in the media. According to Pakistan's minister for parliamentary affairs, the National Assembly held seven sessions during 2005 that were spread over 132 working days, barely fulfilling the 130-day minimum constitutional requirement for the lower house of parliament's meeting days. During this period only nine laws were enacted through parliament, and the bulk of legislation continued to be pursued through presidential ordinances.

Local government elections were held in three phases during 2005 under the Local Government Ordinance 2001, promulgated by General Musharraf. As in the past, local government elections were held on a non-party basis, but candidates openly identified themselves to the voters by party affiliation. By keeping party affiliation unofficial, the government enabled itself to coerce local officials elected with the support of other parties into declaring their affiliation with the official PML-Q after the election. The International Crisis Group declared the local elections "rigged" and asserted that they were designed to "weaken further the mainstream opposition parties and lay the ground for [the military government's] supporters to dominate forthcoming parliamentary elections."

Pakistan's civil service is selected through competitive exams, but recruitment is carried out on the basis of provincial quotas, which does not always ensure equal opportunities on merit for all candidates. In addition, 10 percent of civil service positions continue to be reserved for the military. Currently, the head of the Federal Public Service Commission, which recruits civil servants, is a retired lieutenant general. Retired military officers are included in all provincial public service commissions as well, ensuring the military's institutional influence over the civil services.

The military and security services dominate the governing process with a veneer of constitutional-democratic rule, to the detriment of political parties and civil society. The authority of General Musharraf's government is not based on the will of the people; there is no opportunity for rotation of power, and the military's influence, exercised through the intelligence services, over the political process is quite extensive. This has not changed despite the election of the federal and provincial legislatures and the appointment of civilian prime ministers.

Pakistan has a very vibrant civil society, with around 70,000 nongovernmental organizations (NGOs), a large majority of which are Islamist in nature. However, as the military regime is wary of NGOs, they continue to face legal impediments. Registration is used selectively to influence both NGO work and the areas in which they may operate. The government periodically attempts to interfere in the flow of assistance to NGOs. Another, more subtle, method of control has been the Pakistan Center for Philanthropy – an NGO that is ultimately controlled by the government and has been set up to govern other NGOs. The Edhi foundation, the largest nonprofit relief organization in Pakistan and one that takes positions on social issues independent of the government, received anonymous letters threatening to blow up its office buildings in 2005. Officials, including General Musharraf, periodically accuse NGOs receiving foreign donations of undermining Pakistan's international prestige by highlighting human rights violations.

Article 19 of the Pakistani constitution guarantees freedom of the press, circumscribed partly by several laws. The government has relaxed some of the controls over broadcasting and television since 2002, and private satellite television channels in Urdu operating from outside the country have expanded the choices available to Pakistani households. Pakistan's print media remain diverse and considerably independent. There are around 500 dailies, 1,236 weeklies, 270 fortnightlies, and 2,182 monthlies. The military regime uses different means to control this aspect of freedom, ranging from harsh legislation to curb free expression to the outright ban of publications that are too critical.

A major issue during 2005 was the government's attempt to limit reporting on the Pakistani military's actions in the U.S.-led military effort along Pakistan's border with Afghanistan. According to Reporters Sans Frontieres, "The authorities regularly targeted journalists deemed to be harming the country's interests. Armed forces spokesman Gen. Shaukat Sultan in September accused the Pakistani media of 'selling the national interest in return for a few hundred dollars.' He said a ban on journalists circulating in South Waziristan was justified because some had acted unethically and 'helped the foreign media to discredit Pakistan.' Reporters Without Borders registered more than 25 cases of journalists being arrested, or prevented from circulating freely, or having their equipment confiscated in this area."

The pattern of intimidation of critical journalists by military intelligence services, especially the ISI, also continued. Beginning in November 2004, the deputy editor of the monthly The Herald, Amir Mir, was harassed by ISI officials through visits to his home, phone calls, and interception of his e-mail. The government withdrew advertising by state-sector corporations in an effort to punish the conservative newspaper group Nawa-i-Waqt Publications in February and again from the Urdu-language daily Jinnah in July. RSF reported that Sarwar Mujahid, the correspondent of the Urdu-language daily Nawa-i-Waqt in the eastern Okara district of Punjab province, "was detained for several months for writing about a dispute between tenant farmers and paramilitaries."

There were other instances of direct and indirect pressures on the media. The government exerted considerable pressure in an effort to dissuade the privately owned station ARY Digital TV from covering the return to Pakistan of Shahbaz Sharif, an opposition member and brother of former prime minister Nawaz Sharif. When Mr. Sharif arrived at Lahore airport, a CNN producer, Syed Mohsin Naqvi, was arrested and about 10 journalists were manhandled by police.

After the October 8 earthquake, military authorities became particularly sensitive to "negative media coverage of Pakistan's response to the earthquake." General Musharraf expressed displeasure over "excessive criticism" at a press conference in October. In November, Pakistan's government-run electronic media regulatory authority, Pakistan Electronic Media Regulatory Authority (PEMRA), stopped three local partners of the BBC from broadcasting two daily 30-minute special features on the earthquake. PEMRA officials and armed policemen shut down the offices of one of BBC's local radio partners in Karachi, seizing electronic equipment. The government also ordered two satellite television partners to stop running news content from the BBC.

The government's subtle and not so subtle pressures have made the press "less and less inclined to tackle subjects likely to cause irritation such as military corruption," says RSF in its 2005 Annual Report. It goes on to say that a number of journalists in the state and privately owned media cooperate with the authorities in disparaging "such eternal enemies as the Indians, or enemies of the moment such as the foreign press."

Recommendations

  • General Musharraf should adhere to his roadmap for democracy and genuinely transfer power to the elected parliament and government. He should set a date for giving up his position as army chief and adhere to it.
  • The degree of military intervention, which has disrupted constitutional governance in Pakistan and undermined popular political participation, must be reduced. The ISI's internal wing should not be allowed to interfere in the affairs of political parties or civil society organizations. Clear demarcation of functions between military and civil authorities must be introduced and the encroachment of serving or retired military officials on civil service positions must be phased out.
  • The legal and practical restrictions on major political parties should be withdrawn.
  • The political parties should reach agreement on a political code of conduct that prevents the winner-take-all politics of the past that has facilitated military intervention.
  • The government should introduce laws to protect journalists and punish officials intimidating them or otherwise interfering with the constitutional guarantees of freedom of the press. The Council of Pakistan Newspaper Editors (CPNE) and the All Pakistan Newspapers Society (APNS) should be involved in any new legislation related to the media.

Civil Liberties – 1.76

Pakistan's 1973 constitution envisaged a parliamentary democracy, with legal protections for civil liberties and political rights and against arbitrary arrest, detention without trial, and torture. Though articles 16 and 17 of the constitution guarantee freedom of association and of assembly, the misuse of the term "reasonable restriction" or of the need for "national security" have resulted in an overpowerful executive's systemically and routinely violating these constitutional protections. The judiciary is either helpless or, in some cases, complicit in allowing the executive to get its way.

The absence of judicial enforceability of constitutional protections enables the Pakistani state to arrest and detain citizens indefinitely. In August 2004 brothers Zain Afzal and Kashan Afzal, U.S. citizens of Pakistani origin, were abducted from their home in Karachi, kept in illegal detention, tortured by security personnel, and finally released in April 2005. In some cases, opponents and critics of the regime are charged with other offenses, such as corruption or terrorism, and then denied bail. When former prime minister Nawaz Sharif, who is in exile in Saudi Arabia, requested permission to travel to Pakistan to bury his father, the government denied the request. Mr. Sharif's request for issuance of a fresh Pakistani passport in lieu of his expired travel document was similarly not honored for several months. He was finally issued a passport in November 2005 to enable him to seek medical treatment in England.

Pakistan's police and other law enforcement agencies are known to use torture against prisoners, sometimes resulting in death. According to Amnesty International, at least 100 people die in Pakistan from police torture every year. Extrajudicial killings are also widely reported and documented, although precise numbers remain unavailable. Security force personnel continue to torture persons in custody throughout the country. Prison conditions are extremely poor, except those of wealthy or influential prisoners. Overcrowding in prisons is widespread. In a significant ruling and in contravention of international norms, on December 5, 2004, the Lahore High Court struck down the Juvenile Justice System Ordinance, designed to protect the rights of children, on the grounds that it was unconstitutionally vague.

Since the days of the anti-Soviet Mujahideen resistance in Afghanistan, Pakistan has been home to several Islamist militant groups. Pakistani authorities have been known to encourage the militants, especially in their efforts to wage a low-intensity war against India in the disputed territory of Jammu and Kashmir. Some of these groups have also engaged in sectarian terrorism within Pakistan. The government banned five religious militant groups in January 2002, but they reconstituted themselves under new names. Sectarian attacks by members of these groups against Shia Muslims, members of the Ahmadiyya sect, and Christians continued throughout 2005.

The state has generally failed to provide for the free practice of religion by all citizens, despite constitutional and legal guarantees. Members of the Ahmadi sect, which has been designated a non-Muslim minority under the constitution since 1974, continue to face discrimination. Pakistani laws forbid Ahmadis (who consider themselves a sect of Islam) from using Islamic religious symbols or rituals, and they are discriminated against in education and employment. Other religious minorities, such as Hindus, Sikhs, and Christians, do not face such explicit legal restrictions. However, the Blasphemy Law is often used by low-level officials to threaten or persecute these minority religious communities.

Gender equity and minority rights have not improved significantly in the past two years, despite the government's efforts to reform existing laws. Pakistan's constitution prohibits discrimination based on race, religion, caste, residence, or place of birth. However, systemic discrimination endures, as does widespread abuse and violence directed at women and minorities. Given the government's wide-ranging executive power, this reflects a failure and/or unwillingness to enforce the rights of its citizens.

The present government created the National Commission on the Status of Women (NCSW), expanded women's representation in senior government positions, and amended some of the laws considered discriminatory. However, the NCSW has only an advisory role, and its independence is hampered by its being wholly dependent on the government for financial aid. On May 14, 2005, a peaceful rally of men and women, organized by the nongovernmental Human Rights Commission of Pakistan was stopped by the police; participants were arrested and subjected to verbal abuse and beaten in public. On April 3, 900 activists of the Islamist alliance, the Mutahhida Majlis-e-Amal (MMA), armed with batons and firearms, attacked the participants of a race in the town of Gujranwala in which men and women were to run together. The attackers' message was that gender integration was unacceptable and that women should remain excluded from sports events.

In July, religious political parties in the North West Frontier Province (NWFP) barred women from contesting or casting votes in the local government elections. Other political parties agreed to enforce the ban. One woman, Zubaida Begum, was gunned down in August for defying this edict. The NWFP, which had adopted the Sharia Act in 2002 to declare the supremacy of Islamic law in the province, tried to expand Islamization through the Hisba (public morals) bill. This law was aimed at creating a religious police to enforce Islamic morals and preventing indecent behavior in public places. The NWFP legislature passed the bill but, under a presidential reference, the Supreme Court turned down the bill as unconstitutional in August.

One of the most significant sources of legal discrimination and oppression against women is the Hudood Ordinance, a law introduced in 1979 during the Islamization drive under previous military ruler General Zia-ul Haq. It equates rape with consensual sex, demands that rape victims support their charge with four male Muslim witnesses, excludes the testimony of non-Muslim and women witnesses in certain cases, and treats a 10-year-old female child as an adult on the basis of her reaching puberty. Human Rights Watch cited "informed estimates" to suggest that over 200,000 cases under the Hudood laws are under process at various levels in Pakistan's legal system. Although two government-appointed women's commissions have recommended its abolition, most recently in September 2003, the law has not been abolished or changed.

Rape, domestic violence, and honor killings (the practice of killing a female relative for marrying against the will of the family or engaging in premarital or extramarital sex) remain pervasive problems. In 2004, the Human Rights Commission of Pakistan (HRCP) estimated that there were more than 700 cases of rape that year and more than 1,000 cases of kidnapping of women for sexual exploitation. According to Pakistan's Interior Ministry, more than 4,000 honor killings have taken place in the last six years. Proposed legislation on honor killings drafted in consultation with NGOs and the Human Rights Commission of Pakistan was sidelined by the government in favor of a far weaker bill.

The authorities have failed to successfully prosecute an overwhelming majority of the killers involved in honor killings and the practice continues to be widely condoned. Conviction rates for most violent crimes against women remain low, indicating a systemic bias against the victims. The case that attracted most attention during 2005 was that of Mukhtar Mai, who was raped on the orders of a tribal council in retaliation for a supposed misdemeanor by her brother, which later turned out to be false. The attackers were first sentenced to death by the Anti-terrorist Court in August 2002, but in March 2005, five of the six were acquitted on appeal by the Lahore High Court. The victim refused to be intimidated and accepted support from women's rights groups in taking her case to the public. The Supreme Court overturned the High Court judgment two weeks later and ordered a retrial. In doing so, the court was clearly responding to the public outcry and adverse international publicity about the widespread use of rape and gang rape as a weapon against women and as a form of revenge or retaliation to defend family honor in certain parts of Pakistan. Mukhtar Mai was invited to the United States by women's groups but was barred from travel abroad by the government. The result was a major controversy that exposed the government's attitude toward women's rights and highlighted the arbitrary nature of governance in Pakistan. On June 17, General Musharraf acknowledged that he ordered a travel ban on Mukhtar Mai "to protect Pakistan's image abroad." Musharraf said that Mai was being taken to the United States by foreign NGOs "to bad-mouth Pakistan" over the "terrible state" of the nation's women. He said local NGOs are "Westernized fringe elements," which "are as bad as the Islamic extremists."

In an interview with The Washington Post in September 2005 General Musharraf said, "You must understand the environment in Pakistan. This has become a money-making concern. A lot of people say if you want to go abroad and get a visa for Canada or citizenship and be a millionaire, get yourself raped." After being widely condemned, Musharraf denied making the statement but the Post released the tape-recording of his remarks, which reflected a callous disregard for Pakistani rape victims.

Although Pakistani law forbids trafficking in women and children, the practice continues. The women, mainly from Bangladesh and Burma, are kidnapped or married to agents by parents in their home countries. They are sold to brothel owners or for forced marriage upon arrival in Pakistan. According to the U.S. State Department's Trafficking in Persons Report 2005, "The Government of Pakistan does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so."

Underage Pakistani children continue to be sold to Gulf Arab sheikdoms for use as camel jockeys. Between April and August, at least 500 Pakistani "camel kids" were rescued from appalling living conditions in the Gulf and brought back home. Corrupt police officials receive commissions and bribes from traffickers in return for ignoring the law. Political authorities have failed consistently to prioritize the prevention of trafficking in women and children among improvements in law enforcement.

Among the amendments passed under the LFO was one that circumscribed freedom of association by allowing the government to proscribe organizations it deems detrimental to public order. Pakistani governments in the past have routinely used the Maintenance of Public Order Ordinance to detain political opponents without trial. This new provision under the LFO has enabled the state to further circumscribe this freedom, which is also hampered by a preexisting ban on student unions and organizations as well as limitations on trade union activity. Periodically the government cracks down on student movements or trade unions to keep them under control.

The government also continues to use the National Accountability Bureau (NAB) and a host of anticorruption and sedition laws in a discriminatory manner against political opponents, who were either jailed or blackmailed into joining the ruling party or desisting from criticizing the military authorities.

On December 21, 2004, the police cracked down violently on PPP activists, who had assembled at the Islamabad airport to welcome Asif Ali Zardari, the husband of former prime minister Benazir Bhutto, on his first visit to Islamabad after he was released on bail in November. He had been imprisoned for eight years on corruption charges without being convicted on any count. Several dozen party members were arrested at the airport, and police beat up the welcoming crowd.

In April 2005, thousands of PPP supporters were again arbitrarily arrested in a countrywide crackdown aimed at preventing them from greeting Mr. Zardari on his return from a trip to Dubai to meet his family. The detainees were released in a phased manner over the next few days, but the crackdown impaired the opposition's ability to mobilize its supporters for peaceful meetings, rallies, or demonstrations.

Recommendations

  • The Pakistani government should implement the recommendations of the National Commission on the Status of Women. The government should seek the cooperation of major political parties and women's organizations to repeal the Hudood ordinance.
  • The role of security agencies, such as the ISI, in supporting Islamic militant groups should be brought to an end so as to progressively eliminate sectarian and religious militancy.
  • Provisions discriminating against minorities, especially the Ahmadis, should be repealed. The government should seek the cooperation of major political parties and women's organizations to amend the blasphemy laws.
  • The broad powers of the National Accountability Bureau should be restricted in accordance with the normal penal and criminal procedure codes.
  • The ban on student unions and the limitations on political parties and trade unions should be lifted.

Rule of Law – 1.83

Pakistan's constitution provides for an independent judiciary; however, in practice, the judiciary is far from independent. Judges are appointed by the executive on recommendations from the Ministry of Law, without any checks or balances. After General Musharraf's military coup in 1999 the judges of the higher judiciary were ordered by the new military government to take fresh oaths of allegiance to the Provisional Constitution Order – the military chief's proclamation suspending the constitution. When the chief justice of the Supreme Court and five other justices refused, they were replaced. The new Supreme Court then provided legal cover to the military takeover on grounds of the doctrine of necessity. The pliant judiciary subsequently rejected all legal challenges to military rule, including those against arbitrary constitutional amendments. The courts have consistently ruled in favor of the government on issues relating to civil liberties and fundamental rights, often ignoring the letter and intent of the law as well as their own prior rulings. In addition, widespread corruption prevails at all levels of the judiciary, which influences criminal and civil proceedings.

Sharia courts established in 1979 continue to exist, but the government has stopped referring cases to them and, in the case of the federal Sharia court, vacancies remained unfilled as of November 2005. However, informal traditional systems of adjudication continue to pose a threat to fundamental human rights. In the tribal areas of NWFP, Baluchistan, and even in parts of Sindh, jirgas (tribal councils) decide feuds and impose penalties. In the Pashtun areas the Pathan tribal code is the way of life, with its high premium on maintaining family honor and taking revenge for wrongs (either real or perceived).

In the absence of judicial independence at the highest level, there is little prospect of independence of prosecutors from political direction as they can be appointed and removed from office by the executive at will without protection of tenure by law or by the judiciary. Nor is there any provision, in law or in practice, of state-provided attorneys for citizens charged with serious felonies. In some cases political parties and individuals have been targeted for arrest based on their political affiliation.

In July 2002, the government issued a draconian Contempt of Court Ordinance, which made contempt of court punishable with imprisonment for six months or a fine up to US$1,700, or both. On May 15, 2005, the chief editor of the weekly Nawa-i-Hurriyat, Khawar Nawaz Raja, was served a contempt-of-court notice, arrested, and sent to jail pending trial for publishing a story about the corruption of judges in Pakistan-controlled Kashmir. Criticism of the conduct of a judge in parliament has also been declared a punishable offense thus reducing the prospect of parliamentary oversight.

The government has delayed filling several vacancies for judges in the high courts, the Federal Services Tribunal, banking courts, labor courts, and other courts of law, slowing down the administration of justice. In the absence of fully manned courts, the executive branch gains advantage in prioritizing the cases that will be heard. The Human Rights Commission of Pakistan also notes the scarcity of women judges.

Pakistan's law enforcement and judicial system suffers from inadequate resources and insufficient training. According to a Pakistani human rights expert, "The investigative capacity of the police is virtually non-existent and the lower-level judiciary simply lacks the training, means, and awareness to adjudicate within the framework of the law." In contrast to the elaborate training facilities available for military officers and civil servants, starting with the initial two years at the military or civil service academy, Pakistan's district judges receive less than a fortnight of orientation.

Despite attempts by the military regime to control lawyers, especially the bar councils, Pakistan's lawyers continue to fight for their independence. In March 2005, the Pakistan Bar Council opposed the government's decision to establish federal courts for settling monetary disputes, calling it an attempt to establish a parallel judiciary. The dispute reflects a growing concern among lawyers about the judiciary's independence.

Concepts such as equal treatment under the law and accountability of security forces and military to civilian authorities are mentioned in Pakistan's constitution but are not, in effect, practiced. Pakistan has used its status as a frontline ally in the "war on terrorism" to openly flout any rules calling for accountability of military and security forces to civilian authorities. Since March 2004, the army has been engaged in an operation in the Federally Administered Tribal Areas (FATA). By terming this an antiterrorist operation, it has not only prevented independent bodies or journalists from covering the operation but also justified the use of draconian methods like collective punishment and economic blockades.

Soon after assuming power, General Musharraf's military regime created army monitoring teams made up of military officers to oversee the functioning of all civilian officials, including law enforcement personnel. The National Accountability Bureau, which prosecutes corruption cases, is headed and largely manned by military officers. Special courts created to deal with terrorism and corruption cases also operate in close cooperation with military authorities. The LFO allows General Musharraf to combine the offices of president and chief of army staff for an indefinite period, thereby entrenching the military's institutional domination of Pakistan's political life. An overly powerful executive, with virtually no check on its authority, is the principal source of abuses in Pakistan.

The state's respect for and enforcement of property rights is also selective. From 2002 onward the Pakistani army has brutally repressed a farmers' movement in the Okara district of Punjab. When tens of thousands of tenant farmers opposed the military's attempt to take over their land, they were subjected to arbitrary detention and torture and their villages were besieged for weeks. The conflict between the army and the farmers continues.

Recommendations

  • The executive should not interfere in the working of the judiciary. In addition, an attempt should be made to restore the independence of Pakistan's judiciary, starting with the higher echelons, via appointment of judges of good repute. The process of appointments to the superior judiciary should be made more transparent, possibly involving the Pakistan Bar Council and open hearings before a parliamentary committee. Funding and training for the judiciary should be increased.
  • The military's interference with law enforcement and judicial proceedings should be rolled back, along with the abolition of parallel courts and prosecution bodies. There is, for example, no justification for military officers' serving as prosecutors in the NAB nor is there a need for special courts for specific offenses, as is the case with terrorism and corruption-related offenses.
  • Security and intelligence services should not be allowed to remain above the law.
  • More judges should be appointed to clear the extensive backlog in lower courts.

Anticorruption and Transparency – 2.14

Corruption persists at almost all levels of government in Pakistan. Protections against conflict of interest are inadequate and even less adequately enforced. Separation of public office from the personal interests of public officeholders is not always maintained. Bribes are common in the higher education system, both for admission and for good grades. General Pervez Musharraf, however, claims credit for introducing "corruption free governance" in view of the government's efforts at eliminating kickbacks and no-bid contracts at higher levels. Prime Minister Shaukat Aziz also believes that though Pakistan was "rated as one of the most corrupt countries" three years ago, today "no one talks about [corruption]."

Although government regulation of the economy has progressively declined over the last several years, lack of transparency in government decision making still provides opportunities for corruption. Corruption is rampant at lower levels, where government officials demand bribes and gratuities for performing even routine functions. Low salaries and minimal compensation for government employees is often a major factor in perpetuating the graft. Pakistan's score in Transparency International's Corruption Perceptions Index for 2005 stood at 2.1 on a scale of 0 (highly corrupt) to 10 (highly clean), the same as that for the previous year.

The recent earthquake has brought all of these factors into view. Most NGOs and experts believe that endemic and systemic corruption in the awarding of contracts for government construction projects was one of the reasons for the large-scale, devastating losses. Around 8,000 schools collapsed in the NWFP and 2,000 in Azad Kashmir, the area of Kashmir controlled by Pakistan.

The NAB spearheads the government's anticorruption drive. It operates under the National Accountability Ordinance of 1999. The ordinance was re-promulgated in September 2002 with some modifications, such that it will remain in force after the election of a new parliament. The NAB has, so far, selectively targeted politicians and civil servants from preceding civilian governments in a politically motivated campaign aimed at discrediting civilian administrators. Judges and military officers and political allies of the government have been virtually exempt from any accountability.

From the beginning of the current military government in 1999 through March 2005, the NAB prosecuted 368 cases of high-level corruption. Of these prosecutions, 173 cases involved politicians and only 13 involved former armed forces personnel, even though serving and retired military officers head several public sector enterprises and hold more than 1,000 positions in the civil service. Pakistani civilians resent the suggestion that only civilians are corrupt and that the large number of military officers serving in lucrative civilian jobs, and often living beyond their means, are untainted by corruption.

The politicized nature of the NAB's prosecutions came to light when in February 2005, Pakistan's Supreme Court refused the government's request to withdraw a corruption case against an incumbent minister. The NAB had filed a case of bank default of 690m rupees ($11m) against the minister, Faisal Saleh Hayat, when he was a member of the opposition PPP. The NAB's request to end the prosecution against Hayat followed his defection from the opposition to the government. The Supreme Court bench hearing the case accused the NAB "of trying to use the Supreme Court for its own purposes." The case reflected the judiciary's frustration with the NAB's selective prosecutions and was a rare attempt by the court to assert independence.

The combination of draconian provisions and the facts that the burden of proof lies with the accused, the jurisdiction of the NAB is unfettered, the president appoints the NAB chairman, and all three chairmen of the NAB since 1999 have been serving army generals has ensured that the accountability process in Pakistan is biased against civilian politicians and civil servants. The NAB claims that its efforts have eliminated high-level corruption, improving transparency in the award of major government contracts and financial dealings. It is true that there have been hardly any reports of massive kickbacks on large projects similar to the widely reported instances of such corruption under civilian rule. But this could well be a reflection of greater control over the flow of information within the military government.

At the time of parliamentary elections in October 2002, the government required all candidates for elective office to file declarations of their assets. Although cabinet members, civil servants, and military officers are required by law to file asset declarations as well, enforcement of these laws has been weak and selective at best; there was no visible improvement during 2005. The nazim (mayor) structure set up under the Local Government System 2001 was aimed at reducing corruption by ensuring that the nazims were more accountable to the people. However, corruption is so endemic at the local government level that graft as well as the accountability effort to keep graft in check has delayed the delivery of basic services to the citizens.

Pakistani laws provide for open and competitive bidding in awarding government contracts, but information on government expenditures as well as about governmental decision making are not always public. A Freedom of Information Ordinance was promulgated in September 2002, but it has not significantly improved the availability of government records to the public.

Administration and distribution of foreign assistance through government bodies is not always transparent, particularly as most donors no longer station large numbers of personnel on the ground due to the security situation.

Recommendations

  • Pakistan's efforts against corruption are unlikely to bear fruit unless the military and the judiciary are also held accountable.
  • Appointment of the NAB's personnel should be subjected to checks and balances and its jurisdiction should be extended to the military and the judiciary. The NAB should not be used for the political purpose of discrediting politicians and civilian administrators.
  • Improvements in pay scales for civil servants and judges are necessary to inhibit the environment for corruption.
  • The scope of the Freedom of Information Ordinance must be expanded and an enforcement mechanism provided. Secrecy in government should be minimized.

Author

Husain Haqqani is Director of Boston University's Center for International Relations and author of Pakistan Between Mosque and Military (Carnegie Endowment, 2005). He has served as an adviser to former Pakistani prime ministers and as ambassador to Sri Lanka.

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