Countries at the Crossroads 2004 - Pakistan

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

Executive Summary

Author

Husain Haqqani is a Pakistani columnist and a visiting scholar at the Carnegie Endowment for International Peace. He has served as an adviser to former Pakistani prime ministers and as Ambassador to Sri Lanka.

For most of the years since its independence in 1947, Pakistan has been ruled directly or indirectly by the military. The country's 1973 constitution and the fundamental rights guaranteed in its Articles 8 through 28 have remained suspended for long periods of time. Even during periods of supposed constitutional rule, the executive branch of the government is able to ignore or sidestep fundamental rights, often with the help of a compliant judiciary.

The military and security services influence Pakistan's politics and government even when power is ostensibly wielded by civilians, as was the case between 1988 and 1999. During that time, 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 military, led by General Pervez Musharraf, overthrew the civilian government of Prime Minister Nawaz Sharif, accusing it of corruption and bad governance. General Musharraf declared the creation of "true democracy"¹ as his objective. Pakistan's latest military regime has mixed political and economic reforms with expansion of the military's role in government, consolidating Pakistan's status as a semi-authoritarian state.

General Musharraf extended his presidency for five years through a massively rigged referendum in April 2002, the official results of which showed a 97.5 percent vote in his favor.² Parliamentary elections were held in October after the arbitrary introduction of 29 amendments to the constitution as a package known as the Legal Framework Order (LFO).³ The LFO put in place an altered constitution, giving 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 and introduced new qualifications for members of parliament aimed at excluding major opposition figures from the electoral process. The positive aspects of the LFO include the restoration of reserved seats for women in parliament and the discontinuation of separate electorates for religious minorities.

The October 2002 elections were described as deeply flawed⁴ by international observers but nevertheless failed to result in a parliament that would bow to the military's wishes. After the election, parliament was not convened for over a month while the ISI created divisions among the various parties, with a view to forming a submissive government. General Musharraf named Mir Zafarullah Jamali as civilian prime minister but retained effective control of the government. Parliament's refusal to accept the LFO as part of the constitution has resulted in a virtual deadlock. With the exception of approving the budget for fiscal year 2003-04, the new parliament has undertaken no legislative business, and the president continues to rule through decrees (known as ordinances).

The military regime's cooperation with the United States in the war against terrorism, coupled with successful propaganda against its civilian predecessors, has resulted in limited international criticism of its worst excesses. After abandoning Pakistani support for Afghanistan's Taliban regime, General Musharraf has presented himself as the only alternative to an Islamic fundamentalist takeover of Pakistan. Western governments, notably the United States, have been reluctant to criticize the Musharraf regime's record publicly. General Musharraf has been praised for trying to curb religious extremism, attempting to reform the educational system, and making efforts to increase the participation of women in social and political life. In most cases, however, the impact of the reforms has been limited, and Pakistan's governance has not shifted in any fundamental way.

In a letter to General Musharraf on October 10, 2003, marking the fourth anniversary of the military coup that brought him to power, Human Rights Watch summarized the state of civil liberties in Pakistan. It expressed concern that "in the years since the coup, the Pakistani government has systematically violated the fundamental rights of members of the political opposition and former government officials. It has harassed, threatened and arbitrarily arrested them. Many have been detained without charge, mistreated and tortured, and otherwise denied their basic due process rights." The rights of Pakistanis also suffered as a result of the removal of independent judges from the higher courts, the banning of antigovernment rallies and demonstrations, and the diminution of the role of political parties. Tribal and religious customs continue to be invoked to violate the rights of women, minorities, and children. Sectarian and religious militias, in some cases trained by the ISI for militancy in Afghanistan and Kashmir, also continue to threaten and kill rivals and opponents.

Civil Liberties – 2.61

Pakistan's 1973 constitution envisaged a parliamentary democracy with legal protections for civil liberties and against arbitrary arrest, detention without trial, and torture. But an overwhelming executive has systemically and routinely violated these constitutional protections. The judiciary is either helpless or, in some cases, complicit in allowing the executive to get its way.

After General Musharraf's coup d'etat in 1999 and the subsequent suspension of the constitution, 29 constitutional amendments were introduced, known collectively as the LFO. Among the amendments in the package 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 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.

Pakistan's political parties were barred from holding public meetings or rallies following the 1999 coup d'etat. This ban was removed for a short election campaign period in September 2002, which left 39 days for electioneering. Restrictions on open meetings and requirements for permits remained in force during the election campaign and continue to the present day. These restrictions were selectively used to deny opposition parties the right to campaign fully during the election and have restricted their ability to mobilize their supporters since the polls.⁵ The efforts to restrict public protests and demonstrations have often involved denial of permits, preemptive arrests of organizers, and denial of access to meeting locations.⁶ However, the regime has not, by and large, used excessive force against demonstrations already in progress.

Pakistan's nongovernmental organizations (NGOs) continue to face legal impediments. Although a large number of NGOs function in the country, registration is used selectively to influence the areas in which they may operate.

The absence of judicial enforceability of constitutional protections enables the Pakistani state to arrest and detain citizens indefinitely. In some cases, opponents and critics of the regime are charged with other offenses, such as corruption or terrorism, and then denied bail. A notable case is that of Asif Ali Zardari, husband of former Prime Minister Benazir Bhutto, who has been in prison on corruption charges without a conviction for seven years.

Pakistan's police and other law-enforcement agencies are known to use torture against prisoners, sometimes resulting in the latter's death. During 2002, for example, the Society for Human Rights and Prisoners Aid (SHARP) reported 38 deaths due to police torture,⁷ and Amnesty International estimates that at least 100 persons die from police torture each year. Extrajudicial killings are also widely reported and documented, although precise numbers remain unavailable.

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 war against India in the disputed territory of Jammu and Kashmir. Some of these groups have also engaged in sectarian terrorism inside Pakistan. The government banned five religious militant groups in January 2002, but they reconstituted themselves under new names. Activists and leaders of the banned groups arrested at the beginning of 2002 were released within a few days. Maulana Azam Tariq, the leader of Sipah-e-Sahaba Pakistan (SSP), a banned terrorist group, was released from prison and elected to parliament, where he voted for the government. [Editor's note: Tariq was murdered on October 6, 2004.] Sectarian attacks by members of these groups against Shia Muslims, members of the Ahmadiyya sect, and Christians continued throughout the year.⁸

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 declared 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. Other religious minorities such as Hindus, Sikhs, and Christians, do not face these legal restrictions. However, the Blasphemy Law is often used by low-level officials to threaten or persecute minority religious communities.

Gender equity and minority rights have not improved significantly, despite the government's efforts to amend existing laws. Pakistan's constitution prohibits discrimination based on race, religion, caste, residence, or place of birth, and the present government has 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. But systemic discrimination endures, as does widespread abuse and violence directed at women and minorities. During 2003, members of the Women's Commission publicly voiced criticism of the government for ignoring their views and recommendations, and its chairwoman acknowledged that laws relating to women were not being implemented.⁹

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 Ziaul 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. Although two government-appointed women's commissions have recommended its abolition, most recently in September 2003, the law has not been abolished or changed. Several thousand women have been wrongfully jailed under the provisions of the Hudood Ordinance and more than 2,000 are currently estimated to be in prison.¹⁰

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 2001 the Human Rights Commission Pakistan (HRCP) estimated that at least eight women, five of them minors, were raped in the country every day.¹¹ The authorities have failed to prosecute successfully an overwhelming majority of the offenders involved in honor killings, and the practice continues to be widely condoned. Conviction rates in most violent crimes against women remain low, indicating a systemic bias against the victims.

Although Pakistani law forbids trafficking in women and children, the practice continues unabated. Between 100 and 150 women are estimated to enter Pakistan illegally every day.¹² These 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 on arrival in Pakistan. Underage Pakistani children continue to be sold to Gulf Arab sheikdoms for use as camel jockeys. Corrupt police officials receive commissions and bribes from traffickers in return for ignoring the law. Political authorities have failed consistently to put prevention of trafficking in women and children on the list of priorities for improvements in law enforcement.

Recommendations

The ISI's role in supporting Islamic militant groups should be brought to an end, making it possible to progressively eliminate sectarian and religious militancy. The government should seek the cooperation of major political parties to repeal the Hudood Ordinance and amend the Blasphemy Laws. The ban on student unions and the limitations on political parties and trade unions should be removed.

Rule of Law – 2.03

Pakistan's judiciary is far from independent.¹³ Judges are appointed by the executive on recommendations from the ministry of law, without any checks or balances. The ministry also drafts new laws and decrees, sometimes with retroactive effect. The superior judiciary, including the Supreme Court and the provincial high courts, has sometimes been reshuffled arbitrarily so that the courts do not rule against the existing executive in constitutional matters, especially under military rule.¹⁴

Sharia courts, established in 1979, continue to exist, but the government has stopped referring cases to them. In the case of the federal Sharia court, vacancies remained unfilled through September 2003.

After the military takeover of 1999, the military government insisted that judges of the superior judiciary take fresh oaths pledging allegiance to the Provisional Constitution Order – the military chief's proclamation suspending the constitution. The chief justice of the Supreme Court and five other justices refused and were replaced by other judges. The new Supreme Court provided legal cover to the military takeover on grounds of the doctrine of necessity. The courts rejected all subsequent 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 law as well as their own prior rulings. In addition, there is widespread corruption in the judiciary, which influences criminal and civil proceedings.

The executive branch of government in Pakistan retains full authority over appointing judges and over the perquisites of their office. Judges are legally trained before assuming the bench; the federal government also maintains a judicial training academy. However, courts, especially at the lower levels, are poorly equipped, with limited access to resources such as books and computer databases.

In the absence of judicial independence at the highest level, there is little prospect of prosecutors being independent of political direction. Nor is there any provision, in law or in practice, of state-provided attorneys for citizens charged with serious felonies.

In 2002, the courts' refusal to stop General Musharraf from arbitrarily amending the constitution resulted in the ongoing showdown between lawyers and the judiciary. In October 2002, the Supreme Court Bar Association (SCBA) issued a statement declaring that arguing a case before the present judiciary was a futile exercise because the judiciary had ceased to be independent. In April 2003 the courts rejected all legal challenges to the LFO, effectively accepting it as part of the constitution for judicial purposes. This aggravated the relations between the bar and the superior judiciary. Among other things, the LFO extended the tenure of superior court judges by three years. Thus, the Pakistan Bar Council (PBC) alleged, the superior court justices had held that the LFO was legal for their own personal gain. The lawyers launched an unprecedented attack on the judiciary's role in an 83-page white paper, released to the media on June 28, 2003, which declared, "The judiciary, due to its role and performance for the last three years, has relegated itself to the position of subservience to the military rulers. Its role has been to support the regime of General Musharraf without any regard for the [sic] constitutional dictates."¹⁵ The white paper also claimed that the government influenced judges by maintaining personal dossiers on their conduct. The chief justice struck back at the lawyers' rebellion by closing down the offices of the SCBA in the supreme court building in Islamabad.

In July, the government issued a draconian Contempt of Court Ordinance,¹⁶ which made contempt of court punishable by imprisonment for six months or a fine up to US$1,700, or both. Criticism of the conduct of a judge in parliament has also been declared a punishable offense. No one has been charged under the new law so far.

By late 2003, lawyers' protests against the judges included boycotts of court proceedings and wearing black protest armbands when they appeared before judges. On September 5, police had to be called to control a scuffle between lawyers and court clerks on the premises of the Lahore High Court. Police charged 20 lawyers under the 1997 Anti Terrorism Act for allegedly threatening the Lahore High Court chief justice. The lawyers passed a resolution demanding psychiatric examination of the chief justice.¹⁷ The resolution was a symbolic gesture against the chief justice's refusal to pay attention to the lawyers' criticism of lack of judicial independence and his insistence on trying to stop the lawyers' substantive criticism with criminal charges. The conflict was reportedly resolved through negotiations later, and lawyers agreed to continue appearing before the judge, but clashes between judges and lawyers have not ended. 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. The state's respect for and enforcement of property rights is also selective.

Soon after assuming power, General Musharraf's military regime created monitoring teams of military officers to oversee the functioning of all civilian officials, including law-enforcement personnel. The national accountability bureau (NAB), which prosecutes corruption cases, is headed and largely staffed 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 army chief of staff for an indefinite period, thereby entrenching the military's institutional domination of Pakistan's political life.

Recommendations

The independence of Pakistan's judiciary should be restored through 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 (PBC) and open hearings before a parliamentary committee. The present confrontation between the bar and the judiciary must be brought to an end. The military's interference with law enforcement and judicial proceedings should be rolled back, and parallel courts and prosecution bodies should be abolished. For example, military officers should not serve as prosecutors in NAB, nor should there be special courts for specific offenses, as is the case with terrorism and corruption-related offenses. The duplication in the jurisdictions of the federal investigation agency (FIA) and NAB should be eliminated. Funding and training for law enforcement and the judiciary should be increased. 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 – 2.12

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, for both admission and good grades. General Pervez Musharraf, however, claims credit for introducing "corruption free governance"¹⁸ in view of the government's efforts at eliminating kickbacks and no-bid contracts at higher levels.

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. There is rampant corruption at lower levels, where government officials demand bribes and gratuities for performing even routine functions. Low salaries and minimal compensation for government employees are often major factors in perpetuating the graft. Pakistan's score in Transparency International's Corruption Perceptions Index for 2003 stood at 2.5 out of 10 (highly clean), a decline from the previous year's 2.6.¹⁹

The NAB spearheads the government's anticorruption drive. It operates under the National Accountability Ordinance of 1999, which was repromulgated in September 2002 with some modification such that it will remain in force after the election of a new parliament. The ordinance gives broad powers to the NAB chairman to "provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto." It allows investigation and prosecution of cases dating back to 1985.

NAB has, so far, selectively targeted politicians and civil servants from preceding civilian governments in a politically motivated campaign aimed at discrediting civilian administrators.²⁰ Judges and military officers have been virtually exempt from any accountability. Almost all of NAB's investigations and prosecutions were directed against politicians, civil servants, and businessmen. During four years of military rule, NAB has prosecuted 560 cases of high-level corruption; 705 investigations were reportedly in progress at the end of September 2003.²¹ Only 8 involved armed forces personnel, even though military officers head several public sector enterprises and hold more than 1,000 positions in the civil service.

The most draconian provision of the Accountability Ordinance is its requirement that the burden of proof that authority was used in the public interest lies with the accused. This means that NAB officials can blackmail or coerce public servants for political or personal advantage, opening a new door for corruption. The jurisdiction of the NAB chairman and, by extension, his subordinates is unfettered, as is his discretion in plea bargains or even withdrawal of pending proceedings.

The appointment of the NAB chairman, previously the sole prerogative of the president, must be made by the president "in consultation with the Leader of the House and the Leader of the Opposition in the National Assembly."²² Under the ordinance, the tenure of the NAB chairman is fixed at four years and is nonrenewable. All three chairmen of NAB since its inception have been serving army generals. The amended law opens the way for future appointees to come from among retired chief justices or judges of the Supreme Court, chief justices of the high court, retired lieutenant generals and retired federal government officers in the highest grade in the civil service.

NAB claims that its efforts have eliminated high-level corruption, improving transparency in the awarding of major government contracts and financial dealings. There have hardly been any reports of massive kickbacks on large projects similar to the widely reported instances of such corruption under civilian rule. But this could also be a reflection of greater control over the flow of information within a military government. Opposition politicians and disgruntled civil servants are often the source of leaks to the media about charges of corruption under civilian rule; the spirit of camaraderie among military officers and the fear of reprisals by security services prevent such widespread leaks under the present administration.

In October 2002, the government approved a new national anticorruption strategy (NACS).²³ The NACS, contained in a 147-page report, describes corruption as "a systemic problem, representing a persistent failure of governance" and outlines an action plan for eliminating corruption from the political system, the executive and judicial branches of government, and even the media. Once again, this document contains no recommendations for dealing with corruption by military and security personnel. There was little reported progress in implementation of the strategy during the course of the year.

At the time of parliamentary elections in October 2002, the government required all candidates for elective office to file declarations of their assets. Cabinet members, civil servants, and military officers are required by law to file asset declarations as well. However, enforcement of laws in this respect is weak and selective at best, and no visible improvement took place during the year.

Pakistani laws provide for open and competitive bidding in awarding government contracts, but information on government expenditures and governmental decision making is not always public. A Freedom of Information Ordinance,²⁴ promulgated in September 2002, fell far short of the proposals of the Council of Pakistan Newspaper Editors (CPNE). It excluded minutes of meetings and intermediary opinions and recommendations from the records government departments and agencies are required to make public. In addition, it allowed the federal government to withhold information at will.

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. The government also periodically attempts to interfere in the flow of assistance to nongovernmental organizations.

Recommendations

The military and the judiciary must be held accountable in order for Pakistan's efforts against corruption to bear fruit. NAB should not be used for the political purpose of discrediting politicians and civilian administrators. Appointment of its personnel should be subjected to checks and balances and its jurisdiction should be extended to the military and the judiciary. Improvements in pay scales for civil servants and judges are necessary to discourage the environment for corruption. Secrecy in government should be minimized. The scope of the Freedom of Information Ordinance must be expanded and an enforcement mechanism provided. The broad powers of NAB should be restricted in accordance with the normal penal and criminal procedure codes.

Accountability and Public Voice – 1.89

Pakistan is currently governed by the military, with some civilian participation in government following the parliamentary elections of October 2002. General Musharraf's 1999 coup d'etat and suspension of the constitution was endorsed by Pakistan's supreme court under the doctrine of necessity. The court, however, required the holding of general elections and return of constitutional rule within three years. The military regime complied with this requirement by holding the October 2002 elections. But prior to the elections, the LFO, comprising 29 amendments to the constitution, was promulgated. The courts did not entertain legal challenges to these arbitrary amendments to the constitution.

The 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. General Musharraf was assured a five-year term as president by the LFO, without the contested election required by the constitution. The NSC, dominated by military officers, was created and is intended to "serve as a forum on strategic matters pertaining to the sovereignty, integrity, and security of the state; and the matters relating to democracy, governance, and inter-provincial harmony." Opposition politicians see this as an attempt to offset the authority of a civilian cabinet formed after elections and grant the military an institutional say in political matters. Article 58(2)(b) of the constitution was restored, giving the president the unilateral authority to dismiss the government and the national and provincial legislative assemblies. This article had originally been inserted in the constitution by the military regime of General Ziaul Haq when he similarly restored the constitution after eight years of martial law in 1985. It had been repealed by act of parliament in 1997, after being used repeatedly by military-backed presidents to dismiss elected governments.

The right of individuals to stand for elected office was limited by the requirement that only those with a bachelor's degree could run. Several career politicians who had entered politics after high school or with non-degree professional qualifications were disqualified. This included the head of the Alliance for the Restoration of Democracy (ARD), Nawabzada Nasarullah Khan, an octogenarian politician whose political career spanned six decades. Retired military officers and clerics, on the other hand, 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 and utility bills, and absconders from court proceedings were also disqualified from elections. Some of these restrictions were clearly aimed at excluding exiled former prime ministers Benazir Bhutto and Nawaz Sharif, as well as several of their loyalists, from the electoral process.²⁵ The LFO also validated all decisions of General Musharraf and those serving in his military regime, without recourse to judicial review.

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, 10 seats were reserved in the new 342-member national assembly (up from 237), the lower house of parliament, for religious minorities. The LFO also reserved 60 seats in the national assembly for women. Cabinet representation of women increased at both the national and provincial levels.

General Musharraf deviated from the constitution and his own "roadmap for the restoration of democracy,"²⁶ announced on August 14, 2001, when he held a one-sided referendum on April 30, 2002, seeking endorsement for an extension of his rule for five more years. The constitution provides for the president to be elected by an electoral college comprising members of the national and provincial assemblies. According to the European Union (EU), which sent an observer mission for the elections but not the referendum, "Pakistan's political parties, human rights groups and media claimed that there were widespread electoral abuses including multiple voting, stuffing of ballot boxes, lack of secrecy of the ballot and coercion of public officials" during the referendum.²⁷

The EU and other international observers described the legislative elections held in October 2002 as "seriously flawed." In its final report, the EU's election observation mission complained that it did not receive adequate cooperation from Pakistani authorities. It concluded that "polling day itself had gone relatively smoothly and that any shortcomings were the consequence of inadequate training and administrative arrangements rather than the consequences of intended abuse." But it expressed "serious misgivings regarding other aspects of the electoral process." The EU mission, however, expressed the hope that "all those who fully support the restoration of democracy will work together to ensure that good governance is permanently established in Pakistan."

The EU assessment of the election included "serious concerns regarding the independence of the Election Commission of Pakistan." It also listed "restrictions on political parties and their candidates, the misuse of state resources, some unbalanced coverage in the state media, deficiencies in the compilation of the voting register and significant problems relating to the provision of ID cards" as factors delegitimizing the election.

The EU election observer mission reserved its strongest criticism for the LFO's provisions for the election. It "acknowledged that there were positive measures ... such as the reduction of voting age from 21 to 18, the establishment of reserved seats for women in the national and provincial assemblies and the introduction of a joint electorate." But it criticized the "restrictions placed on the nomination of candidates" and "the enactment of legislation (whose legality is questionable) which was designed to prevent certain candidates from standing in the election."²⁸

In the view of the EU, the LFO had institutionalized the role of the army in the governance of the country and had departed from a parliamentary form of democracy to a presidential system, which is a major deviation from the 1973 Pakistan constitution. That the president under the new system is an army general who has not been elected by the people led the EU observers to comment that "the holding of a general election does not in itself guarantee the restoration of democracy." They questioned whether there would be a "full transfer of power from a military to civilian administration" after the election.

The EU's findings were shared by the relatively smaller Commonwealth delegation. The Commonwealth ministerial action group, which acts as the organization's decision-making body, decided against lifting Pakistan's suspension from membership in the Commonwealth because, it concluded, the elections had been flawed.²⁹ Pakistan's membership in the Commonwealth of former British colonies was suspended after the 1999 coup d'etat. In May 2003, several months after the appointment of a civilian prime minister, the Commonwealth reaffirmed the suspension, maintaining that Pakistan's progress toward democracy and civilian rule was insufficient.

In addition to limiting opposition parties' ability to reach out to the people, the military regime has 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-QA). Widely nicknamed the "king's party,"³⁰ the PML-QA 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 the right to vote their consciences.

An alliance of Islamic parties, the Muttahida Majlis Amal (MMA), dominated the provincial assembly in the Northwest Frontier province and formed the provincial government. From the day the national assembly was convened, 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 rejection of their demand by the government led to boycotts and disruption of parliamentary proceedings. The government initiated negotiations with the MMA, but the PPP and PML, now united in the 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. ISI operatives, particularly the head of its internal wing, openly met with political leaders in attempts to influence their decisions and to coerce opposition members into joining the government.

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. During the past year, the military expanded its share of civil service positions through direct appointment on contract of serving and retired officers to 1,027 civilian jobs, including 15 ambassadors and 3 university vice-chancellors.³¹ Currently, the heads of the federal and provincial public service commissions, which select candidates for the civil service, are retired military officers.

The military and security services seek to continue governing Pakistan with a veneer of constitutional democratic rule, to the detriment of political parties and civil society.³² 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 domination of the political process is quite extensive. This has not changed despite the election of the federal and provincial legislatures and the appointment of a civilian prime minister.

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.

Article 19 of the Pakistani constitution guarantees freedom of the press, but several laws partially circumscribe it. Although the government controls most broadcasting and television, Pakistan's print media remain diverse and considerably independent. However, the security services, especially the ISI, try to influence newspaper editors by advising them on how to report and comment on certain subjects.³³

The ministry of information, which controls public sector advertising, attempts to coerce critics by reducing the flow of advertisements.³⁴ As a result, newspaper owners and editors exercise restraint in criticizing the government and practice self-censorship. More significantly, three new press laws were decreed in October 2002, including one on defamation, which Pakistani journalists feared would restrict their freedom of expression.³⁵ However, no case was reported to have been pursued under these laws against the press until September 2003. The new defamation law increases the penalty for journalists and editors found guilty of defamation to a minimum of Rs 50,000 ($900) in damages or three months in prison.

According to Reporters Sans Frontieres (RSF), "Gen. Musharraf publicly accused [Pakistani newspapers] of belittling his political allies and of being in the pay of the 'opposition forces.'"³⁶ Three investigative reporters in Islamabad were harassed by the ISI in October and November 2002 for writing stories that embarrassed the government. In November, the government published a warning to newspapers against quoting reports from a U.S.-based online investigative newspaper, South Asia Tribune, which had run a series of stories about corruption in the Musharraf regime.³⁷ Internet service providers were instructed to block the Web site, a direct act of censorship.³⁸

Several incidents of beating or harassment of individual journalists by officials and non-state actors, especially religious groups, were reported during 2002-03. The government failed to punish officials in most of these cases. The editor of the Lahore-based weekly The Independent was forced to resign his position in March 2003 under pressure from the ISI and the authorities in the Punjab government.³⁹

The government opened the electronic media to private ownership by granting 22 licenses for FM radio stations in several cities across the country in October 2002.⁴⁰ None of the private radio stations had, however, started broadcasting as of September 2003.

Recommendations

Military intervention in politics must end in order for constitutional governance to be restored in Pakistan. General Musharraf should adhere to his roadmap for democracy and genuinely transfer power to the elected parliament and government. The LFO should be submitted to parliament and only those parts that receive parliamentary approval should be retained. The legal and practical restrictions on major political parties should be withdrawn. For their part, 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 ISI's internal wing should not be allowed to interfere in the affairs of political parties or civil society organizations. The government should withdraw the new press laws, and legal measures should, instead, be introduced to protect journalists and punish officials who intimidate them or otherwise interfere 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 relating to the media.

Notes

1 "I Want a True Democracy," interview with General Pervez Musharraf, Time, 6 December 1999, http://www.time.com/time/asia/magazine/99/1206/pakistan.musharraf.html.

2 "Pakistan: Entire Election Process Deeply Flawed," Press Release (New York: Human Rights Watch [HRW], 9 October 2002), http://www.hrw.org/press/2002/10/pakistan-bck1009.htm.

3 Legal Framework Order, Chief Executive's Order of August 21, 2002 (Islamabad: Gazette of Pakistan Extraordinary, 21 August 2002).

4 "Election Process" (HRW).

5 "No Political Activity Planned on First Day," The Dawn, 1 September 2002, www.dawn.com/2002/09/01/nat9.htm.

6 World Report 2003 – Pakistan (HRW, 2003).

7 Pakistan, Country Reports on Human Rights Practices – 2002 (Washington DC: U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, 31 March 2003), 5.

8 "Sectarian Violence in Pakistan" (New Delhi: South Asia Terrorism Portal, 2003) http://www.satp.org/satporgtp/countries/pakistan/database/sect-killing.htm.

9 "Implementation of Laws to Ensure Women's Empowerment: Justice Rizvi," The Dawn, 21 February 2003; "Women Commission Complains of Being Ignored," The Dawn, 6 March 2003; Web site, National Commission on the Status of Women, http://www.ncsw.gov.pk.

10 "Govt. Panel Seeks Abolition of Hudood Ordinance," The News, 3 September 2003, http://www.jang.com.pk/thenews/sep2003-daily/03-09-2003/metro/i1.htm.

11 "Current Human Rights Information – Women" (Lahore: Human Rights Commission of Pakistan, 2003), http://www.hrcp.cjb.net.

12 Shafqat Munir, "Trafficking, South Asia and Pakistan," Himal, September 2003, http://www.himalmag.com/2003/september/report_2.htm.

13 Paula R. Newberg, Judging the State: Courts and Constitutional Politics in Pakistan (New York: Cambridge University Press, 1995).

14 Ibid.

15 The Daily Times (Lahore), 25 November 2003, 7.

16 Contempt of Court Ordinance, Ordinance IV of 2003 (Gazette of Pakistan, 10 July 2003).

17 "Current Human Rights Information – Judiciary" (Lahore: Human Rights Commission of Pakistan [HRCP], September 2003), http://www.hrcp.cjb.net.

18 "Pakistan: U.S. Ally at the Crossroads of Central, South and Southwest Asia," speech by Pervez Musharraf (Los Angeles: Los Angeles World Affairs Council, 10 January 2003), http://www.lawac.org/speech/musharraf%202003.htm.

19 "IMF Asks Pakistan to Reduce Corruption," The News (Islamabad, Lahore, and Karachi), 29 October 2003, http://www.jang.com.pk/thenews/oct2003-daily/29-10-2003/main/main5.htm.

20 Ian Talbot, "General Pervez Musharraf: Savior or Destroyer of Pakistan's Democracy?" Contemporary South Asia 2002, vol. 11, no. 3, 311-28; "Pakistan: Entire Election Deeply Flawed," Background Briefing (HRW, 9 October 2002).

21 See figures for prosecutions and investigations at website of National Accountability Board, http://www.nab.gov.pk.

22 Ordinance Further to Amend National Accountability Ordinance, Ordinance XVIII of 1999 (Gazette of Pakistan, 23 November 2002).

23 Full text available at http://www.nab.gov.pk.

24 Freedom of Information Ordinance, Ordinance XCVI of 2002 (Gazette of Pakistan, 26 October 2002).

25 Talbot, "General Pervez Musharraf."

26 Susannah Price, "Musharraf's 'Roadmap to Democracy,'" British Broadcasting Corporation (BBC), 14 August 2001, http://news.bbc.co.uk/2/hi/south_asia/1490697.stm.

27 "Pakistan, National and Provincial Assembly Election, 10 October 2002, European Union Election Observation Mission, Final Report" (Brussels: EU, 2002), 6.

28 Ibid., 7.

29 Ewen MacAskill, "Commonwealth Rebuffs Pakistan," Guardian, 2 November 2002, http://www.guardian.co.uk/pakistan/Story/0,2763,824565,00.html.

30 See, for example, "Jamaat Accuses Govt. of Backing King's Party," The Dawn, 8 September 2002; "Pakistan: Entire Election Process Deeply Flawed," Press Release (HRW, 9 October 2002), http://www.hrw.org/press/2002/10/pakistan-bck1009.htm; Susannah Price, "Pakistan's Democracy Test," BBC, 9 October 2003, http://news.bbc.co.uk/2/hi/south_asia/2310527.stm.

31 Nasir Iqbal, "1027 Civilian Posts occupied by servicemen," The Dawn, 3 October 2003, http://www.dawn.com/2003/10/03/nat9.htm.

32 See Farhan Bokhari, "The Rise and Long-term Outlook for the MMA in Pakistan," (Washington, DC: Center for Strategic and International Studies [CSIS], January 2003), http://www.csis.org/saprog/030117PKfuture.pdf.

33 "Pakistan – 2003 Annual Report" (Paris: Reporters Sans Frontieres [RSF], 2003), http://www.rsf.org/print.php3?id_article=6480.

34 Country Reports (U.S. Dept. of State).

35 "New Defamation Law threatens Press Freedom," Press Release (RSF, 4 October 2002), http://www.rsf.org/article.php3?id_article=3983.

36 "Pakistan – 2003 Annual Report" (RSF).

37 Ibid.

38 Ibid.

39 "Editor of Independent Resigns under Government Pressure" (Sterling VA: South Asia Tribune), http://www.satribune.com/archives/jun15_21_03/P1_mirresigns.htm.

40 Javed Jabbar, "Community-based Radio and TV," The Dawn, 19 September 2003, http://www.dawn.com/2003/09/19/fea.htm.