New Delhi, Autumn 2007
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Pakistan's Emergency and the Commonwealth Response Project Officer, Police Programme International, CHRI On Saturday 3 November, as the Commonwealth Heads of Government prepared to come together in Kampala, General Pervez Musharraf declared a state of emergency in Pakistan. He suspended the Constitution, dismissed Pakistan’s independent judiciary and removed all private television transmissions from the air while police commenced widespread arrests of politicians, lawyers, human rights defenders and protestors. Targeted at maintaining power as President and Chief of Army Staff, with the justification of maintaining stability in Pakistan, the measures have stifled democracy and the fundamental rights of people across Pakistan. The state of emergency is in stark contrast with the Harare Principles, the political values to which every member of the Commonwealth, including Pakistan, is committed. Primarily, the Principles bind Commonwealth members to the protection of fundamental human rights and the promotion of democracy, democratic processes, the rule of law, independence of the judiciary and just and honest government. The Emergency in Focus In his declaration, General Musharraf cited that two threats to Pakistan – the spread of violent extremism and judicial interference in the executive – required emergency rule if he was to prevent the country from “suicide”.1 He brought the Provisional Constitutional Order into force to govern the emergency, suspending Pakistan’s Constitution along with the fundamental human rights protections it contains.2 The declaration of emergency ousted Pakistan’s independent judiciary by requiring all judges in the country to be immediately governed by a new oath of office, under which they must pledge not to challenge the emergency or General Musharraf.3 Immediately following the declaration, Chief Justice Iftikhar Chaudhry and other justices of the Supreme Court convened urgently to try and strike down the emergency order. Instead they were forcibly arrested and placed under high security house arrest. The declaration accuses the judiciary of interfering in the function of the executive, arguing that during the past year it has undermined the Government, demoralised the police and threatened the security of the state by releasing terrorists. In reality, a more accurate assessment is that the judiciary, as it is bound to, has been upholding the rule of law and fulfilling its function to check excesses of police conduct and General Musharraf’s expansive presidential power. The international consensus has been that the emergency was declared to prevent the Supreme Court ruling on the legality of General Musharraf’s October re-election as President. Rather than a threat to national security, General Musharraf saw the independent judges as a threat to his personal security in retaining power. Judicial activism had already been displayed by the bench, as had Chief Justice Chaudhry’s open hostility to General Musharraf, who had sacked Chaudhry in March only to see him reappointed shortly after by his fellow judges and receive wide popular support from lawyers across Pakistan. The removal of the judiciary was closely followed by the suppression of freedom of expression through the shutdown of up to 30 non-state private television channels. Citizens were left without information, after a state media regulatory body issued an ordinance for all private television stations to cease broadcasting and restricted the cable network transmission of international news networks, including the CNN and BBC. A Media Ordinance was also declared, severely restricting all media content and news coverage by prohibiting the publication of criticism directed at the government, the emergency, or anything else “likely to jeopardise or be prejudicial to the sovereignty, ideology or security of Pakistan.” In addition to the direct attacks on the media and judiciary, General Musharraf banned political gatherings and issued broad new powers of arrest and force to the police, which they have employed to suppress legitimate dissent. In the days that have followed the declaration, there was a security crackdown and a brutal police response, involving the violent use of batons, tear gas and forcible arrests, of lawyers, judges, students, journalists human rights activists who have turned out in large numbers to demonstrate across Pakistan. Within the first three days, the opposition reported that over 3500 people had been arrested and more protestors continue to be detained.4 With this response has come the arrest of a number of public opponents to General Musharraf and his military rule. Among those placed under house arrest was Asma Jahangir, President of the Human Rights Commission of Pakistan, a former UN Special Rapporteur on Freedom of Religion or Belief and a staunch opponent to Pakistan’s military rule. In an email to the public Jahangir pertinently observed that: “Ironically the President (who has lost his marbles) said that he had to clamp down on the press and the judiciary to curb terrorism. Those he has arrested are progressive, secular minded people while the terrorists are offered negotiations and ceasefires.” Both Chief Justice Chaudhry and Benazir Bhutto, leader of the opposition Pakistan People’s Party (PPP), were also placed under house arrest, yet this did not stop them from calling for popular uprisings that saw protests intensify along with the violent police response to them. CMAG takes action The Commonwealth Ministerial Action Group on the Harare Declaration (CMAG) – a Commonwealth body established to address serious and persistent violations of the Commonwealth principles – convened an extraordinary meeting on 12 November to take action on the worsening crisis in Pakistan. Since its establishment in 1995, the nine-member committee of CMAG has proved that it is one of the few bodies able to sanction governments refusing to uphold democracy, human rights and the rule of law. CMAG’s statement condemned the suspension of the Constitution, expressed grave concern at the dismissal of the Chief Justice and other judges and that Government action against lawyers, opposition politicians, civil society leaders and the media “constitute violations against Commonwealth fundamental values.” CMAG threatened to suspend Pakistan from the Commonwealth if it failed to take necessary measures to restore democracy before CMAG met on the eve of CHOGM, 22 November 2007. These measures included the restoration of the Constitution, release of political prisoners, reappointment of the independent judiciary and recognition of its judgment on the legality of the October 2007 re-election. Additionally, General Musharraf had to step down as Chief of Army Staff by 15 November, on the date that his appointment was due to lapse and the date he had previously pledged to step down. Although diplomatic pressure had already forced General Musharraf to announce parliamentary elections for early January 2008, the Commonwealth warned that these elections could not be considered free, fair and valid unless the Constitution was restored and the state of emergency ended. CMAG and Pakistan’s stilted steps towards democracy When it comes to political sanctions, CMAG has demonstrated that it is one of the few international mechanisms able to sanction countries based on a failure to uphold good governance and democracy. It suspended Nigeria following the imposition of military rule in 1995 and Fiji late last year, after a military coup overthrew the democratically elected government. This is not the first time Pakistan has faced the might of CMAG. On 14 October 1999, General Musharraf declared a state of emergency in a military coup, illegally and unconstitutionally ousting then-Prime Minister Nawaz Sharif from office. The widespread popular belief within Pakistan at the time was that the army might help stabilise the nation’s security and address corruption problems that had dogged Sharif’s rule. On 18 October 1999, CMAG met, unanimously condemned Musharraf’s actions, suspended Pakistan from the Commonwealth and also from the imminent 1999 CHOGM in South Africa, pending the restoration of democracy. After a five-year suspension, Pakistan controversially retained its full Commonwealth membership in May 2004. Its readmission was granted on the grounds of progress made towards restoring democratic institutions, by holding elections in October 2002, and by the restoration of the Constitution, as amended by the 17th amendment, in 2003.5 While the United Kingdom was among those who welcomed the readmission, it was strongly opposed by many at the time, including Benazir Bhutto’s Pakistan People’s Party (PPP) who linked the readmission to Musharraf’s cooperation with the United States in the fight against al-Qaeda and terrorism. On readmitting Pakistan, the Commonwealth noted its “continuing concern in regard to the strengthening of the democratic process.” Pakistan’s return to the Commonwealth was accepted on the basis that the Musharraf would step down as army chief before the end of 2004. At the 2005 CHOGM in Malta, the Heads emphasised that where a person is both Head of State and Chief of Army Staff, the basic principles of democracy and the spirit of the Harare Principles are contravened. They reiterated that until the two offices were separated, the process of democratisation continued to be at risk. Pakistan has remained in the Commonwealth since. The nation’s strides towards meaningful democracy under General Musharraf have been doubtful from the outset. Musharraf introduced constitutional amendments in 2002 that granted him wide powers and validated the 1999 coup. Following prolonged debate between the pro-Musharraf ruling party and the leading opposition of the six-party religious alliance (Muttahida Majlis-e-Amal (MMA)), the amendments were accepted on the basis that Musharraf would relinquish his position as army chief. Based on the agreement reached by both sides, the 17th amendment (also known as the Legal Framework Order) was passed by the legislature with the constitutionally required two thirds majority in December 2003. The amendment allowed General Musharraf to retain the dual office until 31 December 2004, after which point, he would remain as President but could not continue as army chief.6 However due to the wording of the provision, Parliament was able to enact a further law allowing General Musharraf to retain the dual office holding until elections on 16 November 2007.7 Thus, on 30 December 2004, Musharraf reneged on his pledge and publicly declared he would continue in both roles. His justification was that to do otherwise would undermine the nation’s political and economic stability. After General Musharraf’s reelection on 6 October 2007, the Supreme Court began to grapple with the resulting constitutional confusion as it heard petitions challenging his presidential candidature and the validity of the election. In response to speculated threats about the imposition of martial law if the Supreme Court ruled against Musharraf, one judge , Justice Javed Iqbal, stated that “[t]hese threats have no value for us. This is an issue to be decided in accordance with the law and… merits.”8 The issue did not get decided and on 3 November the threat was played out and General Musharraf altogether abandoned his false promises and the rule of law. Violation means suspension CMAG met to review Pakistan’s compliance with the Harare Declaration on 22 November and, demonstrating its commitment to the basic political values of democracy, human rights and good governance that underpin membership of the Commonwealth, suspended Pakistan, pending the restoration of democracy and rule of law. CMAG condemned the ongoing emergency, and the related suspension of the Constitution, lack of independent judiciary and curtailing of fundamental rights and the rule of law. CMAG also expressed its solidarity with the people of Pakistan, saying that they had “a right to enjoy the provisions and protections of its Constitution, with fundamental freedoms of expression and assembly, and the rule of law.” CMAG has committed to staying engaged with Pakistan, even as it is suspended, to help it get back on the road to democratic rule. The emergency in Pakistan has struck at the fundamental promises of Commonwealth membership, and CMAG has protected those values in its action. We now watch and wait, with CMAG, in the hope that democracy will return to Pakistan in the near future. New Secretary General of Commonwealth
Kamalesh Sharma, India's High Commissioner to Britain became the fifth Secretary-General of the Commonwealth after being selected unanimously by the heads of state who attended the Commonwealth Heads of Government meeting in Kampala, Uganda. Sharma succeeds Right Honourable Don McKinnon whose term ends on March 2008 for a four-year term. Sharma is the first Asian to hold this post. The Commonwealth has had four Secretary General so far. The first was Arnold Smith, a Canadian, the second was Sridath Ramphal who was from the Caribbean, the third Secretary-General Chief Emeka Anyaoku was a Nigerian, while Sir Don Mc Kinnon is from New Zealand. Talking to journalists shortly after being selected the next Secretary-General, Kamalesh Sharma stated that Commonwealth represents a “unique force for good” and that the Commonwealth was “a family of equals, not just a family of nations.” 3.
Oath of Office (Judges) Order, 2007
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CHRI
Newsletter, Autumn 2007
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Copyright
Commonwealth Human Rights Initiative Published
by Commonwealth Human Rights Initiative, B-117, 1st Floor, Sarvodaya
Enclave, New Delhi - 110017, India The Commonwealth Human Rights Initiative (CHRI) is an independent international NGO mandated to ensure the practical realisation of human rights in the Commonwealth. |
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