HRW: Background Briefing On Pakistan

Human Rights Watch
President Clinton's Visit To South Asia
Background Briefings

Pakistan

February 11, 2000
Sandy Berger
National Security Advisor
National Security Council
The White House
Washington, DC

Dear Mr. Berger,

We understand that a visit to Pakistan by the President during his trip to South Asia next month is under active consideration. In the current conditions, we believe that a presidential visit could be counterproductive and undermine the Administration's goals of promoting the restoration of the rule of law and democratic, civilian rule in Pakistan.

As you know, although he has said that local elections will take place by the end of this year, General Pervez Musharraf has thus far firmly refused to set a timetable for national elections. In addition, there are serious human rights concerns that the Pakistan government needs to address. As you explore the option of the President visiting Islamabad, we hope you will give attention to the following issues and strongly urge Pakistan's military government to take the concrete steps outlined below.

One of General Musharraf's avowed aims in overthrowing the government of Nawaz Sharif and establishing an indefinite period of military rule was to restore good governance and accountability. However, General Musharraf has subverted the rule of law in a manner not dissimilar to that of Pakistan's last military ruler, General Mohammed Zia-ul-Haq. He has undermined the independence of the country's judiciary, introduced executive ordinance laws that curtail civil liberties and deny defendants due process of law, and illegally detained officials of the previous government.

- The government should immediately lift the state of emergency imposed last October, recognize and fully respect constitutional human rights safeguards, and set out a clear and reasonable timetable for holding national elections and returning the country to civilian rule..

- The Provisional Constitution Order (PCO), issued last October, prohibits the Supreme Court and the provincial High Courts from making any order against the Chief Executive "or any person exercising powers or jurisdiction under his authority." On January 26, General Musharraf issued an order requiring Supreme and High Court judges to take an oath that would bind them to uphold his proclamation of emergency and the PCO. Chief Justice Saiduzzaman Siddiqui and six other justices of the Supreme Court were forced to resign after they refused to take the oath, as were sixteen High Court judges. The PCO and the January 26th order undermine the independence of the judiciary and immunize officials of the military regime from prosecution. Both orders should be revoked immediately.

- Last December, the government amended the Anti-Terrorism Act to provide for trials by High Court judges, rather than sessions court judges, and to add hijacking and conspiracy to the list of offenses justiciable under the act. The intent of these amendments was plainly to facilitate Sharif's trial on these charges under the act. The Anti-Terrorism Act itself violates international standards of due process as well as the right to free expression. Courts established under the Act are to conduct trials within seven days, and convicted persons have only seven days in which to file appeals. The act criminalizes, among other activities, "distributing, publishing or pasting of a handbill or making graffiti or wall-chalking intended to create unrest or fear" -- an ill-defined provision that could be applied against political speech. At a minimum, the act should be amended so as to provide adequate time and facilities for the preparation of a defense, and the provision prohibiting publishing or pasting of handbills should be revoked.

- The National Accountability Ordinance creates a National Accountability Bureau, with sweeping powers of arrest, investigation, and prosecution. The broad terms of the law violate international standards on their face and invite selective application against perceived political enemies. Detainees need not be produced in court within 24 hours, as otherwise required by Pakistan's Criminal Procedure Code, and bail is prohibited. The Ordinance also provides for special accountability courts and expedited trials, to be conducted within thirty days. Convicted persons are automatically barred from holding political office for twenty-one years. We do not question the legitimacy of accountability mechanisms per se, but the Ordinance as presently drafted denies arrested persons due process of law, and strips convicted persons of their political rights. The National Accountability Ordinance should be amended so as to vest the powers of arrest and investigation, and of prosecution, in separate bodies. Detainees should be produced in court within twenty-four hours, and once charged, should have adequate time and facilities for the preparation of their defense. The automatic prohibition on holding elected office for twenty-one years should be repealed since it violates the political rights of those concerned.

- Several prominent office holders in the Sharif administration continue to be illegally detained, including former information minister Mushahid Hussain, former commerce minister Ishaq Dar, former minister of petroleum Chaudhry Nisar Ali Khan, and Khwaja Asif, former head of the privatization commission. The legal status of these and other former officials should be clarified without delay. The authorities now holding them should be required immediately to produce them in court, and should be held to account for any failure to do so, and the detainees should be formally charged or released.

Finally, there are two longstanding justice issues that the Musharraf administration has yet to concretely address: violence against women, and the treatment of children in the criminal justice system. We hope the Administration will keep these concerns on its agenda with Pakistan.

Women in Pakistan face staggering levels of violence, including domestic violence and sexual assault, and have virtually no access to justice or redress for these crimes. Officials at all levels of the criminal justice system do not consider domestic violence a matter for the criminal courts.

Women who attempt to register a police complaint of spousal or familial physical abuse are invariably turned away and sometimes pressured by the police to reconcile with their abusive spouses or relatives. Women who report rape or sexual assault by strangers fare marginally better, but they too face harassment by officials at all levels. They must contend with abusive police, and a discriminatory and deficient legal framework. The government should repeal Pakistan's discriminatory rape law, the Offence of Zina Ordinance, and enact legislation criminalizing all forms of rape, including marital rape.

We are also concerned about the treatment of children, who face a pattern of abuse that begins at the moment of arrest. They are held together with adults in police lock-ups, and usually remain in police stations without being brought before a judge well beyond the twenty-four hours permitted by law. While in custody, children and adults are subjected to various forms of torture. This is compounded by the prolonged detention of children once they have been formally charged.

While their trials are pending, children languish in overcrowded, often harsh detention facilities that offer few educational or recreational opportunities, and where there is a serious risk of sexual abuse by prison warders or adult inmates. The government should implement the recommendations of the official Pakistan Law Commission on reforming the juvenile justice system. These include designating juvenile courts in all provinces and establishing separate juvenile institutions, with facilities for health care, education, and training.

We hope that you find these recommendations useful.

Sincerely,

Mike Jendrzejczyk

Washington Director

cc: Karl Inderfurth, Assistant Secretary of State

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