On the contrary, the party which President Zardari considered to be his most dependable ally, the MQM of Altaf Hussain, has gone many steps forward to seek his removal from the top office. Almost everyone I met and talked to was surprised at the leap Altaf Hussain had taken from just opposing or abstaining from voting on the NRO to demanding the resignation of Zardari. It was like the last straw on the heavily loaded camel’s back and Zardari was stunned, those around him reported. But he can hit back with some radical moves -- sack his cronies, repeal the 17th Amendment in a day or two, give an extension to the Army chief, bring back angry PPP stalwarts after due apologies and go before the courts instead of seeking shelter behind the NRO.
When NRO erupted on the face of Mr Zardari, another meeting between the Army Chief and the PM was essential on Monday night so that the right message was conveyed. And it was. Then we saw the surrender. The Zardari era, the argument goes, consists of broken promises, colossal mistakes in assessing the mood of the people, taking decisions with arrogance, taking on the establishment and institutions which were needed to survive, taking gigantic U-turns when under pressure and smiling about them, claiming unabashedly as if it was a considered policy (like the restoration of judges, sacking and restoration of the Punjab government of PML-N, surrender on the Kerry Lugar Bill and eventually running away from the NRO). REFRENCES: Has a countdown begun in Islamabad? By Shaheen Sehbai Saturday, November 07, 2009 http://www.thenews.com.pk/print1.asp?id=207257 The contours of a changed, unwritten script Situationer By Shaheen Sehbai Wednesday, November 04, 2009 http://www.thenews.com.pk/top_story_detail.asp?Id=25365SOME YEARS BACK SAME SHAHEEN SEHBAI ON THE ACCOUNTABILITY OF BENAZIR BHUTTO & ASIF ALI ZARDARI IN HIS AMERICAN BASED WEB BASED MAGAZINE SOUTH ASIA TRIBUNE
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Vol-2, Jul 27- Aug 02, 2002 ISSN:1684-0275 satribune.com
ISLAMABAD: General Pervez Musharraf's law ministry is rushing through a judicial treaty with the Sheikhs of UAE to enable the military government put handcuff on Pakistanis living in the Gulf, outside their jurisidiction at the moment. The diplomatic name of the treaty is "Serving of Judicial and Extra Judicial Documents, Taking of Evidence and the Recognition and Enforcement of Judgments in Civil and Commercial Matters". Simply speaking any Pakistani living in UAE, the most prominent being PPP Chairperson Benazir Bhutto, would come under Islamabad's legal purview as "enforcement of judgments" is also part of the treaty. A draft text has been rushed to the Cabinet and everybody is obediently saying yes. Little does anyone realize that the same treaty would take away the protection of Dubai or Abu Dhabi, if any of them was to flee the country after whatever wrong done in this government now. URL: http://antisystemic.org/satribune/www.satribune.com/archives/july27_02_02/index.htm
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Most of the NRO beneficiaries, whose corruption and criminal cases would re-open on Nov 28, will not be able to get pre-arrest bails as their offences under the NAB Ordinance are non-bailable, NAB officials told The News. NAB Prosecutor General Danishwar Malik, when contacted, confirmed to The News that all offences under the NAB Ordinance were non-bailable. He said trial courts (accountability courts) had no authority under the law to entertain bail applications of any NAB accused. It was never done in the past either, he said. About the non-bailability of offences under the NAB Ordinance, its Section 9(b) reads: “All offences under this ordinance shall be non-bailable and, notwithstanding anything contained in Sections 1, 426, 491, 497, 498 and 561A or any other provision of the code, or any other law for the time being in force no court shall have jurisdiction to grant bail to any person accused of any offence under this ordinance.” REFERENCE: Beneficiaries of NRO cannot get bail: NAB By Ansar Abbasi Friday, November 13, 2009 http://www.thenews.com.pk/top_story_detail.asp?Id=25545The funniest thing in all that is that National Accountability Bureau and all the Ordinances thereing were invoked by General Pervez Musharraf after imposing Martial Law in Pakistan on 12 Oct 1999, even more funnier is a fact that a Supreme Court Bench of which present Chief Justice of Pakistan was a member, had declared that Martial Law of 1999 was valid. REFERENCE: Writing of history or triumph of amnesia? Islamabad diary by Ayaz Amir Dated Friday, August 07, 2009 http://thenews.jang.com.pk/daily_detail.asp?id=191800
As per 1973 Constitution of Islamic Republic of Pakistan
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PART I
6. (1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.
(2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.
(3) [Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason.
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Definition of Accomplice: An accomplice is a person who actively participates in the commission of a crime, even though they take no part in the actual criminal offense.
VALIDITY OF MILITARY REGIME'S INVOKED NATIONAL ACCOUNTABILITY BUREAU/ORDINANCES.
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Respect for civil and political rights deteriorated significantly in the year following the bloodless military coup, on October 12, 1999, that deposed Prime Minister Nawaz Sharif in Pakistan. General Pervez Musharraf's administration began to address some longstanding justice issues-notably, through the adoption of Pakistan's first federal juvenile justice law and the establishment of a commission on the status of women-but it also greatly augmented executive powers and curtailed the independence of the judiciary. It moved to neutralize political parties through the application of broadly defined laws governing terrorism, sedition, and public order, and through the establishment of a powerful extraconstitutional "accountability" bureau. Opposition party members were subjected to prolonged detention without charge; some were tortured in custody. Sectarian violence and attacks on religious minorities continued and, despite renewed attention to the issue, the government failed to provide meaningful recourse for women victims of domestic abuse and sexual violence.
Human Rights Developments
Early in the year, the military government moved to strip the judiciary of much of its power. On January 26, General Musharraf issued an order requiring all Supreme and High Court judges to take an oath binding them to uphold his proclamation of a national emergency and to adhere to the Provisional Constitution Order (PCO). Many, including the chief justice of the Supreme Court, refused to take the oath. A total of fifteen judges were removed. The PCO, which remained in effect at this writing, had been announced by Musharraf just days after the October coup. It suspended the constitution and legislative bodies and prohibited the Supreme and High Courts from making any decision against the chief executive.
On May 12, a reconstituted Supreme Court issued a verdict rejecting petitions challenging the coup's legality. The court set a deadline of three years for the holding of national and provincial elections, but reserved authority to review the continuation of the Proclamation of Emergency, leaving the door open to future extensions of military rule.
Top officials of the deposed government were detained on the day of the coup; two of them, former Information Minister Mushahid Hussain and former Petroleum Minister Chaudhry Nisar Ali Khan continued to be held without charge as of this writing. Nawaz Sharif himself was tried and convicted of hijacking and terrorism-for refusing to allow General Musharraf's plane to land in the hours leading up to the coup-
under the Anti-Terrorism Act, and sentenced to life imprisonment on April 6 following a trial marred by procedural abuses.
In December 1999 the military government amended the Anti-Terrorism Act to add hijacking and conspiracy to the list of offenses falling within the Anti-Terrorism Court's jurisdiction. These offenses were then applied retroactively to Nawaz Sharif. Another amendment allowed the government to replace the judge originally assigned to hear the case, a Sharif appointee. In January, the new judge stepped down, publicly complaining of the presence of intelligence agents in his courtroom. In March, only days before the final arguments were to be presented in the trial, Sharif's lawyer, Iqbal Raad, and two of his colleagues were assassinated in their office. Other members of the defense team charged that the government had failed to provide them protection despite repeated warnings that they were being threatened. A month after Sharif's conviction by the Anti-Terrorism Court, he was shifted to Attock Fort-an army-occupied sixteenth century fortress west of Islamabad-to face trial on charges of concealing assets and evading taxes in connection with his acquisition of a helicopter. He was convicted on July 22, and sentenced to fourteen years in prison, with a fine of Rs. 20 million (U.S. $380,000).
The new government's principal vehicle for detaining former officials and party leaders, however, was the National Accountability Ordinance, a law ostensibly created to bring corrupt officials to account. The ordinance confers sweeping powers of arrest, investigation, and prosecution in a single institution, the National Accountability Bureau (NAB), and permits detainees to be held for up to ninety days without being brought before a court. The law was later amended to facilitate conviction by shifting the burden of proof during trial from the prosecution to the defense.
There were persistent reports of ill treatment in NAB custody, particularly in the case of high profile detainees who were held early in the year in Attock Fort. Persons convicted under the ordinance were prohibited from holding public office for a period of twenty-one years. An amendment to the Political Parties Act in August also barred anyone with a court conviction from holding party office. The combined effect of these acts, as they were applied, was to eliminate the existing leadership of the major political parties. While administration officials said that parties would be allowed to participate in future elections to the Senate and national and provincial assemblies, local government elections, scheduled to be held in December, were to be conducted on a non-party basis.
The Musharraf government also suppressed political activity by conducting raids on party offices, preventing political rallies from being held, and lodging criminal cases against rally organizers under laws governing sedition and the Maintenance of Public Order (MPO) Ordinance. The sedition law, Section 124-A of the Pakistan Penal Code, criminalizes speech that "brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Central or Provincial Government established by law." Section 16 of the Maintenance of Public Order Ordinance prohibits speech that "causes or is likely to cause fear or alarm to the public" or any section thereof, or which "furthers or is likely to further any activity prejudicial to public safety or the maintenance of public order."
Rana Sanaullah Khan, a member of the suspended Punjab provincial assembly from Sharif's Pakistan Muslim League (PML), was arrested in Faisalabad on November 28, 1999. The arrest came after he criticized the army at a meeting of former legislators and urged his colleagues to launch a protest movement against the military government. He was tortured while in custody, and criminal charges were registered against him under the sedition law and MPO . REFERENCE: Human Rights Developments http://www.hrw.org/legacy/wr2k1/asia/pakistan.html
Pakistan
National Level: The Musharraf Government in 1999 created by Ordinance the NAB (National Accountability Bureau) and special accountability courts to try exclusively corruption cases. These Courts are part of the national judicial system and operate under the Chief Justices of the High Courts of Pakistan. For up-to-date statistics on the number and type of cases files, convicted and acquitted, please refer to the Appendix. The NAB was created in part to deal with as much as $4 billion (PKR 208 billion) that was estimated to be owed to the country's banks (all of which were state-owned at the time; several have since been privatized) by debtors, primarily from among the wealthy elite. The Musharraf Government stated that it would not target genuine business failures or small defaulters and does not appear to have done so. The NAB was given broad powers to prosecute corruption cases, and the accountability courts were expected to try such cases within 30 days. As originally promulgated, the ordinance prohibited courts from granting bail and gave the NAB chairman sole power to decide if and when to release detainees.
The ordinance also allowed those suspected by the State Bank of Pakistan of defaulting on government loans or of corrupt practices to be detained for 15 days without charge (renewable with judicial concurrence) and, prior to being charged, did not allow access to counsel. In accountability cases, there was a presumption of guilt, and conviction under the ordinance can result in 14 years' imprisonment, fines, and confiscation of property. Originally, those convicted were set to disqualify from running for office or holding office for 10 years. In August 2000, the Government announced that persons with a court conviction would be barred from holding party office. This provision was applied during the general election to prevent certain candidates from entering the contest. REFERENCE: Special Corruption Courts in Asia http://www.u4.no/helpdesk/helpdesk/queries/query19.cfm
d. Arbitrary Arrest, Detention, or Exile
The law prohibits arbitrary arrest and detention; however, the authorities did not always comply with the law, and police arbitrarily arrested and detained citizens. The law permits the District Coordinating Officer (DCO) of a local district to order detention without charge for 30 days of persons suspected of threatening public order and safety. The DCO may renew detention in 30-day increments, up to a total of 90 days. Human rights monitors report instances in which prisoners jailed under the Maintenance of Public Order Act have been imprisoned for up to 6 months without charge. For other criminal offenses, police may hold a suspect for 24 hours without charge. After a prisoner appears before a magistrate, the court may grant permission for continued detention for a maximum period of 14 days if the police provide material proof that this is necessary for an investigation. The Musharraf Government created the National Accountability Bureau (NAB) and special accountability courts to try corruption cases; the National Accountability Ordinance (NAO) initially permitted those suspected of corrupt practices to be detained for 90 days without charge (see Section 1.e.). In April 2001, the Supreme Court modified several provisions of the NAB ordinance. It reduced the NAB's freedom to hold suspects without charge from 90 days to 15 days, renewable with judicial concurrence. The maximum period of disqualification from political office pursuant to a corruption conviction was reduced from 21 years to 10 years, and the court required that future appointments of key NAB officials receive the Chief Justice's concurrence. In January the Government detained more than 2,000 members of banned extremist and jihad groups. At year?s end, all were released on bail after the charges were filed. In addition to the arrests, police closed and sealed offices of the five newly banned groups.
Police may arrest individuals on the basis of a First Incident Report (FIR) filed by a complainant and have been known to file FIR's without supporting evidence. FIR's frequently were used to harass or intimidate individuals. Charges against an individual also may be based on a "blind" FIR, which lists the perpetrators as "person or persons unknown." If the case is not solved, the FIR is placed in the inactive file. When needed, a FIR is reactivated and taken to a magistrate by the police; the police then name a suspect and ask that the suspect be remanded for 14 days while they investigate further. After 14 days, if the case is dropped for lack of evidence, another FIR is activated and brought against the accused. In this manner, rolling charges can be used to hold a suspect in custody continuously.
If the police can provide material proof that detention (physical remand or police custody for the purpose of interrogation) is necessary for an investigation, a court may extend detention for a total of 14 days. However, such proof may be little more than unsubstantiated assertions by the police. In practice the authorities do not observe fully the limits on detention. Police are not required to notify anyone when an arrest is made and often hold detainees without charge until a court challenges them. The police sometimes detained individuals arbitrarily without charge or on false charges to extort payment for their release. Human rights monitors reported that a number of police stations have secret detention cells in which individuals are kept while police bargain for their release. There also were reports that the police move prisoners from one police station to another if they suspect a surprise visit by higher authorities. Some women continued to be detained arbitrarily and sexually abused (see Sections 1.c. and 5). Police also detained relatives of wanted criminals in order to compel suspects to surrender (see Section 1.f.).
The Federally Administered Tribal Areas (FATA) have a separate legal system, the Frontier Crimes Regulation (FCR), which recognizes the doctrine of collective responsibility. Authorities are empowered to detain fellow members of a fugitive's tribe, or to blockade a fugitive's village, pending his surrender or punishment by his own tribe in accordance with local tradition. On June 22, a woman in Meerwala, Punjab, was gang-raped on the orders of a council of tribal elders as punishment for her brother's alleged affair with a woman of a higher tribe. Authorities alleged that the tribal jury threatened to have all women in the family raped unless the girl submitted to the punishment. Government authorities were notified a few days after the incident and the Punjab police arrested eight suspects, including the alleged rapists and some individuals who pressed the tribal council to issue the verdict. On August 31, an Anti-terrorist Court ruled that four rapists and two jurors should receive the death penalty. The court awarded life imprisonment and a fine to each of the other four defendants. At year?s end, the cases were appealed with the Appellate Tribunal. At year's end, President Musharraf sent the girl $8,300 (PKR 500,000) as compensation (see Section 5).
The police also have been known to detain persons as a result of personal vendettas.
The law stipulates that detainees must be brought to trial within 30 days of their arrest. However, in many cases, trials do not start until 6 months after the filing of charges. During the year the HRCP estimated that there were almost as many individuals awaiting trial in jail as there were prisoners serving sentences. The HRCP reported that in Punjab 35,260 males were awaiting trial, while only 11,068 males had been convicted. In 1999 in 62 city courts, 7,000 prisoners were awaiting trial in 6,000 cases; in 3,500 of these cases, the police had not even brought a ?challan,? or indictment, to the court.
Persons in jail awaiting trial sometimes were held for periods longer than the sentence that they would have received if convicted. Court officials reported that each judge reviews between 70 and 80 cases per day, but that action was taken on only 3 or 4 each week. According to the Pakistan Law Commission, there were 10,515 cases pending in the Supreme Court as of September 30, 2001. Clogged lower courts exacerbate the situation; the majority of cases in the High Courts consist of appeals of lower court rulings. Once an appeal reaches the High Court, there are further opportunities for delay because decisions of individual judges frequently are referred to panels composed of two or three judges. There continued to be charges that magistrates and police, under pressure from provincial and federal officials to achieve high conviction rates, persuaded detainees to plead guilty without informing them of the consequences. Senior government officials acknowledged during the year that this was a problem. Politically powerful persons also attempted to influence magistrates in their decisionmaking, sometimes threatening to transfer magistrates to other assignments.
Asif Zardari, husband of former Prime Minister Benazir Bhutto, has waited for more than 5 years for the start of his trial on charges of killing his brother-in-law, Murtaza Bhutto in 1997. In April 1999, Zardari was tried and convicted separately on corruption charges. In December 2001 Zardari received bail but was not released; the NAB ordered his continued detention on suspicion of corruption.
The Government permitted visits to prisoners and detainees by human rights monitors, family members, and lawyers (see Section 1.c.), with some restrictions. In some cases, authorities refuse family visits and, in some police stations, persons must to pay bribes to see a prisoner. Foreign diplomats may meet with prisoners when they appear in court but generally are refused permission for prison visits. Local human rights activists reported few restrictions to their access to prisons, even though the Government continued to deny prison visits by the ICRC.
The Government justified the creation of antiterrorist courts by citing the large number of murder and other cases that are clogging the regular court system (see Section 1.e.). The antiterrorist courts reportedly sentenced 39 persons to death during the year.
The Government sometimes used preventive detention, mass arrests, and excessive force to quell protests or civil unrest and to prevent political meetings. On a number of occasions, police arrested persons prior to demonstrations under the Criminal Procedures Code ban (see Section 2.b.). These arrests were carried out under Section 16 of the Maintenance of Public Order Act, which prohibits speech that "causes or is likely to cause alarm to the public."
Despite governmental claims that NAB cases would be pursued independent of an individual?s political affiliation, NAB had selectively targeted certain persons in the anti-corruption campaign (see Section 1.e.). As of the end of October, the NAB filed 507 cases, with 287 convictions, 39 acquittals, 6 case withdrawal and 220 cases in progress. Senior opposition figures charged that NAB threats were used to pressure politicians to join the PML-Q, run as independents, or vote for Prime Minister Jamali in the vote of confidence during the year. For example, according to HRW, Aftab Sherpao, an influential PPP leader and former chief minister from the North-West Frontier Province (NWFP) returned this year from London to face corruption charges. He subsequently was acquitted after his faction of the PPP pledged its support for Musharraf in the referendum on his presidency. At year?s end, Sherpao was elected to the National Assembly and became Minister for Water and Power.
During the year, few journalists reportedly were arrested, according to the NGO Journalists for Democracy and Human Rights. The police charged journalists at a referendum rally in April. In September several journalists attempting to travel into Afghanistan reportedly were detained.
Following the 1999 coup, the Musharraf Government detained without warrants and without charges several dozen political figures, military officers, and government administrators. At year's end, most of them had been released. By year?s end, two senior Muslim League politicians, Javed Hashmi and Mehtab Abassi were released on bail.
In December 2000, the Government commuted former Prime Minister Nawaz Sharif's prison sentence, confiscated assets belonging to the Sharif family, and exiled him and 18 of his family members to Saudi Arabia for 10 years. During the year, Saifur Rehman and Saeed Mehdi Sharif were acquitted of maintenance of public order charges. Sharif also had to agree to withdraw from politics while in exile. Some observers claimed that the Government exiled Sharif both to remove him from politics and to reduce the power and influence of the opposition.
Many persons apprehended by the NAB (see Section 1.e.) remained in detention past the ordinance's stipulated 90 days detention without charge. During the year, Mian Manzoor Watoo, Sattar, and Dr. Farooq Sattar were released from custody; however, Sattar?s 2000 conviction on widely disputed corruption charges continued at year?s end.
Hundreds of MQM activists have been arrested since November and remained in custody at year?s end; some of these activists were being held without charge. According to MQM officials, police have arrested more than 700 MQM officials during the past 3 years. In April a Hyderabad MQM organizer was charged with inciting people to violence during a strike and on April 19, the Government arrested MQM Senator Aftab Shaikh.
Women were charged under the Hudood Ordinances for sexual misconduct, such as adultery. A Hudood law meant to deter false accusations is enforced weakly, and one human rights monitor claimed that 80 percent of adultery-related Hudood cases were filed without supporting evidence. In 1998 approximately one-third of the women in jails in Lahore, Peshawar, and Mardan were awaiting trial for adultery; that percentage likely remains accurate. Most women tried under the ordinance were acquitted, but the stigma of an adultery charge alone is severe. Men accused of rape sometimes were acquitted and released, while their victims were held for adultery or fornication. The Commission of Inquiry for Women recommended that the Hudood laws be repealed, saying they are based on an erroneous interpretation of Shari'a (see Section 5).
Private jails exist in tribal and feudal areas. Human rights groups alleged that as many as 50 private jails, housing some 4,500 bonded laborers, were being maintained by landlords in lower Sindh (see Section 6.c.). Some prisoners reportedly have been held for many years. In the five districts of upper Sindh, landlords defied the courts and police by holding tribal jirgas, which settle feuds, award fines, and even sentenced persons to the death penalty in defiance of provincial laws.
AI reported that both citizens and non citizens were arbitrarily arrested on suspicion of being al-Qa'ida or Taliban fighters, and some of these persons were deported to their home countries. However, the exact number of those detained, arrested or deported was unknown by year's end.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary; however, in practice, the judiciary remained subject to executive branch and other outside influences, and despite the Musharraf Government's pledge to respect the independence of the judicial system, the Government took steps to control the judiciary and to remove the Government from judicial oversight. On August 22, the Legal Framework Order (LFO) amended the Constitution and the PCO to allow: The empowerment of the President to dismiss the Prime Minister and dissolve the Parliament; formalized the role of the army in governance by the creation of a National Security Council (NSC) as a constitutional body; and the insertion of a number of qualification requirements for candidates for Parliament. The PCO issued in October 1999, provided that all courts functioning at the time of the coup would continue to operate, but that no court would have the power to issue orders against President Musharraf or any person exercising powers or jurisdiction under his authority. President Musharraf further undermined the independence of the judiciary when he ordered all Supreme Court, Shari'at court, and provincial High Court justices to take an oath to uphold the PCO that brought the military into power. Low salaries, inadequate resources, heavy workloads, corruption, and intimidation by political and religious pressure groups contributed to judicial inefficiency, particularly in the lower courts. Six Supreme Court justices, including the Chief Justice, and nine provincial High Court justices resigned in protest; however, 85 percent of the affected justices agreed to swear allegiance to the PCO. As a result of this decree, government directives and ordinances under the PCO no longer were subject to judicial review, including the LFO which brought about fundamental changes to the Constitution. Some government officials claimed that President Musharraf issued this decree due to concerns that judges were being bribed to rule against the Government in the court challenges to the military takeover. Many persons criticized this requirement, stating that it effectively ended the role of the judiciary as an independent body. In June the Supreme Court ruled that the October referendum was constitutional and further cast doubt on the independence of the judiciary from the military government (see Section 3).
The judicial process continued to be impeded by bureaucratic infighting, inactivity, and the overlapping jurisdictions of the different court systems. Heavy backlogs that severely delayed the application of justice remained, due to scores of unfilled judgeships and to archaic and inefficient court procedures. The politicized appointment process held up the promotion of many lower court judges to the High Courts. Although the higher level judiciary was considered competent and generally honest, there were widespread reports of corruption among lower level magistrates and minor court functionaries. In 2000 the Supreme Court ruled that it was legal for the Musharraf Government to amend the Constitution as long as the amendments did not change the basic character of the Constitution, and reserved the right to review the military's performance, the continued necessity of the Emergency Proclamation, and the PCO. Many observers criticized the Supreme Court decision as vague and contradictory. The Government respected this ruling during the year. In April 2001, the Supreme Court also modified several provisions of the NAB ordinance, and the Government respected the amended provisions during the year. Despite these decisions, the overall credibility of the judiciary remained low.
The judicial system involves several court systems with overlapping and sometimes competing jurisdictions. There were civil and criminal systems with special courts for banking, antinarcotics, and antiterrorist cases, as well as the federal Shariat court for certain Hudood offenses. The appeals process in the civil system was: Civil court, district court, High Court, and the Supreme Court. In the criminal system, the progression was magistrate, sessions court, High Court, and the Supreme Court.
The civil judicial system provided for an open trial, the presumption of innocence, cross-examination by an attorney, and appeal of sentences. Attorneys were appointed for indigents only in capital cases. There were no jury trials. Due to the limited number of judges, the heavy backlog of cases, lengthy court procedures, and political pressures, cases routinely take years, and defendants must make frequent court appearances. Cases start over when an attorney changes. Under both the Hudood and standard criminal codes, there were bailable and nonbailable offenses. According to the Criminal Procedures Code, the accused in bailable offenses must be granted bail, and those charged with nonbailable offenses should be granted bail if the alleged crime carries a sentence of less than 10 years. Many accused, especially well-connected persons who are made aware of impending warrants against them, were able to obtain prearrest bail, and thus were spared arrest and incarceration.
Double jeopardy applies to those convicted of possessing narcotics because of a federal Shariat court ruling that customs and narcotics cases be initiated separately. During 2001 the Lahore High Court ordered the release of eight prisoners, including five foreign nationals, who had served their sentences under the Customs Act and were awaiting trial for a narcotics charge arising out of the same incident. The court noted that the law did not allow punishment twice for the same offense.
The judiciary argued that it failed to try and convict terrorist suspects in a timely manner because of poor police casework, prosecutorial negligence, and the resulting lack of evidence. In response to this problem, the Anti-Terrorist Act was passed; special antiterrorist courts began operations in 1997. The antiterrorist courts, designed for the speedy punishment of terrorist suspects, have special streamlined procedures; however, due to the continued intimidation of witnesses, police, and judges, the courts initially produced only a handful of convictions. Under the act, terrorist killings were punishable by death and any act, including speech, intended to stir up religious hatred, is punishable by up to 7 years' rigorous imprisonment. Additional offenses that can be tried under the Anti-Terrorist Act include acts to stir-up religious feelings; efforts to "wage war against the State;" conspiracy; acts committed in abetting an offense; and kidnaping of or abduction to confine a person. The Government has used the anti-terrorist courts for high-profile cases, including the Daniel Pearl kidnaping and killing, the Meerwala gang rape incident, and the Okara farmer protest. Cases were to be decided within 7 working days, but judges were free to extend the period of time as required. Trials in absentia initially were permitted but later were prohibited. Appeals to an appellate tribunal also were required to take no more than 7 days, but appellate authority since has been restored to the High and Supreme Courts, under which these time limits do not apply. Under the Anti-Terrorist Act, bail was not to be granted if the court has reasonable grounds to believe that the accused is guilty.
In June 2001, the Musharraf Government approved an amendment to the Anti-Terrorist Act. The new ordinance defines terrorism as "the use or threat of action where the use, or threatened use, is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; and the use or threat is made for the purpose of advancing a political, religious, ideological, or ethnic cause." In November the Government approved an amendment to the anti-terrorism law; however, it has yet to be ratified by the Parliament. The new amendment gives the Government the authority to restrict the activities of suspected terrorists, probe their assets, and hold them for up to a year, without charges filed against them.
Leading members of the judiciary, human rights groups, the press, and politicians from a number of parties expressed strong reservations about the antiterrorist courts, charging that they constitute a parallel judicial system and could be used as tools of political repression. Government officials and police believed that the deterrent effect of the act's death penalty provisions contributed to the reduction in sectarian violence after its passage. The antiterrorist courts also are empowered to try persons accused of particularly "heinous" crimes, such as gang rape and child killings, and several persons have been tried, convicted, and executed under these provisions.
The Musharraf Government created by ordinance a special antiterrorist court in Sindh presided over by a High Court justice rather than a lower level judge, as was usually the case. The amended provision permitted the High Court justice to "transfer...any case pending before any other special court...and try the case" in his court. Supporters of Nawaz Sharif maintained that these changes were designed to help the Musharraf Government prosecute Sharif. The 2000 trial of Nawaz Sharif and six codefendants on charges of hijacking was the most widely publicized case tried by an antiterrorist court. Diplomatic observers who attended the Sharif trial concluded that the trial generally was fair, open, and transparent. In October 2000, the appeals court upheld Nawaz Sharif's convictions for hijacking and terrorism but combined them into one offense. The court also denied the prosecution appeal to upgrade Sharif's sentence to the death penalty, reduced the amount of property forfeiture, and affirmed the antiterrorism court's acquittals of the six codefendants.
The Musharraf Government in 1999 created by ordinance the NAB and special accountability courts to try corruption cases (see Section 1.d.). The NAB was created in part to deal with as much as $4 billion (PKR 208 billion) that was estimated to be owed to the country's banks (all of which were state-owned at the time; several have since been privatized) by debtors, primarily from among the wealthy elite. The Musharraf Government stated that it would not target genuine business failures or small defaulters and does not appear to have done so. The NAB was given broad powers to prosecute corruption cases, and the accountability courts were expected to try such cases within 30 days. As originally promulgated, the ordinance prohibited courts from granting bail and gave the NAB chairman sole power to decide if and when to release detainees.
The ordinance also allowed those suspected by the State Bank of Pakistan of defaulting on government loans or of corrupt practices to be detained for 15 days without charge (renewable with judicial concurrence) and, prior to being charged, did not allow access to counsel. In accountability cases, there was a presumption of guilt, and conviction under the ordinance can result in 14 years' imprisonment, fines, and confiscation of property. Those convicted also originally were disqualified from running for office or holding office for 10 years. In August 2000, the Government announced that persons with a court conviction would be barred from holding party office. This provision was used during the general election to prevent certain candidates from entering the contest.
Despite government claims that NAB cases would be pursued independent of an individual?s political affiliation, NAB has taken a selective approach to anti-corruption efforts (see Section 1.d.).
The Government denied press reports that it had decided not to pursue accountability cases against active members of the military or the judiciary; however, no serving members of the military or the judiciary have been charged by the NAB. However, in May former Chief of the Naval Staff Mansoor ul-Haq was charged with corruption under the NAB ordinance. Ul-Hag pled guilty, agreed to repay the money, and was released in January. The Government also withdrew the privilege of retention of the rank of admiral. During 2001, Jehangir Badr, Mehtab Abbasi, and Javed Hashmi were arrested by the NAB; all but Badr were released by year?s end.
The Hudood ordinances criminalize nonmarital rape (see Section 5), extramarital sex (including adultery and fornication), and various gambling, alcohol, and property offenses. Offenses were distinguished according to punishment, with some offenses liable to Hadd, or Koranic, punishment (see Section 1.c.), and others to Tazir, or secular punishment. Although both types of cases were tried in ordinary criminal courts, special, more stringent rules of evidence apply in Hadd cases; Hadd punishments were mandatory if there was enough evidence to support them. Hadd punishments regarding sexual offences were most severe for married Muslims; for example, if a married Muslim man confesses to rape or there are four adult male Muslim witnesses to the act, the accused must be stoned to death; if the accused rapist is not Muslim or married, if he confesses, or if the act is witnessed by four adult males (not all Muslim), the accused must be sentenced to 100 lashes with a whip, and such other punishment, including death, as the court may deem fit. The testimony of four female witnesses, or that of a rape victim alone, is insufficient to impose Hadd punishments. If the evidence falls short of Hadd criteria, then the accused may be sentenced to a lesser class of penalties (Tazir). Since it is difficult to obtain sufficient evidence to support the Hadd punishments, most rape cases are tried at the Tazir level, under which sentences may be imposed of up to 25 years in prison and 30 lashes. No Hadd punishment has been applied in the more than 20 years that the Hudood ordinances have been in force. For Tazir punishments, there was no distinction between Muslim and non-Muslim offenders. Under Tazir the evidentiary requirement for financial or future obligations is for two male witnesses or one male and two female witnesses; in all other matters, the court may accept the testimony of one man or one woman (see Section 5).
The federal Shariat court and the Shari'a bench of the Supreme Court serve as appellate courts for certain convictions in criminal court under the Hudood ordinances. The federal Shariat court also may overturn any legislation judged to be inconsistent with the tenets of Islam. However, these cases may be appealed to the Shari'a bench of the Supreme Court. In two areas of the NWFP--Malakand and Kohistan--the Government in 1999 announced plans to implement Shari'a law by regulation and by ordinance, respectively. In September 1999, the NWFP assembly passed a bill that incorporated the Kohistan ordinance into law (see Section 2.c.). In November, the new MMA-led government of NWFP reportedly affirmed to the media its plan to implement Shair?a law in the province. However, no information was given as to when the plan would enter into force.
Appeals of certain Hudood convictions involving penalties in excess of 2 years imprisonment were referred exclusively to the Shariat courts and were heard jointly by Islamic scholars and High Court judges using ordinary criminal procedures. Judges and attorneys must be Muslim and must be familiar with Islamic law. Within these limits, defendants in a Shariat court were entitled to the lawyer of their choice. There was a system of bail.
The Penal Code incorporates the doctrines of Qisas (roughly, an eye for an eye) and Diyat (blood money). Qisas was not known to have been invoked; however, Diyat occasionally was applied, particularly in the NWFP, in place of judicial punishment of the wrongdoer. Only the family of the victim, not the State, may pardon the defendant. The Hudood, Qisas, and Diyat ordinances applied to ordinary criminal courts and Shariat courts. According to Christian activists, if a Muslim kills a non-Muslim, he can redress the crime by paying Diyat to the victim's family; however, a non-Muslim who kills a Muslim does not have the option of paying and must serve a jail sentence or face the death penalty for his crime. Failure to pay Diyat in noncapital cases can result in indefinitely extended incarceration, under Section 331 of the Diyat ordinance. Some persons remained in prison after completion of their terms for failure to pay Diyat.
Administration of justice in the FATA normally is the responsibility of tribal elders and maliks, or leaders. They may conduct hearings according to Islamic law and tribal custom. In such proceedings, the accused have no right to legal representation, bail, or appeal. The usual penalties consist of fines, even for murder. However, the Government's political agents, who were federal civil servants assigned to tribal agencies, oversaw such proceedings and could have imposed prison terms of up to 14 years. Paramilitary forces under the direction of the political agents frequently conducted punitive actions during enforcement operations. For example, in raids on criminal activities, the authorities have damaged surrounding homes as extrajudicial punishment of residents for having tolerated nearby criminal activity (see Section 1.f.).
In previous years, in remote areas outside the jurisdiction of federal political agents, tribal councils levy harsher, unsanctioned punishments, including flogging or death by shooting or stoning.
Another related form of justice operating in the NWFP, particularly in the tribal areas, is the concept of Pakhtunwali, or the Pakhtun Tribal Code, in which revenge is an important element. Under this code, a man, his family, and his tribe are obligated to take revenge for wrongs--either real or perceived--to redeem their honor. More often than not, these disputes arise over women and land, and frequently result in violence (see Section 5). In Meerwala, Punjab a woman was gang-raped on the orders of a council of tribal elders (see Sections 1.d. & 5). In a village outside Mianwali, a tribal council permitted a family to give eight girls, ages 5 to 16, in marriage to another family, in exchange for the commutation of the death sentence for four family members.
There were reports of approximately 10 political prisoners in custody at year's end. Some political groups also argue that they were marked for arrest based on their political affiliation (see Section 1.d.). The MQM in particular has argued that the Government used antiterrorist court convictions in Sindh to silence its activists; however, there were no political arrests during the general election campaign.
f. Arbitrary Interference With Privacy, Family, Home, or Correspondence
The Government infringed on citizens' privacy rights. The Anti-Terrorist Act allowed police or military personnel acting as police to enter and to search homes and offices without search warrants, and to confiscate property or arms likely to be used in an alleged terrorist act (which is defined very broadly). This provision never was tested in the courts. The Government promulgated new antiterrorist ordinances in October 1998, April 1999, and in August 2001. The purpose of the 2001 ordinance was to strengthen the power of the judiciary to prosecute terrorism cases. Under the ordinances, many blasphemy cases were tried by antiterrorist courts. By law the police need a warrant to search a home, but not to search a person. Despite this law, police entered homes without a warrant and sometimes stole valuables during searches. Specifically, human rights activists criticized the new Police Ordinance 2002 for broadening police power to search and enter homes. In the absence of a warrant, a policeman is subject to charges of criminal trespass. However, police seldom were punished for illegal entry.
The Government maintained several domestic intelligence services that monitor politicians, political activists, suspected terrorists, and suspected foreign intelligence agents. Credible reports indicated that the authorities routinely use wiretaps and intercepted and opened mail. The Supreme Court directed the Government to seek its permission before carrying out wiretapping or eavesdropping operations; however, the judiciary's directive has been ignored widely. No action was taken during the year in the 1996 case of 12 government agencies accused of tapping and monitoring citizens' phone calls and no additional action was expected.REFERENCE: Pakistan Country Reports on Human Rights Practices Bureau of Democracy, Human Rights, and Labor 2002 March 31, 2003
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