Osama Bin Javaid's Blog

GUILTY – Until Proven Innocent in Pakistan

Posted in News, Pakistan Curent Affairs by osamabinjavaid on April 10, 2014

Pakistan’s government has passed the Protection of Pakistan bill into law refusing all suggested amendments by the opposition. Members of the national assembly boycotted proceedings as the government used its higher numbers to pass the bill. Some MPs tore copies of the bill, calling it a black law. Opposition members will be challenging the unconstitutional clauses of the law in court and build a public campaign against it.

 

Pakistan’s government is adamant to press ahead with a stricter new law which it says will help fight “terrorism” and criminal elements.
The proposed legislation, which treads the path of US’s homeland security act and other pieces of legislation, is raising unease among civil rights activists, who consider it a license to kill for Pakistan’s security forces.

Lawyers at the Human Rights Commission of Pakistan (HRCP) have studied the ordinance and are concerned about the implications of some of the provisions.
“The extension of detention period from 30 days to 90 days is unrealistic. HRCP considers even 30 days is too long,” the group’s said in a statement. “Law enforcement agencies have been given powers to fire on suspicion (earlier it was in self-defence). We have already witnessed trigger-happy Rangers in Karachi, it will only make matters worse. We believe it legitimises disappearances. While it requires the authorities to inform families of those in custody, they are not bound to reveal the location. Denial of bail is another major concern.”

Although it’s believed that the law was actually drafted by the prime minister’s office but most influential members of the ruling Muslim League Nawaz party are reluctant to speak on the subject of protection of Pakistan ordinance. “Many believe it is due to not just the harsh provisions but also because of wringing from agencies.” Arshad Sharif is a senior security and political analyst. “PMLN is acting as if it’s president passed the law on gunpoint. The controversial law is a difficult one for a politician to attach his or her name, so you can imagine why senior members are being elusive. They’ve made a mistake in succumbing to pressure by issuing the ordinance, now they are looking for an honourable exit from the fiasco so they can blame the opposition for burying the PPO”.

Some members of the ruling party have brushed aside the concerns of activists. “They’re making noise and it’s their right to have their opinions. PPO was needed and it’s the prerogative of the president to issue an ordinance. Due to the ongoing security situation in the country, we urgently needed a comprehensive law to empower security forces to deal with various challenges”.
Dr. Ramesh Kumar Vankwani is part of the ruling PMLN government and a member of a parliamentary committee. Vankwani says the introduction of this law does give the security forces powers to arrest anyone but now they have to bring those arrests on record. “There is political consensus for peace in the county and for that PPO is necessary, it just shouldn’t be misused. There are proper checks and balances to ensure no excesses are committed against anyone”. 

But that’s precisely what analysts fear will happen. Mirza Shahzad Akbar, co-founder of the Foundation for Fundamental Rights, interprets the provision as cover for using torture and other means to force confessions.“Agencies will torture you to make a statement and that will be treated as admissible piece of evidence in court. It further brings in reverse burden of proof, which means the arresting agency will only put an allegation on probabilities that you are a terrorist and you will have to prove that you are not,” says Akbar.
Pakistan is a signatory of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). But the proposed legislation makes any statements given to law enforcement agencies admissible in court.

Some activists also disagree with the special provisions of the ordinance granting powers to take away the citizenship of residents once they are proven guilty. Critics say the language is vague and builds the case with “reasonable evidence” and puts the onus on the accused to prove themselves innocent.

The law seems to clash with the independence of judiciary. Under this ordinance, the executive will appoint fresh judges of their own choice which means the government can hand pick judges to protect its interests rather than them being independent adjudicators.

In February the lower house temporarily extended the ordinance despite protests from opposition parties. “Ordinances – we have always opposed them,” says Zohra Yusuf, Chairperson of the Human Rights Commission of Pakistan. “All bills should be placed before parliament which can be summoned if emergency legislation is needed.”

Legal experts believe he law could create a parallel judiciary in the guise of trying to quickly settle  cases.
“Nationalists [including separatists in Balochistan, Sindh, FATA and some areas of Punjab] are worried because they are the ‘usual suspects’ for Pakistan’s military, paramilitary and intelligence agencies. Because they demand rights based on their regional/ethnic interests, the Pakistani establishment sees them as ‘traitors’” says Zohra.

But Vankwani disagrees “Before the PPO security forces had no right to arrest or take custody, now all arrests will be in the knowledge of the government and address issues like that of missing people.”


New laws needed?

Opposition lawmakers say tough laws already exist to tackle political violence. Pakistan’s government needs to focus on implementing and improving existing laws, they say, rather than distracting itself by creating new ones. Many argue that current political and religious violence is due to the failure of basic policing and governance issues which cannot be fixed with more pieces of legislation.

Activists say they can understand the government’s desperation in confronting militancy but don’t agree with the proposed solutions.

Last month, Pakistan drew up its first ever National Security Policy. The government says it means business when it comes to reshaping the security environment in a decade old conflict which has claimed more than 50,000 lives.

 “There is no doubt that the government would want and actually does want to work on securing Pakistan but the approach doesn’t seem to be right. With laws like PPO the risk of creating more dissent is far greater than actually solving any issue.” says Akbar.
A senior government advisor likened the PPO to the US Patriot Act, an imposing law passed over a decade ago. 

Members of the PMLN say the law is meant to provide checks and balance on the activities of security forces. Dr. Ramesh Kumar Vankwani says it is still being deliberated in the lower house. “By that time if talks with Taliban are successful, the law and order situation improves there might not be the need for this legislation and the government can pull the ordinance or law”

Rafia Zakaria is on the board of directors of Amnesty International. She disagrees with the direction taken by Pakistan’s government. “In a general sense the law represents the legacy of the war on terror… Reduction of rights for defendants, longer periods of detention without charges and the suspension of procedural safeguards,” she said.  “It also creates disproportionate criminalisation of impoverished communities with the poor, ethnic and religious minorities bearing the brunt of their burden.”

This is not the first time Pakistan’s government has tried to pass controversial security legislation.

In 2011, a presidential decree (which was later made into law) issued two similarly regulations to provide legal cover to the armed forces’ actions during the military operations in the tribal areas called the Actions (in Aid of Civil Power) Regulation, 2011 for FATA and PATA.

Recently, Pakistan’s Supreme Court ordered a meeting between a man booked under these laws and his family. Tasif (alias Danish) was picked up two years ago and his father-in-law says he seems to have been badly tortured during his incarceration. The security forces had been denying custody of Tasif when he went missing. Then he suddenly appeared in detention.

“What kind of fraud are you committing with the people?” a judge said to the Additional Attorney General representing government agents. “For the last two years we kept on asking about him and you kept denying you knew. What will the people think? Are our intelligence agencies always lying? What kind of country is this?”

Human Rights campaigners believe that toughening of laws is not a solution. There are enough terror-related laws as well as anti-terrorist courts. The main issues are of enforcement and prosecution. The evidence against those charged with terrorism is usually so poor that over 60 percent are acquitted by the courts 

Vankwani is confident that the PMLN government will not tolerate if random people are picked up by agencies but he feels that it’s worth facing opposition in giving a free hand to security forces to take action on targetable intelligence. “PPO is not meant to allow violation of human rights but to improve the current situation and an attempt to bring those (like the ones responsible for missing people) under a system of accountability.”

But those fighting to keep civil liberties say that concrete steps are needed to establish the writ of the state, until then, the crutches of ordinances to stumble clear of tough decisions will be ineffective in saving lives or providing any lasting solution.  


From AlJazeera Website 

Musharraf: a landmark indictment for Pakistan’s democracy and constitution

Posted in News, Pakistan Curent Affairs by osamabinjavaid on March 31, 2014

Pakistan’s once most powerful man – a dictator, former military chief and president – has been indicted of high treason under the constitution of Pakistan. A first indictment for a military dictator in a country which has been predominantly ruled by them. When Musharraf ended his exile many wondered why he would give up an easy life in Dubai and London – maybe it was fate.

The former commando was adamant – saying he came back to save his country.”I was thinking the government would call me back, and would say ‘Save Pakistan’ but that did not happen. Today my nation ordered me to come back. I came back, putting my life in danger, to save Pakistan.” said Musharraf after landing to a small crowd in Karachi.

He failed to see that it wasn’t the same Pakistan which he ruled ten years ago – the judges who forced him out, were now powerful. Many were amazed at the stunt because Musharraf was forced out of power by the judiciary he tried to rule. And court cases piled up against him. Political analyst Mosharraf Zaidi says Musharraf represents a huge baggage  for the military and it’s unlikely he’ll spend any time behind bars.

Musharraf faces criticism for shortcomings ranging from
Benazir Bhutto’s killing , killing a Baloch separatist leader Akbar Bugti, mishandling of Lal Masjid ,  allowing U.S. drone attacks on Pakistan, sending Pakistanis for torture abroad , selling detainees for dollars , depriving Pakistan of economic boom at the start of the millennium and systematically destroying Pakistan’s institutions and many many more.

He had taken refuge in his farmhouse (http://www.youtube.com/watch?v=Fvrxd812huk) and avoided several court hearings to escape indictment. Bombs were found, a Taliban letter was produced and in the most dramatic of the moves he fell “sick” during a drive to the court. Now Musharraf’s ailing mother has been taken to hospital in Dubai – and his lawyers are preparing a case to get his name off the exit control list to allow him to leave Pakistan.

But controversy was nothing new for Musharraf. In 1999 Indian and Pakistani troops came close to war in the Kashmiri area north of Kargil. During that conflict General Musharraf was plotting how to rule Pakistan. And he took power in a bloodless coup and later named himself President.

Then, two years later, after the September 11 attacks, Musharraf decided to align Pakistan with the so-called U.S. war on terror. Qazi Hussain Ahmed, the Former Jamat i Islami chief  said the general buckled. “General Musharraf is under American pressure, this is not a war against terror this is a war against Islam”

Musharraf then supported the invasion of Afghanistan…though he later said the US had threatened to bomb Pakistan unless it joined the fight against al-Qaeda. Musharraf was in a fine balancing act. Managing a US-Pakistan relationship on one hand and trying not to completely sever ties with tribal fighters on the other.

Believed to have given approval for U.S. drones to operate from Pakistan, Musharraf also had to sign agreements with tribal fighters in the north. But his approach failed to stop the resurgence of the Taliban and Al Qaeda –whose attacks killed more than 50,000 Pakistanis in the last ten years. For the first time Pakistan had to deploy troops to the north to stop fighters from operating in Afghanistan. On the eastern border the relationship with India also saw some major lows.

And all his efforts to improve the economy were forgotten when Musharraf came under fire at home. The suspension of Chief Justice Iftikhar Mohammed Chaudhry in March 2007 triggered street demonstrations by lawyers and the civil society. And opposition parties also joined the protests. His political legitimacy was under attack – and the movement eventually led to Musharraf’s humiliating resignation.

And that’s where the spiral to the ground began. Musharraf returned to Pakistan despite these and many legal and political problems including from Taliban fighters – who tried to assassinate him three times during his time in office. He also found the hard way that he had very little support on the ground and all those who support him on social media aren’t voters in Pakistan.

Here are the formal charges he faces.

General (Retired) Pervez Musharraf may be formally charged as under:

a) Firstly, on 3rd November, 2007 at Rawalpindi as Chief of the Army Staff, he issued an unconstitutional and unlawful “Proclamation of Emergency Order, 2007” which, unconstitutionally and unlawfully, held the Constitution of Islamic Republic of Pakistan, 1973 in abeyance and he thereby subverted the Constitution and thus committed the offence of high treason punishable under section 2 of the High Treason (Punishment) Act, 1973 (Act LXVIII of 1973), which is within the jurisdiction of the Special Court established under section 4 of The Criminal Law Amendment (Special Courts) Act, 1976 (XVII of 1976).

b) Secondly, on 3rd November, 2007 at Rawalpindi as Chief of the Army Staff, he issued an unconstitutional and unlawful “Provisional Constitution Order No. 1 of 2007” which, unconstitutionally and unlawfully, empowered the President to amend the Constitution of Islamic Republic of Pakistan, 1973 from time to time and he also suspended the Fundamental Rights enshrined in Articles 9, 10, 15, 16, 17, 19 and 25 of the Constitution and he thereby subverted the Constitution and thus committed the offence of high treason punishable under section 2 of the High Treason (Punishment) Act, 1973 (Act LXVIII of 1973), which is within the jurisdiction of the Special Court established under section 4 of The Criminal Law Amendment (Special Courts) Act, 1976 (XVII of 1976).

c) Thirdly, on 3rd November, 2007 at Rawalpindi as President of Islamic Republic of Pakistan, he issued an unconstitutional and unlawful “Oath of Office (Judges) Order, 2007” whereby an oath was, unconstitutionally and unlawfully, introduced in the Schedule which required a judge to abide by the provisions of the Proclamation of Emergency dated 03.11.2007 and the Provisional Constitutional Order dated 03.11.2007 to perform acts and functions in accordance thereof and this order also resulted in removal of numerous judges of the superior courts including the Hon’ble Chief Justice of Pakistan and he thereby subverted the Constitution of Islamic Republic of Pakistan, 1973 and thus committed the offence of high treason punishable under section 2 of the High Treason (Punishment) Act, 1973 (Act LXVIII of 1973), which is within the jurisdiction of the Special Court established under section 4 of The Criminal Law Amendment (Special Courts) Act, 1976 (XVII of 1976).

d) Fourthly, on 20th November, 2007 at Rawalpindi as President of Islamic Republic of Pakistan, he issued an unconstitutional and unlawful Order 5 of 2007 “Constitution (Amendment) Order, 2007” whereby Articles 175, 186-A, 198, 218, 270B and 270C were, unconstitutionally and unlawfully, amended and Article 270AAA was added to the Constitution of Islamic Republic of Pakistan, 1973 and he thereby subverted the Constitution and thus committed the offence of high treason punishable under section 2 of the High Treason (Punishment) Act, 1973 (Act LXVIII of 1973), which is within the jurisdiction of the Special Court established under section 4 of The Criminal Law Amendment (Special Courts) Act, 1976 (XVII of 1976).

e) Fifthly, on 14th December, 2007 at Rawalpindi as President of Islamic Republic of Pakistan, he issued an unconstitutional and unlawful Order 6 of 2007 “Constitution (Second Amendment) Order, 2007” whereby the Constitution of Islamic Republic of Pakistan, 1973 was, unconstitutionally and unlawfully, amended and he thereby subverted the Constitution and thus committed the offence of high treason punishable under section 2 of the High Treason (Punishment) Act, 1973 (Act LXVIII of 1973), which is within the jurisdiction of the Special Court established under section 4 of The Criminal Law Amendment (Special Courts) Act, 1976 (XVII of 1976).

The special court set up to try Musharraf has rejected his plea to visit his sick mother and seek cardiac treatment abroad. The court says removing his name on the exit control list is the prerogative of the government.

Stephen Cohen is a senior fellow at the Brookings Institution and a South Asia Analyst. He says if Pakistan’s judiciary becomes vengeful, it will lose all the ground it’s recovered since ousting a dictator from power.” I’d hate to see the Pakistani system turn into a revenge system. The courts, judiciary and even the military should let justice take its course. But not treat him abusively. He’s been humiliated, he’s been disgraced but you don’t want to begin a process of hanging people of charges many others are guilty of.” said Cohen.

And that’s his defence so far. His supporters insist that it was necessary at that time to remove a democratically elected prime minister and Musharraf did not act alone. Legal experts agree that the constitution is clear that whoever “aided and abetted” in the acts of treason must face justice. Some argue that Musharraf’s case should be the beginning and all those politicians, judges, bureaucrats and generals who helped Musharraf subvert the constitution must now face the music. But the trail must not become a farce and individuals must be given a fair chance to defend themselves.

His critics call Musharraf a victim of his own vanity and arrogance. And now he faces the possibility of the death penalty. Although most commentators do not believe that he will face the death penalty BUT this indictment has set a precedent for future adventurers in the garb of patriotism and doctrine of necessity.

For Musharraf perhaps it’s the legacy he wanted to have – that of insisting on defiance with not much defence in the face of obvious repercussions.