Off the Presses

Pakistan's Emergency and the Commonwealth Response

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 protection of fundamental human rights and the promotion of "democracy, democratic processes and institutions which reflect national circumstances, the rule of law and the 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 the judicial interference in the executive - required emergency rule if he was to prevent the country from "suicide".¹ To govern the emergency, he brought into force the Provisional Constitutional Order that has suspended Pakistan's Constitution along with the fundamental human rights protections it contains.²

The declaration 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 legitimate 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, it is more probable that General Musharraf saw the independent judges as a threat to his personal security in retaining power. This is particularly due to the independence displayed by the current bench and Chief Justice Chaudhry's open hostility to General Musharraf, who had already 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 all non-state television channels. Many citizens were left with no information with the immediate closure of up to thirty private television channels. The 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 criticisms directed at the government, the emergency, or anything else "likely to jeopardise or be prejudicial to the sovereignty, ideology or security of Pakistan." Strong penalties apply, including lengthy imprisonment.

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 has been 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: in Lahore, Karachi, Peshawar and Multan. Within the first three days, the opposition reported that over 3500 people had been arrested. 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 has been Asma Jahangir, a former UN Special Rapporteur on Freedom of Religion or Belief and staunch opponent to Pakistan's military rule. She pertinently wrote in an email to the public 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. In the second week of the emergency, protests continued to 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 fails to take necessary measures to restore democracy before CMAG meets on the eve of CHOGM, 22 November 2007. These measures include the restoration of the Constitution, release of political prisoners, restoration of the independent judiciary and acceptance of its judgment on the legality of his October 2007 re-election. He must give up his post as army chief by 15 November, on the date that his parliamentary appointment as Chief of Army Staff is due to lapse and the date he pledged to step down. Although diplomatic pressure has forced General Musharraf to announce that parliamentary elections will be held before 9 January 2008, the Commonwealth has warned that these elections cannot be considered free, fair and valid unless the Constitution is restored and the state of emergency ends.

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 Proclamation 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.

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.

The nation's strides towards meaningful democracy under General Musharraf have been doubtful from the outset. General Musharraf had 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 General 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 Musharraf to retain the dual office of president and army chief until 31 December 2004, after which point, Musharraf 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 as army chief. His justification, similar to that given for the present state of emergency, was that to do otherwise would undermine the nation's political and economic stability.

After Musharraf's reelection on 6 October 2007, the Supreme Court began to grapple with the resulting constitutional confusion as it heard petitions challenging Musharraf's presidential candidature and the validity of the election. In response to speculated threats about Musharraf's imposition of martial law if the Supreme Court ruled against him, one of the judges, Justice Javed Iqbal, stated that "[t]hese threats have no value for us. This is an issue to be decided in accordanc e 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.

Suspension is crucial

Through displacing the rule of law, the emergency has allowed for police to violently suppress dissent and illegitimately arrest and detain hundreds of individuals, ranging from judges, lawyers, and politicians to human rights activists and students. It is essential that international pressure continues to be placed on General Musharraf to take all measures to put an end the emergency. Commonwealth sanction is a significant part of this pressure. If Pakistan is to avoid suspension before the Commonwealth Heads of Government Meeting on 23 November, it must actively demonstrate its own commitment to the fundamental political values of the Commonwealth which it is obliged to uphold by virtue of its membership. Equally, it is crucial that the Commonwealth demonstrates its own commitment to the core promises of the Harare Commonwealth Declaration by suspending Pakistan if it fails to keep its membership promises.

Gudrun Dewey
Programme Officer
International Police Reforms Programme
Commonwealth Human Rights Initiative

1.   Proclamation of Emergency (Issued 3 November 2007): available at http://www.pakistani.org/pakistan/constitution/post_03nov07/proclamation_emergency_20071103.html.
2. Provisional Constitution Order No 1 of 2007: available at http://www.pakistani.org/pakistan/constitution/post_03nov07/pco_1_2007.html.
3. Oath of Office (Judges) Order, 2007.
4. Robin McDowell, "Pakistan Police Clash With Lawyers" Associated Press: http://ap.google.com/article/ALeqM5jIE0IUn4WIiaMBpjG8SI_6H5RXzgD8SNVF600
5.   As amended by the Constitution (Seventeenth Amendment) Act (2003): http://www.pakistani.org/pakistan/constitution/amendments/17amendment.html.
6. Article 63(1) (d) would operate from 31 December 2004, disallowing the president from holding another office of profit.
7. President to Hold Another Office Act (2004): http://www.pakistani.org/pakistan/legislation/2004/actVIIof2004.html.
8. Ghauri, I, "Does not 17th Amendment allow Musharraf to run for president: SC" Daily Times (Pakistan): http://www.dailytimes.com.pk/default.asp?page=2007%5C10%5C19%5Cstory_19-10-2007_pg7_8.