Chapter X

Nawaz Sharif's second stint in office - III

MILITARIZATION OF CIVLIAN INSTITUTIONS

In a major departure from normal practice, Nawaz Sharif government deployed a large number of armed forces personnel for running several civilian organizations and for discharging different duties and functions normally taken care of by civilian staff.

The armed forces were employed in conducting the census in Feb-March 1998. Thousands of Pakistani troops were deployed in January-April 1998 in unprecedented investigation into wide-spread corruption in the state education system. 20,000 personnel of the military were pulled out of their training for three months just to find out about the 4,000 ghost schools in Punjab.

The provincial government in Punjab said it was considering using the army to teach as a short-term measure. Already soldiers were used to build roads in Lahore and the army medical corps was likely to be called in to run health centers in the province's rural areas.

On Jan. 21, 1999, about 35,000 troops were formally deployed at all WAPDA offices throughout the country except Karachi to start a grand army operation against power thieves and defaulters. The federal government amended the Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998, providing that military courts can be established in the whole of Pakistan. Six military courts were set up in Lahore division to try cases of power thefts on Feb. 11, 1999.

Sindh Home Department had reportedly asked the defense ministry for deputing some army personnel for posting to them to run the prison administration.  Eight out of 15 jail chiefs were facing corruption charges. Nawaz Sharif announced on Dec. 18, 1998 that the government has decided to hand over the development of water supply schemes in Karachi to army.

Benazir Bhutto claimed in the National Assembly on Dec. 26 1998 that the government was working on a plan to reduce the strength of the army by 100,000 personnel. This plan, she claimed, would be implemented in three phases. In the first phase, 35,000 army men had already been accommodated in WAPDA; in the second phase, another 35,000 army men would be employed in railways; and in the third, 30,000 more would be withdrawn from the defense services.  [1]

The Director General of the Inter-Services Press Relations, Brig. Rashid Qureshi, on May 19, 1999, ruled out any move to downsize the army. But confirmed that there are various options under consideration of the GHQ to engage military in the economic uplift of the country. He said though he personally believes that the army should actively take part in nation-building programs, there was a need to consider all aspects of such initiative.

ARMY DEPLOYED IN WAPDA

On Dec. 22, 1998, the government promulgated four ordinances including the one which allowed calling the Armed Forces in aid of WAPDA to combat the menace of electricity theft in the country. The ordinances were promulgated in less than 48 hours before the commencement of National Assembly session. The ordinance envisaged setting up of military trial courts and courts of appeal to try offences punishable under the Electricity act 1910. The cases are to be concluded within eight days. It also empowered an officer of the armed forces acting in aid of civil authority to initiate or take over investigation of any case. It said that the officer would have the powers of an Officer-in-charge of a police station.

Making a case for the handing over WAPDA  to military, Mr. Gohar Ayub, Minister of Water and Power, pointed out that there were half-a-million kunda connections in Karachi, Lahore, Multan, Dir and different industrial commercial and rural areas. They caused the organization losses of Rs. 20-24 billion.  They couldn't have been there without the knowledge of the WAPDA linesmen, he added. The army was given the three-fold task of collecting the bills, preventing tampering with meters or stealing power through the open use of kundas and recovering the huge arrears. Army has been given the task of recovering only Rs. 9 billion out of the accumulated losses of WAPDA of Rs. 72 billion, according to  Gohar Ayub.

On  Jan. 21, 1991, about 35,000 troops were formally deployed at all WAPDA offices throughout the country except Karachi to start a grand army operation against power thieves and defaulters. The army was deployed at different tiers of power distribution system at the sub-divisional, divisional levels, and at the office of superintending engineers and chief engineers at the head offices of the power distribution companies. Besides eight brigadiers who were appointed chief executives of the electricity distribution companies, 68 Lt. Colonels, 236 majors and 30,600 troops were deployed, including junior commissioned and non-commissioned officers. Earlier on Dec. 24, 1998, Lt. Gen. Zulfiqar Ali Khan and Major Gen. Sarfraz Iqbal were appointed chairman and vice-chairman of WAPDA respectively. WAPDA would pay 50 per cent of the basic pay to the deployed army personnel as project allowance. The estimated WAPDA expenditure would be Rs. 50 million per month or Rs. 1200 million in two years.

The National Assembly was told that different federal and provincial government departments owe almost Rs. 29 billion to WAPDA, with army topping the list of defaulters with Rs. 3.4 billion. [Army later said that it stopped payment because WAPDA was over billing it.] The government placed before the Senate names of 49 parliamentarians, majority of them belonging to the ruling PML, against whom WAPDA had lodged cases of electricity pilferage and defaults. The list of MNAs and Senators and MPAs included the names of Interior Minister Chaudhry Shujaat Hussain, Deputy Speaker of the National Assembly Chaudhry Jaffar Iqbal and Syeda Abida Hussain, who resigned from the cabinet after the power theft allegations.

Minister of Water and Power, Gohar Ayub Khan told the Senate on March 3, 1999, that a power theft case against his son-in law  was registered by an SDO of WAPDA under coercion. He said it was perhaps because over-enthusiasm or inexperience that several people had been wrongly implicated in meter tempering and electricity theft cases.  Over 2,500 FIRs had already been registered, which mean that WAPDA officials for years to come should do nothing but defend these cases in courts. [2]

On May 6, 1999, the government let the ordinance on punishment for electricity theft lapse. It evokes a widespread condemnation by political parties. Some political leaders said the government's decision clearly shows that it wants to protect the big thieves of electricity who belong to the Muslim League. At least 49 PML legislators were reportedly among the major defaulters.

Government's plan to establish military courts in the country to try various crimes got a set back on Feb. 17, 1999 when a nine-member bench of the Supreme Court unanimously declared the setting up of military courts for trial of civilians in Karachi as unconstitutional. However, the court clarified that its decision would not affect the sentences and punishment awarded and executed by the military courts as the cases would be treated as past and closed transactions. Two people convicted by the Military Courts were executed. Two days later,  Prime Minister Nawaz Sharif, in a televised speech, said the government would respect the Supreme Court decision of setting aside the military courts as it was binding on him under constitution. However, he indirectly accused the judiciary for delay in the dispensation of justice to the common man. "Delay in justice had emboldened the terrorists to the extent that they had killed a personality like Hakeem Saeed," he said.

The role of the armed forces has been defined in the Constitution under Article 245 which says that "the armed forces shall, under the directions of the federal government, defend Pakistan against external aggression or threat of war, and subject to law, act in aid of civil power when called upon to do so." It is under this clause that the troops are called upon to support the civil administration in maintaining law and order when the situation deteriorates. They are also asked to help the civil administration during natural calamities and other national emergencies like floods, earthquakes, major train accidents, etc.

However, it was argued that a major factor that should inhibit the government from employing troops for purely civil duties, is their exposure to an unscrupulous section of society. Such people may try to corrupt the troops. Within few weeks of army deployment, three army officials were  court martialled  for their involvement in corrupt practices in WAPDA.  After all, no irregularity or corruption can take place without official patronage. It would be detrimental to the morale of the armed forces if they are frequently asked to assist the civil administration in matters which an efficient government can handle with determination and foresight.

In a comment on the deployment of troops, the daily Dawn said: " Phenomenon has profound implications for the body politic, the army's professionalism and, last but not least, the future of the institutions which are to be redeemed and restored to health. In terms of the plan which has unfolded itself in the past few weeks, army personnel are to perform such variegated duties as the running of the terminally sick WAPDA, the discovering of ghost schools, the maintenance of public order and the dispensing of justice in Sindh, the overseeing of the Karachi Water and Sewerage Board and the Karachi Electric Supply Corporation. Most leading corporations and utilities dealing with the public -- WADPA, the Pakistan Railways, Pakistan Steel, PIA, the Karachi Electricity Supply Corporation, and, last but not least, the nationalized banks, are in a state of distress. In the ultimate analysis, all these institutions -- which once were efficiently-run, profit-making organizations -- fell victim to incompetence, neglect and financial mismanagement. This slide into decay was not only tolerated for decades by the political leaderships they contributed to the institutions' decay by a recruitment policy that ignored merit and integrity and threw open all jobs, from top to bottom, to favorites and flunkeys". [3]

Defense expenditures have risen more than seven-fold from an annual average of Rs 16 billion in 1970s to Rs. 115 billion in 1995-96. Pakistan is spending about $27 per-capita on the country's armed forces compared with $8 per capita by India on an annual basis.

Countries like Pakistan and Indonesia, Thailand and Cambodia have been under great donor pressure to cut down on their military expenditure. Thai Prime Minister  Yongchaiyudh had cut down the strength of his generals, ordered unprecedented audit of the military's secret funds and asked the armed forces to become more transparent and accountable in their expenditures. Pakistan, even more subject to IMF wishes than most, apparently decided on an alternative course: to set about demonstrating to all concerned that its armed forces were not idle, that they were even busy being economically productive. Whether or not IMF will be convinced, the government here may feel that the partnership serves its own purpose rather nicely. [4]

GENERAL KARAMAT RESIGNS

In an extraordinary development, on Oct. 7, 1998, General Jehangir Karamat resigned and Lt. Gen. Pervez Musharraf was appointed the new chief of army staff. General Musharraf was superceded by two Lt. Generals, Khalid Nawaz Quarter Master General of the army who resigned immediately after Gen. Musharraf was elevated. The Chief of General Staff, Lt. Gen. Ali Quli Khan also submitted his resignation after having been superseded by Lt. Gen. Pervez Musharraf.

The dramatic events followed a speech by General Jahangir Karamat, at the Pakistan Navy War College, Lahore, in which he said that political mandate needs to be translated into institutional strength, otherwise "we would have a permanent election campaign environment in the country." The General said this could be done by establishing a structurally-tiered system with clear responsibilities at each level. "A national security council or committee at the apex would institutionalize decision making if it was backed by a team of credible advisers and a think-tank of experts." The other tiers would be at the joint staff, ministry and services levels, he added. "We also need neutral, competent and secure bureaucracy and administration at the federal and provincial levels."

General Karamat was of the view that Pakistan "could not afford political unrest or the destabilizing effect of polarization, vendettas and insecurity-driven expedient policies." He also said he maintained, as he had repeatedly stressed, that the need of the hour was total focus on the economy, the external linkages with China, Iran, Afghanistan, India and the United States, the internal situation, specially Sindh, the sectarian aspect and finally the fears of the smaller provinces.

General Karamat's proposal about the formation of National Security Council to institutionalize decision making evoked mixed reactions from political leaders. Some politicians termed it a supra-constitutional measure which will mar the democratic process while others saw it a positive development to overcome the situation created due to the failure of political leadership, leading the country economically and politically isolated.

He was summoned by Nawaz Sharif to account for his public and scathing attack on the government. According to Observer London, for an hour, as the argument grew more and more heated, the country teetered on the brink of martial law. Yet by the evening the general's resignation was on Sharif's desk. [5]

Ironically enough, the events that followed Gen Karamat's statement have confirmed what he had pointed out that in the present constitutional arrangement the individuals had become powerful at the cost of the institutions. The chief of the army staff, next in the power hierarchy to the chief executive, was summarily removed, his successor was appointed but the cabinet later informed only to receive acclamation. Parliament or its committees came nowhere in the picture. That could be said of most decisions of national importance made particularly since 1971. [6]

Commenting on General Karamat's ouster,  Time magazine said: The prime minister feared that the proposed council would impose itself over elected legislatures at both the federal and provincial levels. He ordered Karamat's words to be deleted from reports on the state-run television and radio stations, the first time a Prime Minister has dared to censor the Pakistani military. Two days after the speech, Nawaz Sharif forced Karamat to resign. No civilian government had tossed out the military boss in 20 years. Usually, it's the generals who dispose of elected leaders. An official press note issued by the government claimed that, due to the "political controversy" arising from his earlier statements, Karamt had decided to take early retirement. Islamabad officials say Karamat was furious at having to quit, but felt he had no choice because Nawaz Sharif had undercut his support among the country's other generals. To succeed Karamt, the prime minister elevated Lt. General Parvez Musharraf, a corps commander who may be more supportive than his predecessor. Last year, the Prime Minister altered the constitution, giving himself the power to appoint the army chief (which is why he was able to get rid of Karamat). [7]

Following General Jahangir Karamat's resignation, Nawaz Sharif once boasted to the National Assembly that whoever had opposed him was himself routed.

NATIONAL SECURITY COUNCIL

There have been persistent calls for giving some kind of a formal constitutional role to the armed forces in Pakistan. The concept was first codified as Article 152-A by General Ziaul Haq in his Revival of Constitution Order of March 1985. It was, however, dropped from the Eighth Amendment, which contained the RCO, in the course of bargaining with the party-less but elected parliament later that year. However, Rule 20A of a federal government rules of business, which was framed in pursuance of Article 152-A to regulate the working of the council, remained intact and may still be there.

A national security council of sorts was set up by President Ghulam Ishaq Khan by an executive order on General Zia's death in August 1988. It did not function and was probably meant to deal with some contingency that never arose. It formally ceased to exist on transfer of power to the first Benazir government later in 1988.

A Council for defense and national security was set up by President Farooq Khan Leghari after the ouster of the second Benazir government and dissolution of the National Assembly on November 5, 1996, by amending 20-A of the federal government rules of business. It was upheld by a division bench of the Lahore High Court but only as an advisory and temporary adjunct to the then caretaker set-up. The council became defunct on the revival of parliament in February 1997.

The NSC proposal reminds one of the NSC that was set up in Turkey under Article 118 of the constitution. It reads as follows: "The National Security Council shall be composed of the Prime Minister, the Chief of General Staff, the Ministers of National Defenses, Internal Affairs and Foreign Affairs, the commanders of the Army, Navy and Air Force and the General Commander of Gendarmerie, under the chairmanship of the President of the Republic… The National Security Council shall submit to the council of ministers its views on taking decisions and ensuring coordination with regard to the formulation, establishment, and implementation of the national security policy of the state. The council of ministers shall give priority consideration to the decisions of the National Security Council." There is no such provision in Pakistan's constitution. In the context of Turkish politics, the army chief is the power behind the throne and may veto the decisions of the elected government through the NSC.

PAKISTAN'S OPPRESSED NATIONS MOVEMENT

Like in the days of One Unit, a kind of suppressed political anger is simmering in the smaller provinces against Punjab. The mental gulf between the big brother and the three younger brothers is widening. The nationalists argue that it is not necessary for a person to renounce his national or ethnic identity in order to be a Muslim. In this climate of mistrust and deprive-ness, two moves were initiated, almost simultaneously, with regard to provincial autonomy. One was by the Awami National Party, which mustered support from important nationalist parties in the NWFP, Sindh and Balochistan to form  an alliance called Pakistan's Oppressed Nations Movement in October 1998. The second was by the Jamhoori Watan Party of Nawab Akbar Bagti which introduced a bill in the Senate on provincial autonomy in November 1998. Whatever the difference of opinion, the two moves assign minimum subjects to the Center -- defense, currency and foreign affairs. The remaining are proposed to go to the provinces. They also plead for a new social contact between the federating units and the Center with firm constitutional guarantees. The subjects to be given to the Center, will be decided by the federating units under a formula more or less on the pattern of the Lahore Resolution 1940.

Nationalists from Sindh, the NWFP, Balochistan and the Seraiki belt of Punjab on Oct 2, 1998 formed an alliance, Pakistan's Oppressed Nations Movement (PONAM), to wage a struggle to attain provincial autonomy. The movement issued an eight-point agenda known as the Islamabad declaration:

- Pakistan is a multinational country consisting of five nations, Punjabi, Sindhi, Baloch, Pakhtoon and Seraiki, with their respective five homelands dating back to 5,000;

- All the federating units, including "Seraikistan" is autonomous and sovereign and will be referred to as states in the terms of the spirit of the 1940 resolution;

- These states shall be the fountainhead of all powers, including finance, and the federation shall be vested with only those powers which the states confer on it by mutual agreement and consent;

- The Pashtoon federal unit shall be known as Pakhtoonkhawa and the Seraiki federal unit as "Seraikistan";

- Langauge: Pushto, Seraiki, Balochi, Sindhi and Punjabi be declared national languages and each language and culture of the federating units be given equal opportunity and resources for development and progress;

- Defense: Each federating unit should have proper and adequate representation in the defense forces roughly commensurate with its population;

- The principle of parity and equal representation to the people of all federating states on federal bodies, services and other institutions be made applicable with full force in the new order;

- Matters requiring settlement among the above nations (including Baloch and Pakhtoon) shall be amicably settled by mutual negotiations on the principle of justice, fair play and historical background in the interest of the oppressed nations concerned.

Rasool Bukh Paleejo, who read the declaration said: Myopic rulers, under the influence of the most populous and most powerful province, have constantly used force and applied instruments, like martial law and the doctrine of necessity and hypocritical slogans like "Pakistani Nation", "brotherhood", "Muslim Ummah", "Shariat" etc to deny the masses of their political, economic and cultural rights.  Explaining the background to the declaration, Paleejo said the federation of Pakistan came into existence through the amalgamation of the historical national homelands of the Bengalis, Sindhis, Punjabis, Pakhtoons, Seraikis and Baloch. The association of these nations with a single federal state was based on the social contract of 1940 Pakistan Resolution that recognized the historical and geographical existence of the nations and homelands of the would-be constituents by the new state granting them the status of autonomous and sovereign states. [8]

PONAM SUMMIT

A two-day summit of the Pakistan Oppressed Nations Movement (PONAM) was held in Islamabad on Dec 21 and 22, 1998, that adopted the following resolutions:

- The PONAM calls for making Pakistan a true federation by giving to the federation the portfolios of defense, foreign affairs and currency only while making Seraikistan, Balochistan, Pakhtoonkhwa, Sindh and Punjab as the federating units of the federation of Pakistan in its true term.

- The PONAM expressed its deep concern over the imposition of governor's rule in Sindh and establishment of military courts in Karachi. It termed these acts as breach and negation of the principles of judiciary, democracy and democratic institutions. It called this act of Nawaz Sharif as tantamount to martial law and authoritarianism.

-The PONAM condemned as nefarious attempts to fan disruption, disunity in the nations and groups through national flag march. It denounced attempts made by those who organized the national flag march to use provocative and unsavory words against the leaders of the nationalist and democratic parties.

- The PONAM termed the foreign policy of the Pakistan government vis-ŕ-vis Afghanistan and other countries running counter to the principles of peaceful co-existence. It stressed that Pakistan should resolve its problems with neighboring  countries through dialogue and friendly relations. It held that pursuit of the policy of interference in the internal affairs of Afghanistan could affect the country's relations with Central Asia and Iran. Therefore, the PONAM called for pursuing the policy of non-interference.

- The PONAM termed the prospective signing of the CTBT and FMTC as being against the interests of the masses.

- The PONAM called for ending the agreement signed between the US company FORBES and the government of Pakistan regarding "Deep Sea Fishing." It termed the agreement as being against the fishing rights of coast of Balochistan as well as against the interests of the country. [9]

PONAM SEEKS CONSTITUTIONAL AMDENMENTS

Chairman of constitutional committee of PONAM, Mohammad Yousuf Leghari on April 1, 1999 unveiled the salient features of the draft constitutional amendments:

- Article one and two of the constitution should be amended to state that Pakistan shall be a multi-nation federal democratic republic to be henceforth known as federal democratic Islamic Republic of Pakistan comprising five federating nation states of Balochistan, Sindh, Seraikistan, Pukhtoonkhawa and Punjab.

- President of  Pakistan being the symbol of Federation should be acceptable to all the federating states, therefore Article 41 should be amended wherein the President shall be elected on rotational basis from all federating states starting from the least populated federating state of Balochistan.

- Article 59 should be amended to make the Senate a real upper chamber of parliament.  The Senate shall be directly elected and in the joint sitting of parliament, the senate shall have the same weight-age  of votes as that of National Assembly) equal to the votes of National Assembly (217 votes). All bills, including money bills, shall be approved by the senate, all major federal appointments, like the Chairman of Federal Public Service Commission, ambassadors, Chief Election Commissioner, chiefs of staff of all services as well as appointments of the judges of the federal court and supreme courts shall be approved by the Senate.  The Council of Common Interests shall be answerable to the Senate.

- The federal list part one in the 4^th schedule of the constitution should be drastically curtailed and federal list part two and the concurrent list shall be delegated leaving only three departments with the Center, i.e. defense, foreign affairs and currency and in the communications department, only sea and air navigation.

-By amending articles  175 to 203, a federal court should be established to deal with the problems between the federation and the federating states and the number of judges from each federating state shall be equal. Each federating state shall have a supreme court as the court of last appeal, the selection of judges of the federal court and supreme courts of the federating states should be made by a committee comprising the President of Pakistan, leaders of the house and opposition in the National Assembly, leaders of the house and opposition in the senate, and a representative of the Pakistan Bar Council, these appointments should be subject to the confirmation by the Senate. All parallel judiciary such as special  courts, ATA courts and Shariat Court should be abolished.

- Separate electorate system should be abolished and joint electoral system should be restored.

- Article 232 should be amended taking curtailing powers of the President to impose emergency and to curtail the basic rights of the people.

- All languages of the national states should be given the status of national languages by amending Article 251. The Federation should be bound to use its resources for the development and progress of the national languages.

- The National Assembly should have 100 special seats (in addition to the present seats) for women to  give more voice to the 50 per cent of silent and un-represented population of the country.  [10]

The package does not call for a change in the present undemocratic and elitist structure of the assemblies. In the present large constituencies designed on the colonial pattern, a sort of guarantee has been provided that these shall always be monopolized by the feudals and big business. Keeping in view of world average of one seat for a population of 100,000, the PONAM in the interest of oppressed masses should have demanded appropriate increase in the assembly seats. When the protagonists of PONAM talk of increasing provincial autonomy, they in fact demand more enlarged and unbridled oppressive powers for the feudals and their partners, the colonial style bureaucrats, who are already monopolizing political power as well as the administration in Pakistan. [11]

PROVINCIAL AUTONOMY BILL 1998

Jamhoori Watan Party Senator M. Zafar, on Nov. 10, 1998, introduced in the Senate the 16^th Constitutional Amendment Bill envisaging maximum provincial autonomy as provided in the 1973 constitution. It seeks amendment in at least 45 articles of the constitution.

In its aims and object, the CA-16 stated that the steady erosion of the federal structure of the State of Pakistan and the resultant crisis of confidence afflicting the nation are causing grave concern to all the patriotic citizens of Pakistan. The tragedy of Pakistan is that hardly ever in its 51-year history has any government at the Center addressed itself seriously to the task of evolving and maintaining a stable and balanced relationship between the Federation and its constituent units. The result of this indifference, sometimes, bordering on utter callousness as was demonstrated by the infamous One Unit experiment and the Parity Formula, has been terrible. East Pakistan became Bangladesh, leaving behind a blood-soaked trail of traumatic memories.

Movers of the bill argued that time is running out for the federation of Pakistan. The future of our country lies in granting to the Federating Units complete autonomy and iron-clad guarantees against its violation by the Central authority.

The 54 clauses bill seeks amendment in at least 45 articles of the constitution. It seeks that "elected local bodies shall function as autonomous institutions with the powers to frame and implement policies at local level in respect of the matters enumerated in the Local Bodies List, over which they shall be the executive authority within the framework of the Federating units."

Through another amendment, the bill seeks that the Senate shall consist of 119 members to be elected by direct and free vote in accordance with the law. Each Federating Unit shall elect 27 members to the Senate while eight from the Federally Administrated Tribal areas and three from the Federal Capital. The senate would be a sovereign democratic institution having complete powers, including the approval of appointments of chief justices of the Supreme Court and High Courts and various other public offices.

The bill seeks to change the character of national Finance Commission and Council of Common Interest, giving equal representation to all the federating units. In case of emergency the CCI would be supreme authority instead of federal government and discretionary powers of the federal government would have to be approved by the Senate.

According to the bill, the federating units would be fully empowered, as the federation would retain only the subjects of defense, currency and foreign affairs.

What Nawab Bugti had demanded through his bill, the other national forces of the country had been demanding too. Prominent nationalist figures including Senator Ajmal Khattak, Sardar Attaullah Mengal, Mehmood Khan Achakzai, Rasool Bakhsh Palejo and Taj Mohammad Langah have also demanded constitutional amendment for this purpose, in a meeting held in Islamabad in Oct. 1998 to form PONAM.. Late Mir Gous Bakhsh Bizenjo, Khan Abdul Wali Khan and Sardar Ataullah Mengal struggled for complete autonomy for the federating units for many years. They were punished for it and jailed by the rulers who called them 'traitors' and 'enemies of the country'.

In the areas now forming Pakistan, there existed "independent sovereign nation states" which were not at all parts of the Indian states before the British conquest. Sindh was an independent state ruled by the Mirs of Talpur, Balochistan was an independent state ruled by the Khanate of Kalat, Punjab was an independent state ruled by the Sikhs and the NWFP was part of the expanding kingdom of Ranjit Singh. The founding fathers of Pakistan in the pursuit of a viable proposed new state did not ignore these realities. They  knew that the basis of the new state would be a voluntary union of these independent states in a federation through a covenant. And that is precisely what the 1940 Lahore  resolution meant when it described the constituent units of the new state of Pakistan as "autonomous and sovereign." [12]

Pakistan was not the successor state. India, as the successor state, retained the seat in the United Nations, whereas Pakistan had to apply for admission afresh. The legal opinion of the assistant secretary-general for legal affairs of the UN on August 8, 1947 in the following words clearly showed that Pakistan was a new state: "From the view-point of international law, the situation is one in which a part of an existing state breaks off and becomes a new state. On this analysis, there is no change in the international status of India. It continues to as a state with all treaty rights and obligations of membership in the UN. The territory which breaks off, Pakistan will be a new state, it will not have the treaty rights and obligations of the old state, and it will not of course, have a membership." [13]

Due to the consistent attempts by late Mir Ghous Bux Bizenjo, the founder of the Pakistan National Party, the demand for autonomy of the nationalities of Pakistan became an irresistible feature of the democratic struggle against Zia's dictatorship in the 1980s. The MRD high command unanimously adopted a declaration on autonomy at Lahore on August 2, 1986 in which the pivotal role was played by Mr. Bizenjo. The Lahore declaration of 1986 met with the same fate as the Lahore Resolution of 1940. Those very people who had acclaimed the declaration in finding a solution to the country's problems forgot all about it when they came to power. [14]

HUMAN RIGHTS VIOLATIONS

The human rights situation in Pakistan further deteriorated with a systematic propaganda of the government in favor of summary trials in the name of speedy justice, assaults on the press, one-sided accountability targeting only the opposition, discrimination against minorities and women and persecution of NGOs, according to the Human Rights Commission of Pakistan report 1998:

One out of every five persons convicted in Pakistan is sentenced to death, ranking it among the countries with the highest rates of award of death sentences in the world. A total of 433 persons including 49 child-convicts were awarded the death penalty. The number of convicts hanged during 1998 was 21.

Resort to law-making by bypassing the parliament, although reduced, was still frequent. At federal level alone, 22 ordinances were issued in 1998. These included such controversial measures as according to police powers to the prime minister's accountability cell and seizing of citizens' foreign currency deposits in banks.

Military trial courts began being set up on Dec. 5 and lasted until the Supreme Court ruled them unconstitutional. During the 10 weeks of their operation, these courts awarded death penalty to 13 persons, of whom two were hanged.

In Karachi, 1,178 persons were killed, 825 of them apparently for political and sectarian reasons. Of these, 110 were killed at police hands. The death toll included 107 women and 37 children.

More than 150 persons were killed in sectarian violence, the bulk of them Shias. The worst single incident, Mominpura graveyard in Lahore at a shia burial, took 25 lives, and the next one, at Hangu.

Cases were registered against 106 Ahmadis under various religious laws. Of these, 22 were referred to anti-terrorist courts. One Ahmadi was given 10 years of rigorous imprisonment by an anti-terrorist court for writing, 'Ahmadiyat' in the religious column of a census form he had been requested to fill for an unlettered person. Ayub Masih of Sahiwal was sentenced to death by a sessions court on a charge of blasphemy. Bishop John Joseph of Faisalabad committed suicide in protest against  Ayub Masih's sentence and calling for efforts to get the blasphemy laws repealed because of their abuse. [15]

EXTRA-JUDICIAL KILLINGS

The extra-judicial killing of alleged outlaws continued throughout 1998.  In all, 566 persons were recorded killed in police encounters, including 395 in Punjab . On average, one person being killed every fourth day in Punjab.

The Sindh government conceded on March 9, 1999, that at least two incidents of extra-judicial killings had taken place in Karachi since the imposition of governor's rule. The Home Department said that it has been established in two of the three judicial inquiry reports that the police had resorted to extra-judicial killings and in those cases two people had been killed in cold blood. The inquiry report in which police was found as murders pertained to Israr, who was shown by the Korangi police as killed in an encounter and to Abdul Salam, who was killed by four persons, including a policeman.

Relatives of those killed in police custody since the imposition of governor's rule in Sindh on March 17, 1999 accused the government of not doing justice by not apprehending those who had been nominated for the alleged excesses. Some of them had no connection with the MQM. They alleged that the police were behaving like bandits who kidnapped people and killed them, after subjecting them to severe torture, when their demand was not met.  Narrating the ordeal of his son's arrest by the SHO Liaquatabad on 23rd Ramazan, Sabih Ahmad alleged that when he went to the police station he was asked to pay Rs. 100,000 for Arman's freedom. When he explained his inability to do so because he was a poor man, the policemen told him that in case of failure to meet their demand, he would get his son's dead body.  The next day when Arman was produced in the court he could not sit and complained of severe torture by the police. Later, police abandoned Arman in Abbasi Shaeed hospital after the police obtained his signature on a blank paper. Arman succumbed to the injuries caused by police. [16]

In a police custody murder case, Justice Iftikhar Ahmed Chaudry of Lahore High Court observed : It is painful to note that in a case like the instant one where a police officer is alleged to have killed an innocent man in extra-judicial manner, it is almost impossible for the higher police officers to record an adverse finding against their subordinates. It was absolutely unthinkable that police would submit a challan under Section 302 (culpable homicide or Qtal-i-Amad) of the Pakistan  Penal Code against an SHO. It is a tendency and common habit with higher police officers to protect their thanedars (SHOs) and constables imprudently. This practice is highly deplorable and deserves the severest condemnation. [17]

JUDGES MISHANDLED

Police high handedness against ordinary citizens is very common, often without any recourse to justice. The government's use of police for silencing political opponents has so embolden the police that it feels free to manhandle judges. 

Two civil judges were manhandled by the Vehari (Punjab) police when they visited the police station to check irregularities and misuse of powers. There had been reports of the illegal detention of some people at the police station and the judges asked for the reasons for their detention and wanted to examine the daily register. The SHO responded by resorting to violence. [18]

The Sargodha police took a special court judge, Javed Iqbal,  hostage in the district jail after he convicted three police officials and magistrate of "faulty investigations" in the murder case of a former commissioner, Tajammul Abbas. When the judge asked the jail administration to handcuff the four, police personnel present in and outside the jail warned him that they would not let the judge leave the premises if anybody tried to arrest the officials. They snatched keys from the driver of the judge's car and parked official vehicles on the main gate. The siege was lifted after the four officials safely left the jail. On Jan. 28, the Lahore Court suspended the judgment of the Sargodha Special judge and released on bail the police officials and magistrate concerned. [19]

US HUMAN RIGHTS REPORT

The annual US State Department human rights report for 1998 said: The government's human rights record remained poor, with serious problems in several areas. The government infringed on citizens' privacy rights. Despite attempts to reform and to professionalize the police, police committed numerous extra-judicial killings and tortured, abused and raped citizens. While the officers responsible for such abuses sometimes were transferred or suspended for their actions, there is no evidence that any police officers were brought to justice. In general, police continued to commit serious abuses with impunity. Prison conditions remained poor, and police arbitrarily arrested and detained citizens. In Karachi, killings between rival political factions often were carried out with the assistance of criminal gangs. However, many such killings also were believed to have been committed by or with the participation of security forces. [20]

AMNESTRY INTERNATIONAL REPORT

Amnesty international, in its report on the state of human rights in Pakistan in 1998 said that scores of political prisoners, including prisoners of conscience, were detained, some with out charge or trial. Torture and ill treatment continued to be widespread, leading to at least 50 deaths in custody. Floggings continued to be carried out, and there were at least 120 possible extra judicial executions, mainly in Punjab province. Authorities claimed that the victims had died in exchanges of fire between police and hardened criminals. In at least 30 of these supposed "encounter killings," the victims were reported to have been in police custody before being deliberately killed. In other cases, police shot dead criminal suspects rather than attempting to arrest them.

At least 428 people were sentenced to death and four were executed. State officials colluded in abuses by private individuals and armed religious and other groups were responsible for deliberate and arbitrary killings of civilians.  Law and order problems persisted as sectarian violence led to  more than 600 deaths. The government continued to resort to mass arbitrary arrests and detentions, usually of short duration.

Abuses against judicial officers increased. In march 1998, two civil judges in Karampur, who had searched police premises and questioned the arbitrary detention of several people found there, were reportedly severely beaten by police. Several police officers were arrested, but the case remained pending. The judges of an anti-terrorism court in Sargodha who had convicted senior police officials of dereliction of  duty, including falsifying evidence and torture, was held hostage in court by the local police in January 1998, until the convicted officials escaped. [21]

MILITARY COURTS

A nine-member bench of the Supreme Court, on Feb. 17, 1999, unanimously declared the setting up of military courts for the trial of civilians as unconstitutional and without lawful authority. The apex court, however, provided a mechanism for speedy trial of the cases relating to "terrorism". It set aside all the convictions of the military courts which had not been executed. It held that all the cases in which sentence had been awarded but no execution had taken place should be transferred to the anti-terrorist courts already in existence or which might be created in terms of the guidelines provided by the bench.

The court clarified that its decisions would not affect the sentences and punishment already awarded and executed by the military courts, and the cases would be treated as past and closed transactions.

The apex court said that an Anti-Terrorist  special court should pronounce judgment within seven days, as already provided in Anti-Terrorist Act. [Military courts were also required to dispose of cases within seven days.] The appeal arising out of an order/judgment of the special court should be decided by the appellate forum within seven days from the filing of such appeal. Under the amended ATA, an appeal is provided in a high court and subsequently, in the Supreme Court.

The petitions challenging the establishment of military courts were filed by the MQM through its deputy convener Senator Aftab Sheikh, MQM parliamentary leader in National Assembly, Sheikh Liaqat Ali, PPP leader from Sindh, Nisar Khoro, Muslim Welfare Movement's Syed Iqbal Haider and Shahid Orakzai.

During the hearing, Chief Justice Ajmal Mian observed that the army could be asked to assist the civil power under Article 245 of the constitution but could not be given judicial powers. He also observed that the hanging of even 200 people through military courts would not yield the desired results, and the Karachi problem might aggravate.

ANTI TERRORISM COURTS

The President promulgated an ordinance, on April 28, 1999, to make it possible for the Anti-Terrorist courts to function in the light of the Supreme Court decision on military courts. The ordinance called as Anti-Terrorism (Amendment) Ordinance 1999, was promulgated on the official holiday of Ashura (10th of Moharram). Three days later,  the government amended the schedule of the Anti Terrorism Act, expanding its application to the 'unnatural' offences committed with a child under the age of 12 years.

The ordinance adopted the definition of terrorist act which was given in the Ordinance XII of 1998 (Establishment of Military Courts).  The government also created a new offence in the form of "civil commotion" that is defined as: "Civil commotion means creation of internal disturbances in violation of law, or intended to violate law, commencement or continuation of illegal strike, go slow, lock outs, vehicle snatching or lifting, damage to or destruction of state or private property, random firing to create panic, charging bhatta, acts of criminal trespass (illegal qbza), distributing, publishing or pasting of a handbill or making graffiti or wall chalking intended to create unrest or fear or create a threat to the security of law and order or to incite the commission of an offence punishable under Chapter VI of the Pakistan Penal Code (Act XLV 1986)."

The ordinance allows more than ample scope for the government to target political dissidents in the name of combating terrorism. Opposition leaders were of the view that the new law was not aimed at crushing terrorism but political dissent. The new anti-terrorism ordinance virtually suspended civil liberties.

The ordinance violated the constitution as it was retrospectively effective from February 24, 1999. Article 12 (1-a) of the constitution says "No law shall authorize the punishment of any person for an act or omission that was not punishable by law at the time of the act or omission."

This ordinance had its roots in Martial Law Order 3 and 13, promulgated during General Zia's tenure and was now finding light again in the tenure of his political heir. However, even under the Martial Law  provisions the term of strikes, lockouts, go-slow, distributing, publishing or pasting of a hand-bill or wall chalking or illegal assembly was not as severe as provided in the new section 7B of the Ordinance, with a rigorous imprisonment for a term which extended to seven years, or with fine or with both.

The ATA courts could not function for 72 days as the ordinance which was promulgated in the light of the Supreme Court in Mehram Ali case, had lapsed, and the bill which was passed by the National Assembly was pending in the Senate.

Syed Iqbal Haider of Muslim Welfare Movement (MWM), challenged the latest Anti-Terrorism Ordinance (amendment) 1999 in the Supreme Court. The petitioner contended  that the first Anti-Terrorism (amendment) ordinance was promulgated by the President of Pakistan on Oct. 24, 1998, in accordance with the spirit of Mehram Ali case. The ordinance was placed before the parliament for enactment which is still pending in the Senate. However, in the meantime the ordinance lapsed. He further said that the number of sections of ATO 1999 were in-consistent with the provisions of the constitution including Article 5, 8, 9, 12, 14, 17, 25, 189 and 190 of the constitution.

The Supreme Court, on May 15, 1998, had declared 12 provisions of the Anti-Terrorism Act (ATA) as invalid, and brought special courts on par with ordinary courts working within the existing judicial system. The court ruled that the power to law enforcement agencies to open fire on suspicion of terrorism and accepting a confession before a DSP as valid piece of evidence, were untenable and needed to be amended. The court also directed the government to make an amendment in the ATA to vest the appellate power in a high court instead of an appellate tribunal.

During the hearings of  constitutional petitions, the Supreme Court, Chief Justice Ajmal Mian observed that the anti-terrorism act (ATA) had given law enforcement agencies a license to kill. He also observed that to deal with the menace of terrorism, it was not mandatory that special courts, bypassing the existing judicial system, should be set up.

The ATA was enacted in August 1997 and was described by the opposition and human rights groups as an attempt by the government to convert Pakistan into a police state. The then chief justice, Justice Sajjad Ali Shah, had also opposed the legislation and had advised the government not to create a parallel judicial system.

The government, on Oct. 24, 1998,  promulgated the Anti-Terrorism (Amendment) Ordinance with substantial changes in the controversial ATA and widened its application. Now cases of gang-rape, child molestation or robbery coupled with rape could also be tried in the ATA courts. One of the most controversial sections of the ATA, regarding confession before a police officer as valid piece of evidence was omitted totally. Under the amended ATA, the law enforcers still enjoyed the power to shoot at person or persons who have committed or are committing act of terrorism.

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REFERENCES

1. Dawn 27.12.98
2. Dawn 5.3.1999
3. Dawn 27.12.1998
4. Aziz Siddiqi, The spread of the soldiery, Dawn 27.12.1998
5. The Observer , London, Oct. 11, 1998
6. Kunwar Idris, Politics of national security, Dawn 12.10.1998
7. Time magazine Oct. 19, 1998
8. Dawn 3.10.1998
9. Dawn 22.12.1998
10. Dawn 2.4.1999
11. Feroz Shah Gilani ,PONAM's constitutional package,Dawn 17.4.1999
12. Yousuf Mustikhan Decentralization of the power structure, Dawn 13.4.1999
13. Ibid.
14. Ibid.
15. Dawn 9.3.1999
16. Dawn 9.3.99
17. Dawn 23.10.98
18. Dawn 19.3.1998
19. Dawn 23.1.1998
20. Dawn 27.2.1999
21. Dawn 18.6.1999