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PAKISTAN: Human Rights After Martial Law

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PAKISTAN: Human Rights After Martial Law PAKISTAN: Human Rights After Martial Law Report of a Mission by Judge Gustaf Petren, Sweden Mrs. Helen Cull, New Zealand Mr. Jeremy McBride, United Kingdom Mr. D. Ravindran, ICJ, Geneva V:al c o m m is s io n o f jurists V * v- - f V.Wt *1m * . • IfT-. ’•S'.V- . t • ' i ' v : tip PAKISTAN: Human Rights After Martial Law Report of a Mission by Judge Gustaf Petren, Sweden Mrs. Helen Cull, New Zealand Mr. Jeremy McBride, United Kingdom Mr. D. Ravindran, ICJ, Geneva L I &Z W International Commission of Jurists (ICJ) Geneva, Switzerland *P f\ K Copyright ©, International Commission of Jurists, 1987 ISBN 92 9037 033 5 Contents Preface ................................................................................................. Conclusions agreed by the members of the ICJ mission to Pakistan CHAPTER I The Constitutional Situation.............................................................. Basic Principles .......................................................................... Fundamental Rights .................................................................. Martial L aw .................................................................................. Further Constitutional Developments during Martial Law Lifting of Martial Law.................................................................. The Ombudsman.......................................................................... General Observations.................................................................. CHAPTER II Martial Law and its Effect on Representative Government............. Changes made to the 1973 Constitution and the Referendum Revival of Constitution 1973 Order ................................. .......... The General Election of February 1985........................................ The Constitution Eighth Amendment Act ................................ The National Assembly .............................................................. Political Parties Act and the changes made to it during martial la w .................................................................. Separate Electorates for minorities ........................................... Conclusions............... ................................................................. CHAPTER n i The Independence of the Judiciary and the Bar after Martial Law Judicial independence prior to 1977: Transfer of Judges under Prime Minister Bhutto ............................................... Legislative enactments during martial law ......................................... 45 - Effect of "The Laws (Continuance in Force) Order 1977'....................................................................................... 45 - Article 212A...................................................................................... 46 - Constitution (Amendment) Order 1980 ......................................... 47 a) Jurisdiction of the High Court and Supreme Court Amended ................................................................................... 47 b) The Federal Shariat Court............................................................ 47 The Provisional Constitutional Order 1981 ......................................... 49 The period prior to the lifting of martial law - The Judiciary and the Bar ............................................................... 52 The lifting of martial law and the Constitution (Eighth Amendment) Act 1985........................................................ 54 Post martial law - the surviving enactments ..................................... 56 Other impediments to judicial independence..................................... 58 - Vacancies in the Judiciary................................................................ 58 - The Appointment of Ad Hoc and Acting Judges ;........................ 59 - Retirement Age of the Superior Judiciary ..................................... 59 - Facilities and Funding .................................................................... 59 - Separation of the Judiciary from the Executive .......................... 60 The effect of the Shariat C ourts........................................................... 60 The need for judicial independence .................................................... 63 The B ar.................................................................................................. 64 Legal aid ............................................................................................... 65 Legal education ................................................................................... 66 Notes...................................................................................................... 67 CHAPTER IV Military Courts.............................................................................................. 70 Postscript............................................................................................. 77 CHAPTER V Preventive Detention ................................................................................... 79 CHAPTER VI Torture or Cruel, Inhuman and D egrading Treatment or Punishment ........................................................................... 82 Degrading Punishment or Treatment ................................................ 83 The Use of Bar Fetters, Shackles and Chains ..................................... 85 Prison Conditions ............... ............................................................... 85 CHAPTER Vn Freedom of Expression, Public Assembly and Movement ...................... 86 Press Freedom...................................................................................... 87 Television and Radio ........................................................................... 92 Freedom of Assembly and Demonstration ......................................... 93 Freedom of Movement ....................................................................... 96 CHAPTER V ni Rights of Religious and Other Minorities ................................................ 98 Non-Muslim Religious Minorities........................................................ 99 TheAhmadis ...................................................................................... 103 Ethnic Minorities...................................................................................116 Conclusions......................................................................................... 118 CHAPTER IX The Impact of Islamisation on the Rights of Women................................. 121 Pakistan-An Islamic State.................................................................... 121 The Hudood Ordinances ....................................................................122 Law of Evidence Order 1984 ................................................................ 125 The Effect of Islamic Laws on Women's Rights ................................. 128 Other Effects of the Islamisation Process.............................................132 Proposed Future Laws: - Qisas & Diyat Draft Ordinance........................................................ 135 - The Shariat Bill...................................................................................136 - The Ninth Amendment....................................................................136 Conclusions on Islamisation on the Rights of Women ......................137 Notes...................................................................................................... 138 CHAPTER X Workers* Rights ........................................................................................... 140 Recommendations ...............................................................................145 CHAPTER XI Economic and Social Rights..........................................................................147 CHAPTER XII Human Rights Abuses in Villages ............................................................ 151 Preface In December 1986, the International Commission of Jurists (ICJ) sent a mission to Pakistan to study the process of return to a democratic form of government after eight years of martial law rule. Among the issues the mission was particularly asked to enquire into were the constitutional position, the electoral process, the position of political prisoners con­ victed by military courts under martial law, the independence of judges and lawyers, the impact of Islamisation on the rights of women, trade union rights and the situation of minorities and minority religious commu­ nities. The four members of the mission were: Judge Gustaf Petren Former Supreme Court Judge and former Ombudsman of Sweden; Honorary Member of the ICJ; Mrs. Helen Cull Member of the Bar of New Zealand and council member of the ICJ New Zealand national section; Mr. Jeremy McBride Lecturer in Law at the University of Bir­ mingham, UK; Mr. D.J. Ravindran Legal Officer for Asia of the ICJ. In order to extend the coverage of the mission, on leaving Karachi they worked in two pairs. One pair went to Hyderabad and Lahore, while the other pair visited Quetta and Peshawar. They then joined up again at Islamabad where they had meetings with the Minister of the Interior, the Minister for Law and Parliamentary Affairs, and the Minister for Religious and Minority Affairs. They also met with the Governor of the North West Frontier Province, as well as the Chief Justices and other members of the Supreme Court and of the High Courts of the Provinces. In 7 Karachi the mission met with Cardinal Cordeiro of the Catholic Church and also the leader of the
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