The Governing Council of the Inter-Parliamentary Union,

Having before it the case of Mr. Makhdoom Javed Hashmi, a member of the National Assembly of Pakistan, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians in accordance with the "Procedure for the examination and treatment, by the Inter-Parliamentary Union, of communications concerning violations of human rights of parliamentarians",

Taking note of the report of the Committee on the Human Rights of Parliamentarians (CL/175/11(a)-R.1), which contains a detailed outline of the case,

Taking account of the information and documents provided at the hearing of the Committee with a member of the Pakistani delegation to the 111^th Assembly (September-October 2004),

Considering that Mr. Javed Hashmi, President of the Alliance for the Restoration of Democracy, was arrested at his official residence on 29 October 2003 after having brought to the attention of the press, in the cafeteria in Parliament, a two-page letter written in the name of "We, the officers of the Pakistan Army" addressed to the "National Leadership", which, apart from calling President Musharaaf and his Government a "gang of thieves and looters", raises questions about Pakistan's role in the Kargil War, the circumstances of the change of power on 12 October 1999, and the alleged illegal allocation of plots to certain, unnamed army officers; and suggests that Parliament establish a judicial commission to look into these matters,

Considering that Mr. Hashmi was charged under Articles 131, 124-A, 468, 469, 421, 500, 505-A and 109 of the Pakistani Criminal Code, which include the crimes of abetting mutiny and sedition; trial proceedings started in Islamabad but were later shifted to Adyala prison in Rawalpindi, which, according to information provided by the Pakistani delegation to the 110^th Assembly (April 2004), was necessary to ensure Mr. Hashmi's own security; only the daughter and two brothers of Mr. Hashmi were reportedly allowed to attend the proceedings and the press were allowed in from time to time; the defence contested the holding of the trial in jail and rejected the judge assigned to the case, Mr. Raza Asad, on the ground of personal bias; both matters were assigned to an additional judge, Justice Sadar Mohammad Aslam, who did not decide until the case was finally concluded in jail,

Considering that, on 12 April 2004, the court found Mr. Hashmi guilty on all counts and sentenced him to a total of 23 years' imprisonment under Section 124 A (defamation of the government), 131 (inciting people to mutiny), 468, 469 and 471 (forgery), 500 and 505 A (defamation of the army) of the Pakistani Penal Code; only the government press and Mr. Hashmi's daughter were reportedly allowed in the courtroom when the judgment was handed down; noting that it transpires from the judgment that the judge in the case only heard prosecution witnesses and not a single witness for the defence, although the latter had pointed to the necessity of calling certain witnesses,

Considering that on 24 April 2004 Mr. Hashmi filed an appeal against the judgment; according to the source, such appeals would normally be scheduled for hearing within two or three weeks; in this instance, however, not even a preliminary hearing had been scheduled so far; however, according to the member of the Pakistani delegation, a hearing of the appeal has been scheduled to take place shortly, moreover; Mr. Hashmi filed a bail application which has also not been heard so far,

Considering that, according to the source, Mr. Hashmi remains in solitary confinement in Adyala prison, which means that he cannot communicate with his fellow prisoners and can see his counsel only once a fortnight, and his family once a week for one hour; according to the source, this is in violation of the Pakistan Penal Code as only the court can order such confinement, but has not done so in this case; noting also that Mr. Hashmi has undergone surgery for his hernia, and that the government doctor has advised the prison authorities to shift him to the Pakistan Institute of Medical Sciences for examination by his surgeon because of post-operative complications; however, the authorities have reportedly failed to do so,

Considering that opposition parliamentarians on several occasions requested the Speaker of the National Assembly to issue an order under Rule 90 of the Rules of Procedure and Conduct of Business in the National Assembly to summon Mr. Hashmi to be produced in Parliament; that, according to the authorities, the Speaker's power to summon is of a discretionary nature; that as there was no important business being dealt with in Parliament requiring Mr. Hashmi's presence, the Speaker did not use his power under Rule 90; that a legal opinion had nevertheless been sought from the Ministry of Law, Justice and Human Rights; that, according to the member of the Pakistani delegation, a further, recent request by the parliamentary opposition for the production of Mr. Hashmi, after it had collectively nominated him as its candidate for the post of Prime Minister, was rejected by the Speaker on the ground that Rule 90 did not apply to a member who had been convicted in court,

1. Thanks the member of the Pakistani delegation for his cooperation and for providing a copy and English translation of the letter which gave rise to the proceedings against Mr. Hashmi; regrets nevertheless the absence of any information on the outstanding legal opinion regarding Rule 90 of the Rules of Procedure and Conduct of Business in the National Assembly;

2. Is deeply concerned that Mr. Hashmi was found guilty and sentenced to a heavy prison term at the close of a trial which, given the secrecy of the proceedings and the total disregard of the rights of the defence, fell far short of fundamental fair trial guarantees and suggested partiality on the part of the judge;

3. Notes that Mr. Hashmi produced the allegedly offending letter in Parliament, and fails to understand why he was not protected by his parliamentary immunity guaranteed to members of the National Assembly under Article 66(1) of the Constitution; would appreciate clarification in this respect;

4. Notes that the letter concerns Parliament insofar as it suggests that Parliament set up a commission to look into certain matters; would believe that taking up such a matter falls within the exercise of freedom of speech and the exercise of the parliamentary mandate;

5. Is deeply concerned at Mr. Hashmi's solitary confinement; and urges the judicial authorities to grant him bail without further delay, particularly in view of his state of health;

6. Earnestly hopes that the appeal proceedings will start without further delay and will respect Mr. Hashmi's right to present his defence and the right to be tried in a public hearing; requests the Secretary General to look into the possibility of sending an observer to the trial;

7. Regrets that the Speaker has not exercised his power to order Mr. Hashmi’s production in the National Assembly, despite several requests to this end, all of which were widely supported by the parliamentary opposition and should therefore have carried additional weight and, had they been granted, would have allowed the Assembly to hear from Mr. Hashmi directly about his situation and to take the appropriate parliamentary action;

8. Points out that Mr. Hashmi was sentenced only at first instance and that therefore the judgment has not become final; calls once again on the Speaker to exercise his discretionary power to order Mr. Hashmi’s production in Parliament;

9. Requests the Secretary General to convey this resolution to the competent executive, parliamentary and judicial authorities and to the sources;

10. Requests the Committee to continue examining this case and report to it at its next session, to be held on the occasion of the 112^th Assembly (April 2005).

* The Pakistani delegation took the floor to comment on the resolution. Its observations may be found in the Summary Records of the 175^th session of the Governing Council.

 

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