On May 9, 2023, Imran Khan, former Prime Minister of Pakistan, was arrested while on bail. Transported by “unknown people to an unknown location,” as described by Pakistan Tehreek-e-Insaf (PTI) spokesperson Fawad Chaudry, Khan was detained for multiple corruption charges. A year before the arrest Khan had been ousted from office through a no-confidence motion and Shehbad Sharif, the current Prime Minister, took the office.
The citizens of Pakistan took to the streets, sweeping the cities of Islamabad, Lahore, Rawalpindi, Sargodha, and Faisalabad. The arrest of this populous leader resulted in citizens burning cars, breaching military facilities, and bringing the country to a halt. The day marked a turning point in the political landscape of the country. In the wake of May 9, the government and its security apparatus, the Inter-Services Intelligence (ISI), Pakistan’s Intelligence Agency, and the military, began a search operation in search of those involved in the protests. Consequently, civilians were charged with terrorism and while some were properly detained, many were arrested without warrants. The right to privacy has been seriously limited. The government authorized its intelligence agency to tap phone calls related to “criminal and terrorist activities.”Media censorship has become more prevalent. Two journalists were allegedly abducted. The government has limited the Pakistani people's freedom of speech because they expressed their will.
For the last two years, the military has exercised overarching influence over government formation in Pakistan and has established a series of provisions for the institutionalization of authoritarian executive powers. They introduced executive policies through legal action and used those executive powers to influence the media, manipulate elections, and engineer political decisions.
As exemplified by legislative discourse authoritarianism has become increasingly institutionalized, as demonstrated specifically by the Official Secrets (Amendment) Act (OSA) 2023, its usage in the 2024 elections, and then the 26th Constitutional Amendment 2024 and its potential for increased authoritarian measures.
History
Pakistan's progression toward authoritarianism is not solely a recent phenomenon. Rather, its legal history demonstrates a systematic framework supporting the gradual restriction of civil liberties. Since 1947, the country has been bearing the consequences of martial law, placed under the “Doctrine of Necessity,” which calls for extraordinary actions by administrative authorities in emergencies to restore law and order even if it results in contraventions of the law. This marks the beginning of the use of legislative doctrines to enact sweeping powers for law enforcement agencies and the armed forces.
Furthermore, Pakistan has also endured an extensive history of military intervention and control. General Ayub Khan headed the country from 1958 to 1969 as the military leader, and emerged as the elected leader, following controversial elections against Fatimah Jinnah, the sister of Muhammad Ali Jinnah, the founder of Pakistan. Following General Ayub, General Agha Muhammad Yahya Khan ruled an unstable political situation for two years until 1971. The instability was due to the ongoing electoral crisis for the power transfer to modern-day Bangladesh. The policies of General Yahya were also responsible for the genocide of Bangladesh during the independence movement for West Pakistan. Zia-Ul-Haq followed, a leader responsible for enacting Islamization through various policies, most notably the Hadood Ordinance of 1979, which brought the criminal justice system to be per Islamic Sharia Law. Zia was also responsible for the country’s support of the Afghan Mujahideen in the War on Terror. The last military rule was by Pervez Musharaf in 1999 after he drove out the then-prime minister Nawaz Sharif. Musharaf’s rule lasted until 2008 after which power was handed over to the civilian leadership.
Pakistan’s rich history in military dictatorships and weak civilian and democratic tenures act as a breeding ground for authoritarianism. Pakistan, under military rule for a total of 33 years, has experienced the blunt consequences of diminishing democratic value. Although the military has retreated from the frontlines of political discourse and action today, they can still exert their influence over civilian matters.
Pakistan, historically, has lacked free and fair elections, parliamentary proceedings, and legislative lawmaking. However, given the recent political rejuvenation of the masses, the government has resorted to democratic means for enacting repressive measures. The civil-military forces still manipulate these institutions to enact parliamentary acts and laws that solidify their political power.
Legal Reforms and Surveillance
The OSA was a monumental act in protecting national security and deserting civil liberties, elevating concerns about the status of Pakistan’s parliamentary regime. The act expanded the mandate and scope of the powers of the ISI, enhanced penalties, and increased the surveillance powers of state institutions over citizens.
Under Clause 5 of the legislation, the definition of espionage includes “enemy” and “enemy agents,” and for the ISI the term was broadened to include unauthorized access to sensitive information. This includes the apparent misuse of digital tools and platforms for the dissemination of information that could harm national security. The authorization of “sweeping powers” means that the ISI can monitor digital activities of the people, a breach into the privacy, freedom, and social space of the citizens. The vague definition without the classification of what constitutes communication with foreign or enemy agents allows the ISI the freedom and liberty to dictate what they classify as sensitive on a case-to-case basis, as argued by Khurram Khan, a retired joint director general of the Intelligence Bureau. Previously, the due process of the court was required to monitor and collect personal information of civilians, however, this removes the check and gives unrestricted access to the ISI.
Under Clause 3 of the OSA, military installations and government offices have been placed under “protected areas,” enhancing security and limiting public access. This, especially in a country where the leaders and government offices are already inaccessible, further creates a disparity, distancing the general public from its representatives.
Clause 7 enhances the power of state agencies to criminalize the spread of sensitive information through digital platforms. In a country charged with political polarization, this amendment opens up the possibility of using disclosure of sensitive information as an excuse for political victimization. The extensive use of this power can be seen in internet suspension by authorities in Pakistan. Under Clause 6(A) a new offense for the unauthorized disclosure of the identities of members of intelligence agencies, informants, or sources has been created. The offense would be punishable by up to three years in jail and a fine of up to Rs 1 million (USD 3600). Previously, the courts and law enforcement agencies have adopted a vague definition of national security and classified information, most often interpreting it in ways that suit their interests the most. Therefore, increased penalties, further discourage and close down space for discourse and accountability of state agencies.
Hence, the OSA acts as a clear mechanism for the ISI to exercise repressive measures under the reasoning of national security. This state paternalism strips individuals of any sense of privacy and liberty, contributing to the shift towards authoritarianism and reducing the rule of law considerably.
Erosion of Electoral Democracy
Pakistan’s 2024 general elections epitomize the growing authoritarianism in the country. The state security apparatus used the powers highlighted in the OSA to politically intervene in the outcome of the general elections and bring back the government of the previous ruling party.
Instead of external threat, the leading opposition party Pakistan Tehreek-e-Insaf (PTI) was the target of the provisions of the OSA in 2024. Their leader, Imran Khan, had not only been disqualified by the Election Commission of Pakistan (ECP) but was also banned from campaigning or broadcasting on social media platforms or television, and imprisoned under questionable circumstances. The candidates for PTI were not allowed to hold political campaigns and police raided PTI leaders home. Some candidates were charged with terrorism, with their release from prison conditioned on their hosting a press conference where they would announce their retirement from politics and dissociation from the party. The party was stripped of its election symbol which remains the mode of voting procedures in Pakistan, a decision later challenged in the Supreme Court and declared unlawful. Political workers were arrested without warrants and mediums for political rallying were made illegal and unlawfully inaccessible to PTI. The election symbols for every candidate were also made to be different in every constituency to eliminate the symbolic political rhetoric and rallying that takes place behind the election symbol.
These provisions were a way to carry out political victimization, a systematic use of state apparatus to prosecute political opponents, and handicap the PTI’s ability to be a part of the democratic process. Moreover, this growing authoritarianism validated by the state’s very own legislature is the reason for the country embarking on its journey upon the institutionalization of authoritarianism, a process of establishing legal provisions for the use of arbitrary powers by the state.
After the ending of polling on February 8, 2024, the possibility of a fair election was further limited. Form 45 also known as the “Result of Count” form is issued by the Presiding Officer (PO) at every polling station in the country and acts as a formal record of the votes polled at a station and their breakdown. Form 47, on the other hand, is the “consolidated statement of results of the count” which is the official result for the constituency after tallying all Form 45s. A copy of Form 45 is given to the polling agent of every candidate and then the official form is submitted to the Returning Officer (RO), who is responsible for the compilation and release of the final results. The candidates are then able to compile the results from all Form 45s and formulate unconfirmed results which are typically correct. The RO tallies results from all the submitted Form 45s and then issues a Form 47 which states the official final result and the winner for the constituency.
However, on February 8, 2024, the results according to Form 45 had a significant discrepancy from the results on Form 47, which meant either means there was systemic issues with ballot counting or there was some interference in the tallying of results into Form 47. The latter seems to be the more likely conclusion because not only did a high-ranking official resign admitting to election fraud, but the results for multiple constituencies were delayed for days. The candidates who were winning on the night of election, the next day were shown losing by the same margin with which they were leading the day prior. This display of results irregularity illustrates how deeply the general elections of Pakistan were influenced; far from being considered free and fair.
Therefore, the 2024 general elections marked another year where the democratic principles of Pakistan declined in the hands of those who retain power rather than breathing in the spirits of people and their voices.
Erasure of Judicial Independence
On October 21, 2024, the Pakistani parliament passed the 26th Amendment Act, altering the course of Pakistan’s judicial independence, a key characteristic of democratic states. The Act now calls for the appointment of the chief justice by a parliamentary committee consisting of parliamentarians and senators who will deliberate upon the three recommendations and choose the chief justice. This means that the Chief Justice will not be appointed based on seniority as previously done, but on merit, opening up the path for the ruling party to politicize the position and appointment of the Chief Justice of Pakistan, encouraging political opportunism. The Chief Justice is responsible for deciding the interpretation and implementation of the Constitution, and given the polarized political environment, this interpretation can dictate national politics in opposite directions. Thus, politicizing such a vital position within the judiciary and giving the legislature control of it severely disrupts the separation of powers. Instead of mutual accountability and interdependence among the pillars of the state the legislature and executive now have superseding control over the judiciary.
Moreover, the Chief Justice will now serve for a fixed tenure of 3 years rather than continuing until the age of retirement, currently 65. The selection of other judges is also to be carried out by parliamentary committees, incentivizing judges to earn the favors of the government to secure a promotion. This clearly illustrates how the power paradigm has been shifted more towards the executive, creating a vacuum for political influence and bias in the nation's judicial system. Recently, Chief Justice Qazi Faez Esa was criticized for carrying out political victimization against the ex-prime minister Imran Khan, by allowing proceedings on fictitious cases. The 26th Amendment would now legitimize this political invention. The lack of judicial independence in Pakistan is a blow to the already declining justice system.
Conclusion
The Pakistani government, through its legislative discourse over the last three years, has hindered the protection of the rights of the people for the next few decades through the passing of the OSA and the 26th Amendment. The case study of the elections of 2024 can be seen as a prime example of the potential of such repressive actions. Thus it remains likely that the government will continue to use democratic means to solidify and concentrate political power. Although efforts have been made by academic and legal bodies such as the All Pakistan Lawyers Action Committee to raise awareness regarding the subject matter, those efforts have gone unheard. Attempts by the international community and lawmakers in the United States have also remained unsuccessful in improving the condition of democratic principles in Pakistan. President Trump’s presidential envoy for special missions Richard Grenell has issued public statements for the release of Imran Khan, yet little progress has been made. Moreover, the core of the problem does not lie in the release of the ex-Prime Minister, it lies in the institutionalization of authoritarianism that has occurred over the last two years. Until internal strife and reform succeed in overpowering the civil-military oligarchy, an authoritarian slide is likely to continue in Pakistan.
