The writer is a lawyer based in Islamabad.
General Kayani’s decision to have the generals involved in the NLC scam court-martialed, shielding them from ordinary criminal investigation and accountability, projects the army as an ‘extractive’ status-quo institution choking equality, accountability, rule of law and progressive change.
The exact details of the NLC affair are still shrouded in mystery. But here is what is known: the generals in question splurged and squandered public funds belonging to the NLC. Despite boldly and arduously pursuing the matter, the Parliamentary Accounts Committee under Chaudhry Nisar Ali Khan failed to procure the record of the NLC scam. (Might this be one of the reasons the opposition leader surrendered the PAC chair?) With the mantle of PAC passing to the intrepid Nadeem Afzal Chan, the emphasis on holding the khakis to account has not changed, but neither has the outcome.
Reports suggest that the army has also refused to hand over NLC scam records to NAB. The alleged crookedness and profiteering by the khakis at the expense of tax-payers is apparently of such crucial relevance for our national security that the army chief had to personally meet the NAB chairman multiple times to negotiate the details of how to proceed against the generals.
The point here is not to conduct a media trial of the generals involved in the NLC scam and paint them guilty. The benefit of doubt – innocent until proven guilty – must go to all accused and these generals are no exception. In question are the choices made by the army high command that seem to sabotage due process of law and ensure preferential treatment for fellow khakis, and the mindset and conceptions of institutional interest that inform such bum choices.
The objections are two-fold: the timing of this decision and the refusal to share the NLC scam record with civilian authorities. The scandal relates to the period from 2004-08. It came to the fore in February 2009. Why is it that the army chief finally woke up to order a court martial after a gap of two and a half years – in September 2012? Is it because the cat is unfortunately out of the bag and refuses to shut up despite being cajoled and coerced?
And what is so unfathomable about sharing the record of possible impropriety involving ex-khakis with civilian institutions? Under the Manual of Pakistan Military Law, the army chief can refuse to share the findings of a court of inquiry if it involves matters prejudicial to the security of the state. But does a graft scandal become a matter of national security if khakis are caught with their hands in the cookie jar?
The concept of individual and institutional accountability of khakis seems to have taken a backseat under the present regime. We saw a special inquiry clearing the name of the lone general implicated in the Benazir Bhutto murder case. No one of any significance was held to account for the security failure that resulted in the GHQ attack or the intelligence failure in the OBL matter. In the NLC case if the court of inquiry has been ordered after two and a half years, recording the summary of evidence could itself take till eternity, with the matter of framing charges and holding the court martial still remaining. What is that we are witnessing here – grudging accountability or a simple cover-up?
Stories from childhood leave an impression on you. A family friend – a retired colonel – regaled us with his hunting stories when we were kids when he visited our home frequently (during a brief period) in relation to a legal matter my father was helping him with. One of his stories has stayed with me. As commanding officer (CO) of his unit, a soldier came up to the colonel and narrated how a rival group within his village had killed his kin and that he needed leave to go back and take revenge. The Col. refused the leave and discouraged the soldier. A week or so later the police came looking for the soldier and informed the colonel that he had been named in the murder of two men in his native village who were killed a few days back in the middle of the night.
The Col. said he knew in his heart that the soldier had committed the murders and that, despite not being granted the leave, he had slipped away during the night. The Col then told us with swagger and pride that he would not surrender one of his men to the police and so he showed the police some duty/attendance register establishing that the soldier was on duty within the unit on the night of the incident and couldn’t thus be involved in murder. In other words he abetted the crime, provided an alibi and helped the soldier get away with murder. Suspicious of memory, I began narrating this story to a close friend, a serving fauji. He delivered the punch line just as I started out and told me that this is a fable that nostalgic COs narrate to celebrate their bravado and leadership.
How can a national army allow the nurturing of a mindset that lionises a fictional story of an officer helping a subordinate get away with the murder of a fellow citizen and project it as a mark of leadership or loyalty? For too long have we tolerated and nurtured us-vs-them distinctions between Pakistanis. Today we are witnessing brutality celebrated in the name of these distinctions, and people being killed, maimed and persecuted in the name of honour, morality and religion. Are bigoted conceptions of esprit de corps and an institutional sense of entitlement – of being above the law – any different from other forms of bigotry that haunt us? Will accountability of generals strengthen or undermine our national security?
In Why Nations Fail, the authors (Acemoglu and Robinson) trace the history of evolution of political and economic institutions around the globe and argue that nations are not destined to succeed or fail due to geography or culture but because of the emergence of extractive or inclusive institutions within them. If one revisits the role of our military in politics and its continuing economic activities, one finds uncanny similarities with the defined attributes of an extractive institution:
“Extractive political institutions concentrate power in the hands of a narrow elite and place few constraints on the exercise of this power. Economic institutions are then often structured by this elite to extract resources from the rest of the society. Extractive economic institutions thus naturally accompany extractive political institutions. In fact, they must inherently depend on extractive political institutions for their survival. This synergistic relationship between extractive economic and political institutions introduces a strong feedback loop: political institutions enable elites controlling political power to choose economic institutions with few constraints of opposing forces. They also enable the elites to structure future political institutions and their evolution.”
Speak with any member of our ruling elite and s/he will agree that Pakistan is going down fast. And yet, whether it is the generals, politicos, judges or bureaucrats, in an institutional sense, one finds them committed to the same set of values and interests that have produced this sorry state. Is this narrow self-serving conduct really sustainable?
The NLC scam and the conceit evident therein is only the symptom of a much deeper-rooted problem. General Kayani has a choice. He can keep making feel-good speeches such as the recent one at PMA, stating that all national institutions are responsible for leading the country astray and they must all make amends. Or he can put his money where his mouth is and use his last year of service constructively by taking bold steps to transform the “extractive” institution he heads into an “inclusive” one capable of lending earnest support to democracy and rule of law.