Continuity or change?

Legal eye
The writer is a lawyer based in Islamabad.
Why did the army chief need to issue the enigmatic statement on our state of institutional affairs with an attempt to draw some red lines for those asking awkward questions? Was he simply sharing his resolve to foster progressive change while acknowledging the past mistakes of the khakis? Was he projecting a changed khaki mindset, convinced of the need to abide by rule of law and strengthen all national institutions and not just the military as the author and preserver of national interest? Or was it a warning shot for those getting carried away with the concept of accountability of generals, a shut up call for the exuberant media and free counsel for the courts to slow things down?
The confusion in the army chief’s statement probably stems from the elements of continuity and change that coexist in the khaki mindset at the moment. The elements of change are most obvious in the concluding questions that Gen Kayani has invited us to ponder: One, are we promoting the rule of law and the constitution? And two, are we strengthening or weakening the institutions? The army chief is spot on in framing these questions. Given our history of martial laws and subversion of the constitution by army chiefs in the past, Gen Kayani’s emphasis on rule of law is a breath of fresh air.
Over the last few years we have witnessed the emergence of a consensus in favour of rule of law and sanctity of the constitution. And who will dispute the need to strengthen the institutions of Pakistan? But that is not what the debate is about. It is about what actions would strengthen institutions, including the army, and who decides whether or not rule of law is being upheld. Being a bright man, General Kayani probably understands this better than most. And that is why the ISPR press release can only be rationalised or explained – but not justified – as a hangover of the extra-legal and political role that the khakis have played during a predominant part of our history.
The most charitable view of the army chief’s statement can be that he felt the need to reiterate his commitment to rule of law at a time when the democracy-doesn’t-work-for-us voices are again itching for the intervention of saviours, while also exhibiting his esprit de corps and identifying the red lines that ought not be crossed in critiquing the generals. In other words, the army chief is acknowledging that, as a polity, Pakistan has become multi-polar with a wider distribution of power between state institutions. At the same time, he is reminding all and sundry that the army is still a locus of power and that, while incremental rebalancing of power might be acceptable, let there be no haste.
The wisdom of such counsel cannot be disputed. But the fact that a serving army chief believes he has the right and authority to manage the pace of change and do so publicly is what makes it wrong and the content of his message self-contradictory.
The army is a subset of the executive arm of the state subject to effective civilian control according to the constitution. Gen Kayani has no legal authority to determine inter-institutional boundaries or wag his finger and warn that, “trying to assume more than one’s due role will set us back.” So why the statement was issued becomes the first gauge of the army chief’s professed allegiance to rule of law. As a public servant where does he derive the authority to pontificate about the due role and limits of constitutional institutions?
There are at least four aspects of the army chief’s statement that suggest that the pro-status quo sentiment is still potent in the khaki mindset. The statement starts out by emphasising the very agreeable and desirable truth – which also multiplies by zero the rationale of all past military interventions – “no individual or institution has the monopoly to decide what is right or wrong in defining the ultimate national interest.” But, almost as if the army chief cannot help himself, he goes on to state that, “any effort that wittingly or unwittingly draws a wedge between the people and the armed forces of Pakistan undermines the larger national interest.”
The general asserts that, “while constructive criticism is well understood, conspiracy theories based on rumors which create doubts about the very intent, are unacceptable.” Would this critique of the leadership provided by General Kayani or the policies, decisions and actions of the military high command or retired generals “unwittingly” draw a wedge between khakis and people? Who decides what criticism is constructive and what isn’t? And how will khakis exhibit ‘unacceptability’ of the wrong kind of criticism? Will there be counter-arguments presented? Will critics be picked up and sorted out khaki-style?
Proceeding further in a shoot-the-messenger mode, the army chief declares that, “equally important is the trust between the leader and the led of the armed forces...any effort to create a distinction between the two, undermines the very basis of this concept and is not tolerated...” By identifying the leaders and the led distinctly, has the army chief contradicted the logic of his own argument? It is an acknowledged historical fact that generals have intervened in politics directly and played a role from beyond the curtain. Their actions, choices and conduct, not backed by law, have hurt this country just like the actions of individuals leading other institutions.
The other fact is that there is nothing but gratitude expressed, even by the staunchest critics of the army’s role in politics, for the soldiers and officers who risk their lives to make this country safer. There is all around agreement that the army is a well-disciplined and well-oiled institution and it is in our best interest to keep it that way. But none of this undermines the fact that the power vested in generals who lead this institution comes with responsibility. As public office holders, these generals are accountable for the manner in which they discharge state power and their duties.
When called to account for their actions, whether in relation to the Abbottabad, GHQ and PNS Mehran attacks, the Asghar Khan and missing persons’ case or the NLC and Royal Palm inquiries, they must not hide behind morale of troops or projected division between the leaders and the led to shun accountability. President Obama fired General Stanley McChrystal (just as President Truman fired General MacArthur) during a war and no one questioned what it might do to the troops’ morale. So who created this us-versus-them distinction? Why should inquiry into alleged impropriety of public servants who are or have been general officers affect the morale of troops if the army is a part of the executive and subject to civilian control?
Gen Kayani is right about the undesirability of media trials. Innocent until proven guilty is a cardinal principle of law, but it must apply across the board. Did a deliberate media campaign not publicly try and convict Husain Haqqani in the Memo case not long ago? Should the presumption of innocence not benefit the missing persons? Let generals offended by media trials file defamation suits against journalists and media outlets instead of the army chief standing up for them in what will be seen as protection of holy cows. It is the facilitation of fair and transparent inquiry into allegations against generals that would exhibit the army chief’s commitment to equality and rule of law.
Let us hope that in the tug of war between proponents of status quo and those of change within the khakis the latter prevail. The leadership challenge for the army as well as all other state institutions lies not in fiercely defending their perceived turfs but in exhibiting humility in accepting criticism for past wrongs and showing courage in fostering introspection and behavioural change in the interest of a better future.

Email: sattar@post.harvard.edu