The anti-climax

Legal eye

The writer is a lawyer based in Islamabad.

The state of shock and mourning of those earlier vying for a dogfight between an elected government and the military and now inciting hatred against the khaki high command for declaring the Dawn Leaks issue settled would be hilarious if it were not such a serious issue.

Imagine the state of mind of those (the term ‘hawaldar media’ is pejorative and undesirable, for a hawaldar is an honourable soldier employed in state’s service) linking the poised climb down of the military over an inappropriate tweet to Pakistan’s surrender in 1971.

Do we need enemies when we have mastered the art of concocting false narratives and indulging in masochism? 1971 didn’t happen because we had an army unwilling to fight. It happened because our state policies post-independence confirmed to the Bengalis that they were the ‘other’ and lesser than us, which led them to conclude that it was in their best interest to create their own country. It was conceit, prejudice and lack of introspection that created Bangladesh, and not timid soldiers.

The 1971 analogy is apt, though: nothing other than conceit and a blinkered approach to constitutionalism and civil-military relations can nurture the desire to see an elected government and the military entangled. The belief that because khakis wield a stick, their professionalism and credibility don’t get tarnished when they intervene to produce partisan consequences is false. Institutions such as the military or the judiciary are non-partisan by design and their venturing beyond their legitimate domain to produce political consequences is baleful.

Which professional soldier (ingrained with a sense of discipline, hierarchy and command) can justify a statement by a Maj Gen or even the army chief publicly rejecting an order issued by the country’s chief executive? Disagreeing with an order and denouncing it publicly are two different things. Can a GOC reject an order issued by the GHQ? Even while reasonable minds can disagree over whether Dawn Leaks was a national security issue or not, there was little disagreement that the DG ISPR’s offending tweet was plain wrong.

Article 243 of the constitution unambiguously states that, “the Federal Government shall have control and command of the Armed Forces”. Article 244 requires soldiers to make oath set out in the 3rd Schedule. Each soldier thus swears that, “I will bear true faith and allegiance to Pakistan and to uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and I will honestly and faithfully serve Pakistan…as required by and under the law.”

There is always some gap between the law and its implementation. In Pakistan that chasm is huge. The Pakistan Army is as disciplined as a military can be. There has never been a successful coup by junior officers against the military high command. Is there any doubt that if an officer ‘rejected’ orders of a superior and made a public demonstration of such insubordination, the consequences that would flow would be swift and severe? In evolved democracies, that principle applies equally in case of insubordination to a superior who is a civilian.

Pakistan is at a lesser stage of evolution. The idea of civilian control of the military is anathema to many who imagine the army as a supra-constitutional body meant to keep constitutional institutions in check. Notwithstanding that the constitution is the source of all authority and the only authority a state institution can claim to wield is that vested in it by law, some still view the army’s ability (and willingness) to use brute force within the country as a self-legitimising reality. Why does no one appeal to the air or naval chiefs to save the country?

The executive, judiciary and the legislature are the three pillars of state. The military is a subset of the executive. But the distance in our constitutional journey that remains to be covered can be gauged from the fact that we view the civilian government as the executive and the army as an independent countervailing institution. To bridge the gap and antagonism between the civilian and military arms of the government, we must address the process of identity formation in which the civilian is stigmatised as the ‘other’.

It is not hard to appreciate that monarchial regimes in the Middle East don’t seem very sustainable in the long run. We also know that the primary and immediate target of faith-inspired terror groups like Isis is not the West but Muslim states with weak institutions and an appetite for radicalism. We know that poverty, illiteracy, abuse of religion and disempowerment within a bulging population makes a toxic mix. We thus need a strong military given our hostile geography and the very real threat we face from religious extremism.

But we don’t need a military that sees itself as an arbiter of political fortunes: one that becomes a tool in the hand of the government to suppress its opponents or one that acts as an agent of the opposition to dismember or weaken an elected government. Much is wrong with our non-performing governance system, the authoritarian ethic within political parties and overall lack of accountability in the political realm. Likewise, insular notions of national interest and patriotism and short-sighted national security policies need to be critically scrutinised.

Our civil-military imbalance (or overreach by any institution for that matter) creates false binaries. You may loathe the idea of an elected government attempting to shape public opinion to win a behind-the-curtain policy debate between the civilian and military arms of the executive. But when the military oversteps its constitutional limit to discipline an elected government there emerges a dilemma: do you defend a constitutional principle or do you justify the threat of use of brute force?

Your gut sense tells you that the PM isn’t speaking the truth about his family assets. Do you wish the Supreme Court to throw him out on the basis of hunches, and in the process evolve jurisprudence that would give an unelected institution uncontrolled power to determine who heads the executive? Or do you wish for due process to be upheld, benefit of doubt to be given to the accused and decisions to be taken in accordance with settled principles of law even if that means producing no immediate consequences for such a PM?

There are no quick fixes for the problems and challenges we face. The character of our governance system will not be transformed overnight because the military inflicts fatal wounds on Nawaz Sharif that weaken him to a point where the opposition can devour him in 2018. Accountability will not take root in Pakistan because in one exceptional case the judiciary comes up with a creative interpretation of the constitution to hold that a PM seemingly unwilling to tell the court the truth (or the whole truth) can be booted out without a trial.

Exceptional interventions can retard the journey of institutional evolution instead of facilitating it. Let Nawaz be convicted on the basis of tangible evidence in a trial that is seen to be fair by all. And if that doesn’t happen before the next election, let people judge him on the basis of their own sense of whether or not he is honest and whether or not perception of honesty is the determining factor in whom they wish to elect as PM. If our polity is to evolve, the fight for political legitimacy must take place in the political arena and not in the courts or in the GHQ’s shadow.

In view of our sorry history of holding the constitution “in abeyance”, a day when a release states that, “[the] Pakistan army reiterates its firm commitment and continued resolve to uphold the Constitution…and support the democratic process” is a proud day for Pakistan. Being swept up by tides of populism is neither brave nor virtuous. The bigger man stands on the side of principle even when it is unpopular. Leaders with the ability to see where we went wrong and take corrective action instead of mimicking the past are the real agents of change.

Email: sattar@post.harvard.edu