Disclosure of information is a good thing not because it is an end in itself but because free flow of information results in greater transparency, debate and accountability. Frequently disclosure of information only confirms what people already know. But it is significant because once backed by facts, conjecture becomes reality. And while no one ought to be held to account on the basis of speculation alone, can an entire nation look the other way when stark facts stare it in the eye? In this regard our response to Wikileaks has been extremely instructive. The ruling elite - civil and military - has conveniently responded to the former US envoy’s cables simply with denial. What they are denying is unclear. Are they saying that the reported conversations never took place, or that they do not reflect the context and thus the whole truth? Or do they believe that Shaggy’s “wasn’t me” is a perfectly legitimate response even in statecraft whenever confronted with incriminating facts?
Would our civil and military leaders have us believe that the former US ambassador was a fabler deliberately misleading her bosses in Washington for the fun of it or that the Wikileaks saga is a mischievous US conspiracy to make our rulers look bad in order to lower them further in public esteem? Equally disturbing has been our collective apathy to digging deeper and confronting the truth. Are we not vying for complete disclosure and accountability because we are now accustomed to leaders being caught with their pants down and getting away Scott-free, or do they manage to get away because of our exhibition of expediency, tolerance or even timidity in face of such unsavory conduct? The overall media response to Wikileaks has also been wanting in a fundamental way: the reporting has been partial in that it has beat down on politicians for nauseating sycophancy and shameful self-interest, without proportionately highlighting and scrutinising the role of the military and especially the army chief that might have waded into the domain of illegality.
The one unmistakable takeaway from Wikileaks is that the already hazardous civil-military imbalance in Pakistan has been further aggravated over the last couple of years. Let us address matters pertaining to propriety, policy and legality in that order. For propriety alone, we don’t even need the help of Julian Assange. The army chief might be the most powerful man in the country, but the protocol list doesn’t reflect that. But we are now past pretensions. Recently, the military guard detailed for the army chief’s security forced two federal ministers to wait for the cavalcade of the army chief to pass through (along with other civilians used to the inconvenience) and interestingly it was the PPP parliamentarians loath to discuss the issue when raised by the leader of the opposition in the National Assembly. It is obvious that neither the ruling party nor the army high command feels the need to prop-up the fiction of civilian control of the military.
The issue of policy linked to propriety is more significant. We know as a matter of public record - also confirmed by Wikileaks - that our army chief independently meets with foreign diplomats and important civilian policymakers from other countries. Observers of civil-military relations in Pakistan have long posited that the military not only believes that the country’s security policy falls within its exclusive domain, but also all other aspects of nation policymaking that impinge on internal and external security, including foreign policy. First of all, why does our army chief independently meet with civilian policymakers of foreign countries? Is that not the job of our foreign office? Secondly, are the prescribed procedures for interaction with foreign governments of no relevance when it comes to the military?
The Rules of Business explicitly state that unless an exemption is specifically granted all correspondence with the government of a foreign country shall be conducted through the Foreign Affairs Division. We know from newspapers that our army chief wrote a fourteen-page letter to President Obama highlighting issues he would wish the US to consider in relation to its policy in Afghanistan. Did he seek special permission to correspond directly with the US president? Should the army chief not send such communiqué to the Defense Division, which can then forward it to the prime minister through the Foreign Affairs Division for review and communication to the foreign country if desirable? Or is the preponderant role of the military in all aspects of nation policymaking so firmly entrenched now that ordinary rules and procedures meant to regulate the affairs of the government are not meant to apply to khakis?
And then most disconcerting are disclosures regarding the army chief’s conversations with the US ambassador that squarely fall beyond the zone of legality and are inimical to the cause of constitutionalism, rule of law and democracy in Pakistan. At least two such conversations merit comment. One, the reported discussion that at the peak of the lawyers’ movement the army chief insinuated that he might be forced to ‘persuade’ Asif Zardari to step down as president in the event that the lawyers’ long march gets out of control, and pontificated about appropriate replacements. And two, the reported conversations that our army chief was perturbed by the delay being caused by the PPP government in formalising an immunity deal for General Musharraf and wished the Americans to prod the civilian government to confirm such deal on the promise of which the army chief had sought General Musharraf’s resignation on behalf of the army.
What means, one wonders, would the army chief have to persuade Asif Zardari to resign as president of Pakistan, other than the barrel of a gun and his monopoly over the use of force in the country by virtue of being the army chief? Would such persuasion not be unconstitutional? Further, what does it mean for the army chief to be the guarantor of a deal (with the US Government being a counterparty) that General Musharraf, the former president and army chief, will be offered absolute immunity? What would General Musharraf be immune from? Would he be protected against the ordinary application of the laws of Pakistan? All of us know that General Musharraf broke the law and molested the Constitution for a second time on November 3, 2007, and the Supreme Court has also declared as much. Does the immunity deal mean that no court or civilian government will be allowed to prosecute General Musharaf for adulterating the Constitution? Does it mean that no one can investigate General Musharraf’s role in Benazir Bhutto murder case? Does it also mean that General Musharaf can never be tried for his alleged role in the Bugti murder case?
In his capacity as an officer of the armed forces and army chief, General Kayani swore an oath to protect and defend the Constitution of Pakistan, which promises equality before law to all citizens of the country. Could it have occurred to General Kayani that his efforts to shield his predecessor from the application of the laws of Pakistan (inspired by his sense of camaraderie and allegiance to the army’s institutional interests) might be in conflict with the letter and spirit of the Constitution of Pakistan? Has our history of repeated military intervention in politics resulted in the evolution of a concept of military professionalism that does not envision undermining loft conceptions of rule of law, civilian authority and constitutionalism as a vice? How do we go about strengthening rule of law in this country if khaki response to disclosures of legal and procedural impropriety is not regret and introspection, but self-righteousness laced with stubborn denials?
(To be continued)
The writer is a lawyer based in Islamabad. Email: [email protected]