Unchartered territory

Prime Minister Imran Khan and his cabinet are not in a position to give or deny anything to the opposition

When the previous federal government headed by the Pakistan Muslim League-Nawaz (PML-N) tabled a constitutional amendment in 2015 to set up military courts, Pakistan was reeling under devastating acts of terrorism. The public yearned for something that could stem the tide of destruction. No ideology, no political wrangling, no civil-military divide could stand in the way of that yearning. Being presented, and also being widely accepted, as the only, or at least the most readily available, solution to the problem of terrorism, military courts were destined to face little opposition both inside and outside the parliament. Even the parties that, for various historical and ideological reasons, were opposed to giving judicial powers to military officials, voted for the amendment.

The only challenge to the setting up of military courts materialised through multiple petitions at the Supreme Court – more of which will be discussed later.

Slightly less than five years later, the Supreme Court has assigned the parliament to legislate on another military-related subject – extension in the tenure of the Chief of the Army Staff, General Qamar Javed Bajwa. How will the parliament and political parties, especially those in the opposition, behave this time round?

By throwing the ball in the parliament’s court over the extension in the tenure of the COAS, the judges have done the same: leaving the legislature on its own to support or oppose what the military wants.

It is important to realise here that there are some crucial differences between the two situations. The demand for setting up military courts was made by the top leadership of the security and intelligence agencies during a detailed briefing they gave to an all-parties conference held after a horrifying terrorist incident at the Army Public School in Peshawar in December 2014. Almost every participant of the conference readily agreed to the demand. There have been no security exigencies and also no political consensus preceding the issue of tenure extension.

The other important difference is that the military courts were to be set up for a specific period of time. The legislation over the extension has the potential to become a permanent part of the Constitution. Once a constitutional amendment stipulates as to who can extend the tenure of a serving army chief and for how long, every chief of the army staff will have a legitimate expectation to stay in the job for a second term. The controversy that erupted over a tenure extension for General Bajwa could well be the last instance of legal and judicial kerfuffle over the matter.

But then there is also a highly significant similarity between 2015 and now. In both cases, the Supreme Court came to be the final arbiter and, in each case, it gave a verdict that did not upset the military’s apple cart. Consequently, the court has perpetuated a power structure that makes civilian constituents of the state subordinate to the will and desires of its military component.

By endorsing military courts, the Supreme Court effectively ended the constitutionally mandated separation of its own judicial powers from those of the military-dominated Executive. In the process, it also managed to lay the burden of responsibility onto the parliament. By throwing the ball in the parliament’s court over the extension of the COAS’ tenure, the judges have done the same: leaving the legislature on its own to support or oppose what the military wants.

So, how will the parliament deal with the situation?

The ruling party, Pakistan Tehreek-i-Insaf (PTI), has already agreed to bringing in legal and constitutional amendments that sanctify the process of extension. Will parties in the opposition, particularly the PML-N and the PPP, oppose the move?

The governments of the two parties have tried to appease the military to stay in the office. Often, they have also antagonised it by various acts of omission and commission. In any case, they have not succeeded in chipping away at the military’s powers.

Which is why it is easy to predict how the opposition parties will behave on the issue of the army chief’s extension. They will try to appear as tough as they must. They will attempt to bargain as hard as they can manage. They will jostle and joust for attention while interacting with the government on the subject – but, in the end, they will do what the most powerful institution in the country will want them to do.

There could be some exceptions just like there have been in the past. When in the early 2000s the parliament indemnified General Pervez Musharraf’s 1999 military coup, the PPP and the PML-N did not support the move. When the military courts were approved by the parliament in 2015, Jamaat-i-Islami and Jamiat Ulema-i-Islam (Fazl) abstained from voting.

Going by all this, it looks likely that there will be no unified opposition stance on the subject. Some opposition parties may oppose the extension altogether. Others may choose to stay away from the process. But several will be ready to play ball.

Each party, essentially, will make a decision keeping in mind its own interests and stakes in the current political dispensation. They will all be willing to strike a compromise if it ensures that their parliamentary and electoral positions either become stronger or at the least does not get weaker.

The PTI, therefore, can afford to browbeat the opposition as much as it likes. At the end of the day, Prime Minister Imran Khan and his cabinet are not in a position to give or deny anything to the opposition. It is the military that can do that. PTI’s political posturing will earn or lose it nothing.

As perhaps is also the case with the judges. That is why they always manage to make the parliament look bad without losing any of their prestige and status in the bargain.

But without support from other parts of the state, it is foolhardy to expect the parliament alone to stand on its two feet and engage in a David versus Goliath fight with the military. The outcome of that fight will always be in Goliath’s favour – barring, of course, a miracle.

That miracle can happen only if all political parties sit down together and decide, once for all, that they will never give in to any diktats from the military. They once tried to do just that through the Charter of Democracy back in May 2006 but since then they have gone back to a mutually destructive blame game in order to preserve their respective positions and stakes in the political and electoral system.

With each political party expected to watch its own back, the legislation over the extension is likely to get the parliamentary approval – though not without a lot of huffing and puffing about civilian supremacy and some ugly fights between the government and the opposition. The process of approval, however, is highly unlikely to generate a much-needed debate over a thorough reform of the state structure in which one part of the Executive is undermining all the rest of the institutions – the judiciary and the political parties included.

The writer is a former magazine editor and a freelance journalist.

PM Imran, SC and Army chief's extension: Unchartered territory