Pakistan Army and
Civilians Must Understand the Real Challenge at Home
By
Muhammad-Najm Akbar
AS
THE CONSTITUTIONAL battle in Pakistan on the status of LFO raged
on, the people of Pakistan were momentarily deprived of all interlocutors
who could possibly be approached. At the peak of the crisis, both
the official power brokers representing the military, the Chief
of Army Staff and self-appointed President, General Pervez Musharraf,
and his civilian face, Prime Minister Jamali, decided to cross
the Atlantic within 10 days of each other.
The state has advanced ridiculous justifications for the inexpedient
coincidence of the two visits. Looking back at my 21years in the
corridors of power, I can see that the reasons for this ill-advised
serendipity have to be located somewhere else. The real question
is why could not the civilian face of the military regime be trusted
with both the UN and the Washington sides of the visit?
The answer is simple: the eighth amendment empowered equations
in Pakistan cannot risk missing any opportunity to reassert army's
total control over issues of defense and foreign policy as well
as the logistics that goes with it. So, the handpicked Prime Minister
can have no share of the business that Army has to lead. For the
bilateral issues flowing from the overarching issues of the defense
and foreign policy, the Prime Minster can be deputed to proceed
with a well-scripted visit in which army-appointed Finance Minister,
Foreign Secretary and the local ambassador, will supervise him.
The army and its civilian face must understand that if they will
continue to weaken the tenuous link between the people and the
power in Pakistan, their pleasure-odysseys abroad will be on avail.
Our real challenges are at home and we have to address them squarely
before leaving home.
The
army should note one major indicator of this primal need in the
editorial that appeared in The New York Times of 21 September
putting the General on notice on the anvil of his visit that "Pakistan's
behavior has fallen well short of what Americans are entitled
to expect from an ally in the war on terrorism."
A
Pakistani-American came to the General's rescue in the letters
to editor on 27 September recapitulating his contribution. More
details had earlier been highlighted by the South Asia Tribune
when it directed its readers to the Centcom web site which
had a more authentic description of Pakistan's role than The
New York Times could afford to acknowledge.
I
am positive that any Army think tank worth its salt would have
noticed how callously The New York Times chose to ignore
the challenges Pakistan faced internally on its march towards
restoration of democracy. It might suit the army for the time
being that there was no mention in The New York Times
of the battle over LFO but I am sure they know that Pakistan's
integrity and cohesiveness of its society are issues of far greater
importance than transient worries of The New York Times,
a newspaper which would never ignore a similar debate and struggle
within America.
If The New York Times ignored to devote even a line or
two to the constitutional crisis in Pakistan, it is because it
does not care for Pakistan's long-term interests. Why should they
question the wisdom of a US President dealing with an illegitimate
representative who owes his position to the insertion of draconian
amendments to Pakistan's constitution at gunpoint, who has unconstitutionally
combined the offices of the President and the Chief of Army Staff,
and adopted unconstitutional methods to secure Presidency on the
basis of a fraudulent referendum? Norms and standards of democracy
have to be only theoretically stressed equitably for all nations.
In
practice, Pakistanis and many other nations do not deserve them
as much as western citizens. Even Saddam was once an ally. It
is no time to recall that real alliances are formed with people
and their real and genuinely elected representatives, not with
avaricious and discredited usurpers of power. General Musharraf's
biggest contribution to the strengthening of pro-army extremist
forces in Pakistan is that he has cold-heartedly undermined the
moderate socio-political elements in Pakistan and institutionalized
army's superiority over the rights of mortal civilian citizens.
The New York Times has no time to underscore this. We
have to worry about our problems ourselves and address them.
The
Asian Development Bank has taken the courage to pinpoint some
of these issues by referring to security concerns and the political
instability resulting from the 10-month long tussle between the
government and the opposition on the LFO continuing factors hampering
investment in Pakistan.
In the face of intimidatory tactics of the army and the ruling
coalition, the people of Pakistan are determined to strive for
the supremacy of the Constitution and to block army's interference
in politics. General Musharraf has directly joined the fray with
an open threat issued on 26 August. He indicated that the LFO
was a part and parcel of the Constitution, and without it, the
October elections could stand invalidated. Another news report
was more explicit, quoting him saying that if the Legal Framework
Order was not accepted as part of the Constitution, the elections
would stand null and void, and parliament would have to be packed
up for new elections. On August 30, 2003, in an interview released
by the official new agency APP, he reiterated that if there was
no LFO then the whole process will become illegal and null and
void and elections will have to be held again.
The
General justifies the LFO referring to the Supreme Court judgment
of 12 May 2002, which he contends had given him the authority
to amend the Constitution. As the General continues to draw sustenance
from the Supreme Court judgment of 12 May 2000, one way of resolving
the issue would be that either he files a reference with the Supreme
Court to seek further clarifications about the limits of his erstwhile
powers or the Court takes suo moto action to do the needful.
The General might also like to be a bit more objective in scrutinizing
the judgment of a Court that had no competence to empower a dictator
supported by army with the authority to amend the constitution.
This controversy notwithstanding, in granting the army powers
to amend the constitution, it was in no way the intention of the
Court to undermine the supremacy of the civilian control over
army or erode the sovereignty of the Parliament. The Court had
laid down criteria that the army had to observe.
The
criteria can be read clearly in the detailed judgment which enunciates
following fundamental and incontrovertible principles: "...power
to amend the Constitution cannot be conferred on the Chief Executive
of the measure larger than that which could be exercised by the
Parliament. Clearly, unbridled powers to amend the Constitution
cannot be given to the Chief Executive even during the transitional
period even on the touchstone of State necessity...Resultantly,
the power of the Chief Executive to amend the Constitution is
strictly circumscribed by the limitations laid down in the Short
Order vide sub-paragraphs (i) to (vii) of paragraph 6." Para
287, sub para 6 of the judgment thus forms a critical point of
reference.
Therein,
the army was "entitled to perform all such acts and promulgate
all legislative measures as enumerated hereinafter, namely: -
a) All acts or legislative measures which are in accordance with,
or could have been made under the 1973 Constitution, including
the power to amend it; b) All acts which tend to advance or promote
the good of the people; c) All acts required to be done for the
ordinary orderly running of the State; and d) All such measures
as would establish or lead to the establishment of the declared
objectives of the Chief Executive. In sub clause (ii), the Court
stipulated that constitutional amendments by the Chief Executive
can be resorted to only if the Constitution failed to provide
a solution for attainment of his declared objectives and further
that the power to amend the Constitution by virtue of clause 6
sub-clause (i) (a) ibid were controlled by sub-clauses (b)(c)
and (d) in the same clause.
The
Court also reiterated its role to have the power of judicial review
to judge the validity of any act or action of the Armed Forces,
if challenged, in the light of the principles underlying the law
of State necessity and specifically stated that declared objectives
were as they were spelt out from the General's speeches dated
13th and 17th October, 1999, and all "such orders made, proceedings
taken and acts done including the legislative measures, shall
also be subject to judicial review by the superior courts."
This
was not a case, the Court emphasized, where old legal order had
been completely suppressed or destroyed, but merely a case of
constitutional deviation for a transitional period so as to enable
the Chief Executive to achieve his declared objectives. The Attorney
General summed up the army objectives as revival of economy, accountability,
recovery of huge plundered national wealth, the task of unavoidable
electoral reforms including preparation of fresh electoral rolls,
and to ensure good governance.
The
Supreme Court's understanding of the declared objectives of the
Army at that time can in no way include what its Chief has done
through LFO, i.e., change the mode of election of the President
and combine the offices of the President and the Chief of Army
Staff, restore those powers of the President, including the power
to dissolve the assemblies, which had been rescinded by the Parliament
in 1997 as well institutionalizing the permanent role of the army
in the national power structure through the creation of National
Security Council.
The
Court in fact had agreed with the submissions made before it that
prolonged stay of the Armed Forces in the political arena would
damage its professionalism, hence they should retreat to their
Barracks as early as possible. Further, in para 286 of its judgment,
the Court observed, "We are not in favor of an Army rule
in preference to a democratic rule..."
The
Court had justified its decision to grant three years to the army
purely on technical grounds, "Ordinarily, we would have allowed
minimum time for holding of fresh elections as contemplated under
the Constitution' but extra time was given as the electoral rolls
were not ready.
For
decades army has made fools of the people of Pakistan and has
been supported by judiciary in the foul process. The ongoing protest
has proved that election of a President through a fraudulent referendum
in violation of the 1973 constitution is not acceptable to the
people. They also reject army's exercise of powers to amend the
constitution in such fundamental ways that it ridicules the existence
and the powers of the Parliament. It is time that the armed forces
realize that they are on steady streak of losing esteem and respect
of the people of Pakistan. They must honor the Court judgment
of May 2000 and return to the barracks, without any delay and
forever. Civilian leadership can take care of the defense and
foreign policy issues without taking any dictation from half-literate
Generals.
The writer is a senior Pakistani diplomat who recently took
voluntary retirement at a young age. His last posting was at Paris
where he had the dual charge as Deputy Chief of Mission &
Deputy/Alternate Permanent Representative to UNESCO.
