Beyond the law

Published April 22, 2022
The writer is a barrister.
The writer is a barrister.

IF necessity is indeed the mother of invention, our political discourse indicates that we suffer from some very urgent, even desperate need to conjure up all sorts of euphemisms to allude to the armed forces of our country, or, to be more precise, certain members thereof, who, at any given point in time, may be or may have been or may even not be, a part of whatever it truly is that we so casually keep on referring to as ‘the establishment’ — or ‘the deep state’ or ‘the powers that be’ or ‘Gate No. 4’ or ‘the boys’ or ‘khalai maqhlook’ or ‘agricultural department’ or ‘undemocratic forces’ or, as has become the raging fashion for some time, ‘the umpire’, that final arbiter of affairs.

This is an exceptionally dangerous habit on our part, born of compulsion no doubt, but one that does nothing more than obfuscate crucial issues of public governance, which, in any functioning democracy, require absolute transparency as a prerequisite. We, on the other hand, bury them alive beneath our barrage of curious innuendos, drowning out their warnings and wailings, obliterating their voices in entirety. Then, in the silence that ensues, we fashion an outlandish entity unknown to our Constitution — one with no formal status, no legal personality, no face, no name, no identifiable characteristic at all which could allow for its accountability.

This is a creature of the shadows, its methods seen yet unseeable, its form known yet unknowable, its characters apparent yet inapparent.

Editorial: Establishment’s role

This linguistic manipulation results in absurd conversations. We openly speak of this so-called establishment — of whether it is angry or happy, of whether it is victorious or stands defeated, of whether it is neutral or non-neutral, of whether it is silent or signalling or scheming, of what it did in ages past and what it does today and what it may do tomorrow, of whether it is on that ever-elusive ‘one page’ with the government of the day, or perhaps scribbling away on a manuscript of its own design.

What is trivialised throughout this entire process is the brazen illegality of the existence of such a mysterious entity in the first place, one whose actions appear unconstrained by things known as laws or rules or regulations, little formalities needed to ensure that the state does not abuse its mandate and authority.

Naturally, after a time, things become more and more theatrical.

Political parties thundering foul play and naming names surrender to amnesia and return to older, more time-tested tricks.

A speaker of a provincial assembly claims that for three and a half years, the premier of his own coalition government had been having his “nappies changed”. He feels no need to clarify exactly who had been performing this inglorious deed. That very prime minister, in turn, reveals on national television that top military officials, much like homing pigeons, were relaying messages between him and his opponents. That no one from the armed forces is supposed to assume (or be invited to assume) such a mediatory role is simply glossed over.

This is a creature of the shadows, its methods seen yet unseeable, its form known yet unknowable, its characters apparent yet inapparent.

What becomes impossible to distinguish amidst all this is where power really lies, who is exercising it and how? Such non-transparency is an anathema to good governance and at least part of this problem is rooted in the fact that our armed forces in general, and our intelligence agencies in particular, remain concealed behind an impenetrable firewall. The latter operate in complete legal vacuum, seeing as there is no act of parliament governing their establishment let alone their function, while secrecy surrounding the former is so iron-clad that it was only recently that the Supreme Court realised that there was no law at all providing for an extension in the army chief’s tenure.

Equally fascinating is that when the army regulations were placed for perusal before the bench, they came stamped with a direction that its contents were “not to be communicated, either directly or indirectly, to the press or any person not authorised to receive it” — instructions rightly rebuked by the apex court, since all laws are public documents and must be readily available for scrutiny.

What is most phenomenal is that way back in 1948, Jinnah confessed to a gathering of army officers that “during my talks with one or two very high-ranking officers, I discovered that they did not know the implications of the oath taken by the troops of Pakistan”. Being a man of the law, he said he would “like to take the opportunity of refreshing [everyone’s] memory”. He then actually read the prescribed oath to his audience, and for some reason felt the need to clarify that “executive authority flows from the head of the government”, and that “any command or orders that may come to you cannot come without the sanction of the executive head. This is the legal position”.

Editorial: The establishment pivot

Sadly, throughout our history, his words were ignored. General after general torpedoed our democratic process, irreparably retarding its natural development. One even had the audacity to call it a “piece of paper, to be put into the dustbin”. Each coup however was noticeably bloodless, its legitimacy secured by the same sorry handmaidens: opportunistic politicians, subservient judges, and a controlled (or pliant) media.

All this facilitated the parallel development and emergence of the army as a hegemonic force, visibly distinct from the executive, autonomous and untouchable, which, even though not ruling directly today, is still widely perceived as a master puppeteer, pulling along the strings of a shambolic democracy.

This is a land governed by rules, not the magical world of Mr Harry Potter. There can be no space here for any you-know-whos or they-who-must-not-be-named. The outsized role of the military is a constitutional aberration, one that requires immediate rectification. Perhaps if our politicians were less busy playing musical chairs, they may actually be able to come together and reclaim the space they have so willingly ceded over. Till then, we must be prepared to keep on going in circles — over and over and over again.

The writer is a barrister.

Published in Dawn, April 22nd, 2022

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