Military’s constitutional role

Published December 15, 2022
The writer is a barrister.
The writer is a barrister.

WHILE expressing his innocent wonder over why our armed forces are “often made the subject of criticism”, Gen Bajwa, our former army chief, recently conceded that this may just have something to do with the institution’s “interference in politics for the last 70 years”. This interventionism, he very graciously admitted, was definitely “unconstitutional”, and to rectify this, it has apparently been decided, “after great deliberation”, that the military shall “never interfere in any political matter”.

In another country, such a candid confession of unconstitutional conduct might have triggered an avalanche of reprisal: analysts may have shrieked themselves hoarse in outrage, inquiries may have been opened, fingers may have been pointed, and who knows, even heads may have rolled. Ours, however, is not that country, and since calls for accountability are still deemed to lie beyond the fuzzy line of control that binds our press, one must settle on the conventional wisdom of a good old maxim — ‘der aye, durust aye’ (or, better late than never).

With the new chief having taken charge, it can only be hoped that the mistakes of the past will never be repeated again, and the army really will, as his predecessor signalled, stick to its constitutional role — a decision that the present leadership is said to be “strictly adamant” upon.

On that subject (and since there appears to have been such tremendous confusion surrounding this in the past), it may be useful here to remind ourselves of exactly what that role actually entails.

In striking contrast to the outsized space occupied by the army in our political discourse — it truly is perceived as something of an omnipotent beast, capable of all kinds of sorcery that can produce any result it desires, be it toppling governments or muzzling the media or silencing dissenters or disappearing people — if anyone were to look at our constitutional framework, they would discover that the armed forces receive only a marginal reference.

Our armed forces receive only a marginal reference in our constitutional framework.

The 1973 Constitution painstakingly defines the social contract underlying our state. The vast majority of its contents are devoted to spelling out in considerable detail the fundamental rights guaranteed to citizens, the principles of policy that must be adhered to, the form and function of the legislature, the executive and the judiciary, the power-sharing arrangement between the federation and the provinces, the conduct of elections, the role of Islam in all this matrix and so on. It is only towards the end, in its ‘miscellaneous’ section, that any attention is paid to military matters at all.

Article 243 makes it clear that the “Federal Government shall have control and command of the Armed Forces”, with the president acting as its ceremonial head. Article 244 binds every member of the armed forces to a specific oath, which (and this cannot be emphasised enough) includes an explicit promise not to engage in “political activities whatsoever”. And finally, Article 245 lays out its function, which is to “defend Pakistan against external aggression or threat of war” and “act in aid of civil power when called upon to do so”. This too, it must be noted, is subject to “the directions of the Federal Government”.

The constitutional role of the armed forces is therefore very simple — to submit before the government of the day, whosoever that may be, and carry out every lawful order dictated to it. This is a position of complete subservience to elected authority, and does not envisage any direct input or relation towards politics and policymaking, or the economic health of the country, or its foreign policy, or its ideological frontiers.

More importantly, the army is not an autonomous institution capable of taking unilateral decisions, and can only do that which is, firstly, within its legal ambit, and secondly, commanded by the civilian executive.

Tragically, this has never really been the case. Successive coups have allowed the security and intelligence apparatus to develop not in tandem with other state institutions, but on a unique tangent of their own — cocooned inside a realm untouched by the light of the law, encased in near-absolute impunity. No wonder then that the recent change of command at GHQ, which ought to have been a routine affair that merited no more than a passing news ticker, generated such political intrigue and captured such public attention that it eclipsed everything else, including the most destructive floods this country has ever seen.

It is an absurdity that the office of the chief of the army staff is perceived to trump every other constitutional post. The damage this imbalance of power has caused is immeasurable.

Ask any political party today to answer for their performance in power and they shrug it away by claiming that their removal was engineered. Grill them for graft cases and they cite political persecution. Seeing as how no premier in Pakistan has ever completed their full term, it becomes rather difficult to argue anything to the contrary. And hence, baffled citizens content themselves by making jokes about who is receiving a ‘software update’, while bemused onlookers give us moniker after moniker — like ‘garrison state’, or ‘state within a state’, or even, ‘army with a state’.

The new chief must somehow convince the populace-at large that, under his leadership, this is no longer going to be the case. This is a tall order, especially given that Gen Bajwa’s disclosures conveniently left out many of the logical questions that followed — the who, the what, the how, the why. Without this basic information, any analysis of military intervention (past, present or future) will remain as it always has — conjectural, built on mere assumptions and presumptions, truths and half-truths and mistruths. Perception will continue to be the litmus test. And naturally, if dissenters keep getting hounded into oblivion, business-as-usual shall be supposed.

As we part, it is worth bearing in mind that institutional largesse is rarely capable of self-correction. Hence, it is up to political parties to plug the loopholes that allow such distortions of power to exist. If they wish to steer the country, they must stop their childish games — whether it is (shamelessly) calling for snap elections, or (equally shamelessly) avoiding them. For till the army is displaced by parliament as the centre of gravity in this country, all crises shall continue to pivot around it.

The writer is a barrister.

Published in Dawn, December 15th, 2022

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