Unresolved constitutional issues

After proclaiming a state of emergency on 3 November, Musharraf deposed judges of the Supreme Court. They were about to decide whether his re-election as president of the nation had been constitutionally correct. The dismissal of the chief justice and other independent-minded members of the bench flies in the face of the legal principles democracy depends on. There is something rotten when armed forces enjoy extra-constitutional power.

Iftekhar Choudhry, the ousted chief justice, is still in detention at his home. Nonetheless, he manages to get messages out and is contesting Musharraf’s rule. Public opinion is on his side.

According to article 6 of the constitution, “any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason”. The punishment is the death penalty. But that law does not seem to apply to generals. Up to now, they always enjoyed immunity. It is telling that – when amending the constitution in the past – military governments never bothered to touch article 6. They did not think it might apply to their extra-constitutional actions.

While excessively meddling in domestic politics, however, the army has failed to fulfil its professional mission. It did not win any of the four wars it fought (including the proxy war in Kargil, Indian Kashmir, in 1999), nor is it able to control militant groups in Pakistan. In the so-called “war on terror”, hundreds of military personnel surrendered to Islamist militants. They were only freed after the negotiated release of various most-wanted militants by the national government.

The failings go back much further. In April 1948, seven months after Pakistan’s creation, the army triggered a war with India. After the humiliation of being rebuffed, the military command decided to become a force inside the country. Because of the army’s colonial background, that step was welcomed by the establishment of the civil service and tribal chiefs. They thought the army would permit social exploitation, but quell demands for democracy – and for many years, that was so. There were several spells of martial law. The army set up its own secret services and made sure it controlled political parties.

One reason Pakistan’s army does not respect any other domestic institution, is that it has been serving a mercenary function for the West – first in the Cold War, and now in the “war on terror”. Western opportunism has made the military dismissive of national law and international norms.

When Musharraf first suspended Chief Justice Choudhry in March last year, there were nation-wide protests, and Choudhry re-assumed office. In November, however, Musharraf, acting as the Chief of the Army Staff (COAS), imposed a state of emergency, amended the constitution and suspended fundamental rights. Musharraf-the-COAS re-arranged the country’s power matrix according to his wishes, and then ruled on as Musharraff-the-President. It hardly matters that he stepped down as COAS after these manoeuvres.

The real questions now are

– whether the president will be allowed to stay in office after elections,
– whether there will again be indemnity for extra-constitutional actions of the military and
– whether the generals will hand-pick the next prime minister.

All of this depends, not least, on who has the last say in constitutional mattes. In Pakistan, powers must be divided appropriately among the legislative, executive and judicial branches of government. If the army does not understand its subordinate role in a democratic nation, it is hard to see how the country will survive.