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OPINIONS: A MILITARY-POLITICAL COMPLEX? LEGAL EYE

By Babar Sattar*, sattar@post.harvard.edu

Does Pakistan support a military-political-judicial complex that afflicts democracy in the country? While the actors in this proposed 'iron triangle' are unique to our country, the idea is not original. In his farewell address to the nation on January 17, 1961, US President Eisenhower warned the citizens that, "in the council of governments, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist." The question being asked here is whether there is a symbiotic relationship between Pakistan's armed forces, political elites and the judiciary, predicated on the understanding that the military is to retain its predominant role in the politics of Pakistan?

Does a fundamental understanding of democracy endorse a role for the military in politics? Is there a reason to alter such understanding to carve out a political role for Pakistan's military for reasons peculiar to our country? What is it that democracy is meant to achieve in terms of self-governance, political empowerment and equality? Can such goals be achieved by virtual representation under benevolent military rule? The argument being made here rests on the assumption that democracy is a good thing and a suitable system of governance for Pakistan. Further, that traditional democratic structure demands civilian control of the military and there is nothing peculiar about the genius of Pakistanis, the country's state of development or its security needs that requires democracy in Pakistan to reconcile with a different civil-military power balance.

If the role of military in politics is unhealthy for democracy, the question then is how the military got involved in the first place? One school of thought is that all governments in Pakistan have offered unequivocal commitment to maintaining a strong military for protecting the country's security needs. Such commitment of intent and resources promoted the military's growth. Civilian institutions however did not experience a simultaneous strengthening, and the failure to evolve mature democratic institutions, to institutionalise the acquisition and exercise of state power, and to inoculate democratic norms and values among the masses rendered its civilian governments vulnerable to military intervention in politics. Bottom line: inept civilian governments and politicians are responsible for military takeovers.

The counterargument, however, is that repeated military interventions have undermined the capacity and authority of civilian governments. The engagement of military in politics in the formative years might have been by invitation of non-representative politicians, but the coups that followed were acts of reactive militarism inspired by the desire to protect and promote military's institutional and corporate interests. Repeated military interference disrupted the political process and prevented the evolution of institutional norms and conventions, thus keeping vital state institutions weak and in a state of perpetual dependence on the military.

But the military alone can neither be credited with carving out a permanent role for itself in politics, nor is it the sole beneficiary of such role. The military-political complex is a coalition of the willing, driven by unscrupulous ambition of military, political and judicial elites and focused on self-preservation of individuals at the helm in the immediate-term and maintaining the power status quo in domestic politics more generally. Individuals who benefit from this power triangle keep changing, but the overall dynamic stays unaltered and continues to corrode democratic values: every time the military undertakes a political misadventure, it is lead by a holier-than-thou general, supported by politicians who raise the standards of sycophancy, and justified by select judges in the larger interest of the nation.

General Musharraf's explanation for his coup was that, "it is unbelievable and indeed unfortunate that the few at the helm of affairs in the last government were intriguing to destroy the last institution of stability left in Pakistan by creating dissention in the ranks of the armed forces." Thus the only choice left to him was "between saving the body (which is the nation) at the cost of losing a limb (which is the constitution) or saving the limb and losing the whole body." While claiming that the military mattered more than the constitution, the general was reassuring too. He explained that his martial law was "not Martial Law, only another path toward democracy" and that the military had no intention to stay in control any longer than was absolutely necessary to pave the way for true democracy to flourish in Pakistan!

No sooner than General Musharraf assumed control, a majority of the ruling political elite jumped fence. The Chaudhary's of Gujrat spearheaded the drive to elicit support for the king's party and got adequately rewarded. Now seldom does a week go by without Shujaat Hussain, Pervaiz Elahi or Sher Afgan Khan emphasising Pakistan's eternal need for General Musharraf's continuing rule without shedding his uniform. Such utterances might be nauseating for some, but nevertheless help preserve political offices of the flatterers, and the cars, flags and nuisance that come along. The political elites thus offer crucial support to lodge the military in politics and keep it there, in return for becoming beneficiaries of the political patronage that the military dispenses.

Judicial elites form the third component of this complex. While the judicial oversight of the political process has expanded, the Supreme Court historically has failed to articulate a principled theory of democracy. Consequently the constitutional jurisprudence on the role of military in politics is compromised and conflicted. For example, in upholding General Musharraf's coup and provisional constitutional order, and justifying the taking of oath under such order the then Chief Justice Irshad Hasan Khan wrote that a "new oath of office was taken by the judges…with a view to reiterating the well established principle that the first and foremost duty of the judges of the superior courts is to save the judicial organ of the state."

The dictum is surprising because in law school one is taught that the first and foremost duty of judges is to protect the constitution. Apart from providing legal cover to the military coup, the Supreme Court also awarded General Musharraf the power to amend the constitution. This was most unfortunate. The Supreme Court derives its authority from the constitution and while it has the mandate to interpret the constitution, it has none to condone a suspension of this fundamental law or create new authority to amend it. Due to such anomalous rulings, the country is now debating whether it is constitutional to continue to have a president who is also a serving general or to have a five-year parliament impose a president on the nation for ten years. Such debates exhibit how the law can be used to structure, manipulate or distort the political process.

What democracy requires is not just free and fair elections, but a level playing field. And this is not possible so long as the military is a contender in the political arena. The military's involvement in politics locks-up democratic competition in impermissible ways, and its power to persuade and coerce individuals and institutions undermines the independence and integrity of democratic institutions and the political process. But the military's political role cannot be extinguished without dismantling the military-political complex, which in turn is not possible without developing a strong consensus among the military, political and judicial elites that the military's involvement in politics is bad for democracy and bad for the country.

Unless we move beyond the 'Is-Musharaf-better-than-Benazir-and-Nawaz-Sharif' mode of political discussion and focus on the institutional harm caused by military's involvement in politics, the prospects of developing an uninterrupted democracy and self-sustaining political process will remain bleak.

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* Mr. Sattar is a lawyer based in Islamabad. He is a Rhodes Scholar and has an LL.M from Harvard Law School. Email: sattar@post.harvard.edu.

 

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