By P.K. Balachandran
Colombo, November 13 – The 27 th. Amendment to the constitution of Pakistan that substantially enhances the powers of the Army chief has been passed by both Houses of Parliament. The Senate did so on Monday and the National Assembly on Wednesday, both with the required two-thirds majority, even as liberals and Imran Khan’s party vehemently opposed it.
The bill will be signed into law by President Asif Zardari, whose Pakistan Peoples’ Party (PPP) supports the Amendment.
The Amendment’s supporters argue that it recognizes the ground reality in which the Army Chief has de facto power over the civilian government. It is also seen as a fitting tribute to the sterling performance of the Pakistan armed forces in the war with India in May.
But critics warn that it would pave the way for the militarization of Pakistan’s political system and facilitate a return to naked military rule.
Pakistan has been under direct military rule for a total 33 years since independence in 1947. For the rest of the time, it has been under indirect military rule, with the elected civilian government playing second fiddle to the military in most matters, particularly relations with India. The 27 th.Amendment makes this informal arrangement constitutional.
Previously, the army would take over first and then amend the constitution to legitimize it, but the 27 th. Amendment renders a post- coup amendment redundant.
Pakistanis were over the moon when US President Donald Trump declared that the Pakistan Air Force had downed 7 to 8 Indian fighter jets in the 4-day India-Pakistan air war in May. Thrilled, the Shehbaz Sharif government made the army chief, Gen. Asim Munir, a Field Marshal, the highest-rank in the Pakistan military.
But supporters of the opposition Pakistan Tehrik-e-Insaf (PTI) party leader, Imran Khan, mocked at the glorification of Asim Munir. It was not the army which downed the Indian war planes, but the Pakistan Air Force they pointed out.
Be that as it may, Asim Munir visited the US and confabulated with President Trump and CENTCOM top brass as a “Field Marshal.” Munir took part in discussions with the US on political and investment matters and flew to West Asian capitals on diplomatic missions related to Gaza. If Prime Minister Shehaz Shariff accompanied him, it was clearly as an appendage.
Pakistanis, who cheered Munir for his leadership in the war against India, became apprehensive when the Field Marshal bid for constitutional power to solidify and enhance his power. The peoples’ apprehension was based on bad memories of military rule which only brought about Islamization, wars, military defeats and the vivisection of the country.
The Shehbaz Sharif government, which survives because the army is backing it and is keeping the firebrand Imran Khan in jail, agreed to amend the constitution to suit the army chief and also water down the powers of the Supreme Court which, in the past, had given inconvenient judgements.
Changes in the Military
At the heart of the 27 th. Amendment are the creation of the post of Chief of Defence Forces (CDF) and the abolition of the office of the Chairman of Joint Chiefs of Staff Committee (JCSC). The CDF will be from the Army.
For over four decades, the chief of the JCSC had served as the symbolic head of the armed services. The JCSC was designed to ensure coordination between the Army, Navy, and the Air Force. Members of the JCSC were all people of the same rank and were deemed equal. But with the 27 th. Amendment, the Army Chief will override the others, especially if he is a pushy person like Asim Munir.
“By placing an army officer as the Chief of Defence Forces with authority over the Air Force and Navy, the new system invites institutional imbalance and potential disaster,” retired Lt Gen Asif Yasin Malik, a former Defence Secretary, told Dawn.
“This amendment appears tailored to benefit a specific individual rather than to strengthen the defence structure,” he added.
Nuclear Assets
The 27 th. Amendment strips the civilian leadership of control over the country’s nuclear assets, handing them over to the armed forces. The Chief of the new National Strategic Command (NSC) will be from the Army. He will be appointed on the recommendation of the Chief of Defence Forces, who will be the Army Chief!
“The shift moves control of the country’s most sensitive assets away from the collegial National Command Authority (NCA), that was designed to ensure civilian oversight and inter-service balance, towards a single service,” said defence expert, Dr Shireen Mazari.
“Effectively, all nuclear weapons and delivery systems will be under the army’s control,” she added.
The status of Field Marshal, Marshal of the Air Force, Admiral of the Fleet, will be for life. And as in the case of the President and Prime Minister, these military men of Marshal’s rank will retain that rank for life. And they, along with the President and the Prime Minister, cannot be subjected to criminal prosecution for their official actions lifelong.
The Marshals of the three services can be removed only by impeachment by a two-thirds majority vote in parliament while a Prime Minister would lose office if his government is defeated by a simple majority in parliament.
Interestingly, Prime Minister Shehbaz Sharif had expressed his opposition to the immunities.
“As a matter of principle, an elected Prime Minister must remain fully accountable, both before the court of law and the people,” he had said.
According to a constitutional lawyer, “what looks ceremonial on paper amounts to a permanent legal armour around an unelected officeholder, a parallel authority which is insulated from the very rule of law it is sworn to defend.”
“Creating lifetime immunities for military officers also trashes the very idea of civilian supremacy. The new amendment will provide constitutional cover to the country’s march towards a praetorian State” wrote commentator Zahid Hussein in Dawn.
Supreme Court Clipped
The amendment has constituted a Federal Constitutional Court (FCC). With the establishment of the FCC, the powers of the Supreme Court have been reduced, with some areas shifted to the FCC. The Supreme Court will have only appellate jurisdiction. It cannot take up cases Suo Moto.
Reacting to this a constitutional lawyer told Dawn – “The Supreme Court is the conscience of the nation. When that conscience begins to fade, when its voice trembles under pressure, the entire structure of liberty begins to shake.”
He recalled the massive lawyers’ agitation against President Pervez Musharaff in 2007-09 to say that only mass action can check dictatorial tendencies.
In 2005, Iftikhar Chaudhry became Pakistan’s Supreme Court Chief Justice. But his rulings were inconvenient for then President Pervez Musharraf. When Chaudhry challenged the legality of Musharraf’s dual role as President and Army chief, Musharraf suspended Chaudhry.
But Pakistan’s legal community regarded Musharraf’s action as an attempt to curtail the Supreme Court’s increasing independence under Chaudhry’s leadership. They began to agitate.
Approximately 80,000 lawyers aligned across traditional Pakistani political divides, with an intention to get Chaudhry reinstated as Chief Justice and restoring judicial independence. Lawyers organized nonviolent rallies and protests across the country only to be met with State repression.
On July 20, 2007, Musharraf caved and reinstated Chaudhry as the Chief Justice. But on November 3, 2007, he declared a State of Emergency and enacted the Provisional Constitutional Order (PCO) that suspended the constitution and gave him the freedom to rule without judicial oversight.
The PCO was enacted just days before the Supreme Court was to decide on a petition that challenged the legality of Musharraf’s controversial re-election in October. The lawyers’ movement quickly mobilized to resist the Emergency. In a bold and uncommon act of defiance, two-thirds of Pakistan’s 97 senior judges refused to accept the imposition of Emergency.
A crackdown followed. Judges, including Chaudhry, who resisted were fired and detained. Despite the arrests, lawyers across the country defied Musharraf’s suspension of the constitution. Unable to suppress the lawyers, Musharraf resigned his position as head of the military on November 28, 2007, and lifted the Emergency on December 15, 2007.
The Pakistani opposition and liberals both at home and abroad are hoping that the masses will similarly resist the 27 th. Amendment which puts the army in a constitutionally unassailable position of superiority, reduces civilian control over the military, and clips the powers of the Supreme Court.
END
