The army and the constitution - Ikram Sehgal - Thursday, April 21, 2011

A delegation of army officers from the prestigious Command and Staff College, Quetta visiting the Supreme Court (SC) were told by their host, Chief Justice Iftikhar Mohammad Chaudhry, that repeated military intervention had weakened state institutions, that the military had no business intervening in the governance of the country. He emphatically reminded the assembled army officers about their “oath of allegiance” to uphold the Constitution, not to succumb to the temptation of abrogating it at will as has happened time and again. “The prime duty of the armed forces is to defend the country against any external aggression or threat of war,” the CJ said. “The prime duty of defending the supremacy of the Constitution lies upon the SC,” he added.

The CJ reminded the delegation that the 1973 Constitution introduced a new chapter for the armed forces containing provisions pertaining not only to their command and functions but an oath by every soldier to “bear true faith and allegiance to Pakistan and uphold the Constitution and that he should not engage himself in any political activities whatsoever”. Easier said than done!

If the loot and plunder that the elected are indulging in shows no signs of abating and the SC seems powerless to prevent it, if the opposition seems to be hand-in-glove with the government and if it becomes impossible for the common man to survive in the face of rising prices and acute shortages of essentials including electricity, it does not take a genius to draw comparison with Mao’s saying, “power flows through the barrel of the gun”.

The long-suffering and frustrated people have no one to turn to but the armed forces. Inadvertently perhaps, and maybe even unwillingly, the uniformed personnel take to politics, but once they do so, how long does it take before they become politicised?

Through different judgments, the SC has maintained that the soldier and the citizen are alike before the law, therefore they must both obey the commands of the Constitution and show obedience to its mandate. Quoting Nobel Laureate Amartya Sen, “a country does not have to be fit for democracy, rather it has to become fit through democracy,” the CJ added that military interventions in the political process have always weakened democratic institutions and adversely impacted constitutional and legal development in the country.

“Now, if we want to make this great state of Pakistan happy and prosperous, we should wholly and solely concentrate on the well-being of the people, and especially of the masses and the poor. If you work in cooperation, forgetting the past, burying the hatchet, you are bound to succeed,” he said.

Unfortunately those elected, albeit mostly by bogus votes, have shown no inclination to work assiduously to uplift the sorry lot of our masses. The men in uniform need to be assured that their rulers will try and achieve such objectives while themselves obeying the laws of the land they were elected to implement.

The CJ emphasised that since Pakistan is being governed by a written Constitution, all powers and duties of the armed forces must flow from the provisions of that charter, that a heavy responsibility lies upon the shoulders of their officers to adopt patriotism and the highest moral and professional standards. “Only then you will be able to defend your country from extraneous threats,” he added.

Soldiers of this country are dying on a regular basis in place such as Swat, South Waziristan and Orakzai Agency. While the nation is grateful to the soldiers for their sacrifice, where are the signs of any tangible progress by their elected leaders in correcting the various ills that afflict the populace?

Time and again, the army has come to the rescue of the common citizenry in times of disaster. Is it surprising that given such circumstances some adventurers take it to be an open-ended “invitation” to ameliorate the miseries that the populace is facing? In the face of survival of the country, is it surprising that the Constitution and oaths of allegiance to it, take a back seat?

The circumstances in Pakistan are usually such that they provoke the minds and senses of the personnel of the armed forces as they do of common citizens. It does not help for them to see the apparent helplessness and inadequacy of the SC to implement its judgments on the one side and on the other, the long suffering public exhorting them to “do something” and being insistent about it (no matter that they turn on their “benefactors” soon after they have “done it”).

This frustration is enhanced when the rank and file see the incumbent government adopt the simple expedient of repeated filibustering, the changing of counsels that has successfully hindered the implementation of the NRO judgment for the last 18 months since late 2009. All the rhetoric by the SC declaring the NRO to be a black law and those in office affected by the NRO to be ineligible for office has remained just that, “rhetoric”. The ineligible have thus become legitimate and are legitimately looting the till. The result is that those who should be prosecuted by law for their countless misdemeanours are themselves prosecuting those who should be prosecuting them.

While defending the Constitution is the SC’s prime duty and one does not doubt for one moment that the honourable justices have their hearts in the right place, where is the definite will to ensure the ends of justice are served? The fact that many of their judgements have simply been ignored by the government rankles the public mind and even if the public does not doubt its true intentions it makes both the intelligence and the masses sceptical about the SC’s ability to implement the rule of law. One fears for the rule of law as this provides fuel for those who encourage the military to believe that they are “the saviours incarnate” of the republic. Is it a coincidence that some controversies miring SC judgments have gained currency and the SC’s pristine reputation has been brought back a peg or two by clever manipulation of facts with fiction?

CJ Chaudhry says the welfare of the people must be the supreme consideration of all institutions and all functionaries of the state, adding that “in adherence to constitutionalism and legal principles lies our salvation and future development as a civilised nation”. The CJ and his fellow justices have certainly tried but have not been able to stop the loot and plunder by deliberate and systematic disregard of rules and regulations. The integrity and sovereignty of the state has clearly been eroded, if the SC does not act, who will?

Given that the government of the day has no intention of listening to the SC, is it a mystery that the masses hope that they will at least “beware of the rage of angels” as represented by the men in uniform?

The writer is a defence and political analyst. Email:

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