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Martial Law by other Means
“Military coups”, Alexis De Tocqueville warned more than 200 years ago, “are always to be feared in democracies. They should be reckoned among the most threatening of the perils which face their future existence. Statesmen must never relax their efforts to find a remedy for this evil”.

On August 14, 1947, we took democracy, supremacy of law, supremacy of civilian rule and the independence of judiciary for granted. Jinnah’s Pakistan was to be governed by law, not man. Very soon, events were to prove how wrong we were.

Mr. Jinnah was aware of the threat posed by the army to Pakistan’s fledgling democracy. On the day of Pakistan’s independence, August 14, 1947, Mr. Jinnah, who had just become Governor General, scolded one young Pakistani officer. The officer had complained that: “instead of giving us the opportunity to serve our country in positions where our natural talents and native genius could be used to the greatest advantage, important posts are being entrusted, as had been done in the past, to foreigners. British officers have been appointed to head the three fighting services, and a number of other foreigners are in key senior appointments. This was not our understanding of how Pakistan should be run”.

Mr. Jinnah was deliberate in his answer. He warned the officer concerned: “not to forget that the armed forces were the servants of the people and you do not make national policy; it is we, the civilians, who decide these issues and it is your duty to carry out these tasks with which you are entrusted”.

Months later, during his first and only visit to Staff College Quetta, he expressed his alarm at the casual attitude of “one or two very high-ranking officers”. He warned the assembled officers that some of them were not aware of the implications of their oath to Pakistan and promptly read it out to them. And he added: “I should like you to study the constitution which is in force in Pakistan at present and understand its true constitutional and legal implications when you say that you will be faithful to the constitution of the Dominion. I want you to remember, and if you have time enough, you should study the Government of India Act (of 1935), as adapted for use in Pakistan which is our present constitution, that the executive authority flows from the head of the Government of Pakistan, who is the Governor General and therefore any command that may come to you cannot come without the sanction of the executive head”. The supreme irony of the event is that the Constitution of Pakistan was to be abrogated or suspended by some of the officers present in Mr. Jinnah’s audience. Sadly, the warning went unheeded.

It is axiomatic that army has no political role in any democratic country, whatever its form of government. But, for historical reasons, it has acquired this role in Pakistan which now appears to be irreversible, at least in the foreseeable future. Isn’t it tragic that when strain develops between the pillars of state, it is the Army Chief who is called upon to act as a referee?

In India, this role is played by the Union President who is strictly neutral and commands great respect. When the country faces what is called “the deadlock of democracy”, the President acts as a referee, avoids becoming a participant or a partisan in the political power game. He is like an Emergency Lamp. When power fails in Delhi, the Emergency Lamp comes into operation. When power is restored, the Emergency Lamp becomes dormant. In Pakistan, the role of the army is like that of a firebrigade. It rushes to the site of fire, extinguishes the fire, but instead of getting back to the station, it lingers on, tarries too long, gets involved in the management and administration of the house, and ceases to be a firebrigade.

Marx once said: “Neither a nation nor a woman is forgiven for an unguarded hour in which the first adventurer who comes along can sweep them off their feet and possess them”. October 7, 1958, was our unguarded hour when democracy was expunged from the politics of Pakistan with scarcely a protest. Many nations in the past have attempted to develop democratic institutions, only to lose them when they took their liberties and political institutions for granted, and failed to comprehend the threat posed by a powerful military establishment. Pakistan is a classic example.

I was Deputy Commissioner D. I. Khan, when the army struck. I heard over the radio that martial law had been declared and civilian governments dismissed. Ayub Khan was now the Chief Martial Administrator. The myth that General Ayub was not the co-author and co-sponsor of the coup was quickly dispelled when Mirza was dismissed on October 24, and Ayub Khan appointed himself as President in his place. The imposition of martial law was promptly validated by a pliant Federal Court headed by Chief Justice Munir. It gave the lie to all that I had been taught: "there can be no martial law in peace time", we were told by eminent jurists. The country was not at war, and was not sliding into anarchy. There was no civil commotion in the country preventing the Judges from going to courts - an essential pre-condition for the imposition of martial law in peace time according to Dicey.

General Ayub Khan was the first to stab Pakistan’s democracy in the back. It was Ayub Khan who committed the original sin. It was Ayub Khan who inducted the army into the politics of Pakistan. It was he who set a bad precedent. Others merely followed his example. In the process, he did incalculable harm to the country and to the army. He knew that if the army once got drawn into political life – and this he knew was inevitable – it could not withdraw itself from the situation. What a mess he has left behind.

The army of Pakistan struck Pakistan’s nascent democracy four times and has been in power for nearly half the country’s existence. The constitutional position is very clear. Anyone who abrogates or subverts the Constitution shall be guilty of high treason (Article 6). None of the perpetrators was punished.

Army rule has cast a long shadow over politics in Pakistan even during the period of civilian rule. Repeated army intervention in the politics of Pakistan has been a recipe for disaster. The coups dismantled the apparatus of constitutional government which, given the prospects of general elections, threatened to bring into field a new political leadership that would be less pliable. It has thwarted the growth and development of parliamentary democracy and destroyed whatever little faith people had in their political institutions. What is worse, it has eroded people's faith in themselves as citizens of a sovereign, independent, democratic country. “Democracy” in Pakistan has become a mask behind which a pestilence flourishes unchallenged.

It is now abundantly clear that whatever the constitutional position, in the final analysis defacto sovereignty in Pakistan (Majestas est summa in civas ac subditoes legibusque soluta potestas i.e. ‘highest power over citizens and subjects unrestrained by law in the words of French Jurist Jean Bodin’) resides neither in the electorate, nor the Parliament nor the executive, nor the judiciary, nor even the constitution – which has superiority over all the institutions it creates. It resides, if it resides anywhere at all, where the coercive power resides. In practice, it is the ‘pouvoir occulte’ which is the ultimate authority in the decision making process in Pakistan. They decide when to abrogate the constitution; when it should be suspended; when elected governments shall be sacked, and when democracy should be given a chance. They also decide whether an elected Prime Minister shall live or die. The political sovereignty of the people is a myth. To apply the adjective sovereign to the people in today’s Pakistan is a tragic farce.

Mr. Jinnah was a fervent believer in the sovereignty of the people, the inviolability of constitution, supremacy of civilian rule, an absolutely independent, incorruptible judiciary, Rule of Law and a strong, neutral, honest civil service. The Pakistan, Mr. Jinnah founded is gone. It disappeared the day power–hungry Generals used the army as an instrument for grabbing political power and hijacked Pakistan. On that day, the lights went out. Pakistan slid into darkness. The nightmare is not over yet.

It is a basic principle of democracy that Generals do not challenge the legitimacy of elected governments or march their troops into the capital to subvert political institutions. In Pakistan it is nothing unusual. Every now and then Generals topple elected governments with impunity and seize the helm from the politicians. Our entire political system has been pulled into a black hole caused by periodic army intervention and prolonged army rule. It has deprived us of everything our past, our present and our future. Public criticism of the generals has become widespread. The army, once held in high esteem, is now being seen in a different light.

Today the biggest single burning issue before the country is this: How to put the country back on the rails? How to get back on the right path to a democratic Pakistan? Above all, how to reclaim the army from its abuse by a power-hungry junta who want to use it as an instrument for grabbing and retaining political power.

It is now abundantly clear, except to those who are blind or on drugs that if Pakistan is to survive, the army must be placed outside the turbulent arena of political conflict. As a direct consequence of military intervention in October 1958, we lost half the country in 1971. Our Bengali compatriots parted company with us when we drifted away from the democratic path. They saw no future for themselves in a military – dominated Pakistan and broke the country in two.

“Man learns nothing from history”, Hegel once said, “except that man learns nothing from history”. The secession of East Pakistan made it abundantly clear that the federation cannot survive except as a democratic state based on the principle of sovereignty of the people and supremacy of civilian rule. Pakistan cannot survive under military rule direct or indirect, thinly disguised or not, with or without a civilian façade, because military rule lacks legitimacy and is doomed to failure. Pakistan will never be what it can be, let alone what it will need to be without a genuine democratic setup.

Today Pakistan is a shadow of what it used to be. The Federation is united only by a ‘Rope of Sand’. 73 years after independence, Pakistan is torn between its past and present and dangerously at war with itself. A general languor has seized the nation. In the farcical system which governs Pakistan today, things are not what they appear to be. The constitution says one thing. What happens on the ground is something quite different. Behind the constitution, there is an unwritten constitution which governs the state. In theory, the Prime Minister is the Chief Executive. The Chief of Army Staff is one of his many subordinates and is answerable to him. Reality is quite different. The Prime Minister, no matter, how great his brilliance, as Max Frankel once wrote of McNamara, “is not a sun but only a reflecting planet”.

There can't be two suns in the sky. There should be only one authority in any government, in any state, in any country. There can't be a second center of power in a Parliamentary form of government. If you create a second center of power, conflict between the two will develop, confusion and chaos will follow.

Today a politically retarded Pakistan finds itself in a valley. Looming above is a powerful army. It has a diarchical, disjointed, lopsided, topsy-turvy, hybrid political system which is fast acquiring the mantle of permanence. The engine of history is moving Pakistan backwards. Our fledgling democracy may, after all, turn out to have been a historical accident and a parenthesis that is closing before our eyes.

Unless checked, the country will settle into a form of government with a democratic façade and a hard inner core of authoritarianism – an iron hand with a velvet glove. Like a Potemkin village, all the trappings of democracy will be there but all major decisions will be taken elsewhere. When that happens, there will be no need for the imposition of martial law or the abrogation of Constitution or the dissolution of Parliament. Elections will continue to be held on due date but anyone who thinks that these elections would be transparent, free, fair or impartial, should go home, take a nap, wake up refreshed and think again.

I love my army but subject to civilian supremacy.