Power of attorney By Farrukh Khan Pitafi

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It is a frightening thought. A nation’s highest military post operating without any legal cover. Just think about it. For 72 years. And think if the matter did not come to public attention now, this would have gone on without any notice, only to double our troubles at the most inopportune time possible. But despite our general aversion to such last-minute interventions it was caught, and we have nobody but the honourable courts to thank for it.

In the black and white, flat and post-truth reality of today’s Pakistan it is hard to appreciate the magnitude of what has happened. There is no middle ground after all. You are with us, against us or just an opportunist. In the light of such polarisation we just saw two schools of thought on television and social media during the ongoing debate. The third, the centrist, the pacifist, is conveniently muted by the partisans on such occasions. First, to which this was akin to jeopardising national security. Second, which had pinned hopes on this being the beginning of the unravelling of the common minimum consensus among the institutions which are holding the current political dispensation together. Don’t judge either of the two groups too harshly. Both these positions stem from the very same emotion — a deep love and concern for this country. What divides them is the lens they use. If national security is your primary concern, then this intervention this close to the military transition is bound to distress you. If, on the other hand, you have subscribed to the narrative that democracy is constantly being mugged and the current dispensation is a product of such robbery then you are most likely to hope for a disruption. Nothing against national interest. Only the opposition to the perceived dominant political interest. While both positions are unrealistic, the real damage is done when both schools decide to outsource their voices to charlatans, hit men, and hotheads primarily owing to the lack of self-awareness. These hotheads then mould the discussion after their own image and take things to the breaking point. Otherwise, the two positions are not irreconcilable. All you need is a little patience to continue the discussion and a tad bit more transparency.

Let us now return to the issue at hand. Let me quote directly from the Honourable Court’s short order to build my case: “We have examined Article 243(4)(b) of the Constitution, Pakistan Army Act, 1952, Pakistan Army Act Rules, 1954 and Army Regulations (Rules), 1998 and inspite of the assistance rendered by the learned Attorney-General, we could not find any provision relating to the tenure of COAS or of a General and whether the COAS can be reappointed or his term can be extended or his retirement can be limited or suspended under the Constitution or the law. The learned Attorney-General has taken pains to explain that the answers to these questions are based on practice being followed in the Pakistan Army but the said practice has not been codified under the law.”

Tell me what was your reaction reading these lines? I tell you mine. Three simultaneous reactions. Goosebumps, gratitude for the Court’s intervention and respect for military discipline. Goosebumps because this is a remarkably frightening lacuna. It is imperative to point out here that unlike the British Constitution which is mostly unwritten and relies heavily on conventions, Pakistan has a written Constitution. This written Constitution despite various complications and weaknesses has been a saving grace in some of the very polarising times. Now to say that this document and other statutes are missing such a critical component is absolutely devastating. Let it sink in. As per the available record, today not only did the framers of the 1973 Constitution fail to lay down a documented procedure, Zia’s 8th, Nawaz Sharif’s 13th, Musharraf’s 17th and consensus 18th, all amendments could not rectify this fatal flaw. Probable reason? Nobody looked. It took the Honourable Court’s pointed questions to reveal to us the huge chasm that was hidden from sight. Ergo, the gratitude.

I keep pointing to this lacuna as the fatal flaw, lethal chasm and on. Let me qualify. In exceedingly polarising times, one error of judgment on the part of a future ruler, or a deliberate attempt to undermine national security, like trying to install a retired officer, an inexperienced civilian or a very junior officer as the army chief could wreak havoc with the legitimate security concerns of the country. I am sure there must be safeguards against such an eventuality. Primarily through the barrel of the gun not codified law. But vacuum of power and vacuum of law is not the same thing. Imagine the adverse impact on the democratic process. The above-mentioned obsession with polar extremes is the reason why we overlook such crucial details.

In the past two decades our army has been asked to do what no other army ought to. To fight terrorists on their own soil, who claim to share the same faith and speak the same language. They have fought bravely and rendered great sacrifices without a question. I know your mind instinctively goes to generals when we speak of the army. But think of sepoys, havildars, and freshly minted young officers. If despite such lacuna the army’s rank and file did not let you feel the absence of legal documents, this primarily owes itself to military discipline. This is not a small realisation.

So, when the case was being heard, there were moments when it presented the picture of a cricket match between Australia and Afghanistan. The government’s legal representation looked constantly routed. It was when the media pundits started talking about the government’s ineptness. Of course, there are concerns about the drafting of the notification. But before we talk about the government’s competence, we have to talk about the competence of television punditry. When the short order came, even after reading it aloud on the screens, these pundits did not seem informed about what constitutes an act of parliament (a term mentioned in the order). This, of course, does not mean that the government’s drafting capabilities were beyond reproach. Perhaps because the notifications on such matters were never scrutinised in the past, a great amount of shoddy drafting was exposed. This could also be owing to the government’s difficult relationship with bureaucracy which has only overstretched its capacity to the breaking point. At some point the government will have to address this issue. But the Attorney-General’s inability to cite the relevant law for the extension would only be problematic if such a law existed. Judges come from the legal fraternity and that only the best makes the cut has been proven by the remarkable revelations in this case.