JURIST Guest Columnist Sadaf Aziz of the Lahore University of Management Sciences Faculty of Law, in Lahore, Pakistan, says that President Pervez Musharraf's continued leadership of Pakistan in an ostensibly civilian capacity while still Army Chief reflects an unresolved but fundamental tension between democracy and dictatorship…

The emergency measures provision of the Pakistani Constitution can be invoked either in situations of war and external aggression or when internal unrest has reached such a stage as to incapacitate an elected Provincial government. As opposed to this, a martial law proclamation is an extra-constitutional measure taken by the military to usurp power from an elected government. The emergency proclamation of November 3rd in Pakistan is effectively an act imposing martial law in the country as it was issued by the Chief of Army Staff (COAS).

The ticker tape of news running alongside the stultifying discussions about the necessity of emergency action on the one channel (state-owned) that was allowed to function on this ‘black Saturday’, carried the news of the COAS’s action in immediate succession to the promise that the President of Pakistan would be addressing the nation later on in the evening. Musharraf, to revive a seemingly incontestable issue in wake of the martial law order, occupies both roles himself. While he would reveal sure traits of megalomania later on in his broadcast address to the nation, it was uncanny that the issue of his occupying these roles simultaneously, an issue which the Supreme Court has been wrangling over for the last month, would be avowed with such candor. I was tempted to look up the diagnostic criteria for dissociative personality disorder at the time.

For those who have argued that Musharraf’s occupancy of the dual roles of civilian President and COAS are inconsequential, that concessions need to be made on the path to democratization in this country, there is a need for them to be convinced otherwise. In his address to the nation laying out the conditions which necessitated the emergency, it was his oft-repeated claim that he could not sit idly while members of the army, police and bureaucracy were being made subject to the humiliation of being summoned to court, directed to abide by laws framed as checks on executive abuse of authority and in a few cases, temporarily suspended through successful conviction on the basis of such laws. Whereas one would think that judicial review of such a sort would signal successful governmental functioning, the fact that this was the point which propelled the man to tears is telling. It was particularly at this moment of Musharraf’s lament that it was resoundingly clear that the army man, despite all his pretences at enlightenment and benevolence, could never think as a civilian ruler is required.

The army functions through the mechanism of direct order and presumed compliance. It also rewards those who obey orders efficiently and well. As the well-developed jurisprudence around the international law concept of command responsibility for instances of war crimes makes certain, the actions of subordinate soldiers and officers are oftentimes presumed to be mechanical applications of higher orders. Egregious violations of human rights standards and laws of war suggest knowledge and direction at the highest levels. The presumption rests on the empirical evidence presented by the hierarchical organization of army units, where action is directed through a chain of command, internally policed to ensure compliance. Additionally, the individual capacity of the soldier is limited to questions of maneuver, limited at the outset by the need to achieve team objectives.

In a civilian-led government all tactical decisions involving the army are undertaken through a joint consultative process, limited not only to the executive branch but often necessitating legislative action to enable military maneuver. Where the army and the civilian government are melded with only minimal dissonance, as in Pakistan, the chain of command remains unitary from beginning to end. Musharraf is now rewarding the loyalty and obedience of his higher subordinates in both military and civilian dress. The problem that underlies all this is that we, members of what is somewhat spuriously termed civil society, are understood from position of the high command to be as divested of capacity as the lowest ranking soldier. We are asked repeatedly to take them on their word that a better future is promised if only we’ll point and shoot with minimal reflection of who the moving target might be. In this case, we ourselves are surely the targets.

On Monday, I and several friends and colleagues joined the lawyers who had turned out to protest the criminal orders of the COAS at the Lahore High Court and were witness to the General’s personal vendetta being cruelly acted out against this brave professional fraternity. Standing out somewhat for not wearing the black and white uniform of lawyers, we were repeatedly asked by media persons about our reasons for protesting. While I find this a vexing question, I would nonetheless give a standard answer listing my grievances as against martial rule and the suspension of fundamental rights. One journalist responded that the government was only invoking a constitutional emergency provision. I responded at the time that they can call it ‘a walk in the park’ for all I cared. If one encounters a shower of bullets and batons whilst strolling in the park then the park is actually a battlefield.

As I alluded somewhat above, a debate has been raging in the pages of English language papers in Pakistan as to the relative desirability of a ‘transitionist’ v. ‘transformationist’ approach to freeing the government from a veritable military monopoly of control. The former camp are incrementalists who caution that ‘shock transformations’ have been shown to harden and prolong periods of authoritarian governance and that power sharing agreements are a necessary stage in changeovers to civilian rule. The latter however have clung to an ethical legal standard emphasizing the constitutional illegitimacy of Musharraf’s hold on power and the perversions it engenders. The fact that Benazir Bhutto, the US-ordained partner of such a power sharing agreement has reacted only balefully, if at all, to the discreditable act of annulling the judiciary in this country is proof of such perversion. It was completely foreseeable and expected that the judges of the Supreme Court would have soon given a verdict against the National Reconciliation Ordinance, the executive act granting blanket amnesty against criminal and corruption charges filed against her and other politicians. In an odd twist then, such transitions can turn army men into mercenaries but nowhere does the question get answered of how the army can deal without censure when they themselves encounter reflective and oppositional citizens and not soldiers in the country they rule.

Sadaf Aziz is a professor of Law & Policy at the Lahore University of Management Sciences
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