By P.K. Balachandran/Daily News

Colombo, November 18 – Last week, both Houses of the Pakistani parliament passed the controversial 27 th. Amendment (27A) which substantially enhances the power of the Army chief while clipping the functions of the Supreme Court.

The landmark Amendment’s supporters say that it only formalizes the ground reality in Pakistan in which the Army Chief has de facto power over the civilian government. The enhancement of his powers is also seen as a fitting tribute to the performance of the Pakistan armed forces under Army Chief Field Marshal Asim Munir in the brief war with India in May.

But critics warn that 27A would pave the way for further militarization of Pakistan’s political system, even for unalloyed military rule. It is recalled that Pakistan has been under direct military rule for a total 33 years since independence in 1947. And for the balance period, it has been under indirect military rule, with the elected civilian government playing second fiddle to the military in most matters, particularly foreign relations.

The 27A makes this informal arrangement formal, constitutional and permanent, its critics say. Previously, the army would seize power first and then amend the constitution to legitimize it, but the 27A renders a post- coup amendment redundant.     

The Provisions

At the heart of the 27A is 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 Chief of Defence Forces will be from the Army.

Critics point out  that for over four decades, the chief of the Joint Chief of Staff Committee 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 27A, the Army Chief will override the others, especially if he is a pushy person.

“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 the daily Dawn.

“This amendment appears tailored to benefit a specific individual rather than to strengthen the defence structure,” Gen. Malik added.

Control Over Nuclear Assets

The 27A 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. 

Immunity for Life

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 the Prime Minister, they 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. But an anomaly is that a Prime Minister would lose office if his government is defeated by a simple majority in parliament.

Interestingly, Prime Minister Shehbaz Sharif, though a beneficiary, had expressed his opposition to his immunity. “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, quoted by in Dawn, “What looks ceremonial on paper amounts to a permanent legal armour around an unelected officeholder (the Marshals), 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’s Power Clipped   

The 27A has clipped the powers of the Supreme Court by constituting a parallel 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.”

Two Judges Resign

Two Supreme Court judges resigned in protest against the 27A. In his resignation letter on Thursday, Justice Syed Mansoor Ali Shah, said “By fracturing the unity of the nation’s apex court, it has crippled judicial independence and integrity, pushing the country back by decades.”

“The constitution that I swore an oath to uphold and defend is no more,” wrote Athar Minallah, the other judge to resign. “What is left is a mere shadow, one that breathes neither its spirit, nor speaks the words of the people to whom it belongs.”

Reacting to the resignations, Defence Minister Khawaja Muhammad Asif told parliament on Friday, “Pakistan has today taken a constitutional path. The judges used to do politics. They used to undermine parliament.”

Disturbed by these developments, a Pakistani lawyer 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, across political divides, were on the streets all over Pakistan demanding that Chaudhry be reinstated as Chief Justice and judicial independence reinstated.

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. 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 27A that puts the army in a constitutionally unassailable position of superiority, reduces civilian control over the military, and cripples the Supreme Court.

The incumbent Shehbaz Sharif government, which survives because the army is backing it and is keeping the firebrand opposition leader Imran Khan in jail, agreed to amend the constitution to suit the Army Chief and water down the powers of the Supreme Court which, in the past, had given inconvenient judgements.

Pakistanis, who cheered Army Chief Field Marshal Asim Munir for his leadership in the war against India, became apprehensive when he bid for constitutional power to solidify and enhance his power. The peoples’ apprehension was based on bad memories of military rule which had only brought about Islamization, wars, military defeats and the vivisection of the country.

END