AT PENPOINT
The 27th Amendment didn’t represent so much as a tweak to the Constitution, as a major overhaul, with an attempt to overhaul two institutions, the judiciary and the Higher Defence Organization. At the same time, the introduction of a constitutional court is meant to safeguard against another bout of martial law, which was one of the motives behind the very first HDO.
It is one of the vagaries of history that Pakistan fought the 1965 and 1971 Wars without an HDO, and it was only after Zulfikar Ali Bhutto got down to preparing a rump Pakistan for existence that he got down to an HDO for Pakistan, after the passage of the 1973 Constitution.
The HDO was intended to absorb the lessons of the previous two wars, and especially of the 1971 War. In 1971, especially, it was felt that there was insufficient coordination between the three services.
As a result, Bhutto established the post of Chairman Joint Chiefs of Staff Committee, with the three service chiefs as chiefs of staff rather than as Commanders-in-chief, the designation they had previously had. Originally, the post was to rotate between the three services, and the Chief of Naval Staff and the Chief of Air Staff were elevated from three-star rank to four-star rank. However, the very first appointment, in 1976, established the slot as a sort of consolation prize for a three-star general who did not make it to COAS.
General Sharif had not made it to COAS (his junior, Lt Gen Ziaul Haq, did), but was promoted (unlike five others senior to Zia, who all retired) and made Chairman. He resigned after the 1977 coup, perhaps because he did not like being subordinate to a CMLA his junior. In 1980, when Lt Gen Sawar Khan was promoted to VCOAS and full general (with Zia still COAS), Lt Gen Iqbal Khan was promoted general and appointed Chairman.
The offices remained distinct, though in the last days before Musharraf imposed Martial Law, PM Nawaz Sharif appointed Musharraf Chairman, causing CNS Adm Fasih Bokhari to resign, because he felt he should have been appointed (Musharraf was given the office when appointed COAS, because his predecessor had it as an acting charge). Only when Musharraf appointed a chairman after he had held the office for three years himself. Thus since 2001, eight Chairmen have held the office, all serving three year terms.
The first test of the new HDO came in the Kargil episode, when it apparently didn’t work at all. Failure to inform the Navy or Air Force was mentioned by Admiral Bokhari when he resigned. This time, in the summer over the Pehelgam incident, Pakistan again tested the HDO, and found it not as effective as it should have been.
Even before the 27th was passed by the National Assembly, PM’s Adviser Rana Sanaullah said that a 28th would come, dealing with education, health and local government. Clearly, the government does not see the Constitution as a firm guide for the nation, but as a work in progress.
Therefore the present reorganization, in which the COAS becomes ex officio Chief of Defence Forces. It remains to be seen whether this ends the independence of the services. There are two issues with the HDO. First, the chiefs of staff remain commanders of their forces. Second, the HDO was not designed for the command and control of nuclear forces. The Constitution is now to include a provision for an Army officer to head the Army Strategic Command. This implies that the Navy, which could put nuclear payloads on its missiles, and the PAF, which could do the same, are either not going to do so, or may have to put those forces at the disposal of the strategic command.
The Joint Chiefs model was borrowed from the USA, where it is significantly different, having been designed for a nuclear power. The Chairman is the principal military adviser to the President, the Secretary of Defense and the Department of Homeland Security. He has no command authority, but nor do the members of the committee. The present model seemingly places the other two services under the Army COAS. Those services previously had issues with this. Now enough officers have served in the Middle East to be familiar with even naval officers having army ranks. The example of China is also before them, where the Navy is part of the People’s Liberation Army.
A constitutional safeguard has also been provided against the operation of the Army Act’s provision for the retirement of a field marshal. One of Bhutto’s actions upon taking office was to amend the Army Act providing for the retirement of a field marshal. He then retired Ayub Khan, who was already living a retired life. Bhutto apparently did want to take any risk, even though, holding no appointment, Ayub could give no orders.
The move to a separate constitutional court was inevitable, as it was said to be the ultimate goal in which setting up constitutional benches within the superior courts was to be an intermediate step. That the setting up of a constitutional court was supposed to be an effective block against a military takeover was an article of faith for the late PPP Chairman Benazir Bhutto, who had a commitment to such a court included in the Charter of Democracy. The discretion of who would serve on which court, and the provision that anyone refusing a transfer would stand retired means that the executive gains the power of getting inconvenient judges away from the court, or even out of the judiciary.
The partisan nature of the opposition is a little worrisome, for it means that constitutional amendments are not to be judged on their merits, but on partisan considerations. Such an attitude is understandable, for amendments of the Constitution reflect the inability of the existing Constitution to meet a new situation. It is more often than not carried out for partisan reasons rather than for the national good.
However, Pakistan has what is known as a flexible Constitution, which means that it can be amended relatively easily. Zia tried to make it more rigid, by introducing a requirement for supporting resolutions by three assemblies, but this was abandoned when the Revival of Constitution Order became the Eighth Amendment. Pakistan’s Constitution is not entirely flexible, like the British, which can be changed by a simple majority of those present and voting in the House of Commons. What prevents change is constitutional convention.
That is the result of restraint. An opposite example is that of the convention that the PM be from the Commons, not the Lords. In 1940, Neville Chamberlain had to resign as PM because World War II was going disastrously. The possibilities as his successor were Winston Churchill, who was disliked by the party establishment, and the Earl of Halifax. Chamberlain asked these two their opinion. Churchill recounts there was a long silence until Halifax recalled a couple of decades before, the choice was between Lord Curzon and the relatively unknown Bonar Law, and Curzon dropped out because he was not in the Lords. Now the real reason Curzon was dropped was because he was insufferable. However, Lord Halifax chose to bow out because of a supposed convention. It was also germane that the government was of all parties, and the Labour Party had indicated that a lord as PM would make it go into opposition.
Pakistan has a British-style parliamentary system, but a US-style written constitution. Even the USA has developed constitutional conventions, but the only one Pakistan seems to have is the procedure followed when there is a military takeover. All military takeovers have been upheld by the courts. The constitutional court was supposed to prevent that. How are a group of elderly persons of sedentary habits supposed to do anything is not clear. The Rhodesian Supreme Court went home after the Unilateral Declaration of Independence in 1965, but the UDI remained in force for 15 years.
Even before the 27th was passed by the National Assembly, PM’s Adviser Rana Sanaullah said that a 28th would come, dealing with education, health and local government. Clearly, the government does not see the Constitution as a firm guide for the nation, but as a work in progress.
