A MILITARISED EXECUTIVE

Political science analysis often classifies Pakistan as a praetorian state. In its historically accurate sense, praetorianism references the pressure exerted by the armed forces upon civilian governments to mould their workings to accord with military objectives.

While it is outside the ambit of this book to study the direct and indirect forms of praetorianism that define governmental functioning in Pakistan, it is useful to understand that there are a plurality of views on its persistence. One view that has by now been mostly discredited suggests that the congenitally underdeveloped state of the Pakistani political and social sphere impels army intervention in government.^[250] Given that the army itself is instrumental in establishing a vast mythog- raphy about its own organisational efficiencies, contrary to its record of losses in the battlefield, it is not hard to see why this may guide a public acceptance of such incursions. However, greater explanatory value is had from being acquainted with the vastness of the military’s commercial and industrial holdings. Combined with the need to ensure the continuance of a now-established custom of disallowing legislative debate on the vast budgetary outlay to the armed forces, the forces also benefit from governmental measures to ensure monopolistic pro­tections for their industrial and other economic enterprises.^[251] In turn, the profitable nature of these enterprises provides extensive autonomy from political oversight for the institution, the possibility of continued post-retirement employment for its rank and file members, and exceed­ingly comfortable lives for its high officer cadre.

Another factor that has to be given credence is that Pakistan’s often crucial geostrategic location has resulted in a manifestation of a prefer­ence by important actors in the international state system on bargain­ing and negotiating with leaders who merge military and governmental controls. While such an explanation may not explain their rise to power, the longevity of rule for Zia and then Musharraf was ultimately and quite apparently tied to the support each lent to the US, first in waging a proxy war against the USSR in Afghanistan during the 1980s and then in the war against Al Qaeda in Afghanistan and within Pakistan’s own borders since 2001.

The few comments here on military praetorianism are aimed only at lessening what seems otherwise to be an unbridgeable chasm between the higher law prescriptions of governmental order as per the Consti­tution and that which has transpired in reality. A fuller discussion of the praetorian elements would be alert to the multi-scalar militarisation that exists in periods of indirect praetorianism, and which gains rapid ground with a military head of state. Tellingly, quotas exist across state educational institutions for the admission of children of military personnel, although there have been some successful challenges to the retention of these.^[252] Further, a deep militarisation of the broader governmental order happens when military leaders are granted top-tier positions in the bureaucracy, governmental industries and even in pub­lic sector universities. All of these reservations and appointments help to recreate the ideological justifications for praetorianism.^[253]

Given the role courts have played to keep a broader constitutional­ism alive during emergencies, it is a seeming anomaly that the same judicial officers, in many cases, would capitulate so readily in the face of extra-constitutional takeovers. If however constitutionalism is an attempt to ensure that all exercises of power are rule-bound, the furtive search by the courts for such rules follows upon the need to retain their foothold in a given governance scheme.

A. Presidential Powers

Interestingly, neither Zia nor Musharraf sought to replace the existing Constitution altogether, as Ayub had done before them. Explanations could be sought in the further reach of Ayub’s vision for national devel­opment,^[255] as opposed to the more perfunctory nature of both Zia and Musharraf’s will to power. The immediate history of Zia’s takeover of power is described in Chapter 5, in reference the Supreme Court valida­tion of the coup on the basis of the doctrine of state necessity.

Here it is important that Zia retained Fazal Elahi Chaudhry as the President after declaring Martial Law on 5 July 1977. Chaudhry was perhaps the only President in Pakistan’s history to occupy this role as the figurehead defined in the 1973 Constitution, accepting that the advice of the Prime Minister was binding and that every Presidential Order needed to be countersigned by the Prime Minister.^[256] Thereafter, there would be a continuing tussle to codify the expanse of powers accorded to the Prime Minister versus the President. Chaudhry would resign in 1978 due to Zia’s unwillingness to hold elections.

Chaudhry’s resignation opened up the possibility of transforming the formal powers of the President’s office as Zia himself assumed this role. He extended his occupancy in office for an additional five years in 1984 by holding a referendum in which citizens were asked whether or not they wished to see Pakistan governed in accord with Quran and Sunnah under his guidance.

Most importantly, Article 58(2)(b) granted the President the power to dissolve the National Assembly in ‘his discretion where in his opinion a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary.’ This, as we will see in the fol­lowing section, was of great consequence in dictating the fortunes of several governments during the democratic interregnum between the Zia and Musharraf regimes.

The second coup engineered in the period after the promulgation of the 1973 Constitution was in October 1999. In conditions discussed below in this chapter, General Parvez Musharraf dismissed the gov­ernment of Nawaz Sharif, issued a Proclamation of Emergency that declared the Constitution to be temporarily in abeyance and announced the Provisional Constitutional Order (PCO) of 1999.

The Musharraf coup and its subsequent review at the Supreme Court revived the application of the ‘doctrine of state necessity’, but not before the court bemoaned the ways in which the deletion of Article 58(2)(b) two years earlier had necessitated such extra­constitutional action.^[259]

In Zafar AH Shah v General Pervez Musharraf, the court validated Musharraf’s assumption of the role of Chief Executive, even though this nomenclature for the Prime Minister from the original text of the 1973 Constitution had been removed by way of the Eighth Amend­ment. Additionally, as the Court had done for Zia, it also offered Musharraf the power to alter law or even Constitution as his reward for holding the Constitution in abeyance rather than having chosen the course of ‘abrogation’. However, in this case, certain salient features were presented as defining the limiting conditions on what alterations to constitutional structure could be validly undertaken by Musharraf. These features were named as ‘independence of Judiciary, federalism and parliamentary form of government blended with Islamic Provi­sion’ (sic).^[260] Also, the Supreme Court imposed a limit on the duration of the state of necessity, granting the regime three years within which to hold elections for the national legislature on the ground that that was how long it would take for electoral rolls to be compiled afresh.^[261]

Unlike Zia before him, Musharraf had ordered the removal of Presi­dent Tarar, a Nawaz Sharif nominee for President. To validate that there were no other contenders for power as he presided over a caretaker Cabinet also without constitutional authorisation, a presidential refer­endum was held by Musharraf in 2001 after he first took office under the Presidential Succession Order earlier that year.^[262] Challenges to the legality of the referendum failed in the courts^[263] and Musharraf secured a high approval rating from an exercise that had no strict constitutional authorisation.

Musharraf’s alterations were passed through the 2002 elected National Assembly in the form of the Seventeenth Amendment Act. His maintenance of power relied, however, on the wilful and bartered compliance of the judiciary and the legislature. From the latter, a stand­alone and personalised law authorising Musharraf to retain the dual offices of President and Chief of Army Staff was bought for a period of time.^[266] From the former, as demonstrated by the Pakistan Lawyers Forum case (2005), challenges to constitutional amendments on the ground that they violated the basic structure of the 1973 Constitution allowed the Court once again to hold that the basic structure was not a part of Pakistan’s constitutional law and that, in any case, the amend­ment had been validly passed by the legislature.^[267]

By the time Musharraf was close to seeking a re-election as President at the lapse of his five-year term, he was facing a more recalcitrant Supreme Court bench: powers of high executive office were being recast and reshaped in the Supreme Court headed by Chief Justice Chaudhry.^[268] In the lead-up to this election, the Supreme Court, through an interim order, enabled Musharraf to contest a scheduled presidential election from within the existing Assembly, but directed the Election Commission to await notification of the results until the court finished deliberating on several challenges that had come forth.^[269]

A range of notable court cases were fought or arose from the actions of President General Musharraf, specifically following upon his second declaration of emergency in November 2007, culminating in the nul­lification of a set of executive orders he issued in this period. What marks the end of Musharraf’s reign is an active pursuit initiated by political actors and the judiciary to prosecute Musharraf for suspending the Constitution.

III.