The Reign of One: A constitutional subversion in Pakistan to suit the absolute ruler

ON NOVEMBER 13, the president of Pakistan, Asif Ali Zardari, signed into law, the 27th amendment to the country’s constitution. The signing of the amendment, which was preceded by weeks of internal debates and discussions and the prime minister’s attempts at garnering support from his allied parties, has formally redrawn the contract which governed the ties between the civilian government and the military establishment, ‘disempowering’ the Supreme Court by relegating it as an appellate court and handing over decision-making powers over matters of constitutional importance to the newly established Federal Constitutional Court (FCC). In Pakistan’s long history of contestation among major power brokers, the 27th amendment has struck the most stringent blow to the civil-military dynamic, even as the scales have often been in favour of the latter.

What changes will the amendment bring?

The latest amendment to the country’s 1973 constitution is related to two overarching aspects—an overhaul in the military’s hierarchy and command structure and the subversion of the judiciary in relation to the executive, effectively denting the already fragile balance of power in the country and concentrating powers in the hands of a single individual. For a country like Pakistan, which has been susceptible to the push and pulls of complete military control or a hybrid form of government, oscillating between the two since its inception, the latest changes will formally institutionalise the establishment’s dominance on the affairs of the country as well as the activities of the armed forces.

First, the amendment has sought to change certain elements within Article 243, which governs the relationship between the prime minister and the president as it relates to their control of the armed forces. A major undertone of these changes are the concentration of strategic decision-making and command powers in the hands of one person. Thus, the army chief Asim Munir would also serve as the chief of the defence forces, a newly minted post, through which he will exercise control over all three services. With this, the office of the chairman of the joint chiefs of staff committee will be abolished from November 27, once the incumbent chairman finishes his term. A commander of National Strategic Command will also be appointed from within the army by the prime minister on the army chief’s recommendation, taking power away from the National Command Authority. In addition to this, the amendment elevates the status of certain five-star rank officers—field marshal, president, admiral of the fleet, marshal of the air force—who will be the recipient of lifetime immunity and impunity from all civil and criminal charges. They could retain their rank, uniform and privileges for life and can also have positions to hold post-retirement, based on the discretion of the president, with the prime minister’s advice. The incorporation of these changes puts into perspective the elevation of Asim Munir as the country’s field marshal after the conflict with India in May. The current slew of changes in the structure and hierarchy of the military command is seen as a continuation of Asim Munir’s ascendancy as the field marshal and his concerted efforts to ensure that all power is concentrated in his hands. The amendment gives him overarching powers in the country’s functioning and also extends them beyond the end of his term as the army chief in 2027.

As if to create a safety net for this consolidation of power, the amendment also strikes through the judiciary’s autonomy by rendering it ineffective in a situation of constitutional mismanagement or establishment’s excesses. This it does through dismantling the power resting with the Supreme Court and turning it into a court of appeals, with constitutional matters to be heard by FCC. The composition of FCC is also shrouded in opaqueness with no criterion to determine judges’ elevation, and appointments engineered to ensure the toeing of the establishment’s line. None of the appointments made after FCC commenced operations on November 14 are based on seniority or based on their credentials on dispensing justice on constitutional matters, except that of Chief Justice Aminuddin Khan. FCC will also not be obligated to follow the Supreme Court’s old rulings, and a special parliamentary committee will be appointed to select the chief justices and judges of both the Supreme Court and FCC in the future. The judicial commission will also have executive appointees, making the selection of judges a primarily political process. The unilateral control over determining who could be transferred and the initiation of disciplinary proceedings will also undermine the judiciary’s ability to take independent decisions.

Prime Minister Shehbaz Sharif had been meeting with the leaders of different parties in a bid to garner consensus for the passage of the amendment. Apart from Imran Khan’s PTI, which opposed the amendment, all major parties have accepted its provisions in some form or shape. While PPP had reservations about the rollback of the 18th amendment, it welcomed the changes making the military’s dominance paramount in the country. Pakistan’s institutions have always suffered from a deficit of trust and accountability. Judges have been tortured, hounded and put under surveillance, their families targeted by the intelligence services.

Some have called for reforms, while most have caved into the pressure, focusing instead on aggrandising their own power and status. After the passage of the current amendments, two senior-most judges of the Supreme Court tendered their resignations in protest.

The spokesperson of India’s External Affairs Ministry defined the current developments as a “military-inspired constitutional subversion and power-grab unfolding within the country.” Since the Pahalgam terror attack in April this year and the consequent conflict in May which saw India’s targeted strikes against terror infrastructure in Pakistan and PoK, the ties between the two countries have deteriorated further. While India’s objective was to establish its deterrence against Pakistan and raise Pakistan’s risks vis-à-vis its support for cross-border terrorism, for a country like Pakistan, which is infested with deeply structural problems and lacks a leadership efficient enough to address them effectively, support for terrorism is seen as a low-risk strategy. With powers concentrated in the hands of a single individual, the propensity of the country to dabble in adventurism could increase, raising the risks for India and also undermining stability in the region. Field Marshal Asim Munir’s tendency to invoke religious language in relation to the conflict between India and Pakistan and his provocative statements of late, reflect this adventurism. With the control over strategic decisions related to nuclear command also falling onto one person, and away from a collegiate system of checks and balances, the risk of nuclear sabre-rattling could also increase. But this transition isn’t necessarily expected to be completely smooth—the massive overhaul in the military’s structure will have trickle-down effects on rivalries within the different services, changing their balance, as well as the power of the chiefs of the other services, which have resisted previous attempts to become subservient to the army.