The writer is a lawyer based in Islamabad.
The end of Musharraf's rule, return of leaders of our mainstream political parties, restoration of the representative electoral process, restitution of independent-minded judiciary, recent rulings in the PCO judges case and the NRO, together with the role of our diligent media and civil society all mark the advent of an age of constitutionalism, rule of law and democracy. This journey might be slow and perilous, but rule of law and constitutionalism are the only mechanisms available to resurrect a peaceful, strong and stable Pakistan wherein equality and justice thrive along with hope and economic well-being.
We are rightly becoming more cognizant of the need to hold the feet of our corrupt and inept politicos to fire, in order to transform dilapidated structures of representative politics into an effective, sustainable and beneficial democracy. However, the province of khakis, with all its frills, prerogatives and privileges, remains largely outside the scope of rule of law, out of sync with the imperatives of constitutionalism and democracy, and is probably the most ignored area in need of urgent reform.
Any sensible definition of an effective and functional democracy requires effective civilian control of the military. But the military in Pakistan has traditionally been more powerful than all civilian institutions put together. This civil-military imbalance remains a fundamental fault line that imperils both democracy and rule of law.
The omnipotence of the military in Pakistan -- the cause and the consequence of recurring martial rule -- has resulted in the evolution of political and social ethos, promulgation of statutory instruments, and partial judicial pronouncements (coupled with judicial inaction) that have the effect of placing the interests, acts and omissions of the military beyond the scope of political, judicial and social scrutiny. The history of khaki rule together with effective manifestation of its overarching power and influence, every time its institutional interests come under threat, has led to the creation of a khaki mindset that equally afflicts the military and the civilians.
The khaki mindset has multiple facets. The first is an undaunted sense of righteousness. This indoctrinates the military with the belief that its vision and definition of national security and national interest is the perennial manifestation of wisdom and truth. Any involvement of civilians with matters deemed to fall within the domain of national security is seen as unwarranted interference with exclusively military matters and an affront to its interests. This protective sense encourages the military to guard its proclaimed territory as a fief.
The second facet of the khaki mindset is the military's saviour instinct. Despite being a non-representative institution, the military has assigned to itself the role of deciphering aspirations of Pakistanis and protecting them when they are perceived to be threatened by a corrupt civilian government or an activist judiciary. This provides a justification to intervene in the domain of civilian institutions that are seen by the military as malfunctioning. And the most insidious facet of this mindset is the unstated sense of being above the law that binds ordinary citizens.
The civilian sector has been equally responsive to the khaki mindset. Its acquiescence has in fact entrenched this mindset further. Successive civilian governments have made no effort to review and streamline the military's scope of work as an institution, strengthen its capacity to perform its external and internal security functions and curtail its involvement with political and commercial activities.
The focus instead swings between two extremes: finding ways to control the top generals and interfere with purely operational matters such as military promotions and postings, or findings ways to appease these generals through sycophancy and by adding to their already lengthy and undesirable list of prerogatives. Demands for military accountability are a mere reaction to calls for political accountability. They are essentially meant to deter what is seen as military-instigated witch-hunt of a civilian government, and not rooted in the principle that public office holders in all state institutions must be held equally accountable for graft or abuse of authority.
The status of khakis as untouchables is not compatible with rule of law and constitutionalism. This nation has a collective interest in ensuring that power is widely divided amongst state institutions as prescribed by the Constitution, civilian institutions steadily recover their legitimate authority and influence annexed by the military, and the usurpation or abuse of authority produces penal consequences irrespective of whether the usurper is a civilian or khaki. This clawback of civilian authority is not only desirable but also mandated by rule of law and must, therefore, be supported and strengthened. Even the functioning of our reconstituted Supreme Court betrays a feeling that the reluctance in holding khakis accountable for their acts and omissions pervades our corridors of justice as well. But to be fair, this cloud does have a sliver lining.
While the Supreme Court has still not fixed for hearing the ISI case that was filed by Air Marshal Asghar Khan a decade-and-a-half ago, a recent ruling suggests that the apex court will not always look the other way when abuse of authority implicates khakis.
In a consequential ruling announced by the Supreme Court in the Makro-Habib case on December 18, 2009, the apex court declared invalid the lease of a playground in Karachi awarded by General Musharraf to the Army Welfare Trust. While the court ruled that the land in question already stood transferred to the Karachi Development Authority and could therefore not be leased to the AWT by General Musharraf on behalf of the federal government, it held that even if the land had still belonged to the ministry of defence, the manner in which it was transferred amounted to abuse of authority and would have rendered such a transfer invalid.
The court was appalled by the fact that a prime piece of public land (earmarked as a playground for the benefit of disadvantaged sections of the society) could be summarily transferred to the AWT for a period of 90 years at the annual rent of Rs6,070, which in turn rented it out to a private commercial enterprise, the Makro-Habib store, for a 30-year period at the annual rent of Rs17.5 million.
In this propitious ruling, the Supreme Court has postulated a doctrine of collective rights of the people of Pakistan. The court has highlighted that public property collectively belongs to the people and cannot be hastily disposed of at 'peppercorn rent' on the whims of dictator. It has held that the right of citizens to access public places under Article 26 of the Constitution cannot be fettered in a discriminatory manner. It has further held that a lease such as the one granted to AWT and later to Makro-Habib could amount to breach of Article 9 (illegal deprivation of liberty) and Article 24 (protection of property rights).
The court has highlighted that Article 3 requires the state to "ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability to each according to his work," as reiterated by Article 38(a), that the state shall promote the social and economic well-being of the people "by preventing concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest."
And to this end it has reminded state functionaries that even a laudable objective such as welfare of servicemen must be achieved through "permissible means and not at the expense of state exchequer and public at large", and that state functionaries "are fiduciaries, ultimately responsible to their paymasters, that is, the people of Pakistan." Our honorable parliamentarians must bear in mind the principles underlying the Makro-Habib ruling as they consider further entrenching the monopoly of khakis in the business of real estate through promulgation of the Islamabad Defence Housing Authority Act.