Civilian Control Over the Military

In addition to Anil's point that rescheduling elections is not, by itself, nearly sufficient to restore some semblance of democracy to Pakistan, it's worth pondering another issue that has continually arisen: whether the Pakistani Constitution permits the same person to be both President and in charge of the armed forces. I'm hardly an expert in the (for-now defunct) Constitution of Pakistan, but it does strike me that this is clearly the wrong question.

In the U.S. (as one waggish Dorf on Law reader noted in a comment a few days ago), the President is head of the military, but we rightly regard this as a protection for, rather than a threat to, civilian rule. Since at least the time when the Roman Republic gave way to the Roman Empire, small-d democrats the world over have justifiably worried that in a pinch (or perhaps even without a pinch), military leaders will displace civilian ones. The remedy is to create a military culture in which everyone understands that the civilian authorities stand at the top of the chain of command.

In the U.S., we accomplish this feat by making the elected President the Commander in Chief of the armed forces. He or she is not actually in the military (as President Clinton discovered to his woe when he tried to argue that the Soldiers and Sailors Civil Relief Act temporarily immunized him from the lawsuit by Paula Jones), but that's not the key point. The key point is that the President is Commander in Chief in virtue of being the legitimately elected President, not the other way around.

Thus, putting aside issues of the meaning of particular provisions of the Pakistani Constitution, the operative question is not so much whether Musharraf can remain President and head of the military, but whether, in the event that there is a free and fair election that leads to someone else becoming President, Musharraf will answer to that elected President by taking orders from him or her, including an order relieving Musharraf of command.

Posted by Mike Dorf