By Saad Rasool
There is no point trying to reform political leaders who have been thick with Malik Ishaaq, and those who continue to enjoy cordial relations with Ahmed Ludhianvi. And so, our national hopes for counter militancy are tied to the khaki leadership, and its resolve to make no distinction between the different ‘good’ and ‘bad’ militants.
To this end, ISPR announced, earlier this week, that our armed forces have commenced Operation Radd-ul-Fasaad, specifically targeting militant elements across Punjab. Let us be clear that it was the Army Chief, as opposed to the Prime Minister (or any other official of the civilian government) that ordered this operation, and the political leadership seems to have agreed, ex post facto. In fact, during the initial hours of this operation, the Law Minister of Punjab, Rana Sana Ullah, denied that Army was conducting any operation in Punjab at all, only to correct himself later, with sheepish statements about how the Army and Rangers were working with the provincial police and Counter-Terrorism Department (CTD), in order to carry out the requisite raids and operations. There is, however, the small inconvenience of making sure that the same is done in a lawful manner, in accordance with the letter and spirit of the Constitution. And this brings us to the issue at hand: has our government followed the procedure prescribed under Article 245 of the Constitution, to formally request the Army (not just the Rangers) to conduct operations within Punjab, as has now been accepted by the political leadership?
To this end, it is important to first understand the Constitutional mandate and spirit, under which (in exceptional circumstances) Army may be called “in aid of civil power”.
The authority to use military force in countering internal or external threats has been enshrined in the Constitution. Specifically, Chapter 2 of Part XII of the Constitution deals with provisions relating to the “Armed Forces”. Starting from Article 243, the Constitution mandates that the “The Federal Government shall have control and command of the Armed Forces” and that “the Supreme Command of the Armed Forces shall vest in the President”, who has the authority to “raise and maintain” military forces and, “in consultation with the Prime Minister”, appoint the Chiefs of ground, air and naval forces.
Under this arrangement, the Constitution lays down the broad strokes for how an external war, or internal conflict, can be entered into through the use of our armed forces.
In particular, Article 245(1) of the Constitution declares that the “Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so”. And the “Federal Government”, per Article 90 of the Constitution, consists of “the Prime Minister and the Federal Ministers” and acts through its “chief executive”, the Prime Minister. Article 245(1) is the only constitutional provision under which Army can be called “in aid of civil power” to conduct counter-terrorism operations within Pakistan.
Furthermore, per Article 245(2), the “validity” of government’s decision to invoke Article 245 cannot be called in question in any court, and per Article 245(3), the jurisdiction of the relevant High Court to issue writ (under Article 199) is barred for such area, and till such time, that the Army has operational command.
With the structure of the constitutional framework out of the way, it is necessary to analyse the spirit of these provisions. First, let us start by recognising that the Constitution envisages two distinct areas concerning the use of Armed Forces: 1) “external aggression or threat of war”; and 2) “act in aid of civil power”. As a broad generalisation, the first of these (external aggression) relates primarily to the possibility of military combat with some other nation (as was the case in 1948, 1965 and 1971), whereas the second part of Article 245(1) relates to a military action for internal unrest (as has unfortunately happened, from time to time, in Karachi and Balochistan).
Within this paradigm, given the local origin of (most) of our militant outfits, it is unlikely that Army has been called in Punjab to counter “external aggression or threat of war”. Undoubtedly, this is an instance of the government calling Army “in the aid of civil power”, which, by the very words and spirit of the Constitution, require that the “civil power” must have reasonable cause and justification to claim that the situation cannot be controlled without the “aid” of Army.
For this purpose, the Federal Government needs to first send a formal directive to the Army, calling it in aid of civilian law enforcement agencies. Also, as part of this exercise, the government needs to specifically define: i) the reasons as to why it is being called; ii) the objectives that it is required to achieve, while acting in aid of civil power; iii) the area or arena within which Army must restrict itself; and iv) the (limited) period for which Army’s aid is required by civilian agencies.
In the instant case, at least as reported, the Federal Government seems to have not fulfilled any of these requirements, while requesting (or allowing) Army to participate in counter-terrorism operations.
A few government officials have hinted at the idea that Army is empowered, under the Protection of Pakistan Act, 2014 (POPA), to carry out counter-terrorism operations – they are wrong. POPA grants widespread counter-terrorism powers to the “civilian armed forces” (including Rangers) to carry out raids, arrest militants for up to 90 days, and form Joint Investigation Teams (JITs) for the purposes of counter-terrorism. It does not empower the Army to be used, as an operational force, to carry out activities that otherwise fall within the jurisdiction of civilian law enforcement agencies. For this to happen, Article 245 must specifically be invoked.
These are perilous times in for our nation. Too much has been lost to the menace of terror. And too much is at risk still. During this time, of course we need our khaki armed forces to play an active part in counter-terrorism, in case the civilian power is unable to do so. But the same must be done in accordance with the law and the Constitution. Because it is in times such as these, more than any other, that we must hold onto our Constitutional values.
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