In Aid of Civil Power?

Politics is messy business.  For retention of power and fulfillment of partisan objectives, politics frequently stretches the bounds of reasonability and logic.  It bends the arc of law and justice.It subverts dogmas and undermines fragile national ideologies (such as ‘constitutionalism’).
But subscribing to a democratic ethos entails that, even in the darkest of political hours, one maintains a certain faith in the virtue and viability of politics.  That, regardless of how desperate the days become, political forces, for the sake of their own partisan power, will not drag national institutions into their partisan bickering and dispute resolution.
The current government of PML(N), however, never learnt this lesson.  And calling Army, under Article 245 of the Constitution, on the eve of the impending march by Imran Khan’s PTI (and Qadri’s PAT?), is nothing more than an attempt to hide behind the khaki institution to avoid facing its political rivals, and in the process, tarnishing the institution of Army as well as the project of democracy.
In order to understand the unreasonability of the government’s decision, it is perhaps, first, important to understand the Constitutional mandate and spirit, under which (in exceptional circumstances) Army can 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. Furthermore, per Article 245(2), the “validity” of the 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 analyze the spirit of these provisions.  First, let us start by recognizing 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.” In terms of broad generalization, 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 military action for internal unrest (as has unfortunately happened, from time to time, in Karachi and Balochistan). 
Let us start with the obvious: calling Army into Islamabad, under Article 245 of the Constitution, does not (thankfully!) relate to countering “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.
This naturally begs the question: what does the civil administration fear that demands the calling of Army?  Can the police and the civilian administration not handle a political rally?  Was the police even consulted?  Should decisions of this sort not be discussed and deliberated upon, in the light of day, before taking such extreme steps? 
Also, is Islamabad really expected to descend into chaos for a period of three months?  And why August 1st?  If Zarb-e-Azb is really the cause for this outrageous constitutional action (as has been disingenuously claimed by PML(N) members) what specifically is apprehended, starting August?  And what will suddenly happen in 3 months for the security situation to regain such normalcy that Army will no longer be needed?  Is (anticipated) security situation in Islamabad really worse than that in Karachi, Peshawar or Quetta to justify the singling out of Islamabad for the invoking of Article 245?
Or can we all, instead, accept the simplest, most plausible, justification – that of the impending PTI march –is the real cause for invoking Article 245 in Islamabad?
This makes a lot more sense.  Still recovering from the aftermath of the Model Town tragedy, the government is no longer in a position to use the police force as a legitimate instrument to quell political opposition.  Even the slightest instance of Punjab Police, or the ICT Police, resisting PTI supporters will resonate in the media and political circles as a (partial) rerun of the Model Town fiasco.  On the other hand, in case the Army (on government instructions) puts roadblocks for the PTI supporters, it would be much harder for Imran Khan to blame the khaki institution as a whole.  Furthermore, any hooliganism by the PTI supporters, in the face of Army troops, may result in a skirmish between PTI and the Army, which, at any moment, has the possibility of escalating into an institutional clash.  This would not only dampen the spirit of democracy across our land, but may also harm Army’s support amidst the all-important Zarb-e-Azb mission.
It is clear that the government has played its (dirty) hand; and that now the ball is in PTI and Army’s court. This episode will be a test for PTI and its supporters to 1) temper their passions, in terms of any unintended mischief, while 2) still exercising their democratic right to protest, without being over-awed by the presence of Army troops.
Perhaps the biggest test, however, is that of the armed forces: about how they are able to comply with the directions of the government, maintaining law and order, while not infringing upon the right of PTI supporters to protest their grievances, in peaceful exercise of their democratic and fundamental rights.  It will be key, for the Army, to make sure that it does not pick any partisan side (even in the slightest), reinforcing their status and image as a truly national institution.
This a precarious time for politics and democracy in Pakistan.  And all of us, as a nation, must pray for saner heads to command our destiny.

 The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

saad@post.harvard.edu

@Ch_SaadRasool

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be contacted at saad@post.harvard.edu. Follow him on Twitter

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