Why legalese would, or won’t, make WoT our war
War is a serious business. So serious that kings, empires and nation states have, for many a century, grappled with the complexities and (more recently) legalities of declaring and conducting war. After a long trail of trial and error – which, in the process has claimed million of lives over the centuries – laws concerning the declaration of war as well as rules of engagement have emerged in the recent modern era. The decision to go to war, and therefore the declaration of it, is so grave in nature that most civilised democracies do not leave it to the realm of arbitrariness or individual prerogative. Instead, the power (and procedure) of declaring war in most modern democracies is envisaged in the constitution itself (the supreme law of the land).
In Pakistan too, 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 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.” As the Supreme Commander, the president 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. This, according to our constitutional framework, is the full extent to which an “army” can be raised and maintained in Pakistan, and Article 256 of the Constitution forbids the formation of any “private organisation capable of functioning as a military organisation”.
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. 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” [emphasis added]. 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.
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”. In terms of broad generalisation, the first of these two (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 in Karachi and Balochistan, from time to time). But in either case, one thing is certain: the federal government (consisting of the prime minister and his cabinet) has to specifically pass “directions” to the armed forces for any possible action.
Applying this paradigm to the fluid and undefined “war on terror” in our tribal areas is a tricky exercise. To begin with, the conflict (and the enemy) resides within the geographical boundaries of Pakistan. And this, prima facie, would make the military intervention in this conflict an exercise of the armed forces “acting in aid of civilian power”. And, per Article 245(1) of the constitution, the federal government must provide specific “direction” in this regard, and even after that, the actions of the military forces will have to be “subject to the law”. This key phrase, “subject to the law”, has wide connotations in terms of the applicability of constitutional rights of the militants, the provisions of the Army Act, and also international accords and treaties signed (and ratified) by the state of Pakistan that govern the empire of human rights and conflict resolution.
On the other hand, if the war on terror, specifically in the tribal belt, is an offensive against “external elements” jeopardising the stability of Pakistan (as has been claimed by numerous members of the Parliament, and the federal as well as provincial governments), then it is perhaps more appropriate to see this conflict, in terms of the first part of Article 245(1), as military action “against external aggression or threat of war”. In this case, the constitution seems to have purposefully left out the requirement of “subject to law”, making the ambit of armed forces’ activities significantly wider (once ‘directed’ as such by the federal government). Also, if this is in fact a conflict against external aggression, then, as is customary in all wars, the area of conflict, the enemy forces, and (most importantly) the goal of the military operation must be specifically defined – lest this becomes an unending conflict, giving the military establishment an unfettered passport to disregard domestic as well as international laws.
For now, despite having been embroiled in this conflict for over a decade, the government, as well as the people of Pakistan, has no real clarity about the nature of the conflict in our tribal areas, the enemy we are fighting, or the end-goal in terms of objectives. For all intents and purposes, this is a faceless enemy, in an unspecified region, fighting for a largely undefined goal. And we are at “war” with this enemy.
The fault, in this regard, rests with the successive federal governments that have been at the helm of affairs since 2001. It is time that uncertainty – about a conflict that will decide the destiny of our children – ended, giving way to clarity as to the definition and object of this war. Not only is this the mandate of the constitution, but it is also in the larger interest of winning this elusive war against terror.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: saad@post.harvard.edu