The call for army in Karachi

In exigencies, we must tread most carefully

Over the past some weeks, our media waves, political players and security personnel have been mulling over the idea of calling army to control the violence and bloodshed in Karachi, and to crackdown on the militant outfits (political and others) that are involved in a convoluted web of target-killing, bhatta mafia and the larger turf-war to claim the soul of that city of lights. In a country ravished with years of bloodshed, with a history of deploying the khakis to do the job of the civilian government and law-enforcement, we have gotten accustomed to the idea of discussing army interference, without fully understanding the constitutional and legal mandate behind these measures. The ‘extremeness’ of the call for army, the constitutional authority behind it, and the blatant failure of the civilian security apparatus that it demonstrates, seems to have been lost somewhere amidst the buzz of the media chatter.

It is pertinent to pause and reassess how, and under what conditions, can the government call for army to act in aid of civilian power in Karachi.

The authority to use military force in countering internal or external threats has been enshrined in our 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: “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 organization capable of functioning as a military organization”.

Within this arrangement, the constitution also 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: “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, for clarification, the “federal government”, under 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 analyze the spirit of these provisions. First, let us start by recognizing that the constitution envisages two distinct areas of conflict in which the government could call for the 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 two (external aggression) relates primarily to the possibility of military combat with some other nation (as was the case in 1948, 1965, 1971 (and 1998?)), whereas the second part of Article 245(1) relates to a military action for internal unrest (as has unfortunately happened in KPK, 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 ‘direct’ the armed forces for any possible action.

Applying this paradigm to the chaos and bloodshed in Karachi, however, 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. This effectively means that in case of such army action, the applicable rights and law will be the regular civilian law, and not de jure belli (law of war). Any captured militants will be subjected to civilian courts, and will be afforded all rights and remedies under our constitution.

On the other hand, if it is deemed that the operation in Karachi, or any involvement of the armed forces in it, is an offensive against “external elements” jeopardizing the stability of Pakistan (as has been claimed by numerous members of the parliament, including the interior minister), then conflict will have to be categorized 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, given the mixed and confused signals being sent by different elements of the federal and provincial government, it seems that the authorities as well as the people of Pakistan have no real clarity about the nature of the conflict in Karachi, the enemy that we are fighting, or the end-goal in terms of objectives. For all intents and purposes, this is a faceless enemy, residing in the unmapped streets and corners of our largest urban city, fighting for a largely undefined goal. Can we, constitutionally, be in a military conflict with this enemy?

We have gotten far too accustomed to entering into areas and situations where our political rhetoric splits ends with the constitution and the law. The violence in Karachi is dreadful. The enemy is abominable. A solution to this decades old line of bloodshed must be found yesterday. But all this does not mean that we venture into constitutionally undefined areas. It is in times of exigencies that our constitutional resolve is most tested. And it is in these times, that we must tread most carefully.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]