The constitutional analysis
Civil-Military relations have always been the subject of discussion in Pakistan’s polity. Just like Turkey, the military in Pakistan have always played a dominant role in the state’s politics. So much so that the country had experience four martial laws – 1958, 1968, 1979, 1999 since Pakistan’s creation. The detailed analysis of its history shows that the military’s intervention was not without reason. Given the circumstances under which the country came into being, and the subsequent political developments; there was a rationale for its intervention which was later on legalised by the judiciary under the famous ‘Doctrine of Necessity’.
The Muslim Nationalism dominated by the mixture of Islam and socio-politico-economic grievances against the Hindu Majority and the British Empire paved the way for the partitioning of United India into two parts- Pakistan and India. Pakistan, after achieving independence, soon faced the existential issue – India was determined to undo Pakistan. Also, Pakistan had no manpower, money and institutions to run the country according to the purpose for which it was created. The problems were further compounded by India when it forced Pakistan to enter into its first war over Kashmir in 1948. The point of argument is that such a situation was not right for the growth of democratic polity in the country. When facing an existential threat, the continuation of democratic order went into the backyard, bringing the issue of country’s existence at the forefront. Also, the deficiency of man-power and the institutions in Pakistan paved the way for the civil and military bureaucracy (the successors of colonial institutions} to enter into the politics of the country. As these were the only effective institutions at that time, it was natural for them to fill the institutional gap created by the ‘weak’ political successors of Jinnah. Rest is history.
At present, the democratic order seems to be facing the same issues as it had faced right after the country’s existence – the dominance of military in Politics. The Media, intelligentsia, opposition and public opinion clearly express their unease with the situation of “civil-military imbalance”. In this regard, it is important to analyse if there is really an imbalance between the two. To start with, there is a need to understand the concept of ‘balance’ in the political science.
Balance here refers to the condition where the state institutions are working according to its prescribed functions under the constitution. In fact, the rationale for the constitution is to distribute the state-powers among the different institutions to achieve harmony and to prevent chaos and confusion. Those who believe that the present polity in Pakistan is dominated by civil-military imbalance (balance in favour of military) gives two arguments: 1) the role of military in the foreign policy formulation 2) The establishment of military courts under 21st amendment by-pass the regular judicial institution. 3) Excessive powers to the military under the legislations, such as POPA Act 2014 and the ranger’s intervention in Sindh and Punjab.
To conceptualise the arguments, it is important to do the constitutional analysis to see if the situation in the country is of balance or imbalance. The article 244 and 245 clearly defines the functions of military. According to Army Act, the military have no role in politics, whatsoever. Further, the Article 245 (1) says, “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.” It implies that although the primary duty of Armed forces is to protect Pakistan against the external aggression, yet the civil government can call the armed forces for the purpose of assisting them in case of emergency. In light with this article, it can be implied that the ranger’s action in Sindh and Punjab is covered under law and constitution, as they are called in by the civilian government. Once their activities are covered under the law, it means that the state institutions are functioning according to their prescribed functions, thereby maintaining a civil-military balance.
Another argument for civil-military imbalance is the creation of military courts. If the constitution does not have any provisions regard the establishment of such courts at parallel with the regular courts, then the argument follows: Indeed, there is a civil-military imbalance – the balance in the favour of military. But the constitution categorically allows for the establishment of military courts. This has been constitutionalised under 21st Amendment. The amended Article 175 says, “There shall be a Supreme Court of Pakistan, a High Court for each Province and a High Court for the Islamabad Capital Territory] and such other courts as may be established by law.” Further, it says, “Provided that the provisions of this Article shall have no application to the trial of persons under any of the Acts mentioned at serial No. 6, 7, 8 and 9 of sub-part III or Part I of the First Schedule, who claims, or is known, to belong to any terrorist group or organisation using the name of religion or a sect. In the Constitution, in the First Schedule, in sub-part III of Part I, after entry 5, the following new entries shall be added, namely:-The Pakistan Army Act, 1952 (XXXXIX of 1952), The Pakistan Air Force Act, 1953 (VI of 1953), The Pakistan Navy Ordinance, 1961 (XXXV of 1961), The Protection of Pakistan Act, 2014 (X of 2014).
Now if the constitution allows for such mechanism, it implies that the establishment of military courts is not disturbing the balance as is maintained by the constitution. Therefore, it proves that there is no civil-military imbalance in the technical terms.
The last argument put forward by the holders of the opinion of ‘civil military imbalance’ is of military’s role in the foreign policy formulation. At present, the foreign policy is managed, controlled, run by the foreign office. The Military is only giving its input to the civilian government so that this area can be managed effectively and efficiently taking into account the state’s interests and security. It is not, something, only in practice in Pakistan. Even in the USA, the Pentagon actively gives its input to the Presidency about the security needs and interests of the country. And the input of the Pentagon assists the President to formulate the foreign policy in a realistic paradigm. Having said this all, the term ‘balance’ as is taken under the subject of political science, and the working of the constitution in Pakistan clearly shows that every institution in the country is working under its prescribed functions as given by the constitution. There is no such thing as civil-military imbalance in the country.
