Constitutional democracies, as they should, usually take an extremely strict view of abuses of executive power. Just last week, for example, the United States House Republicans, in an unprecedented move, voted to bring a lawsuit against President Obama for overstepping his executive authority.
What, then, should we make of the federal government’s sweeping invocation of Article 245 of the constitution to deploy army in Islamabad to undoubtedly frustrate the PTI’s bandwagon to Islamabad on Independence Day?
Article 245 primarily caters to war declaration powers of the federal executive against ‘external aggression or threat of war.’ It, moreover, confers authority to the federal government to call upon the armed forces to act in aid of civil power. This latter authority, pursuant to which the army has been called in Islamabad, harkens back to successive British colonial laws to deploy army to maintain internal security and public order. Under its current constitutional guise as well as its antecedents, this authority has been variedly invoked in the past in particular moments of crisis such as in Lahore to quell sectarian riots in 1953 and across various cities in 1977 to contain political opposition.
Both these instances notably set off an irrepressible chain of events that eventually metastasized into prolonged periods of praetorian rule upon the ashes of established constitutional and legal order. Given our cyclical political history, the swirling political uncertainties, and the simmering civil-military tensions, who is to bet the current deployment of army in Islamabad may not snowball into something similar?
Pursuant to its original understanding and intent, the authority to call army in aid of civil power is strictly circumscribed to application in exceptional situations meriting draconian wartime powers where the ordinary legal and administrative machinery has either failed to or is unable to effectively meet the exigencies of the situation.
[quote]The army should not be dragged into a situation where it may be forced to take sides to preserve public order[/quote]
An illustration of a constitutionally mandated invocation of this authority is the present deployment of armed forces in the Federally and Provincially Administered Tribal Areas where the state’s ordinary legal and administrative apparatus is woefully inadequate to effectively deal with non-state actors brazenly challenging its writ.
On the other hand, a preemptive application of this authority in Islamabad represents its constitutionally unwarranted exercise. The state’s ordinary legal and administrative machinery remains functional in Islamabad and the situation on the ground does not reflect an exceptional internal security situation in the sense envisaged by the constitution.
The logic behind a high threshold requirement for exercise of this authority is straightforward. Since its validity cannot be questioned in any court in Pakistan including the Supreme Court and as it explicitly limits the fundamental rights and freedoms of the citizens by freezing the jurisdiction of the relevant High Courts, it must only be exceptionally invoked to overcome abnormal and extreme situations of internal security.
The constitutional scheme of separation of powers and checks and balances between the three governmental branches further compels a prudent invocation of Article 245. As power to call army in aid of civil power exclusively belongs to the executive and is not subject to any judicial or parliamentary oversight, it must be exercised with great caution and responsibility to preserve this delicate scheme.
Among the virtues of constitutional democracy is a government of limited powers operating strictly within the parameters of the constitution. The imperial use of its executive authority by the federal government to call in army in Islamabad is hence a regressive step for the development of substantive democratic norms in the country as well as the establishment of the elusive rule of law.
It would be naïve to assume that PTI’s long march to Islamabad is not fraught with security risks. But crucially, these risks must be addressed by civil intelligence and law enforcement authorities specifically trained and authorized to handle such political displays.
On flimsy pretexts, the army should not be entangled in civilian functions by successively plucking it away from its paramount role of safeguarding national frontiers. This entails a constant reorientation of the military’s focus and priorities much to the detriment of our overall national security.
For the sake of democratic legitimacy as well as the army’s institutional prestige and public image, the army should not be formally dragged in a tinderbox situation where it may ultimately be forced to take sides to preserve public order. Perhaps most significantly, the army is currently stretched too thin on several other fronts demanding its unwavering attention.
The imperial overreach of its executive authority notwithstanding, this is certainly not the time, then, for the federal government to piggyback on the military for extricating it from its Kafkaesque moment.
The writer is a lawyer. He can be reached at as2ez@virginia.edu
What, then, should we make of the federal government’s sweeping invocation of Article 245 of the constitution to deploy army in Islamabad to undoubtedly frustrate the PTI’s bandwagon to Islamabad on Independence Day?
Article 245 primarily caters to war declaration powers of the federal executive against ‘external aggression or threat of war.’ It, moreover, confers authority to the federal government to call upon the armed forces to act in aid of civil power. This latter authority, pursuant to which the army has been called in Islamabad, harkens back to successive British colonial laws to deploy army to maintain internal security and public order. Under its current constitutional guise as well as its antecedents, this authority has been variedly invoked in the past in particular moments of crisis such as in Lahore to quell sectarian riots in 1953 and across various cities in 1977 to contain political opposition.
Both these instances notably set off an irrepressible chain of events that eventually metastasized into prolonged periods of praetorian rule upon the ashes of established constitutional and legal order. Given our cyclical political history, the swirling political uncertainties, and the simmering civil-military tensions, who is to bet the current deployment of army in Islamabad may not snowball into something similar?
Pursuant to its original understanding and intent, the authority to call army in aid of civil power is strictly circumscribed to application in exceptional situations meriting draconian wartime powers where the ordinary legal and administrative machinery has either failed to or is unable to effectively meet the exigencies of the situation.
[quote]The army should not be dragged into a situation where it may be forced to take sides to preserve public order[/quote]
An illustration of a constitutionally mandated invocation of this authority is the present deployment of armed forces in the Federally and Provincially Administered Tribal Areas where the state’s ordinary legal and administrative apparatus is woefully inadequate to effectively deal with non-state actors brazenly challenging its writ.
On the other hand, a preemptive application of this authority in Islamabad represents its constitutionally unwarranted exercise. The state’s ordinary legal and administrative machinery remains functional in Islamabad and the situation on the ground does not reflect an exceptional internal security situation in the sense envisaged by the constitution.
The logic behind a high threshold requirement for exercise of this authority is straightforward. Since its validity cannot be questioned in any court in Pakistan including the Supreme Court and as it explicitly limits the fundamental rights and freedoms of the citizens by freezing the jurisdiction of the relevant High Courts, it must only be exceptionally invoked to overcome abnormal and extreme situations of internal security.
The constitutional scheme of separation of powers and checks and balances between the three governmental branches further compels a prudent invocation of Article 245. As power to call army in aid of civil power exclusively belongs to the executive and is not subject to any judicial or parliamentary oversight, it must be exercised with great caution and responsibility to preserve this delicate scheme.
Among the virtues of constitutional democracy is a government of limited powers operating strictly within the parameters of the constitution. The imperial use of its executive authority by the federal government to call in army in Islamabad is hence a regressive step for the development of substantive democratic norms in the country as well as the establishment of the elusive rule of law.
It would be naïve to assume that PTI’s long march to Islamabad is not fraught with security risks. But crucially, these risks must be addressed by civil intelligence and law enforcement authorities specifically trained and authorized to handle such political displays.
On flimsy pretexts, the army should not be entangled in civilian functions by successively plucking it away from its paramount role of safeguarding national frontiers. This entails a constant reorientation of the military’s focus and priorities much to the detriment of our overall national security.
For the sake of democratic legitimacy as well as the army’s institutional prestige and public image, the army should not be formally dragged in a tinderbox situation where it may ultimately be forced to take sides to preserve public order. Perhaps most significantly, the army is currently stretched too thin on several other fronts demanding its unwavering attention.
The imperial overreach of its executive authority notwithstanding, this is certainly not the time, then, for the federal government to piggyback on the military for extricating it from its Kafkaesque moment.
The writer is a lawyer. He can be reached at as2ez@virginia.edu