The US Constitution empowers only Congress to declare war, Congress also determines whom to wage offensive war against. With that approval, the US President then takes charge in waging that war as commander-in-chief. This has not stopped Presidents from taking the US to war without Congressional approval over a dozen times in the event of danger to the nation; has any President ever been impeached for violating the US Constitution?
Drawn into an ‘Aid to Civil Power’ situation in Islamabad under Article 245 of the Constitution, are the Constitutional parameters about the use of uniformed defence personnel being followed to the letter of the law or was the incumbent government simply using them for their own political ends? Chapter 9 of the Manual of Pakistan Military Law (MPML) is explicit dealing with “Duties in Aid to Civil Power”, military officers have to take written instructions from the magistrate on duty. If the magistrate is absent, the military officer can still act “when the public security is manifestly endangered” and “do as little injury to person and property as may be consistent with dispersing the assembly and arresting and detaining such persons”. The Model Town incident of Lahore defies the rule of law. Without provocation the police acted on someone’s instructions. The Direct Conversation Report (DCR) provided by the intelligence agencies will be troublesome for our ruling elite family, the raison d’etre why the Federal and Punjab governments were trying to block registration of an FIR. His resignation as PM is the least of Mian Nawaz Sharif’s impending problems.
The moral dilemma is whether Constitutional mores will be satisfied in putting down by force in the name of democracy a genuine movement for freedom, democracy and the rule of law? Can the balance between action and inaction be maintained by either obeying orders blindly or allowing the streets to make the law hostage to their demands? Between career and conscience lies an awesome responsibility of obeying the letter of the law, or alternatively one’s conscience in the spirit of the law. What constitutional mores did General Waheed Kakar adopt when he sent both President Ghulam Ishaq Khan and PM Nawaz Sharif home in 1993 and remember Gen Kayani in 2008 making President Zardari back down to restore Chief Justice Iftikhar Chaudhry when Mian Nawaz Sharif accompanied by top constitutional lawyer Aitzaz Ahsan broke the law driving through the police barricades to reach Gujranwala? Was the national interest supreme or Constitutional mores? PM Gilani’s notification restoring the CJ was technically illegal, made legal only a year later post-facto by the beneficiary himself, legally and constitutionally not kosher.
Those who matter should follow the route of pragmatism to avoid complete breakdown of Constitutional authority. In a no-win situation, the Pakistan Army well realises that instead of getting into physical involvement, for the sake of the country its ‘judge and jury’ role is best suited within the parameters of the constitution. Legal opinions differ about whether or not the army can go to the Supreme Court under Article 245 to resolve the political deadlock. Still better than taking over?
If the Supreme Court refuses to listen to the army’s plea on legal grounds and/or fails to resolve the political deadlock, the alternatives would then never be far away. While there is no substitute for democracy, the worst type of democracy is always better than the most benign martial law but if deadlock threatens to lead to bloodshed and compromises the existence of the country, what are the choices? Martial law can never be better than democracy, the clear and present danger is having no country at all!
Published in The Express Tribune, August 28th, 2014.
COMMENTS (26)
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@Gp65: You seem to have forgotten the strikes on Libya last year!
As per law an FIR has been lodged against 21 persons nominated by PAT and next of kin for the murder of 10 or 14 persons on 17 June at Model Town Lahore. Does that same law not give the right to next of kin of Former Gov Nawab Akbar to lodge an FIR for his alleged murder against former President, or are they children of a lesser god?.
@Gp65 If you consider dropping bombs on a foreign land an act of war; i believe the law has been violated a far greater number of instances. Point being the lawyers and constitutional experts don't hold such legislation immutable and present interpretations to the law favorably, the congress then has to approve the law post-facto to not look like they've been undermined.
When people parrot ' the worst democracy is better than a benign dictatorship ' it relies on the assumption that each successive democracy would be an improvement on the last because that is the structure of democracy.........but as in Pakistan's case that has patently been proved wrong.......and so a SHAM democracy as evolved. What we see happening today is an attempt to correct this SHAM DEMOCRACY.
The author is factualy wrong when he says that US Presidents went to was without getting Congress approval AFTER the law mandating such an approval as prerequisite to declaring war. The law went into effect in 1973. US entered threewars since then (the 2 Iraq wars and the war in Afghanistan) and it has sought Congress approval in all 3 cases.
The comments by @Aussie are quite incisive. He is right in asking the basic question as to how can the lot of the nation improve in the present milieu of decay. I think the form/type of the govt does not play a very significant role. The thing which matters most is ''the rule of the law”,in light of the social contract developed by the nation. The prosperity of people primarily revolves around the economic prosperity for all. The prosperity should be based on the equal distribution of resources with consensus. Therefore the bedrock of human progress is LAW. However the Implementation of the law is the weakest link of our society. Everyone from top to bottom tries to take a short cut and avoid law. And if it continues we as a society may perish. Things may be bad but I have not lost the hope, provided we develop the attitude and respect for the law.
@shahid What if, after the kings takes over, you discover that the king is actually worse than democracy, 999 times more. And you dont have any control over the king, unlike democracy, where in you had elections every few years.
I would prefer a king ruling Pakistan than democracy if s/he can provide needs of the people.
"Are you saying that a crowd of 10,000 can use “the well being of a nation” argument to topple any government?"
@Professor: No, sir. What you do with a "crowd of 10,000" is keep it an orderly demonstration. I'm saying that in a democracy deadlock between politicians means the politicians can say, "See, I tried my best! But the rest of the people won't go for it - we'll have to bargain some of our desires away to gain others or accept that the work of government won't get done. If you don't believe that, elect someone else and you'll see they won't do any better than I have."
@Professor: ruling elite only exclusive to few families can hijack pakistan for 67 years then people of in number 10000(fudged) loyal without any material interests are likely and rightly to topple the offensive system
@Solomon2: Are you saying that a crowd of 10,000 can use "the well being of a nation" argument to topple any government? It will be chaos. Tomorrow the Taliban can raise a similar number and ask you to introduce Sharia. The possibilities are endless.
well articulated and prudent piece. Democracy is elsewhere what we have is Hypocrisy or Demoncrazy at best. So let no comparison be made with 'genuine' democracy
We need to re engineer and reform the system to its original form
@amoghavarsha.ii: I have more than reason to believe that the author is a patriotic Pakistani who has more stake in the well being of Pakistan's democracy and its institutions than you ever will. Furthermore, if you had bothered to read the whole article you would know the author DID say "the worst type of democracy is always better than the most benign martial law". He just speculated a question which most people ask what will happen if the status quo or the bloodshed continues. If you want to read more into it than sure, go ahead. No one's stopping you.
Martial law and coup should never be an option; a sit in will not demolish Pakistan but military coup will.
@icydevil....there is nothing analyticall about this article. It is simply bias against Nawas and democratic institutions. Bias in favour of military rule. Every body in the free world know that " worst form of democracy is better than Best form of Dictator ship " But the other is saying exact opposite.
The cinema analogy in the beginning of the article is very logical in terms of law and its use
@nadeem: This emotional narrative of "oh the big bad army using tax payers money is going to get us" has led the people and the country no where instead it has instigated the anti-army without any rhyme and reason. If you want to criticise the army, sure go ahead but don't forget if it weren't for them, you wouldn't be so freely posting your opinions or hatred against them.
@Tariq: I think if you focus on what message the author is trying to relay then you would understand why ET published this very analytically precise piece.
Everything would have made sense in this article were it not for the very public fact that the instigator of this 'revolution' is the military itself (for which it used the taxpayers' money granted to it under other heads). That, in and of itself, nullifies the 'clean intentioned' case the author is laying out for yet another take over by his buddies.
What a mess !!
Very sensible writing. But how do you explain this logic to emotional people? Their call for change can lead to terrible consequences....
Very precise analysis. Just two points to highlight.
First, the Constitution of 1973 is not a divine document. Even if it were, it has been changed and modified very considerably by latter amendments. Even in its original pristine form, its sanctity and worth was not maintained by its principal author ZAB who suspended it within a few short hours of its coming into being.
The entire power elite of the Country operates at the lowest possible norms of conduct and thought, and only take refuge in the flag and constitution when directly challenged. This present set-up, now in its third innings, had no difficulty in earlier physically invading the Supreme Court, using the entire wealth of the Country as their private funds, taking corruption and nepotism to ever greater heights. All this without exhibiting any outward signs of personal achievement or excellence in a manner recognised by modern civilisation,
Second, how can the lot of the Nation improve, when any checks and balances have been steadily removed by design and progressive decay. Do we allow the cancer grow to such poetic excesses as to hopefully become a cure?
The author has placed matters in their perspective, and points out the corrective options available, which we are rapidly running out of with the passage of time.
I think ET wants to do the balancing act by giving space to such writers, for whom this state is there to be abused and plundered, without any inhibitions or restraints.
But what if the present danger has been brought about by some of the military units itself.
Something very very important that the Army didn't realize in the 1950s and apparently hasn't learned even today: sometimes the politicians must be allowed to fail. Failure proves to their constituencies that its wishes are unworkable. Yet from that embarrassing foundation of failure can a new majority be formed. Why not embrace the embarrassment, Pakistan? Do you think your politicians' need to preserve their big egos should outweigh the well-being of the nation?