Daily Times

Lahore: The civil and military top brass on Sunday agreed that army personnel would not be used in the Faizabad operation. The huddle at the Prime Minister’s House decided to put Punjab Rangers in charge of the Faizabad operation.

The decision came at the end of a chaotic weekend that saw coordinated riots across the country by supporters of an extreme right-wing religious party, Tehrik Labbak Ya Rasoolullah (TLYR).

Earlier on Saturday, reports had emerged about the Interior Ministry’s decision to requisition the Army in aid of civil power under Article 245 of the Constitution. The army responded to the directive on Sunday by stating that it was fully prepared to assist the government but it felt that there was room for deliberation on three issues. Firstly, it held that the police force had not been utilised to its full capacity. Second, written instructions were not issued to the Rangers and, thirdly, it sought clarifications on the role of troops to be deployed in Islamabad and Rawalpindi in view of the Supreme Court and Islamabad High Court directives on the matter.

Daily Times spoke to legal experts to determine if directions issued under Article 245 of the constitution leave room for deliberations between armed forces and the government and, if it does allow that, what is an appropriate forum for such deliberations.

Former Supreme Court Bar Association president Syed Ali Zafar maintained that once directions were issued under Article 245, armed forces could evaluate the situation to ensure that it fell within their mandate and competency. “The role of the government becomes subservient after it has issued directions. The total and absolute authority on how and what action is to be taken vests with the armed forces,” he said.

Zafar said that riot control was a matter beyond the armed forces’ competency. “Consequently, it is well within their constitutional right to seek clarifications before undertaking steps to aid the civil authorities,” he added.

While Article 245 allows executive agencies to seek clarifications regarding orders issued to them, other experts highlighted that the way the armed forces had done so in the case of the Faizabad sit-in was questionable.

“They [armed forces] can ask how many personnel are needed but they can neither deny the order nor delay the matter of sending troops once the order has been issued,” said Asad Jamal, a Lahore-based advocate.

On the three points raised by the army in its reply to the Interior Ministry, Jamal said it was beyond the army’s purview to raise such concerns. “The civilian government can decide what executive agency is to be used in a particular situation. Needless to say, there has to be appropriate assessment. If the army has reservations, there is no reason for it to make those public. The government may have wrongly assessed the situation but the Constitution is clear. Clarifications can be sought once the government order has been complied with,” he said.

He said that by making its reservations public, the army has given the impression that there remains a ‘state within the state’ as former Prime Minister Yousaf Raza Gillani had said in a speech delivered on the floor of the House during the Memogate scandal.

“No one will like to see the army on the roads. But then no one will want policemen deployed in the streets with modern weapons either. Here, the question is straight forward: who holds the ultimate authority to take decisions? As a lawyer, I can only state what the Constitution prescribes. And this is what the first reaction of the armed forces should have been. Send personnel in aid of civil power and keep conveying reservations at the same time, but in a discreet manner such that the impression that they are an institution that is subordinate to the elected executive remains intact,” Jamal said.

Lawyer Waqqas Mir agreed that state actors could seek clarifications regarding directions issued to them, but the context needed to be taken into consideration. “Let’s not forget the tweet posted by the military spokesperson on Saturday and how the events unfolded afterwards. Given the institutional power of the army, the impression one gets is that the army has cited clarifications only to ensure that the issue is resolved in accordance with its preferences,” he said.

Mir held that there was no justification for the ISPR to have tweeted that the Chief of the Army Staff (COAS) had called the Prime Minister (PM). “Whatever concerns the army may have had could be communicated internally and through the right institutional channels,” he said.

He said if the Ministry of Information started tweeting about civilian displeasure with the military on specific issues, no civilian government would remain unscathed thereafter.

                                                   Article 245 of the constitution

(1) 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.

(2) The validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any court.

(3) A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245:

Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil power.

(4) Any proceeding in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil power and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting.

Published in Daily Times, November 27^th 2017.