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February 19, 2019

Constitutional obligations


February 19, 2019

The will of the people of Pakistan is sacrosanct. This is codified in the very preamble of the constitution of Pakistan: “Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; And whereas it is the will of the people of Pakistan to establish an order: Wherein the State shall exercise its powers and authority through the chosen representatives of the people; Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed”.

There is a special provision in the Constitution for Kashmir. Article 257 states, “Provision relating to the State of Jammu and Kashmir. When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and the State shall be determined in accordance with the wishes of the people of that State.”

The accession of Jammu and Kashmir to Pakistan is an assumed future state. Notwithstanding other considerations, this is the sacrosanct constitutional norm defining Pakistan’s relationship with Kashmiris. Occupied Kashmir is a bleeding sore. Its resolution is a binding moral obligation. But far above such morality, it is a constitutional requirement.

Behaviour in the international realm is governed by the constitution through Article 40, which states, “Strengthening bonds with Muslim world and promoting international peace. The State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means.” Bonds with the Muslim world and peace are thus codified, as fundamental to the essence of Pakistan’s image of itself in the wider world.

Flowing from the constitution, Pakistan’s national positioning, with respect to its neighbours, its region and the world at large is constructed on fraternity across the Muslim world, and multilateralism.

In 1978, as Afghanistan became war torn, owing to the invasion by the Soviet Union, Pakistan opened its doors to Afghans fleeing the violence. Those doors have remained open since 1978. Today, there are at least 2.4 million Afghans that live in Pakistan, (including 1.4 million officially registered refugees), most of whom were born in Pakistan.

The principal guarantors of peace for any nation-state are its armed forces. Pakistan’s armed forces are a constitutionally mandated structure, codified in Article 243, “Command of Armed Forces. 1 The Federal Government shall have control and command of the Armed Forces.”

Article 244 lays out the oath that every member of the armed forces must make. It says, “(In the name of Allah, the most Beneficent, the most Merciful.) I, (name), do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. May Allah Almighty help and guide me (A’meen).”

Article 245 clarifies what the armed forces are to do, “Functions of Armed Forces. 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.”

The armed forces enjoy exclusivity in their functioning, and the constitution explicitly bars private organisations capable of acting as a military organisation in Article 256, “Private armies forbidden. No private organization capable of functioning as a military organization shall be formed, and any such organization shall be illegal.”

The various pressures on the people of Pakistan are not top secret or confidential. They cannot be, given the various pronouncements and interpretations of the law and the constitution offered by the Supreme Court of Pakistan, in various exercises of its power under Article 184 (3) of the constitution.

In its conclusion of Suo Motu Case No 7/2017 (the suo-motu action regarding the Islamabad-Rawalpindi sit-in/dharna), the Supreme Court states clearly: “Those spreading messages through electronic means which advocate or incite the commission of an offence are liable to be prosecuted under the Prevention of Electronic Crimes Act, 2016.”

It goes on to also conclude that, “Intelligence agencies should monitor activities of all those who threaten the territorial integrity of the country and all those who undermine the security of the people and the State by resorting to or inciting violence.”

After the initial set of territorial disputes Pakistan faced in 1947, there are only three major examples of the territorial integrity of the country being threatened. The first is the Mukti Bahini’s successful terrorist insurgency of 1971, the second is the India’s occupation of Siachen through military operations conducted in 1984, and the third is the Tehreek-e-Taliban Pakistan’s (a private army funded and supported by foreign powers) attempt to occupy of various parts of the country from 2008 through 2014.

The Hamoodur Rahman Commission extensively explores the policy decisions and actions that empowered and enabled Pakistan’s enemies to successfully fund and arm a terrorist insurgency. Lessons from that document have been deliberately and consistently removed from the national consciousness.

The Siachen dispute has been resolved on paper, on multiple occasions, only to be scuttled by the Indian security establishment. The fight for Siachen is now older than about 100 million Pakistanis, and roughly 500 million Indians. All of them pay taxes on water, medicines and basic food items to finance the Siachen fight.

Thanks to several military operations, beginning with Rah-e-Rast in 2009, the TTP, and its handlers and supporters in Afghanistan, India and beyond have been thoroughly defeated by the valiant sons and daughters of Pakistan that serve in the armed forces. The lesson for those that supported the private army known as the TTP to spread terror across Pakistan is that Pakistan, once pushed to the extreme brink, knows how to fight for itself.

There is one further lesson in Pakistan’s historic victory against the TTP: the wisdom of the framers of the constitution. The banning of private armies is a vital constitutional value that has been upheld through the blood and sacrifice of the Pakistani people.

Article 19 of the constitution codifies freedom of expression, it states “Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of, or incitement to an offence.”

Though no group could ever match the consistency and competency of the Foreign Service of Pakistan, any group that wishes freedom, liberty and dignity for the people of Kashmir should be allowed to express this view. However, any groups that are in violation of the constitution, or that have been proscribed by the Ministry of Interior, must be made subject to the legal and constitutional bounds of the Islamic Republic of Pakistan. This is especially true if such groups, through the establishment of private armies, have put Pakistan in harm’s way in international fora, or have undermined Pakistan’s standing, or may put Pakistan in the cross-hairs of the international trade and finance regulators – who never miss an opportunity to punish Pakistan.

Pakistan’s bonds of fraternity with Saudi Arabia are being rightly feted in both countries today. No country has stood by Pakistan with the consistency and warmth that Saudi Arabia has.

The constitution and Pakistan’s interests both demand the pursuit of a similar degree of trust and intimacy with other countries too, especially, those with a Muslim-majority population. The wisest and best advised leaders of the people of Pakistan would begin with Afghanistan.

The writer is an analyst and commentator.

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