By Pir Abdul Wahid
UPDATE (6th of July,2014) :Since this article was written there is news that the controversy created by the perceived impact of Article 245 has been addressed by the IHC today.It has been confirmed that the Islamabad High Court has the jurisdiction to proceed with petitions filed under Article 199 of the Constitution of Pakistan,while addressing objections to the taking up of the Article 199 Petitions by the Registrar.
Original Article Dated 4th of July, 2014
There appears to be a constitutional alarm in the Federal territory mainly because of the storm brewing because of the imposition of Article 245 a few days back.The keyword here is ‘damage’.Damage to people’s rights to their property, their rights to freedom and human rights.Above all there will be damage to the faith of the common man in the writ of the courts which has been suspended with a blink, due to the political whims of the present government.
Article 245 reads as follows :
Functions of Armed Forces.-
(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 Forced 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.
Such a curtailment to the powers of the Islamabad High Court (IHC) to hear petitions related to the fundamental rights under Article 199 of the Constitution has meant that the IHC administration will need to rethink whether they should fix such petitions before benches for hearing.Effectively this has also meant that now that its powers under Article 199 have been curtailed to the extent that it is unable to take up petitions related to illegal detention, misuse of government authority (by individuals or departments), illegal appointments, land grabbing and other matters.A lot of people will find that the ‘executive’ organs of the state can play havoc with their lives without being held account, at least for the next 90 days.They cannot register a case/petition at the court where their fundamental rights have been breached, during this time period (the notification for the imposition of this article has been for 3 months)
The July 24 notification reads as follows , “Pursuant to the request of the chief commissioner Islamabad … the federal government in exercise of powers under Article 245 of the Constitution and clause (ii) of sub section 3 of section 4 of the Anti-Terrorism Act 1997, is pleased to (announce) the deployment of 350 troops of Pakistan Army to act in aid of the civil power in Islamabad capital territory.”
Clause 1 of Article 245 reads, “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.”
Clause 2 states, “The validity of any direction issued by the federal government under clause (1) shall not be called in question in any court.”
Clause 3 of the Article adds, “A high court shall not exercise any jurisdiction under Article 199 in relation to any area in which the armed forces are, for the time being, acting in aid of civil power in pursuance of Article 245.” However, this is explained further as: “Provided that this clause shall not be deemed to affect the jurisdiction of the high court in respect of any proceeding pending before the day on which the armed forces start acting in aid of civil power.”
According to Clause 4 of the Article, “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.”
This is an interesting development as the idea behind invoking Article 245 is to counter foreign aggression or an imminent threat of war. It is yet to be seen how the masses will respond to the suspending the powers of the IHC (Islamabad High Court).Given the circumstances, we see our law firm’s clients having a tough time as well, especially because if anyone from the executive organs of the state chooses to damage them financially or in any other way, they have a free hand to do so (at least for the next three months).