ISLAMABAD: The Islamabad High Court (IHC) on Monday admitted for regular hearing a petition filed by the district bar association against the federal government’s decision to invoke Article 245 of the constitution to call out the army for the security of the federal capital.

The court issued notices to the defence, interior, cabinet and law secretaries and sought their replies.

The court also directed Additional Attorney General (AAG) Tariq Mehmood Khokhar to provide to the court a copy of the notification issued to invite the army in aid of the civil administration.

He was also directed to submit the complete record along with a comprehensive reply by August 6.

Taking up the petition, IHC Chief Justice Mohammad Anwar Khan Kasi observed that since the matter pertained to the fundamental rights, it would be heard on a day-to-day basis from August 6.

The federal government on Friday announced its decision to summon the army to aid the civilian law enforcement agencies in securing the capital over the next three months.

Chief justice says since the matter pertains to fundamental rights, it will be heard on a daily basis

Article 245 (1) 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.”

Under Article 245 (3), “A high court ceases to exercise jurisdiction under Article 199 of the Constitution in relation to any area in which the armed forces are for the time being acting in aid of civil power.”

“We are under oath to protect the constitution and fundamental rights of the citizens,” Justice Kasi observed.

“The law and order situation is not up to the mark in Karachi and Quetta as well. In Islamabad, I live without any official security,” he added.

When Justice Kasi asked AAG Khokhar about the notification the government had issued to call out the army, he replied that since he was unaware of the petition he could not ask the ministries for a copy.

Justice Kasi in a surprise tone asked: “How could it be possible that a notification which is available to the media not in your possession?” He directed the AAG to submit all the relevant details in connection with invoking of Article 245 of the constitution before August 6.

Mr Khokhar contended that the petitioners had misconceived invoking Article 245. He said the decision had been taken on June 15 before launching the operation Zarb-i-Azb and after consulting relevant stakeholders.

Arguing before the court, Ahasanuddin Sheikh, the counsel for petitioners - president Islamabad bar association Naseer Kayani and secretary Naeem Ali Gujjar - contended that the government did not disclose any reason to call out the army.

Apparently, the decision was taken without the approval of the cabinet or the prime minister, he added.

He said the government had failed to comprehend the consequences of inviting the army in aid of the civil administration as in the past such an invitation had led to the July 1977 martial law.

“It is surprising that till date there has been no indication of the failure of the civil administration to maintain peace. But the provision of Article 245 is abruptly invoked overnight.”

The petition stated that “the army is called only to the extent of Islamabad capital territory and its area is surely less than that of the Kahuta tehsil of Rawalpindi.”

It said if the federal government was not in a position to maintain peace in such a small area, how it should be expected of running the affairs of the federation.

Terming the decision to call the army a ‘mini-martial law’, the petition said when the parliament was fully functioning the federation should have tabled the issue before the National Assembly as well as the Senate to debate and take an appropriate action.

The petition requested the court to strike down the notification issued to call out the army.

The petition was delivered at the residence of the IHC chief justice on Saturday.

Taking it up on Monday, Justice Kasi remarked that for filing the petition there was a certain procedure which should have been followed.

Syed Nayyab Hassan Gardezi, another counsel for the petitioners, pointed out that under Section 6 of Rule 11 of the IHC Act, “The court may take up any case at any time as may be necessary for the end of justice.”

Published in Dawn, July 29th, 2014