The federal government’s decision to invoke Article 245 of the Constitution in Islamabad for three months has generated a legal debate with many asking if the federal capital’s security situation has really deteriorated so much that the government had to call the Pakistan Army in aid of civil power to correct it.
Soon after Interior Minister Chaudhry Nisar Ali Khan announced the invoking of Article 245, lawyers began discussion on the powers to be exercised by security forces after they’re called in aid of civil power.
Article 245 (1) of the Constitution states: “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,” while its sub-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.”
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Furthermore, sub-clause 3 states: “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.”
It is not for the first time that Article 245 of the Constitution has been invoked by the government.
On several occasions in the past, security forces had been called in aid of civil power under the said Article and even military courts were set up under it. There is a general impression that when security forces are called in aid of civil power, they exercise unbridled powers and don’t work under the command of civilian administration.
However, judgments of the superior courts in different cases show security forces have limited powers in such case.
Following the general elections in 1977, law and order emerged as a result of agitation began by the then opposition parties against alleged rigging in the elections. When the then provincial governments of Sindh and Punjab were unable to control the situation, the summary military courts were set up to deal with agitators in the purported exercise of power under Article 245 of the Constitution by making suitable amendments to the Pakistan Army Act, 1952.
That action of the government was challenged before the Lahore and Sindh high courts respectively. The judgments of Lahore and Sindh high courts in those petitions are reported as Darwesh M. Arbey v. Federation of Pakistan (PLD 1980 Lahore 206) and Niaz Ahmed Khan v. Province of Sindh (PLD 1977 Karachi 604) respectively. In the judgments, the courts clearly pronounced that Article 245 of the Constitution couldn’t be invoked by a political government to rule through the armed forces to give them such powers and jurisdiction which purported to replace civil powers.
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The two judgments gave several findings including, that the scope and purpose of Article 245 is restricted, namely, it is called in aid of civil power subject to law and its scope may further be limited or controlled by law but cannot be increased by any subsidiary law beyond the purview of Article 245; that the words “act in aid” have their own connotation, namely, to come to help or assistance of the civil power for maintaining law and order and security; that the words “act in aid” employed in clause (1) of Article 245 dispel all doubts about the scope of the above Constitutional provision inasmuch as it presupposes that the civil power is still there while the Armed Forces act in aid of civil power, and that in case of the invoking of Article 245 of the Constitution, the civil power is neither supplanted nor effaced out but it is preserved and invigorated through the instrumentality of the armed forces.
They further said since the scope and sphere of action of the army under Article 245 is strictly limited to aiding a civil power, it disqualifies the Army to act in supersession of the civil courts and even an Act of Parliament cannot enable them to perform such judicial functions.
In 1998, the then federal government of Nawaz Sharif had invoked Article 245 for Karachi by issuance of a notification by the interior ministry.
The ministry had issued a notification SRO 1304 (1)/98 on Nov 20, 1998, for maintaining law and order and security within the limits of the Karachi Division by the armed forces. Similarly, another notification was issued on Nov 27, 1998 for invoking Article 245 for the above purpose in respect of remaining four divisions of Sindh, including Hyderabad, Mirpurkhas, Sukkur and Larkana. Furthermore, an ordinance was promulgated for setting up military courts.
In the famous case of Sheikh Liaquat Ali (PLD 1999 Supreme Court 504), a full bench of the Supreme Court headed by the then Chief Justice of Pakistan Justice Ajmal Mian had declared the setting up of military courts unconstitutional and illegal.
In the said judgment, the court observed: “the controversy revolves around the meaning of the expression ‘act in aid of civil power’ employed in the above clause (1) of Article 245 of the Constitution. It seems that the above expression presupposes that the civil power is still there, it is neither supplanted nor effaced out. The civil power is to be preserved and invigorated through the employment of the Armed Forces.”
The bench observed: “The employment of the expression ‘subject to law’ clearly demonstrates that the Armed Forces will have to act within the parameters of the Constitution and the law. The scope of the above power which is exercisable by the Armed Forces in aid of the civil power can only be enlarged by amending Article 245 of the Constitution.”
The said judgment of the court clearly demonstrated that the civil authorities as well as the security forces could not act outside the parameters and limits enshrined in the Constitution.
Published in Dawn, July 29th, 2014