Invoking Article 245 

Article 245By S. M. Hali 

The beleaguered government of Mian Nawaz Sharif has invoked the relevant Article of the 1973 Constitution of Pakistan to call the Armed Forces in aid of civil power to protect Islamabad. According to the government spokesperson, “The army has been requisitioned at Islamabad under Article 245 to pre-empt any possible blowback of ‘Operation Zarb-e-Azb’. The army will be used for rapid response, patrolling and checking for a period of 90 days.”

Before examining the merits of the government’s invocation of its constitutional powers, let us briefly look at the contents of this legislation. According to Article 245, titled “Functions of Armed Forces”: –

1[(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. Under Section 4 of the Constitution (Seventh Amendment) Act, 1977, (23 of 1977), Article 245 was renumbered as 245(1) and added clauses 2, 3 and 4 thereto (w.e.f. April 21, 1977).

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Since then the said article has been invoked on numerous occasions and has been challenged. In 1977 Darvesh M. Arbey at Lahore filed a case against the Federation of Pakistan and others; followed by litigation by the same plaintiff in 1980. In 1991 Khalid Malik and others at Karachi sued the Federation of Pakistan. Shahid Orakzai, in 1999, filed a suit against Mian Muhammad Nawaz Sharif, then Prime Minister of Pakistan. In 1999, another complainant Sh. Liaquat Hussain filed a case against the Federation of Pakistan through Ministry of Law, Justice and Parliament. In 2009, the Sindh High Court Bar Association through its Secretary filed a law suit against the Federation of Pakistan through its Secretary Ministry of Law and Justice. Finally the 2013 trial of Former Army Chief Mirza Aslam Beg and others in a law suit whose plaintiff was Air Marshal Asghar Khan is too recent for comment.

Interestingly, the verdict in the case of Liaquat Hussain vs. Federation of Pakistan, PLD 1999 SC 504 merits mention. The Supreme Court ruled that civil power is to be preserved and invigorated through the instrumentality of the Armed Forces. The quantum of aid to be given and the manner in which this assistance is to be rendered by the Armed Forces as a matter of Constitutional duty depends upon the nature of the direction issued by the Federal Government in this behalf and such direction should also be within the ambit of the law and the Constitution.

In the current milieu, the plea that Operation “Zarb-e-Azb” is likely to lead to a blowback thus Article 245 has been invoked for 90 days w.e.f. August 1, 2014, is difficult to swallow. The Military operation was launched on June 15, 2014, why did it take forty five days for the Government to call in the Army for protecting Islamabad. The government’s anxiety regarding Imran Khan’s “Freedom March”, meant to culminate at the arena facing the Parliament House on Pakistan’s Independence Day i.e. August 14 is quite apparent. The Interior Minister’s statement that “Neither Islamabad is being handed over to the army nor is there any relevance of August 14. In fact, the army has been called out to assist the police and civil administration for a limited period to avert any possible terrorist attack and to maintain law and order in Islamabad” is unpalatable. After all major military  operations in the past never necessitated the Army being called to aid civil power. The situation in Karachi has been begging for invoking Article 245 but to no avail.

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The writing on the wall is that the ruling dispensation is continuously committing blunders, which are making a mockery of its commitment to this country. Besides indulging in nepotism, remaining oblivious to the pain of the masses ala Marie Antoinette (whose naiveté forced the French Revolution of 1789), the Model Town Lahore carnage of PAT workers, hounding opposition leaders and workers and other slip-ups are diminishing goodwill for PML (N). The National Flag adorning the Prime Minister’s official residence is of incorrect dimensions, design and proportion. A Federal Minister of State, while hoisting the national flag at a formal ceremony discovered that the national flag was strung upside down. Instead of taking the organizers of the event to task for their omission and carelessness, the Minister, Mr. Abid Sher Ali stated in full aural range of TV Cameras that “it did not matter if the national flag was upside down”.

If the ruling junta, which has failed to come to the expectations of the people in resolving their problems, thinks that it can thwart the threat from Imran Khan’s “Freedom March” by brute force deploying the Army, then it is sadly mistaken. The Armed Forces, at best can act as a buffer between the protagonists but cannot afford to take sides; nor should the politicians create such anarchy that the military is compelled to step in. In the near past, the Army has learnt its lesson well by steering clear of political involvement and sticking to its constitutional obligations only but its hands should not be forced. Invoking Article 245 was a bad idea and should not give the ruling dispensation any false sense of security. However, if they survive this ordeal then they must learn lessons from it and not repeat their past blunders.