ISLAMABAD: As widely expected, the Islamabad High Court (IHC) has stopped entertaining petitions relating to fundamental rights after Article 245 of the Constitution, that the federal government invoked last month, became effective in the federal capital on August 1.

Lawyer Gohar Ali Khan, who went to the court on Monday following Eid holidays to file a petition under Article 199 that guarantees fundamental rights, said that the court’s institution branch turned him away without providing any reasons.

However, while announcing the decision to invoke Article 245, Interior Minister Chaudhry Nisar Ali Khan had said on July 24 that it would allow the government to call army to the aid of civilian administration in the situation arising from the military operation against the militants in North Waziristan.

Among other things, Article 245 says, “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.”

It is for the first time since its establishment in 2011 that the IHC is refusing to entertain petitions invoking Article 149.

It would however take up Islamabad Bar’s petition challenging imposition of Article 245 on Wednesday

Meanwhile, the IHC is scheduled to take up on Wednesday the petition that the Islamabad Bar Association filed soon after the PML-N government announced its decision to invoke Article 245.

That decision had drawn wide criticism from the legal circles and the opposition parties. They viewed it as a move to intimidate the Pakistan Tehreek-i-Insaf of Imran Khan and the Pakistan Awami Tehrik of cleric Dr Tahirul Qadri and pre-empt the anti-government rallies they, and other political detractors of the ruling PML-N, planned for August in Islamabad and elsewhere in Punjab.

The petition

In its petition, Islamabad Bar Association (IBA) contended that the government did not give any reason to call out the army in aid of civil administration. Apparently, the decision was taken without the approval of the federal cabinet or of the prime minister, according to the petition.

IBA thinks the government failed to understand the consequences of inviting armed forces in aid of civil administration, recalling that such an invitation had led to July 1977 Martial Law.

While terming the PML-N government’s move as ‘mini Martial Law’, the petition says the federation could have put the issue before the parliament, which is fully functioning, and debated it in the National Assembly and the Senate for appropriate action.

Government stance

On its part, the PML-N government has decided to defend its imposition of Article 245 in the IHC. Additional attorney general Tariq Mehmood Khokhar has prepared its reply to the IBA petition, which Attorney General Salman Butt has endorsed. Official sources said the reply would be submitted to the Islamabad High Court on Tuesday after the ministries of law, interior and defence approve it.

Dawn has learnt that the reply dispels the petitioner’s impression that the deployment of army was an act of imposing ‘mini Martial Law’.

“The quantum of aid (350 armed forces personnel) is indicative of the fact that a non-issue has been turned into a big issue,” says the reply.It adds that Article 245 was not invoked abruptly as alleged.

“The federal government (i.e. the prime minister and the federal ministers) acted after thorough deliberations and long reflections. A decision was reached and thereafter the notification was issued.” It was validly invoked and “the action is strictly limited to aiding civil power.”

In any case, the government’s reply says, the petitioners have no locus standi (right to speak), nor the IHC could take up their petition as Clause II of Article 245 provides blanket cover to the government’s action by stating that the same shall not be called in question in any court. Accordingly, the government requests the court to dismiss the petition.

Published in Dawn, Aug 5th, 2014