Article 245 army

Guest column By Barrister Ameer Abbas Khan

Almost every argument has some potential in it, but if one analyses the government’s decision to invoke Article 245 of the Constitution of Pakistan 1973 and call Armed Forces for its assistance in Islamabad, one would find that the government has a very weak case at least politically, if not legally as well.

This is because, at the very outset, it is an extreme measure only to be exercised in extreme circumstances and the government has literally failed to make out its case for this extreme step publicly except what the people already know about the country’s security issues.

There is no doubt that the government has the prerogative to call army, as it has been done in the past, for its support but merely the provision of such power does not necessarily justify its application. Also, it cannot be the purpose of Article 245 to authorize a Government to rule through Armed Forces or to run government through it.

The exact reason and the nature of support government seeks from the Armed Forces is yet to be officially announced but it appears that it is against the backlash of Zarb-e-Azb operation that it is considering army’s support in Islamabad for rapid response, patrolling and checking for a period of 90 days.

Constitutionally, the Armed Forces would be bound to act in aid, not in suppression, of civil power but history of Pakistan reveals that when things go wrong even the extra-constitutional steps are justified and legalized.

On the face of it, the backlash of the said operation seems to be a fairer justification but a lot of questions arise in mind and the pertinent one would be as to why the Armed Force’s support is not sought in Peshawar and Karachi where terrorists very conveniently attacked airports, quoting that it was their retaliation against the state, or in Lahore where a clash took place recently between police and the terrorists, or in Quetta where the law and order situation is known to all.

Does the government genuinely believe that no backlash will occur in Peshawar, Karachi, Lahore, Quetta or any other part of Pakistan; or does it believe that there it is fully equipped on its own, without the assistance of army, to cope with that backlash? If it believes in the latter then the recent security lapses at Peshawar and Karachi airports prove it wrong and then also why we all the time complain about police being politicized and is un-trained and ill-equipped to handle the terrorist threats.

The size of Islamabad’s region, which is smaller than Peshawar, Karachi, Lahore and Quetta, is also a crucial element in evaluating the government’s move to invoke Article 245 and one would be safe to conclude that of all the cities, civil law enforcement agencies would be better equipped to safeguard Islamabad on their own.

This forces one to question if this could be the government’s frustrating attempt to thwart PTI’s long-march or Tahir-Ul-Qadri’s revolution. And if indeed that’s what the government’s objective is then most probably it has dug its own grave without actually realizing that it has actually provided PTI with a golden opportunity to achieve its objectives, which it would have struggled to achieve through a long-march as it was based on a very weak and irrational agenda of votes verification in 4 constituencies.

It would be even more significant to note that such a step would be a mark of a scared mind and that the ulterior motives cannot take you far particularly in the face of a strong opposition.

Other opposition parties may also join hands with PTI on this front and, in the background of PTI’s long-march of 14 August, they may vigorously ask government what sort of threat has suddenly emerged wanting for the imposition of Article 245 in Islamabad only, the center point of PTI’s long-march.

It could be difficult for the government to explain restricting security threats only to Islamabad region and though the government’s decision to invoke Article 245 cannot be challenged in any court of law, as Article 245(2) provides it a blanket cover, but considering that it is for the Courts to interpret the Constitution they could nevertheless interfere if the government’s decision appears to be mala fide.

There also appears to be no restriction on political parties approaching court and arguing that the security threats in the country are such like that the government has already invoked Article 245 in Islamabad and therefore seek direction from the court for the government to apply it in other parts of Pakistan as well.

In other words, government could be asked to use its power of Article 245 indiscriminately all over the country. This will apply an immense pressure on the government and such a move may hurt the government more than the long-march, as the government would not wish to be dictated at least on this matter which potentially would put the army in control all over Pakistan.

However, if the government genuinely believes that the security threats warrant the application of Article 245 then it should have no qualms in justifying its application to Islamabad region or applying it to other cities as well; but, on the contrary, the government may not be able to digest this step for long because desperate actions mainly result in desperate outcomes.

Where it should be noted that Article 245 is so extreme in nature that even the High Court’s jurisdiction in terms of Article 199 of the Constitution is suspended, it should be observed with concern that the government is considering taking such a step when the Prime Minister is out of the country and even the cabinet, whatever there is, has not been taken into confidence.

Had there been a need to take such a step in the UK, there would have been a ‘COBRA’ meeting involving all relevant parties discussing all the relevant intelligences and possible outcomes. And here we are that we are not too sure if the government has evaluated the security arrangements even with the IG Police of Islamabad before deciding to call army.

It may also be relevant to mention here that one of the implications of the suspension of Article 199 of the Constitution of Pakistan is that the High Court cannot be approached at all if someone is held in custody without lawful authority or in an unlawful manner.

At the end of the day, it is a decision for the government to take but it must be prepared to face any or all of the consequences that may come with it, and at least it must re-think to assure itself that it is not a step to subdue its opponents.

An Abdalian and Aitchisonian, Barrister Ameer Abbas Ali Khan, is a Solicitor-Advocate (UK), Advocte High Court. He has LLB (Hons) UK, LLM (LSE), Bar-at-Law from Lincoln Inn, and lives in London. His father has been an MP in Pakistan over several decades.

The opinions expressed in this guest post are the writer’s own and do not reflect the view of the blog.

Also by Ameer Abbas Khan:

No right to blame others!

Arsalan case against Imran on moral ground may not stand

To sue, or not to sue? Iftikhar Chaudhry answers this question

Will PTI’s threats of August march, PA dissolution help democracy?

Musharraf: Let justice be done, though the heavens may fall!

Is Qadri’s path constitutional & legal? No

A tale of two bigwigs in two judicial systems

Arrest of Altaf Hussain: A big deal? No.

Elsewhere on this blog:

Speedy justice needs to be top priority for new CJ

Attack ‘humiliating security breach for army, spy service’: NYT

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  • Rehmat Ullah Kundi

    Most of our cities are already in control of Army in one way or the other. We pass through Army barricades on daily basis. So it should not come as surprise if Army is called for special service for a limited time. After all there are still many people who have advocated the handling of Karachi operation to Army.

  • Saeed Wattoo

    Army protecting its installations and barricading them is one thing. Invoking extr-ordinary powers under Article 245 is another.
    It implies:
    1. Admission of failure of civil government. This may not be a very good idea.
    2. It results in automatic suspension of powers of High Court under Article 199 which tantamount to curtailing the right of citizens to seek swift redressal from High Court in cases of breach of fundamental rights;
    3. We may be focusing on the law and order too much. Of late many adverse decisions have come against the government from Islamabad High Court. These decisions have made govenment uncomfortable. Perhaps the target is IHC.