ISLAMABAD: After the imposition of Article 245 in the Pakistani federal capital, curtailing the powers of the Islamabad High Court (IHC) to hear petitions related to the fundamental rights under Article 199 of the Constitution, the IHC administration seems undecided on whether they should fix such petitions before benches for hearing.
After the suspension of its powers under Article 199, the IHC cannot take up petitions related to illegal detention, misuse of government authority, illegal appointments, land grabbing and other matters.
The government has also confirmed that as long as Article 245 is in force, the IHC - which is supposed to resume hearing cases after Eid vacations yesterday cannot take up petitions related to the fundamental rights as its power to entertain such petitions under Article 199 of the constitution would remain suspended.
The interior ministry, through a notification on July 24, invoked Article 245 in the federal capital territory for three months.
Invocation of Article 245 suspends high court’s jurisdiction in the capital
On Saturday, all IHC judges, including Chief Justice Mohammad Anwar Khan Kasi and Registrar Meeran Jan Kakar, were on leave while the district and sessions judge, Raja Jawad Abbas Hassan, was working as the acting IHC registrar. Sources in the IHC said the ‘acting’ administration discussed the invocation of Article 245 and fixing of the petitions filed under Article 199 of the constitution before the available benches.
Sources said it was also discussed whether the IHC could entertain petitions filed under Article 199 against the infringement of the fundamental rights. Though there was a realisation that the IHC cannot hear petitions related to the fundamental rights, a categorical decision on whether to fix such petitions before the available benches for the week commencing August 4 was deferred because no authority competent to take such as decision was available in court.
In the words of the July 24 notification, “Pursuant to the request of the chief commissioner Islamabad the federal government in exercise of powers under Article 245 of the Constitution and clause (ii) of sub section 3 of section 4 of the Anti-Terrorism Act 1997, is pleased to (announce) the deployment of 350 troops of Pakistan Army to act in aid of the civil power in Islamabad capital territory.”
Clause 1 of Article 245 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.”
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.”
Clause 3 of the Article adds, “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.” However, this is explained further as: “Provided that this clause shall not be deemed to affect the jurisdiction of the high court in respect of any proceeding pending before the day on which the armed forces start acting in aid of civil power.”
According to Clause 4 of the Article, “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.”
Interestingly, the notification bears the date of July 24, but it has not been circulated among the recipients mentioned in the notification, which is evident by the fact that IHC Chief Justice Kasi took up a petition against army deployment on July 28, but deferred further hearing due to the unavailability of the notification.
The court directed Additional Attorney General Tariq Mehmood Khokhar to provide a copy of the notification by August 6.
Information Minister Pervez Rashid confirmed that the IHC cannot entertain any petition filed under Article 199 against a breach of fundamental rights for the next three months.