ISLAMABAD - The Supreme Court Tuesday observed the armed forces of Pakistan could not engage in a war without the permission of federal government.

A Full Court of the apex court, headed by Chief Justice Nasir-ul-Mulk, was hearing the petitions against the 21st Amendment.

Justice Saqib Nisar said the federal government’s permission is must and the army was bound to follow the government instructions. “The army of its own can’t take action (engage in war) and for that purpose it needed the order of the government.”

Justice Asif Saeed Khan Khosa observed that there is provision in the constitution that if the government declares war then the army would fight. He said they have been hearing about war on terror and this matter was brought in the court to get the certificate.

Attorney General for Pakistan Salman Butt said there is already a concept of setting up military courts under Article 245 of Constitution, adding it is also an established fact that if the country is in a war-like situation then those involved in terrorist activities would be tried under military courts.

Justice Khosa asked the AGP that if they accept his arguments of setting up military courts under Article 245 then his other contentions have become redundant. Justice Jawwad S Khawaja questioned if the military courts have been established under Article 245 then the court should be informed that whether the federal government before invoking Article 245 had taken steps, and whether the federal government had called army?

Upon that the attorney general stated if 500 armed persons attack Islamabad then whether the army would wait? Justice Khosa said this is very dangerous argument as it would give armed forces free hand to do whatever they like in the name of defence of Pakistan, and if 500 armed persons attack the federal government then the army does not require federal government instructions and would take any action of its free will.

The AGP contended that the threat was so grave that the federal government did not want to take risk. Justice Jawwad S Khawaja upon that remarked: “We are judges and the executive should be concerned about the gravity of situation.” The executive has authority to invoke Article 245 in view of the gravity, but the court only wanted to see why there was need to amend the constitution. And whether the amendment could be made or not?, the judge asked.

Justice Dost Muhammad stated: “There was more grave situation four years ago as the terrorists hoisted their flags in 90 per cent of Swat. In view of that the then army chief met with the Prime Minister at midnight and it was decided to launch operation against the terrorists in Swat that lasted for few months, and the armed forces were able to eliminate the terrorist from Swat.”

After that the situation got normalized in Swat, North Waziristan, Khyber Agency, Bajaur Agency and many parts of the Frontier regions, adding the civil administration was empowered again and the writ of the government was established in those areas. The judge said the military was called under Article 245 of Constitution to aid the civil authorities, adding at that time no military courts were established.

The attorney general argued that the amendment in the Army Act was made validly. He contended, as there is war in the country the court, therefore, should consider so many other aspects. He told the court that no parallel judiciary has been created, while the new laws have been inserted in the Schedule I of Constitution from time to time.

Justice Asif Saeed Khan Khosa remarked that waging of war is a crime under section 121 of Pakistan Penal Code. “Tell the court how many challans have been submitted in the court and situation of trial and why the prosecution failed to proceed? The attorney general informed that last year there 85 per cent cases outstanding in the Anti-Terrorism Courts (ATC), but don’t the reasons of pending cases. He said today he would provide a CD regarding terrorist activities.

The chief justice told him that there were two types of cases pending in the ATCs. The first one of militants and the second are the terrorism due to technical reasons, adding most of the pending cases in the ATC are of technical and not related to terrorism.

The hearing is adjourned till today.