ISLAMABAD - The Islamabad High Court has been moved against the federal government’s action to invoke article 245 of the constitution in the federal capital.
Naseer Ahmed Kiyani, president Islamabad Bar Association, and Naeem Ali Gujjar of IBA through Sheikh Ahsan-ud-Din filed a petition in the Islamabad High Court under article 199 of the constitution, making federation through secretary cabinet division and secretaries ministry of interior, ministry law and justice and defence ministry as respondents.
The federal government on July 25 invoked the article 245 of constitution in Islamabad Capital Territory (ICT) for three months. The government has not disclosed any reason to call army in aid of civil administration without the decision of the federal cabinet or approval of the prime minister — who is in Saudi Arabia to perform Umrah - which is mandatory under article 90 of the constitution.
The petitioners claimed that there is also no indication that the issue has been placed before the National Assembly or the Senate. The action taken by the government under article 245 is without any rhyme, reason or lawful justification; therefore, it requires judicial review. “Till date there is no indication of civil administration’s failure to control law and order situation in Islamabad.”
The government has failed to comprehend the implications of inviting armed forces in aid of civil administration, they said and added that in 1977 then federal government had invoked article 245 but the Lahore High Court in Darvesh Arbi case (PLD 1980 case) had struck it down. Despite the judicial review, the martial law was imposed on 5th July 1977 and as a result the whole nation suffered.
They said when General (Retd) Pervez Musharraf overthrew the democratic government on 12th October 1999 the civil society, legal fraternity and political forces had struggled hard for the restoration of democracy and due to their efforts the democratic government was installed in the country.
The Supreme Court in Sindh High Court Bar Association case had declared the actions of martial law administrator non est and unconstitutional.
The petitioners said that by invoking article 245 a mini-martial law has been imposed. They said that the area of ICT is less than the area of tehsil Kahuta of Rawalpindi district. It shows that the federal government is not in a position to maintain law and order in such a small area. If it was necessary to invoke article 245 then the federal government should have tabled this issue before the National Assembly or Senate for debate and taking appropriate action.
They prayed the court to declare the federal government’s action to invoke article 245 in the federal capital unlawful, unconstitutional and without legal authority, allowing the civil administration to perform its functions in accordance with the constitution and law for the supremacy of the constitution and establishment of democratic rule in the country.