245. Functions of Armed Forces.- 1[(1)] 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.
(2) The validity of any direction issued by the Federal Government under clause (1), shall not be called in question in any Court.
(3) A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forced of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245:
Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil power.
(4) 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.]
In the recent take over of the PTV building and its eventual peaceful clearance by the Rangers and Pakistan army, the Pakistani media have been opining about the absence of police and the warm welcome received by the troops when they arrived at the airport.
I think in this frenzy to constantly create visual and news content, most Pakistani news channels have failed to ask the most important questions about the nature of Article 245 of the Constitution.
I have cited the article above in full text so that none of my views are considered just mere speculation. It is a fact that the federal government of Pakistan invoked the article 245 as far back in June of 2014 but only to safeguard any terrorist threats.
In the current crisis, the argument from the army has been that it cannot be deployed to solve political crisis, which literally means that army does not feel duty-bound to aid the government against the two marches. This, in fact, is a very liberal reading of the article 245.
The article, cited above, states categorically:
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.
Note, there are no exceptions here, no room for a subjective interpretation. Furthermore, the army has done this countless times before. Most of my service in Sindh in the mid nineteen eighties was “in aid of the civil power” fighting the dacoits in interior Sindh; I was also deployed in the same role in Karachi when the ethnic clashes broke out in Karachi in 1986. Of course, the country was then being run by a dictator, but when we filled our forms, our duty was listed as IS duty (Internal Service) and that is how it was defined and understood.
We were also taught, and we practiced it, that after the local magistrate hands over the situation to the local military commander (we had to fill a form A for that) the area came under total control of the army and police had no jurisdiction over it.
So, while I laud the heroic acts of the army in saving the PTV building, it was, under the constitution, already there job, especially if the building was included in the sensitive areas under their protection. According to the constitution, the police should have not been there at all.
furthermore, if section 245 is still in effect, then asking the police to handle something they are ill-equipped to do does not sound like a sound strategy. So, our politicians and generals should read our constitution and then go on suggesting the best measures to each other.
Pakistan is in serious and dangerous situation right now, and at this juncture we should use the constitution to guide our actions–that is the reason the constitution exists– rather than relying on the subjective interpretations of politicians and generals.
And our dear journalists should be asking these hard questions and they should be educating us about the constitution and its importance!