By BARRISTER PANSOTA
A lot has been said and discussed about the Army’s role in arbitrating the differences between the federal government and members of Tehreek Labbaik Ya Rasool Allah (TLYR) to put an end to the mayhem that took place in the capital city for three weeks. The scope of Army’s role in mediation with TLYR protesters, under Article 245 of the Constitution of Pakistan, seems to have been the centre of attraction for Pakistani media. Federal government invited the Army to act as an arbitrator for the second time in their tenure, but this time attacked the Army after the desired objective was achieved. The first time ex-PM Nawaz Sharif had requested former army chief Raheel Shareef to play his role as an arbitrator in putting an end to the sit-in by Pakistan Tehreek-i-Insaf. But soon after announcing the same, Sharif withdrew from his position. This time, however, the danger was far too grave for the ruling party to have ditched the Army.
The scope of Army’s role in mediating such situations requires an examination of Article 245 of the constitution, which can be read below:
FUNCTIONS OF ARMED FORCES AS PER ARTICLE 245:
(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 forces 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.]
The Army was called by the federal government vide order dated Nov 25, 2017 (Order) “in aid of civil power”.
A perusal of above Article and the pertinent case law on the subject clarifies the air of confusion created by a few in the media & federal government.
As per Clause(1) of Article 245 of the Constitution, the armed forces are mandated, subject to law, to act in aid of civil power when called upon to do so by the federal government. It is important to mention here that under Article 245, federal government delegates its power to the Army, which in turn allows the Army to evaluate the situation to ensure that it fell within their mandate and competency.
The Army exactly did the same by seeking a clarification from the federal government with respect to its role under the order, especially keeping in view Supreme Court and high court ongoing cases on the issue. In response to this letter, prime minister of Pakistan met the chief of army staff with a request to play the role of an arbitrator in resolving the situation.
The important aspect to consider here is the competence of the federal government in any such negotiations with the protestors. The answer is yes, as the federal government does that every now and then to diffuse situations. A power that lies with the district administration and/or the federal government thus can easily be passed onto the Army under Article 245 of the Constitution. Even if for the sake of argument, it is believed that the federal government could not have entered into negotiations with TLYR protestors, at best, federal government can be held liable, not the Army. The army was performing functions under Article 245 and not directly.
The expression “in aid of civil power”, mentioned in Article 245 of the Constitution, has been interpreted in various judgments of the superior courts of the country as “to come to help or assistance of the civil power for maintaining law and order and security”. The government, however, cannot assign judicial functions to the Army so as to circumvent the powers of civil courts. Reference is made to [Full Bench Judgment of the Honourable Supreme Court of Pakistan on 21st Amendment, & Sh. Liaquat Hussain vs. Federation of Pakistan (PLD 1996 SC 504)].
In the present situation, the federal government appears to have called the Army to negotiate, which in no way was expected to prejudice any judicial function of courts and/or supplant the civil power.
It would be imprudent to define the role of Army, under Article 245, based on its strength to fight. The reaction varies from situation to situation and in the present scenario it required the military to negotiate. This power could have been very easily exercised by the federal government, if it had the moral authority to govern. The federal government seems to have lost all its moral and legal authority to govern post-Panama Papers scandal.
In light of the above, I feel that Amy’s role in negotiating with the TLYR protestors was purely constitutional and legal. In fact, it prevented a disaster from happening in the capital.