Fundamental rights: ‘245 does not curtail court’s powers’

IHC Justice Minallah says court retains right to decide whether it has jurisdiction.

Our Correspondent August 06, 2014


The imposition of Article 245 of the Constitution of Pakistan does not curtail the power of the high court to entertain petitions relating to fundamental rights under Article 199.

Islamabad High Court (IHC) Justice Athar Minallah remarked on Tuesday that courts themselves determine their jurisdiction and the notification will not curtail their powers.

There is no hesitation that “this court has the jurisdiction to proceed with petitions filed under Article 199,” he further remarked.

On Monday, Islamabad’s high court had stopped accepting petitions under Article 199 of the constitution due to the application of Article 245 in the city on July 24.

The petitions were returned based on clause three of the article, which reads, “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.”.

on Tuesday, lawyers whose petitions were returned by the IHC registrar office appeared before the court of Justice Athar Minallah alongside Islamabad Bar Association President Naseer Kayani and Nayab Hassan Gardezi.

Advocate Gardezi argued before the IHC bench that by invoking Article 245, the federal government has curtailed the powers of the high court, which goes against the independence of the judiciary. Justice Minallah observed that the notification does not mention any reason for invoking Article 245.

The federal government’s reply, submitted by the attorney general’s office, defended the proclamation of Article 245, but made no mention of IHC jurisdiction in cases regarding Article 199.

On July 28, four days after Article 245 was applied, Kayani challenged its imposition through his counsel, Gardezi. That case is due for hearing on Wednesday, with Justice Shaukat Aziz Siddiqui as the presiding judge.

Published in The Express Tribune, August 6th, 2014.