Article 245 arbitration: IHC appoints six amicus curiae

Bar association chief claims matter curtails judiciary’s powers.


Fawad Ali August 13, 2014

ISLAMABAD: In a maiden move, the Islamabad High Court (IHC) on Tuesday appointed six senior amicus curiae to assist the court in deciding legal questions related to the imposition of Article 245 in the capital.

Senior lawyers Abdul Hafiz Pirzada, SM Zafar, Hamid Khan, Raza Rabbani, Taufiq Asif and Khalid Anwar have been asked to advise the court in the matter.

A larger bench, comprising IHC Chief Justice Muhammad Anwar Kasi, Justice Shaukat Aziz Siddiqui and Justice Athar Minallah took up the petition and issued a notice to the Ministry of Defence for filing a reply within a week.

The petition was filed by the lawyers’ district association challenging the calling out of army by the government in the federal capital under Article 245 of the Constitution.

When the hearing commenced, Justice Minallah asked the petitioner, District Bar Association President Naseer Kiani to satisfy the bench as to how he is the aggrieved and affected party in the case.

“This bar worked for the supremacy of the Constitution and Article 245 is part of that Constitution,” replied Kiani. He said when there is natural calamity like floods or earthquake, the government calls out army in aid of civil law enforcement.

Sheikh Ahsanuddin, the counsel representing the petitioner, replied that the constitutional article curtails the power of the court. “Since it is a matter of the independence of judiciary, every citizen is an aggrieved person,” he replied.

Chief Justice Kaasi said a detailed judgment has been issued regarding the freedom of the high court. “The high court is hearing applications filed under Article 199,” he commented. Justice Minallah said the court did not challenge the powers of Article 245.

After Kiani’s repeated requests to hear the petition, Justice Kasi said the defence ministry has not yet filed its reply and thus the court cannot decide the petition.

Justice Siddiqui remarked that a specific order has been issued and the government also made it clear that the high court’s power has not been curtailed. He said the court is hearing all applications related to fundamental rights of citizens.

“We will hear all parties after they file their replies and will appoint senior lawyers for assistance of the court,” he said.

Justice Siddiqui commented that one should be thankful that the army was called on the request of the government and did not come through other means.

Referring towards the IHC judgment stating that the court can hear applications under Article 199, he said Article 245 has already been rendered ineffective. “Article 245 has remained symbolic and lawyers played a role for it,” he said. After the 18th Amendment, this is the first time amicus curiae have been appointed at IHC.

Published in The Express Tribune, August 13th,2014.

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