By Usman Manzoor
ISLAMABAD: Neither the Army nor any other subordinate institution of the executive can be directly called by the Supreme Court of Pakistan to its aid, majority of pro- and anti-Musharraf camps’ legal minds say.
These experts were of the view that the Supreme Court cannot call the Army directly but could only ask the executive, which means the federal government. The Supreme Court would have to use the shoulders of the federal government to call the Army, agreed senior legal minds.
Former chief justice of Pakistan Justice Saeeduzzaman Siddiqi told The News that the Army could not be called directly by the Supreme Court of Pakistan but the apex court could only ask the federal government or the executive to aid the Supreme Court.
“The Supreme Court can only request the federal government to aid it and cannot call any subordinate institution directly,” held the former chief justice of Pakistan, adding: “The word executive in Article 190 of the Constitution of Pakistan cannot be interpreted as the federal government and its subordinate institutions; it only refers to the government of Pakistan.”
He said though all institutions were bound to aid the Supreme Court of Pakistan but a request for aid had to be sent to the federal government and not directly to subordinate institutions. However, a senior pro-Musharraf legal mind Dr Khalid Ranjha said the Army could be called by the Supreme Court because all authorities were bound to act in aid of the apex court.
He said the Army was the arm of the government and if the Supreme Court called the army as saviour of its integrity and independence then it would not be extra-constitutional.
He said according to Article 190 of the Constitution if the Supreme Court orders anything to the prime minister, the latter could never say no to those orders. He endorsed that the Supreme Court had to order the prime minister to call the Army for its help and not the Army directly.
Justice Fakhruddin G Ebrahim, the senior legal mind of anti-Musharraf camp, said powers of the Army have been confined and assigned in Article 245 of the Constitution and the Army could not be brought directly into the parameters of the executive mentioned in Article 190 of the Constitution.
The senior lawyer said the Supreme Court of Pakistan cannot call the Army for its help but it has been mentioned nowhere in the Constitution that the apex court could do it. He said, however, the Supreme Court could call the federal government and the judicial authorities to aid it.
“Article 190 cannot be used for the Army because the Army had its own Article 245 in which its powers have been defined,” revealed the veteran lawyer. Justice Wajihuddin Ahmad, another senior legal mind from Karachi, said if the Supreme Court called the Army for its help then it would be unconstitutional and illegal. He said Justice Iftikhar Muhammad Chaudhry was the actual chief justice of Pakistan, who has not been removed through a due process of law and persons sitting in the Supreme Court have not been appointed through the procedure prescribed in the Constitution.
To appoint a judge there has to be a vacant post but these have been appointed against sitting judges. He said there was no question of Army’s involvement in the cover of aiding the Supreme Court. He said the judges who have not been appointed through a due process of law, how could they call upon any institution to help them?
Justice Tariq Mehmud, the key leader of the lawyers’ movement, told The News that the Supreme Court could only call the executive and the executive refers to the federal government.
“If the Supreme Court would call any subordinate institution then the subordinate institution had to seek the permission of the actual executive,” said the retired judge, adding: “The Army had no link with Article 190 of the Constitution; the said article only refers to the federal government.”
He said it never happens that the Supreme Court starts calling subordinate institutions when the post of the chief executive already exists. In the case of justice Sajjad Ali Shah, the chief justice had the danger from the prime minister that is way he called the Army chief for the apex court’s aid, he said.