1991 CLC 261
SYED TANWEER HUSSAIN ZAHIDI
FEDERAL GOVERNMENT OF PAKISTAN THROUGH SECRETARY, MINISTRY OF FOREIGN
Per Nasir Aslam Zahid, J.
(a) Constitution of Pakistan(1973), Articles. 39, 243, 244, 245, 259 & 199.
—Art. 39, 243, 244, 245, 259 & 199–Petitioner’s grievance against action of Government in sending troops to a foreign country–Justification for–In matters of foreign relations, generally, statement on behalf of Federal Government has to be accepted–Clear and unambiguous statement had been made by Federal Government has to be accepted–Clear and unambiguous statement had been made by Federal Government that, on the request of foreign Government, troops had been sent for the sole purpose of protecting the Holy places–No reason had been advanced as to why such statement should not be accepted–Statement made on behalf of Government thus could not be challenged by petitioner–No material had been on record by the petitioner, except bare allegation, that troops had been sent for some other purpose–Petitioner’s plea in the Constitutional petition that Iraqi invasion of Kuwait or threat of Iraqi invasion on Saudi Arabia or danger to Pakistanis living in Saudi Arabia did not empower Government to send troops, therefore, had no merit. [p. 263]A
—Arts. 243(1), (1-A) & (2)–Presidents’ power to have control and command of Armed Forces.
Article 243, Constitution of Pakistan(1973) makes provision about command of the Armed Forces.According to clause (1) of Article 243, the Federal Government shall have control and command of the Armed Forces.By clause (1_A) of Article 243, the Supreme Command of the Armed Forces shall vest in the President.Clause (2) of the Article 243 makes provision about raising and maintenance of the Armed Forces by the President and about the grant of commission in such Forces and the appointment of the Chairman, Joint Chiefs of Staff Committee and the Chiefs of the Army, Navel and Air Staff and to determine their salaries and allowance. [p. 265]B
—Art. 244–Making of oath by members of Armed Forces–Members of Armed Froces sent to foreign country had not violated their oath.
Article 244, Constitution of Pakistan (1973) requires making of oath by all the members of the Armed Forces.The form of the oath is set out in Third Schedule to the Constitution.The oath, inter alia, provides that the members of the Armed Forces shall honestly and faithfully serve Pakistan in the Pakistan Army, Navy or Air Force as required by and under the law.By serving as part of the contingent sent to Saudi Arabia to protect the Holy places there, the members of our Armed Forces in such contingent have not violated their oath. [p. 266]C
—Art. 245–Sending of troops to foreign country–No specific restraint to that effect was incorporated in the Constitution.
Article 245 (1), Constitution of Pakistan(1973) provides that 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.Article 245 does not restrain Pakistan from entering into military pacts or to become member of International or Muslim Organizations.Under the Charter of Organization of Islamic Countries and the United Nations, Pakistan can be required to act in aid of the Muslim Umma of the World Body through deployment abroad of Pakistan Troops.It the people of Pakistan wanted to place any restriction on the Pakistan Troops.If the people of Pakistan wanted to place any restriction on the deployment of Armed Forces of Pakistan at the call of the Muslim Umma or the World Body under the United Nations Charter or entering into military pacts with foreign countries, specific restraint to that effect would have been incorporated in the Constitution. [p. 266]D
—Art. 39, 243, 244, 245 259 & 199–Sending of troops to a foreign country to protect Holy places there at the request of Foreign Government–Federal Government had not violated any provision of the Constitution–Constitutional petition against sending troops was dismissed in circumstances.[p. 266]E.