' NASIR ASLAM ZAHID, J.---We had heard the arguments of Mr. Shaukat Muhammad, learned counsel for the petitioner on 10-10-1990 when this matter had come up before us for katcha peshi.
We had also heard Mr. Syed Sharifuddin Pirzada, learned counsel appearing for Federal Government pursuant to notice. On conclusion of the submissions of the learned counsel, by a short order, this petition was dismissed in limine. Reasons for dismissal of the petition are contained in this order.
2. The petitioner in this Constitution Petition is aggrieved by the action of the Federal Government of Pakistan (the respondent) is sending Pakistani troops to Saudi Arabia. The petitioner has made the following prayer in the petition: ' It is respectfully prayed that this Hon'ble Court may be pleased to declare that the despatch of our troops to a foreign country is ultra vires of the Constitution of Islamic Republic of Pakistan, 1973."
3. There are only three (3) grounds taken in the petition and these are (a) the mobilisation of our troops to Saudi Arabia is unconstitutional (b) the Iraqi invasion of Kawait or threat of Iraqi invasion on Saudi Arabia or danger to the Pakistanis living in Saudi Arabia, does not empower the respondent to despatch our troops to Saudi Arabia, and (c) the Constitution contains only five Articles viz. Articles 39, 243, 244, 245 and 259 which do not allow the respondent to send our troops to another country except a country with which Pakistan is at war and the Constitution does not empower the respondent to send troops to defend our Holy places.
4. As Mr. Syed Sharifuddin Pirzada was representing the Federal Government of Pakistan, we had asked him about the reasons for the despatch of Pakistani troops to Saudi Arabia. Mr. Syed Sharifuddin Pirzada informed that some Pakistan troops have been sent to Saudi Arabia to protect the Holy places at Mecca and Madina and this has been done on the request of Saudi Arabian Government. It was made clear by Mr. Sayed Sharifuddin Pirzada that Pakistani troops have been sent to Saudi Arabia solely for the purpose of protection of the Holy places and for no other purpose.
5. Mr. Shaukat Mohammad learned counsel for the petitioner, subsmitted that the Federal Government has given the impression that Pakistani troops have been sent to Saudi Arabi for protection of the Holy places but in fact Pakistani troops will be deployed in the war against Iraq. In the matter of foreign relations, generally, the statement on behalf of the Federal Government is accepted. On behalf of the Federal Government, a clear and unambiguous statement has been made that, on the request of Saudi Arabian Government, Pakistan has sent troops to Saudi Arabia for the sole purpose of protecting the Holy places. No reason has been advanced why this statement should not be accepted. This statement cannot be challenged by the petitioner. Even otherwise, no material has been placed on record by the petitioner, except a bare allegation, that troops have been sent for some other purpose. Ground No,2 taken in the petition has accordingly no merit
6. Ground No,1 taken in the petition is connected with ground No,3. The petitioner has relied upon five Articles of the Constitution to contend that Pakistani troops could not be sent to Saudi Arabia.
The Articles relied upon by the petitioner are reproduced as under:-- ' Participation of people in "39.
' The State shall enable people Armed Forces. From all parts of Pakistan to participate in the Armed Forces of Pakistan 243(1) The Federal Government shall have control and command of the Armed Forces. Command of Ahmed Froces
(IA) Without prejudice to the generality of the foregoing provision the Supreme Command of the Armed Forces shall vest in the President.
(2) The President shall, subject to law, have power to raise and maintain the Military, Naval and Air Forces of Pakistan, and the Reserves of such Forces;
(a) to grant Commissions in such Forces; and
(b) to appoint in his discretion the Chairman, Joint Chiefs of Staff Committee, the Chief of the Army Staff, the Chief of the Naval Staff, and the Chief of the Air Staff, and determine their salaries and allowances. ' oath of Ahmed Forces Functions Ahmed Forces
244. Every member of the Armed Forces shall make oath in the form set out in the Third Sechedule.
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.
(3) All titles , honours and Government under clause (1) shall not be called in question in any Court.
' 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.
' 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.
' Awards.
259.(1) No citizen shall accept any title, honour or decoration from any foreign State except with the approval of the Federal Government.
(2)No title, honour or decoration shall be conferred by the Federal Government or any Provincial Government or any citizen, but the President may award decorations in recognition of gallantry, meritorious service in the Armed Forces, academic distinction or distinction in the field of sports or nursing, as provided by Federal Law. ' decorations awarded to citizens by any authority in Pakistan before the commencing day otherwise than in recognition of gallantry, meritorious service in the Armed Forces or academic distinction shall stand annulled."
7. Mr. Syed Sharifuddin Pirzada, appearing for the Federal Government pursuant to notice, has submitted that none of the Articles of the Constitution, relied upon by the petitioner, placed any restriction on Pakistan Government to send troops to Saudi Arabia for protection of our Holy places.
He further submitted that as member of the Organization of Islamic Conference (OIC) and United Nations, Pakistan is obliged to send armed forces abroad if required by such Organization or the United Nations. It was also submitted that Pakistan was a member of South-East Asia Treaty Organization (SEATO) and CENTO and that Pakistan had sent its troops to Congo in 1962 and Nimibia in October 1960 in compliance with the resolutions passed by the United Nations. It was also informed that in 1983, at the request of Saudi Arabia, Government of Pakistan had sent its troops to Saudi Arabia and such troops remained there till February, 1988. Reference was also made to the deployment of troops by the Indian Government to Maldives at the request of the Government of Maldives. Reference was also made to the seigo of the Haram in Macca in 1980 for about 3 days and that to deal with such emergency, Pakistan Government had been requested to send its troops but before such troops could be sent, situation was brought under control.
Reference was also made to Article 40 of the Constitution, which reads as follows:-- Strengthening bonds with Muslim world and promoting international peace. "40. The State shall endeavor to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means."
8. Article 39 relied upon by the petitioner provides that the State shall enable people from all parts of Pakistan to participate in the Armed Forces of Pakistan. This Article is not relevant to the issue raised by the petitioner. Article 259 makes provision about awards and is also not relevant to the issue in question.
9. Article 243 makes provision about command of the Armed Forces.
According to clause (1) of Article 249, 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, Naval and Air Staff and to determine their salaries and allowances. Article 243 also does not help the contention raised on behalf of the petitioner.
10. Article 244 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 C 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.
11. Article 245 (1) 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 when called upon to do so. Other clauses of Article 245 have reference to a situation where Armed Forces have been called to 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 D 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. In our view, 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.
12. We are of the view that Pakistan Government has not violated any provision of the Constitution by sending its troops to Saudi Arabia to protect the Holy places there at the request of the Sudia Arabian Government. Such action is not unconstitutional. For the aforesaid reason this petition was dismissed in limine by our short order dated 10-10-1990.
' SALAH.UDDIN MIRZA, have the benefit of seeing the order of my learned brother Mr. Nasir Aslam Zahid, J. And, while I agree with his observations I would like to add a few lines of my own.
2. The petitioner is aggrieved from the decision of the Government of Pakistan to send military personnel to Saudi Arabia at the request of the Saudi Government. According to him Pakistan has no business to meddle in the dispute between Saudi Arabia and Iraq, the troops are being sent to take part in the war between the two countries and not to protect the Holy places of Mecca and Medina, as claimed by the Government, because Iraqis are Muslims who cannot commit aggression against the Holy places of Islam. According to the petitioner, action of the Government is ultra vires of the Constitution of the Country and violates the provisions of Articles 39, 243, 244, 245 and 259 thereof. He, therefore, prays for the following relief: "It is respectfully prayed that this Hon'ble Court may be pleased to declare that the despatch of our troops to a foreign country is ultra vires of the Constitution of Islamic Republic of Pakistan, 1973."
3. With the help of learned counsel for the petitioner, we have gone through all those Articles of the Constitution which, according to the learned counsel, have been violated by the impugned decision of the Government, namely, Articles 39, 243, 244,245 and 259. A perusal of these Articles shows that they do not place any embargo on the power of the Government to send military personnel overseas. The Government is therefore free to send them anywhere in the world, and not merely to Muslim countries only, any for any purpose whatsoever, not just the defence of the Holy places of Islam. Perhaps learned counsel of the petitioner was not aware that till recently Japan was the only country of the world whose Constitution forbade its Government to send its military personnel overseas but even "it" has amended its Constitution, permitting the sending of Japanese military personnel overseas and falling in line with the countries of the rest of the world.
4. Mr. Sharifuddin Pirzada, learned counsel of the respondent, also pointed out that sending troops overseas is not a new phenomenon and that Pakistani troops had been sent overseas even in the past, for example to Nimibia in 1960, to Congo in 1962 and even to Saudi Arabia in 1983, either at the invitation of the Government of those countries or at the call of International Organisations or under treaty obligations, and that as a member of Organisation of Islamic Conference (O.I.C.)
United Nations, South East Asia Treaty Organisation and CENTO, Pakistan was under obligation to send its military personnel overseas at the call of these organisations, and not merely for defensive purposes or to defend Holy Muslim places and no Constitution, either the past ones or the current, came in the way of these decisions or these treaties. Learned counsel of the respondents also pointed out the sending out by the Indian Government of its Naval, Air Force and Army personnel to Maldive Islands, at the request of the Government of Archipelago to repulse an attack by some mercenaries from Srilanka in collusion with local insurgents. To this we may add the sending by India of its armed forces to Srilanka at the invitation of its Government or the stationing of the troops in Germany by Americans and other European nations under the umbrella of North Atlantic Treaty Organistation or the stationing of Soviet troops in Eastern Europe under the umbrella of Warsaw Pact.
5. We note that Government of Pakistan has repeatedly made it clear that our troops have been sent to Saudi Arabia purely for the defence of Mecca and Medina, the two most Holy places of Islam. Learned counsel of the respondents also made this very clear in his address to the Court.
The petitioner has not placed any material before the Court to doubt the veracity of the statements of the Federal Government and we see no reason not to take them at their face-value. However, we are of the view that there was no occasion for the Government to be apolegetic on this issue as the Constitution places no restrictions on its power to send its military personnel anywhere in the world and for whatever purpose, whether under United Nations Charter, under regional treaties or under bilateral agreements.
6. We are of the firm view that the impugned action of the Government has not violated any provision of the Constitution and there is no merits in the contentions raised by learned counsel of the petitioner.
7. These are the reasons for the short order by which we had dismissed this petition in limine after hearing learned counsel of the parties on 10th October, 1990.