Big relief for govt as SC orders simple legislation

In a huge relief for the Pakistan Tehreek-e-Insaf government, the Supreme Court has directed the incumbent regime to give legal cover to the army chief’s job extension through an ‘Act of Parliament’, which requires a simple majority in parliament compared to two-thirds majority needed for a constitutional amendment. In its detailed judgment authored by Justice Syed Mansoor Ali Shah, the apex court said that it exercised judicial restraint and gave an opportunity to the government after the attorney general’s assurance to carry out ‘appropriate legislation through an Act of Parliament within a period of six months’. The court said that the matter should be allowed to be regulated by law as mandated by the constitution, so that the people of Pakistan decide through their chosen representatives the length of tenure of a military general, as this will consequentially determine the tenure of the army chief. “The people of Pakistan may accept or reject the institutional practice through their chosen representatives in the parliament. Besides, the question before us is not only regarding the tenure but also regarding the extension of tenure for another term, which in any case, requires legislation,” the detailed judgement said. “We would like to emphasise that this crucial matter of the tenure of COAS and its extension, which has a somewhat chequered history, is before the parliament, to fix for all times to come,” wrote Justice Syed Mansoor Ali Shah in the court’s 43-page judgement. “It is now for the people of Pakistan and their chosen representatives in the parliament to come up with a law that will provide certainty and predictability to the post of COAS, remembering that in strengthening institutions, nations prosper.” Both Justice Mazhar Alam Khan Miankhel and Chief Justice Asif Saeed Khosa agreed with Justice Shah’s judgement, with Justice Khosa saying in his additional note that it had been a ‘shocking revelation’ to the bench that the terms and conditions of service of the COAS, the tenure of his office, extension in the tenure of his office or his reappointment to that office have remained unregulated by any law so far. The court summarised its findings after exploring the scope of Article 243 of the Constitution – which governs the army chief’s appointment, reviewing the Pakistan Army Act, 1952, reviewing the Pakistan Army Act, 1952, the Pakistan Army Act Rules, 1954, and the Army Regulations (Rules). Chief Justice Asif Saeed Khosa, in his additional note, said that “in our peculiar historical context Chief of the Army Staff holds a powerful position in ways more than one,” adding that “unbridled power or position, like unstructured discretion, is dangerous.” Justice Khosa, ended his note by saying that “the democratic maturity of our nation has reached a stage where this court can proclaim that, as declared by Chief Justice Sir Edward Coke of England in the Commendam case in the year 1616 regarding the powers of King James I, “Howsoever high you may be; the law is above you”. In the verdict, Justice Shah added that the exercise of judicial restraint may not be mixed up or confused with the infamous and unpopular application of the ‘doctrine of necessity’, which amounts to going against the law of the land to attain a political or another goal. “This is not so in the present case where there is no law; in fact, there is a total legal vacuum regarding the tenure of a general. It is also instructive to refer to the spirit of Article 203D of the Constitution whereunder the Court can direct the Federal Government to initiate process for making appropriate legislative amendments in the relevant law and can grant reasonable time for doing the need.” As per the instructions of GM Lahore Shahzad Iqbal Lone and under guidance of Regional Manager Imran Safdar Virk, the UFG section conducted a successful raid near Wapda Town Phase 2 and disconnected direct bypass of gas installed on service line of domestic gas connection. The pilfered gas was used in 15 houses. The SNGPL teams removed gas meter and bypass from the site. Application for lodging of FIR has been forwarded to the police station concern. The court also noted that judicial restraint in its substantial approach urges judges considering constitutional questions to give deference to the views of the elected branches and invalidate their actions only when constitutional limits have clearly been violated “The power of judicial review is a great weapon in the hands of judges, but the judges must observe the constitutional limits set by our parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the Parliament, the Executive and the Courts. Judicial review must, therefore, remain strictly judicial and in its exercise Judges must take care not to intrude upon the domain of the other branches of Government. Judicial restraint, in this perspective, is essential to the continuance of rule of law, and for the continued public confidence in the political impartiality of the judiciary and the voluntary respect for the law as laid down and applied by the Courts.” The apex court, while justifying the maintainability of the case, also said that army chief is also the chief executive in the General Headquarters (GHQ) and an adviser to the government on military matters. “The appointment of the COAS of the Pakistan Army is, thus, inextricably linked with the life, security and liberty of every citizen and is undoubtedly a question of grave and vital public importance. The Army is perceived to play an intrinsic role in upholding constitutional values of sovereignty, freedom, democracy and the fundamental rights relating to life, liberty and dignity. Hence, the questions relating to its structure, command, governance and organization are of public importance with reference to the enforcement of the fundamental rights.” In order to preserve smooth functioning of the Pakistan Army, find it appropriate to allow the current status of the COAS to continue for a period of six months, whereafter the new legislation (Act of the Parliament) shall determine his tenure and other terms of his service. The SC has clarified, however, that in case the federal government remains unable to regulate the tenure and terms of service of a general and as a consequence of the army chief through an appropriate legislation by the parliament within a period of six months, “the tenure of the constitutional post of COAS could not be left totally unregulated and to continue forever” because “this would be inconceivable and amount to a constitutional absurdity.” In case of such failure of the federal government, the verdict says, the institutional practice of retirement of a general on completion of the tenure of three years “shall stand enforced” to regulate the tenure of Gen Bajwa and consequentially his tenure as COAS, from the date of his promotion to the rank of general and appointment as the army chief, i.e. November 29, 2016. In that scenario, “the president shall, on advice of the prime minister, appoint a serving general officer as the new COAS”, the judgement adds.