Orders, acts and extensions

The chief justice of Pakistan turns 65 on December 21, 2019. Constitutionally, he will cease to hold office. His institution must survive without him.

The chief of army staff (COAS) was due to retire this month. The prime minister wanted him to serve for another three years. He has been allowed to continue by the court. The basis for the court’s order is expressed to be “judicial restraint”.

The court notes in its short order that there is no law specifying the tenure, retirement, re-appointment and extension of the COAS or of a general of the Pakistan Army. The order also notes that the attorney-general (not the law minister who was appearing as private counsel for an individual) has “categorically assured” the court that the practice being followed in this regard is to be codified. The attorney-general has undertaken that the federal government shall “initiate the process” to carry out the necessary legislation in this regard, and “seeks a period of six months for getting the needful done”.

If one examines the order, no undertaking has been given that legislation will actually be passed. That is proper. A government cannot guarantee that legislation will be passed. That is a matter for parliament. All the government can agree to do is to initiate legislation. That is what appears to have been committed.

The order states that, while exercising judicial restraint, the matter has been left to “parliament and the federal government to clearly specify the terms and conditions of service of the COAS through an act of parliament and to clarify the scope of Article 243 of the constitution in this regard.”

Is the reference to an “act of parliament” a reference to ordinary legislation or to a constitutional amendment? The government and several legal experts are clear that this is a reference to an ordinary piece of legislation and not to a constitutional amendment. There is a contrary view. Even constitutional amendments are undertaken through an “act of parliament”.

If you read the order carefully, it states that the proposed act of parliament will “clarify the scope” of Article 243 of the constitution. It would be unusual for a sub-constitutional piece of ordinary legislation to “clarify the scope” of an article of the constitution. It could be argued that what is needed is a constitutional amendment to Article 243(4), giving the president the express power, on the advice of the prime minister, to re-appoint or extend the term of appointment of the COAS.

The submission here would be that a substantive constitutional power to appoint cannot be expanded through ordinary legislation. That would be tantamount to an amendment being made to the constitution without following the prescribed procedure for constitutional amendments.

The order does not expressly strike down the notification of extension which was previously suspended. It makes reference to a new notification dated 28.11.2019 under which he has been appointed as COAS under Article 243(4)(b) of the constitution with effect from 28.11.2019. It then goes on to conclude that his “current appointment” shall “continue for a period of six months from today, whereafter the new legislation shall determine his tenure and other terms and conditions of service”.

What is the “current appointment” that the court has sanctified for six months? It is not clear if this is the new notification dated 28.11.2019 (which presumably does not specify a time frame) or his initial appointment for three years. If it is construed as a reference to his initial appointment, extending it would be a judicial extension which is not contemplated by law. Therefore, it must be the new notification without any time frame. That is presumably the basis on which the law minister argues that there is currently no six-month limitation on the tenure of the chief. He has been appointed under the constitution for an unspecified duration.

The court has said that the appointment will continue for six months whereafter the new legislation will determine the tenure. An appointment for an unlimited duration will be subsequently circumscribed by legislation. The order is silent on the consequences of no legislation being passed. It assumes legislation. It does not say that the notification appointing him for an unspecified duration will cease to be valid after six months absent any legislation on the matter.

The legislation – if ordinary legislation – can be moved by the government in the National Assembly. If passed by a simple majority of those present it will be transmitted to the Senate. If the Senate rejects the bill or doesn’t pass it within 90 days, the National Assembly can request that the bill be considered at a joint sitting. As long as the government has the required numbers at a joint sitting, it will be able to get the bill passed even if it cannot obtain a majority in the Senate.

For institutional integrity and in the interests of rule of law, appointments and reappointments to key positions should be regulated by the law. I am told that when our chief executive was at the peak of his cricketing prowess, he would saunter into meetings of the selection committee and put before them a piece of paper and tell them: “This is the team”. The one encouraging thing from this episode is that the court has reminded him that he cannot simply say, “This is the chief”.

The writer is an advocate of the Supreme Court and a barrister at law.

Email: a.hosain@lma-eh.com