Legal, other experts give different opinions

KARACHI: The Supreme Court in its detailed verdict in the COAS extension case has directed the government to pass simple legislation, which would only require a simple majority, to give legal cover to the army chief's job extension.

The various interpretations of the verdict were discussed in the current affairs shows by legal eagles: Aitzaz Ahsan, Irfan Qadir and Salman Akram Raja.

In a private television channel show, noted legal eagle Aitzaz Ahsan said the judgment has not comprehensivelydealt with the issue by not raising the most important aspects. Aitzaz Ahsan said the CJP has given the verdict but during the trial, only the government side was heard. The apex court should have asked other constitutional experts to give arguments in this serious constitutional case. Aitzaz said the most important issue was neither discussed in the court nor it was mentioned in the judgment. It was also not argued by the attorney general. The judges did not ask any question about it either. The major lacunae that the verdict failed to discuss was the wisdom that why in Pakistan, the army chief serves at the pleasure of the president and there is no fixed term for that post. The same rule applies internationally where the military chief "serves under the pleasure of the executive" irrespective whether an army chief is winning or losing a war. 

Therefore, none of the constitutions including 1962 and 1973 fixed the tenure of the army chief. The 1962 constitution was drafted by Shaikh Manzoor Qadir, who was one of the brilliant legal minds of the country, did not specify the term. In the interim constitution of 1972, piloted by Mahmood Ali Kasuri under which Zulfiqar Ali Bhutto became the president, also did not mention the term of the army chief. Similarly, there is no fixed tenure of the attorney general and governor who serve under the pleasure of the president with a difference that they come and go with the change of the government.

The US president fired Gen McChrystal, Indian Naval Chief Bhagat was fired by Defence Minister George Fernandez, similarly Hazrat Khalid bin Waleed (RA) was replaced in the middle of war. If Gen Montgommery was losing battle and the Queen summoned him for removal, he would not argue that my two-and-a-half year specified term remains and he could not be removed under the stay order of the Lahore High Court. Under the constitution, the appointment letter says he is being appointed subject to the pleasure of the president because the executive authority has the right to remove the military chief.

To a question, can the parliament legislate giving extension from four to six years term rather than the three-year tradition, Aitzaz said the tenure would now be determined by the parliament. The people of the country would not be satisfied with the judgment and this would be the reversal of constitutionalism in Pakistan. The judgment also did not raise the issue whether an extension may or may not be given at the time of war, but this was not discussed threadbare in the court. Now the issue will be stuck with the parliament. I feel the judgment will create more complexities. The CJP, Asif Saeed Khosa, had a very good term but this judgment at the fag end of his career has created complications.

In the GNN’s current affairs progrramme, former attorney general Irfan Qadir said since there was no pre-existing law to define the term of COAS, so now it goes to the parliament which has all the prerogative to decide the term. It includes both the National Assembly and Senate. There is an ambiguity: if this will involve a constitutional amendment or a simple legislation through an act of parliament.

The important issue is that the government did not contest the jurisdiction of the court. It was neither raised by the attorney general nor by the counsel for the army chief. If proper assistance was given by the bar and the bench, lots of important issues that have remained ambiguous would have been identified and defined. There were myriads of issues which are not covered by law and a question mark hangs over their fate.

The court could have only defined every aspect if the bar had provided the required assistance. In our country, both the bench and bar have critical roles to play and they are interdependent on one another. The judgment shows the bar did not give proper assistance in the manner they should have offered in this important case.

The government’s legal experts must act according to the law. If they think there are issues with the judgment, they can file a review petition seeking issues that need clarification. If they think review is not required and the issue now falls under the domain of the legislature, then the parliament will decide that. The former attorney general said the Article 150 clarifies that all executive and judicial authorities fall under the Supreme Court but the parliament does not. All this has to be clarified by the Ministry of Law. The parliament is supreme and autonomous to decide whatever they want.

He said the Minister for Science and Technology Fawad Chaudhry is right to an extent that the Supreme Court cannot give direction to the parliament which is sacrosanct under the constitution. In today’s judgment, the Supreme Court has not given any direction to the parliament, it has very respectfully made a suggestion for the august house to decide if it wants that way. If the parliament decides not to consider or reject the direction of the apex court, it can do so as it is independent to legislate.

Appearing in a private television show, Barrister Salman Akram Raja said it is important to understand the reasons given by the apex court for its judgment. They have rested their judgment on the plank of Article 243(3) as it discusses raising an army subject to law. They have said since the whole army falls under the law, then the general will also be under the law. Thereby, it is a constitutional responsibility of the government to table a bill to this effect. Barrister Raja said the parliament must legislate to legalise the terms and conditions of the services, tenure and age of superannuation of the COAS as this issue was never legislated. The Army Act clause 176 A was amended and the Supreme Court found that it does not adequately determine the tenure, terms and conditions of the COAS. The judgment says it is applying judicial restraint by upholding a six-month extension given to the COAS from Nov 28, 2019.

Salman Akram Raja said the new law has to cover the tenure of the COAS as well as his appointment. The legislation is now a must. The apex court in its judgment has mentioned that the notification of appointment of Gen Bajwa as the COAS also did not specify his period of tenure and that has been the case throughout. The Supreme Court also said that the ‘convention’ also does not apply as some generals were given extension while others were not. The convention applies to situations happening for centuries or decades giving power to a law. In the UK, conventions apply because there is no written constitution.

The Supreme Court has invoked the spirit of Article 203 (b) to uphold the extension for six month time. The Article 203 (b) determines if any law is repugnant to the Islamic provisions, but the law would not be considered ultra vires immediately and for that the apex court has provided a time-frame. Barrister Salman said the spirit of this article has been applied to this situation and at the expiry of the determined time period, the law would lapse and would be considered ultra vires.

The Supreme Court can mould its judgment in different ways. In many verdicts, the Supreme Court and apex courts of several other countries have held that a certain law cannot be legislated. But in this case, the Supreme Court has given a legal cover to the past and closed transitions related to the COAS, but has declared that this cannot continue in the future. Under Article 203(b), the apex court has ruled that while it is illegal now, but it would be considered ultra vires after six months.

The parliament now has six months to legalise cover to the terms of appointment, determine tenure and service structure as well as extension and its terms to the COAS. They have also mentioned in the verdict that Article 243 (3) of the Constitution desires legislation for completion of the desired constitutional process in the context of appointment and extension of the COAS subject to the said article and its provisions.

To a question whether the Supreme Court can give direction to the parliament, Barrister Salman Raja cited the case of Azizullah Memon vs Govt of Balochistan in 1993 where the apex court directed legislation to enforce basic rights in certain areas of the province. There was a lacunae and there was no remedy available. The Supreme Court can give direction to the parliament and the government where it is a constitutional requirement to legislate to enforce the will of the constitution. In this case, they have simply asked to table a bill and they have not given direction to the parliament.

Senior lawyer and constitutional expert Akram Shaikh said that the Supreme Court can no further explain and guide than it has comprehensively dealt on the issue of granting extension to the COAS through the judgment, as asked by the attorney general.

Talking in a news show, Akram Shaikh said if the army wants security of tenure of its COAS guaranteed by the constitution like that of the chief election commissioner, then it could only happen by a constitutional amendment. He said the SC has held that Article 245 used to give extension to former COAS Gen (retd) Kayani is ultra vires and cannot be used a milestone. Similarly, the Article 243(3) and 243(4) are deficient. In Pakistan’s security scenario the law regarding the appointment and extension can be of 'single end' use, nor could it be 'person specific' as people come and go. But legislation through the parliament consolidates and restrengthens the institution and added the entire opposition is as patriotic as the government.

Meanwhile, senior journalists, columnists and legal experts have said the detailed apex court verdict in Chief of Army Staff General Qamar Javed Bajwa extension case made it clear that there were no provisions in the Constitution and the Army Act for giving the COAS extension, and the government would have adopt a legal course of action for the purpose in six months time period.

In reply to a question by Geo News programme Report Card host that whether the government should seek review of the SC verdict or make a law in the given time period of six months, Babar Sattar said the court verdict made it clear that no service period for the COAS post had been mentioned in the Constitution. The court observed that the COAS post was very important, and there should be stability in this regard. If the parliament wanted to give an extension to the COAS, it must specify valid reasons in this regard.

Sattar said the verdict made it clear that the government could not tackle the issue through change in rules and regulations. He said the verdict mentioned various lacunae in the government argumentation and proceedings in detail, therefore, the government would find it hard to prepare grounds for filing a review petition, and therefore it would have to make a law in this regard.

Columnist Irshad Bhatti said it was yet to be decided that the issue of army chief’s extension issue could be resolved through an act of parliament or an amendment to the Constitution would be required. He said six-month time period was appropriate and the parliament should legislate on the subject.

Reema Umar said the verdict stated that no one was above the law, and the government would have to legislate on the issue. She said even after retirement of Chief Justice Asif Khosa, it would be difficult for the government to get a favourable verdict through a review appeal. The verdict also answered Minister Fawad Chaudhry’s assertion that prime minister’s power to appoint an army chief was not “subject to the law” as it was an executive domain. She said the government would have to amend at least the Army Act for giving extension to Gen Bajwa.

Senior anchorperson Saleem Safi said Minister Fawad Chaudhry was trying to be a super patriot. He sometimes takes such a line which creates problems for the government. He said either the government amends the Army Act or the Constitution, it would have to reach political consensus with its opponents on the issue.

Senior journalist Mazhar Abbas said the verdict is about deciding the time duration of most powerful post in Pakistan. He said there was a possibility that the Army Rules and Regulations had never been shared with the government, and it was of a misperception that army chief’s service duration or extension in service would have been mentioned in the Army Rules and Regulations. The Supreme Court's historic verdict is in fact a test of the parliament that what kind of a law they make about such a powerful post. The parliament should make such a law which establishes the supremacy of parliament.

Anchor and analyst Muneeb Farooq said Article 243 is limited and the court has found a flaw in it that it is silent on Army Chief's tenure extension.

Analyst Sohail Warraich said the court has not only deliberated on army chief's tenure extension but also against it. The court has neither ruled against the extension nor encouraged it. The issue has become political now because it has reached the parliament. When the act of parliament is discussed, it will also bring into focus the civilian supremacy. As Hamid Mir has pointed out, all legislators are ready for making the law in the parliament. However, I think few players will talk about civilian supremacy. If other parties do not cooperate and the PTI amends it through act of parliament with majority, it will be interesting to see if other parties accept and it is according to the law. It is yet to be seen whether the matter is brought before the court again and it orders its revision. I don't think all parties will easily vote for it. They have their own issues. They will want some bargain. Some sort of "give and take" will be involved in it. I do not think the issue will be resolved easily.

Analyst Irshad Bhatti, quoting Hamid Mir, said a vacuum in Constitution that was not in Article 243, not in Army Act, or extension was not meant to follow any law. On referring the matter to parliament, he said "In my view, it is a step towards civilian supremacy. The law did not exist. Now it is referred to the parliament for making rules and regulations. It will take six months for making legislation and within six months it will finalise prerogatives of prime minister, how can PM advice, how can president give extension. This matter will be solved in parliament within five months and the law will be implemented."

In case of any amendment to the Constitution, opposition's role is needed, Irshad Bhatti said, adding, "I don't think so there would be any crisis on the matter."