Nouman Muhib Kakakhel
PAKISTAN Army (Amendment) Act, 2020 re
garding re-appointment/extension of Chief of
Army Staff was received with open arms and passed without hurdles by members of both lower and upper house of Parliament and become an Act by getting presidential assent. All this happened after Supreme Court of Pakistan in a case challenging extension of Chief of Army Staff, Qamar Javed Bajwa extended his tenure as COAS for 6 months by exercise of the buried ‘Doctrine of Necessity’ once again and gave observation that there is a lack of statutory provision in the law providing for extension of the military chief and Parliament should formulate laws and redefine the Army’s Act in order to avoid legal absurdities in future. After the retirement of the former Chief Justice of Pakistan, Asif Saeed Khosa, who was heading the bench that decided the matter, Government announced to file a review in the case which was aimed at checking soundness of the judgement. After exercising due diligence, they realized the narrowness of the scope of review being an option only when an error is committed in a decision and opted for legislating on the matter. While the government was walking the democratic path by approaching and winning support of the opposition parties, they completely blindfolded themselves to the draft of the Act which instead of solving ambiguity gave rise to a more risk consequent enigma by vesting authority in the President in violation of Article 243 of the Constitution of Pakistan, 1973.
Article 243 states that President on the advice of Prime Minister (which includes both PM and his Cabinet) ‘Shall’ make appointments of top military officials, being bound by the advice, However, the Act in question gave discretionary powers to the President by adding the word ‘May’, without consulting our past where the Presidents have declined advices of elected representatives, of the people by usurping power and took cover behind such faulty legislations. As observed by Senior Lawyer Salman Akram Raja in a tweet “The exercise of power to re-appoint/extend by the President under Article 243 is bound by the PM’s advice under Article 48. The proposed amendment that seeks to convert re-appointment/extension into a function in exercise of the President’s discretion appears ultra vires Article 243 and 48.” According to Doctrine of Ultra Vires whenever a legislation whether the Federation or Province is a in conflict with the Constitution shall be void to the extent of inconsistency, which is most likely to be the fate of this Act if made subject to judicial review under Article 199 or Article 184(3) of the Constitution of 1973. To the surprise of all, jurisdiction of courts has been ousted by the Act and gave statutory protection not only to the prestigious institute and revered position of COAS but also to the ambiguity committed therein. Regardless of that constitution being the Supreme Law of the land can’t be forced out. It can keep an eye on the functionality of its creations and restrict by interfering in its work by the use of “Doctrine of Checks and Balances”. The check on both Parliament and President is power of judicial review given to the constitutional courts which are High Courts and Supreme Court of Pakistan.
In Al Jihad Trust versus Federation of Pakistan, decided by Supreme Court of Pakistan and reported as PLD 1996 SC 324, a question arose in appointment of judges that whether President/Government was bound to follow advice of a relevant body which in that case was Judiciary, Supreme Court answered in positive and held that President was bound by the advice given to him by the relevant body. Such question is foreseen to arise on the subject law as well that whether the President is bound to extend/reappoint COAS on the advice of Prime Minister, which will not only be an exhaustive process for the stakeholders but will jeopardize the whole democratic system. Parliament consists of two chambers, while one could have worked efficiently, two are made to moderate the pace of lawmaking by eliminating absurdities which could have far leading consequences to ensure tranquillity of the department/body it would be enforced on. Rushed decisions like opting for a review petition before the Supreme Court and on the 11th hour deciding to formulate a law could not have gotten any worse.
As the ruling party seems to be inclined towards getting themselves in trouble, sometimes by not properly considered and consulted draftsmanship like the subject Act and sometimes like the orders of extension of COAS passed by Prime Minister in excess of his power and later on rectifying it by doing it through the proper channel; Doing, redoing and undoing seems to be the only thing they are good at, will they redo this Act through an amendment and bring clarity in the law, or will it leave it be till the times a controversy arises? Representatives of masses were empowered through the 18th Amendment in Constitution of Islamic Republic of Pakistan by clipping wings of the presidential totalitarianism that took root in military regimes. Absolute powers as bestowed to the President were taken back and given to the Prime Minister’s office, which includes the Prime Minister and his cabinet, to even limit powers of the Prime Minister and avoid any nefarious design of a ‘One Man Show’. The Federal Government by enacting this Act of Parliament, in good faith, will put an end to a void left behind by an old statute but gave rise to something which could have far reaching consequences, if an ambitious person is made President. The party, the parliamentarians and all those involved may not be present at that time but will make the public suffer by going through another phase of depression and hasty problem solving. Whether deliberately done or a mistake committed, they have put a prestigious institute of Pakistan at the mercy of the one person which will make the nation suffer.
—The author is a lawyer based in Peshawar.
Nouman Muhib Kakakhel