Observer Report
Islamabad
The Supreme Court, in its detailed judgement in the case of the army chief’s tenure extension, has provided relief to the Pakistan Tehreek-e-Insaf government and has not directed for amending the Constitution, which would require a two-thirds majority in Parliament.
The government is just required to pass simple legislation, which would only require a simple majority, to give legal cover to the army chief’s job extension
SC judge Justice Syed Mansoor Ali Shah, while authoring detailed judgment, said that the court 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 6 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,” said the detailed SC judgement.
The judgment also stated that the AG has assured that necessary legislation will be brought into effect within six months to plug this legal vacuum. “This assurance has tempted us to exercise judicial restraint in the matter, so that people of Pakistan may decide this question through the Parliament.”
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.” 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.”
