Mr Fawad Chaudhry was right when he said progress on the army chief tenure extension issue was only possible after a detailed verdict by the Supreme Court, which will be issued today (December 16).
Akram Durrani, head of the opposition’s Rehbar Committee, has also said he will speak about the future strategy once the detailed verdict is issued.
The verdict is likely to point out the shortcomings in the army chief’s extension and provide a guideline for the rules governing such extensions. But Fawad Chaudhry’s statement that the Supreme Court cannot order Parliament to legislate something is shocking. It’s almost as if he is asking “who are you?” which is not an appropriate way to address the country’s top court.
First of all, on November 28, when the Supreme Court announced the verdict in this case, it issued guidelines for the government, the administrative pillar of the country. Article 8 of the Constitution gives the judiciary the right to declare any act of the government null and void which has constitutional conflicts or cannot be justified under the law
The government admitted in court that there is no mention of the army chief’s appointment or extension in the law or Constitution
In the third paragraph of the November 28 verdict, Chief Justice Asif Saeed Khosa had written that:
We have examined Article 243(4)(b) of the Constitution, Pakistan Army Act, 1952, Pakistan Army Act Rules, 1954 and Army Regulations (Rules), 1998 and inspite of the assistance rendered by the learned Attorney-General, we could not find any provision relating to the tenure of COAS or of a General and whether the COAS can be reappointed or his term can be extended or his retirement can be limited or suspended under the Constitution or the law. The learned Attorney-General has taken pains to explain that the answers to these questions are based on practice being followed in the Pakistan Army but the said practice has not been codified under the law.
In the fourth paragraph:
Article 243 of the Constitution, therefore, clearly shows that the President shall, subject to law, raise and maintain the military, however, the laws referred to above do not specify the tenure, retirement, reappointment and extension of the COAS or of a General of the Pakistan Army.
The court did not challenge the government’s legal or constitutional authority in any way. It brought this legal shortcoming on the record and the government’s representative, the attorney general of Pakistan, admitted to it.
The most interesting part of Fawad Chaudhry’s statement was that he has interpreted the order to mean that the court has ordered Parliament to enact a law.
In my opinion, Mr Fawad Chaudhry probably was not able to study the short order due to his official, political, parliamentary and media engagements, otherwise someone like him, who not only has working knowledge of the law but also belongs to a family of legal experts, wouldn’t have said something like this.
In the fifth paragraph of the verdict, it says the attorney general has asked the court for time to enact a law on the army chief’s appointment and extension. The attorney general was the one who asked the court for six months’ time.
The court brought the attorney general’s offer onto the record. How can this be called the court’s dictation or pressure?
The court did the government a favour by providing a cover for six months for a step that even the government admitted didn’t have any legal standing.
But Fawad Chaudhry isn’t the only one has expressed grievances regarding the issue. He has been joined by another federal minister, Azam Swati.
Speaking to SAMAA TV’s Amber Shamsi on her programme Sawaal, he repeated what Chaudhry had to say about the extension.
My complaint of not having read the reading the court’s verdict is not only with Chaudhry but also with Swati.
He not only holds LLB and LLM degrees from America but also a doctorate in the principle of law. If he had read the verdict, he wouldn’t have called the attorney general’s assurances the court’s dictation.
The court providing a guideline to the government on legislation is not something unheard. Reforms in the Anti-Terrorism act in the Sheikh Liaquat Hussain case and Asfandyar Wali case for the improvement of the NAB Ordinance are some precedents where Parliament legislates on the court’s guidance. In fact, Parliament even reformulated the constitutional amendments under the court’s guidance.
When Nawabzada Nasrullah Khan and Qazi Hussain Ahmad challenged the 14th constitutional amendment aimed at stopping floor crossing, the court said that the members of political parties need to abide by the party’s discipline in matters of important decision-making but need not follow it blindly. Parliament accepted the court’s decision.
When Article 175-A was made part of the Constitution through the 18th Amendment it was challenged by lawyers’ associations. The 17-member bench of the Supreme Court sent the lawyers’ recommendations to the government through an interim order, which was then made part of the Constitution as it is by Parliament in the 19th Amendment. And Parliament did not make it a matter of prestige.
The incumbent government is legislating on a matter where a governing law does not even exist.
Chaudhry, in his statement, said that in the 1956 and 1962 constitutions, the tenure of the army chief was fixed but Parliament, after debating it, did not think it necessary to be including in the 1973 Constitution.
While the debate in Parliament was not available for review I had the opportunity to go through the constitutions of 1956 and 1962. Article 40 of the 1956 Constitution and Article 17 of the 1962 Constitution refer to the armed forces. These articles do talk about the salary and allowances of the heads of the forces but have no mention of their tenure.
It is very much possible that Chaudhry might bring forward the clauses regarding the tenure while aiding the government’s legal team, exercising their right to challenge a verdict. But what moral and legal justification does a government that has taken relief from the court by promising legislation have to file for a review?
There are many more questions. Why was a petition that caused embarrassment to the army chief filed? Was there a hidden hand behind all these visible actors? What caused the poor performance of the legal team in court: inefficiency or panic?
There are many questions but since the article is getting lengthy, these questions are reserved for the next article.