–Conflicting opinions emerge on whether an act of parliament or a constitutional amendment is needed to implement apex court’s verdict
ISLAMABAD: The legal fraternity stands divided over the required future course of action for the implementation of the short order issued by a three-member bench of the Supreme Court (SC) pertaining to the six-month extension in tenure given to Chief of Army Staff (COAS) General Qamar Javed Bajwa.
Conflicting opinions have emerged on whether the government needs an act of parliament, a constitutional amendment or a simple amendment in the Army Act to implement the apex court’s verdict.
Since the federal government led by Pakistan Tehreek-e-Insaf (PTI) lacks simple majority in the Senate, it may be difficult to get a constitutional amendment passed by both houses of the parliament. Perhaps, this was the reason why the government issued a late night order to cancel the National Assembly (NA) session summoned on December 2.
Former Supreme Court Bar Association (SCBA) president Kamran Murtaza told this scribe that the court used the term ‘act of parliament’ in its short order to resolve the anomaly in the matter. “However, I believe a simple act of parliament cannot serve the purpose as the government would also have to determine the allowances and salary of the army chief and for this purpose, it would need to get a constitutional amendment passed,” he said.
It is worth mentioning here that under Article 243 of the Constitution of Pakistan, the federal government has control and command of the armed forces with the supreme command vested in the president. This allows the president to raise and maintain the armed forces and grant commissions. Article 243 states that the president, on the advice of the prime minister, has the power to appoint the Chairman Joint Chiefs of Staff Committee (CJCSC) and the heads of air, naval and ground forces. Article 243 further states that the president has the authority to determine their salaries and allowances.
Murtaza said that the government would have to include the term “extension in tenure” in the last clause of Article 243. “Since the government lacks a simple majority in the Senate, it would be difficult to get the constitutional amendment passed unless the concerned quarters deliver the goods and all political parties agree to do it for greater national interest,” he added.
Senator Barrister Mohammad Ali Said, an expert on constitutional affairs, disagreed with Murtaza on this. He said that there is no need for a constitutional amendment and a simple act of parliament would be enough to serve the purpose. “It would be foolish to add procedural details into the Constitution when the purpose can be served by amending the concerned rules or by adding definitions to the Army Act,” he said.
Saif said that the SC bench did not pass any clear directions for amending the Constitution, but rather it asked for an act of parliament. He said that rather than giving directions to the government, the apex court should have suggested an amendment in act as it is ultimately the prerogative of the parliament and no state institution should pass directions to the parliament.
Moreover, he said, when the attorney general (AG) told the SC bench that the government can resolve the issue through legislation, the court did not raise any objection to amending the law. “If the court thought a constitutional amendment was necessary, it would have clearly suggested the same,” he added.
Barrister Saif said that the Constitution addresses general issues whereas the subordinate organic law or act is there to prevent unnecessary constitutional amendments. “Since the Article 243 empowers the prime minister to appoint the army chief, it also gives him the power to reappoint the said person or grant him an extension. The court can raise questions over ambiguities in any order but since the court has pointed out a flaw, the government now has the power to address the anomaly through a law. Hence, a simple act of parliament can serve the purpose,” he added.
When asked to elaborate, he said that the matter of statutory interpretation of law rests with the government. “There is no need to put details into the Constitution. A relevant section could be added in the definition of the army act and all details pertaining to reappointment, extension, salary and allowances of the army chief can be added in the sub-clauses of law without amending the Constitution,” he added.
Pakistan People’s Party (PPP) Senator Farhatullah Babar said that politicians and jurists were deeply divided over the matter and there is a need for detailed debate and consideration by the ruling party. “Not only the lawyers are divided, but the political parties are also divided. PPP had an informal discussion over the matter but even our legal minds are divided,” he said.
When asked about his own opinion over the matter, he said that there was no need for a constitutional amendment, but rather a simple amendment in the act would serve the purpose. “The government would find this easy since it would be difficult for them to get a constitutional amendment passed,” he concluded.
