A Government Prone to Ambiguities - Kakakhel Law Associates

Pakistan Army (Amendment) Act, 2020 regarding 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 the 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 the exercise of the buried ‘Doctrine of Necessity’, once again. It was held that there is a lack of statutory provision in the law providing for the extension of the military chief and the parliament should formulate laws and redefine the Army’s Act in order to avoid legal absurdities in the 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 the soundness of the judgment. After exercising due diligence, they realized the narrowness of the scope of the 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 the 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.

Constitution of 1973 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, section 88 of the Amended Act gives discretionary powers to the President by adding the word ‘May’, without consulting our past where the Presidents have declined advises 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 the exercise of the President’s discretion appears ultra vires Article 243 and 48.”

According to Doctrine of Ultra Vires whenever legislation whether federal or provincial is in conflict with the constitution shall be void to the extent of the inconsistency, which is most likely to be the fate of this Act if made subject to judicial review.

To the surprise of all, the 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 the provision, the 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 interfere in its work by the use of “Doctrine of Checks and Balances”. Parliament and the Executive are kept in their constitutional limits by the Judiciary through the use of “Judicial Review”, a power conferred upon the Constitutional Courts by the Constitution of Pakistan, 1973, under article 199 to the High Courts and 184(3) to the Supreme Courts of Pakistan.

In Al-Jihad Trust versus Federation of Pakistan (PLD 1996 SC 324), decided by Supreme Court of Pakistan, a question arose in appointment of judges that whether President/ Government was bound to follow advice of an authorized body which in that case was Judiciary, Supreme Court answered in positive, and held that President was bound by the advice given to him. Such a 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 the tranquility 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 the Constitution of the 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 through this Army (Amendment) Act, 2020, is putting an end to a void left behind by an old statute but gave rise to something which would have far-reaching consequences if an ambitious person is made President. The current ruling party, 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 quarter of one person which can prove to be our worst nightmare.

By: Nouman Muhib Kakakhel

The writer is a student of law based in Peshawar and works in Kakakhel Law Associates. He can be reached at kakakheln@gmail.com

Originally Published in Daily Times