CMYK
Tuesday, 17 December, 2019 I 19 Rabi-ul-Sani, 1441 I Rs 19.00 I Vol X No 167 I 16 Pages I Islamabad Edition
CloCk TiCking on army Chief’s exTension maTTer g
detAILed SC verdICt StAteS OnLy SImpLe LegISLAtIOn IS requIred FOr extendIng COAS’ tenure
ISLAMABAD
T
staff report
he Supreme Court (SC), in its detailed verdict on the army chief’s term extension, has rested the responsibility on the government to get the legislation passed in order to provide clarity for all times to come and added that no constitutional amendment is required for the purpose. In the 43-page judgement, the three-member bench which heard the case stated that the “crucial matter of the tenure of COAS [chief of army staff] and its extension, which has a somewhat chequered history, is before the parliament, to fix for all times to come”. “It is now for the people of Pakistan and their chosen representatives in the parliament to come up with a law that will provide certainty and predictability to the post of COAS, remembering that in strengthening institutions, nations prosper,” the verdict added. As per the verdict, 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. On November 26, the apex court suspended the notification issued by Prime Minister Imran
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FAILure tO CArry Out LegISLAtIOn wIthIn SIx mOnthS wOuLd LeAd tO gen BAjwA’S retIrement, COurt wArnS
Khan for the army chief’s extension in August over technical irregularities. The issue went on for three days and on the third day the SC issued a short order, stating that the army chief’s tenure would be extended for six months during which the responsibility for the required legislation would be on the parliament. The detailed verdict states that both Justice Mazhar Alam Khan Miankhel and Chief Justice of Pakistan (CJP) Asif Saeed Khosa agreed with Justice Shah’s judgement, with Justice Khosa saying in his additional note that it had been a “shocking revelation” to the bench that the terms and conditions of service of the army chief, the tenure of his office, extension in the tenure of his office or his reappointment to that office “have remained unregulated by any law so far”. 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 six months”. “This assurance has tempted us to exercise judicial restraint in the matter, so that people of Pakistan may decide this the question through the parliament,” he said.
Justice Shah also said 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 verdict stated. 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,” the verdict added.
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