Minister hints at seeking review of SC ruling on COAS extension

ISLAMABAD: Instead of going to parliament for legislation, the Pakistan Tehreek-i-Insaf government may file a review petition in the extension case of Army Chief Gen Qamar Javed Bajwa after the release of a detailed judgement by the Supreme Court on the matter.

Federal Minister for Science and Technology Fawad Chaudhry hinted at this during an exclusive interview with Dawn here on Saturday, hours after Chief Justice of Pakistan Asif Saeed Khosa stated that the detailed verdict would be issued before his own retirement on Dec 20.

The Supreme Court, in its short order on Nov 28, had announced that Gen Bajwa would remain Chief of the Army Staff (COAS) for another six months during which the parliament would legislate on the army chief’s extension/reappointment.

“The current appointment of General Qamar Javed Bajwa as COAS shall be subject to the said legislation and shall continue for a period of six months from today, whereafter the new legislation shall determine his tenure and other terms and conditions of service,” read the court order issued by a three-member bench comprising CJP Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah after being given assurance by the government that parliament would pass the required legislation within six months.

Fawad finds ‘lacunas’ in SC order; opposition criticises remarks

“We, while exercising judicial restraint, find it appropriate to leave the matter to the Parliament and the federal government to clearly specify the terms and conditions of service of the COAS through an act of Parliament and to clarify the scope of Article 243 of the Constitution in this regard,” read the court order.

The short order noted that according to Article 243, the authority to appoint an army chief lies with the president, but there is no duration of appointment specified in the said article.

“One of the options (before the government) is to file a review petition,” the minister said, adding that he was personally in favour of it.

“Personally, I believe that instead of doing legislation, this case should go back to the Supreme Court,” Barrister Chaudhry said when asked as to when the government would introduce the legislation to determine the period of extension of the COAS as per the SC decision.

However, he was also of the opinion that if such a piece of legislation was introduced in the parliament, it would sail through smoothly, as all the parties, including the opposition parties, would support it.

According to the minister, all the political parties believed that under the given circumstances, the extension of the army chief was necessary.

Mr Chaudhry, who himself is a lawyer by profession, said all the three judges who had given the verdict in the case were “great judges” with a sound judicial background. However, he said, in his opinion there were some “lacunas and weaknesses” in the judgement that were needed to be corrected.

Stating that the SC through its verdict had “almost” abolished Article 243 of the Constitution, the minister argued that “the court cannot tell the parliament as to what legislation it should do and which legislation it cannot do”.

Article 243(4) of the Constitution states: “The president shall, on the advice of the prime minister, appoint the (a) the chairman Joint Chiefs of Staff Committee; (b) the Chief of the Army Staff; (c) the Chief of the Naval Staff; and (d) the Chief of the Air Staff, and shall also determine their salaries and allowances.”

The minister said the tenure of the army chief was mentioned in the Constitutions of 1956 and 1962. However, he said, after a thorough debate, the parliament while approving the 1973 Constitution had ended this provision of tenure of the army chief. He was of the opinion that the main reason for removing this provision was that the parliament wanted to empower the prime minister to appoint or remove an army chief as per his desire. “If there will be a mention of the term, then how will the prime minister be able to remove an army chief before time, if need arises,” he added.

Earlier, the chief justice during an informal talk with some reporters after attending a seminar said the detailed judgement in the COAS extension case would be issued before his retirement.

Dialogue for ‘limitations’

The science and technology minister also highlighted the need for a dialogue among “the government, the armed forces, the opposition and the judiciary” to decide once for all about their “limitations”.

“If all these four institutions keep on fighting, we will end up in a chaos,” he added.

Mr Chaudhry said the time had come that all the institutions should sit together and talk about their limitations as the “lust for power” was weakening the country as well as the parliament. He said unfortunately the parliament that should have been the most powerful and supreme institution was becoming the most weakened institution of the country.

When reminded that former Senate chairman Raza Rabbani had also previously called for initiation of a national dialogue among the state institutions, the minister said Mr Rabbani had talked about “determination” of the powers whereas he was talking about “limitations”.

Opposition’s reaction

Commenting on the minister’s assertions, secretary general of the main opposition Pakistan Muslim League-Nawaz Ahsan Iqbal said he could only say “the present government is a comedy theatre”.

Mr Iqbal said the minister should have waited for the detailed verdict of the court before making any such comments.

“How can the minister say there are some lacunas in the court verdict without seeing the detailed judgement?” Mr Iqbal asked.

Similarly, when contacted, PPP Senator Raza Rabbani said that in his latest book titled “Entangled Threads”, he had again talked about the powers of the three state organs as per the Constitution of 1973. He had talked about the “tracheotomy of power” as given in the Constitution and it pertained to the executive, the judiciary and the parliament.

However, Mr Rabbani said, it seemed Mr Chaudhry was talking about something different.

Under the Constitution and rules of business, the senator said the armed forces were an attached department of the Ministry of Defence and, therefore, it fell under the category of the executive. The Constitution only envisaged three institutions and the tracheotomy was only among these three, he explained.

Published in Dawn, December 15th, 2019