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SC Verdict Failed To Uphold Law And Constitution

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For the last 70 years, Pakistan’s courts have practiced doctrine of necessity and the order issued by the SC approving COAS Bajwa’s extension for six months is another example of the same, writes Abdul Qayyum Khan Kundi.

In my last article, I wrote about law and justice in Pakistan. In that piece, I had written that our judges have commented during case hearings that we have ‘courts of law’. I had also said that it is the judges who can convert a court of law into a court of justice.

Today once again, we are reminded that neither do we have courts of law nor justice. We have individuals who use their subjective discretion to make decisions in the name of the people and law but in reality, facilitate and empower the chosen few for their own interests rather than focus on the larger good.

The order issued by the Supreme Court today regarding the extension of the tenure of the military chief is another addition to the precedent of the courts failing to uphold law and constitution. For the last 70 years, Pakistan’s courts have practiced doctrine of necessity and the order issued by the SC approving COAS Bajwa’s extension for six months is another example of the same.

In the short order, the honorable Chief Justice of Pakistan has cited article 234 (4) (b) to arrive at the judgment that it cannot be used to extend the tenure of a retiring army chief. Based on this, it is clear to the honorable Judges that tenure of the COAS cannot be extended using this article. This in practical terms means that the army chief has to retire at the expiration of his tenure. But if we use the argument that article 243 (4)(b) gives the president competent authority to appoint a COAS then the issue is that a retired officer no longer has the commission and has to be first rehired to be appointed which creates further complexities.

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In other words, the court has declared that article 243(4)(b) cannot be applied to reappoint General Bajwa and in the same breadth provided a solution that a legislative amended is needed to insert the provision of reappointment and its term.

The army chief will continue on the instructions of the court rather than appointed by the President. This converts the judges from arbiters of law to exercise executive power. The court does not shed any light on articles of the constitution gives them this authority. This means that for six months, the existing authorities applied through a normal appointment do not apply. The order is silent that under which article of the constitution the Chief will exercise his powers. Without clearly providing those limitations, we don’t know the boundaries of his authority.

We also don’t know which articles of the constitution will legitimize the decisions made by the army chief during this time. This means that until this is resolved, the Army Chief will operate without being restricted by any articles of the law. Technically we could have a judicial coup in the country. It is quite clear our judges did not think through the implications of their order.

To save the country from a constitutional crisis, I request the opposition parties and bar councils to file a review petition with the Supreme Court. It is quite clear General Bajwa is more interested in his job rather than preserving the dignity of his office and sanctity of his institution. We would have no crisis if he had decided to retire after his tenure.

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