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Civilian Supremacy Will Be Established By the Parliament, Not The Judiciary

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This November, in the twilight of his career, one of the best legal minds of Pakistan, Justice Asif Saeed Khosa, headed a bench that wandered into unchartered territory; into a judicial realm where no judge’s pen had gone before.

Through an interim order, the bench suspended a notification that granted a three-year extension to the tenure of the Army Chief. The Chief Justice’s order came as a shock for legal and political circles. Everyone was surprised. Some were ecstatic and the government was unprepared, to say the least.

The government’s ordeal lasted three days. And during these three days, the strongest gesture it could come up with was having its Minister for Law resign to represent the COAS. This was futile, unnecessary and inconsequential since the COAS wasn’t a necessary party in the proceedings but only a proper one added by the court on its own motion and any lawyer could have filled the shoes of his counsel.

There were two dimensions of this gesture. The government showed its commitment to the COAS and support for the institution by having a member of its own cabinet represent him before the court. This angle probably bode well with one particular institution. But the other dimension was an embarrassing situation. During the three days of crucial proceedings before the apex court where the government and law division were being probed and questioned and which could have resulted in consequences, the government chose to be without a minister for law. That is like a boxer not showing up in the ring on the day of the fight.

The fight for civil supremacy in Pakistan has withered over the years – partly because of the sheer lack of space for its proponents and partly because of the changing stance of some proponents whose commitment to the cause depends on their personal agendas.

But the few serious proponents of civilian supremacy found life in the Supreme Court’s assumption of jurisdiction on an issue that involved the highest office in the Army. It appears that some people started drooling over unrealistic expectations. The media went into a frenzy, speculation became the order of the day and the disillusioned found their longlost illusions once again. All of this fizzled out a couple of days later, when a short final order was announced on the 28th of November.

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One of the most pertinent questions raised by the interim order was whether the judiciary could venture into the executive’s domain – deep enough to question reasons and rationale behind policy decisions. This was answered in the negative when the bench opted not to pass any judgment on this particular aspect and rather focused on legality of the processes involved. Thanks to the government’s legal team and its blunders, there was plenty to focus on there. In line with the Supreme Court’s own longstanding and well-settled principle of non-interference in policy decisions of the government under constitutional jurisdiction, the bench left questions regarding the actual reasoning for an extension unaddressed.

The gist of the short order was that the extension given to the Army Chief was a constitutional prerogative of the President, who makes such decisions on the advice of the Prime Minister and that this was in line with Article 243 of the Constitution of Pakistan. The bench, however, noted the complete absence of any consequent legislation to cover procedural modalities for exercise of authority vested in the federal government and the President by virtue of Article 243.

This legislative vacuum does not owe its existence to the incumbent government or Parliament and has apparently been there since the inception of our present Constitution. Procedures followed for appointments and extensions under Article 243 by all governments were not governed by any laws or rules. No government found it expedient to legislate on the subject. Surprisingly though, each political party was more than willing to bash the current government for the absence of the required legislation, conveniently oblivious of their own omission to have ever considered legislating upon the matter.

As for the legality of an extension to the Army Chief, the Supreme Court’s order does not find it illegal per se. At best the extension floats somewhere between legal and extra-legal since no law specifically provides for it or for the tenure of an Army Chief or an Army General. The government had no response except that this was being done via procedures based in practice and nowhere in theory.

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The Court thus gave the federal government six months to legislate upon the issue and codify practices and procedures for appointment, retirement and extension of tenure of the Army Chief, as well as Generals.

Coming to the consequences of the order; in the current scenario where the government seems to rely more on laws generated without the Parliament than within, legislation upon any subject is not going to be easy.

The Supreme Court has categorically sought the required codification to be done through an act of Parliament and not a constitutional amendment, thus the government can breathe a sigh of relief since it is in no position to get a constitutional amendment through, but it might just manage to get a bill passed into an act, maybe with a little bit of “outside” help. Also pertinent to note is the fact that Article 260 (2) of the Constitution defines an Act of Parliament to include an Ordinance promulgated by the President. So you never know: even if the government fails to have a bill passed in the Assembly, it may opt for yet another Ordinance to comply with the Supreme Court’s order.

As for larger consequences of this adjudication and order, I am afraid there will not be any.

If we are ever to see an era of civil executive supremacy in Pakistan, it will be through the legislature and not the judiciary – unless it chooses to adopt the same evil it aims to eradicate; overstepping its constitutional boundaries.

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