How legal experts see language of services chiefs’ bills

ISLAMABAD: The top legal minds have raised questions and highlighted some points in the newly passed bills by the Parliament concerning the tenures of three services chiefs and Chairman Joint Chiefs of Staff Committee (CJCS).

Abid Hassan Minto — one of the top constitutional and legal minds of the country, Salman Akram Raja — Senior Advocate Supreme Court of Pakistan and Kamran Murtaza — former president Supreme Court Bar Association have talked about the language used in the bills.

Talking to The News, senior constitutional expert Abid Hassan Minto said it is not necessary to use the word “Shall” in every law. I see no harm in the word “May” used in the bills for the tenure of the services chiefs. He however, said the discretionary powers of the president shall remain within the scope of the Constitution. If the president’s discretion exceeds the constitutional limits then it will automatically be an unconstitutional step.

Talking about the Section 8 (B) (2) which has been highlighted by Senior Advocate Salman Akram Raja, Mr Minto agreed that no ordinary law is above the Constitution. It is a fact that under Article 243 of the Constitution the president is bound to act upon the prime minister’s advice for the appointment of the three services chiefs and Chairman Joint Chiefs of Staff Committee (CJCS). The president (appointing authority of three services chiefs) cannot use his discretion in this matter.

“The president has to exercise his powers as per the Constitution. If any law is against the fundamental rights or in violation of the basic principles of the Constitution then it is bound to be challenged by the court. No-challenge clause in the ordinary laws cannot stop the courts from taking notice. If the word exercise of discretion by the appointing authority has been used in the bill then one has to wait and see the implementation of the law. Certainly the questions will be raised once the law is exercised and any violation has been made”, commented Mr Minto.

Salman Akram Raja has pointed out three major blunders in the newly passed amendment bills and highlighted them on the social networking website twitter. He has posted four tweets on the issue.

Mr Raja in his first tweet says, “(1) More than a bit surprised by the Army Act amendment bill passed yesterday. It says the President ‘may’ re-appoint or extend the chief on the advice of the PM. This contrasts with the use of the word ‘shall’ for the original appointment”.

“(2) The bill then says the exercise of ‘discretion’ by the Appointing Authority in the matter of re-appointment/extension will not be called in question in any court. The bill has made re-appointment or extension a presidential function in the domain of his discretionary powers!

(3) The bill also relates re-appointment or extension to existence of national security and other exigencies. How does this oust a writ or 184(3) petition that discretion has not been exercised on the basis of objective facts? It does not”, Mr Raja tweeted.

In his fourth tweet Mr Raja says, “(4) the exercise of power to re-appoint/extend by the President under Ar 243 is bound by the PM’s advice under Ar 48. The proposed amendment that seeks to convert re-appointment/extension into a function in exercise of the President’s discretion appears ultra vires Ar 243 and 48”.

In all four tweets Mr Raja has highlighted three blunders of the government which it made in the newly passed bills. The first blunder according to Mr Raja is the use of word “The President ‘May’ re-appoint or extend the chief of army staff tenure on the advice of the prime minister”. However, under Article 243 of the Constitution the word “Shall” has been used. Hence this is in contrast with the original appointment under Article 243 of the Constitution.

Similarly, the Supreme Court and high courts are constitutional courts and no ordinary law can limit the scope of the apex court. The inclusion of Section 8(B) (2) in the newly passed bill which converts the re-appointment/extension of the services chiefs into a function in exercise of the president’s discretion appears to be ultra vires Article 243 and Article 48 of the Constitution.

Former president Supreme Court Bar Association (SCBA) Kamran Murtaza, while talking to The News, said he fully agrees with Salman Akram Raja. The Constitution is the mother of all the ordinary laws. Therefore, he said the ordinary laws should not be in contrast with the Constitution of Pakistan. “The Supreme Court of Pakistan and high courts are Constitutional institutions and no law can limit their scope. Similarly, as per the Constitution of Pakistan under Article 243, the president of Pakistan is bound to act upon the advice of prime minister to appoint all the services chiefs. How could the government add the discretion of the appointing authority (President) in the bills related to tenure of all three services chiefs and CJCS. This is clearly in violation of the Constitution”, said Kamran Murtaza.

He said there are many other lacunas in the bill and he can highlight many for example, the government has mentioned that the bill deemed to be taken effect from 27th day of November, 2019. This particular date is related to the tenure of Chief of Army Staff only whereas the bill is about all the services chiefs.

Similarly the definition of Chairman Joint Chiefs of Staff Committee (CJCS) in the bill is vague. The definition of CJCS in the bill is “(2A)” Chairman, Joint Chiefs of Staff Committee” means an officer who has been appointed as the Chairman,, Joint Chiefs of Staff Committee, by the president in accordance with Ar1icle, 243 of the Constitution of Islamic Republic of Pakistan, read with Section 8D”. The word ‘an officer’ is vague. “Can it be any civilian officer as well”, asked Kamran Murtaza.

The government has added overriding effect clause which is unnecessary. When the government has already admitted before the Supreme Court that there is no law pertaining to the re-appointment/extension of the three services chiefs then what is the use of adding this clause in the bill.

Former president SCBA Syed Ali Zafar, while talking to The News, said everyone has his own opinion and he cannot comment what Salman Akram Raja has said. However, he said that it is not necessary to use word “Shall” everywhere in any law. It is written in the interpretation of the statute that the word “May” can be read as “Shall”. Therefore in my opinion the use of word “Shall” in the Army Act Amendment Bill is not necessary.

Similarly, talking about the jurisdiction of the court, Ali Zafar said that the ‘No-Challenge Clause’ is used in many ordinary laws. There are many judgments in which the apex court has given its interpretation about such clause. The apex court through its interpretation has excluded the jurisdiction of civil courts on such laws. However, the Supreme Court and high courts which are constitutional institutions can take notice of these laws.

Talking about the use of discretion by the appointing authority, Ali Zafar said the question on the matter of discretion will be raised if in any case the president used his discretion. If no such situation arises then how will it be ultra vires of Article 243 and Article 48 of the Constitution? “At best you can say that the use of term discretion of appointing authority is redundant in this bill”, commented Ali Zafar.

It is pertinent to mention here that this is not for the first time that the government has made blunders in the matter of extension in tenure of Chief of Army Staff. The Supreme Court of Pakistan already had highlighted many blunders in the summary prepared by the federal government.