A short order was issued by the Supreme Court last week, allowing the army chief to stay in office for another six months during which the government was directed to enact legislation for determining the tenure, terms and conditions of service of a Chief of Army Staff (COAS). This has set off a public debate on what is next.
During the hearings, the chief justice remarked that if the required legislation was not made in six months, the notification issued by the government extending the tenure of the army chief for another three years would lapse. It implied that in case of no legislation the chief would be sent home and put him virtually on tenterhooks.
However, the written short order only mentioned the categorical undertaking given by the attorney general that granting of extension to army chiefs would be codified through an Act of the Parliament. The short order did not mention that in the event of no legislation, the army chief will cease to be the chief.
The short order also did not specifically state whether the proposed legislation would be through a constitutional amendment requiring two-thirds majority or an ordinary legislation requiring a simple majority in each House. The attorney general was quick in declaring that a simple legislation is needed for the purpose. However, jurists and political parties are divided on this issue.
Some legal experts have pointed out that according to the short order, the Parliament, through the proposed Act, will “clarify the scope” of Article 243 of the Constitution, which deals with the appointment of three service chiefs by the President. An ordinary legislation to “clarify the scope” of a constitutional article is unusual. According to them, a substantive constitutional power to appoint service chiefs cannot be expanded through ordinary legislation.
In the event of no legislation, the army chief could continue in office indefinitely
PPP Chairman Bilawal Bhutto Zardari has already fired the first salvo. Addressing the media in Islamabad after visiting his ailing father in the hospital on Monday, he said that while he awaited the full judgment, he believed a constitutional amendment was required for this purpose.
Not mentioning in the short order the consequences flowing from non-legislation within six months, however, is a double edged sword. It could also be interpreted to mean that in the event of no legislation, the army chief will continue in office indefinitely. Such open-ended extension in tenure will be fraught with grave consequences. A new precedent of an army chief saddled in his position indefinitely would have been established.
The detailed verdict may contain elaborations that could lend new meaning to the short order itself. One must wait for greater clarity.
However, some significant developments after the short order was issued are noteworthy.
The prime minister is reported to have formed a committee to begin negotiations with coalition partners as well as the political parties in opposition to arrive at some consensus on the legislation. Some federal ministers indeed met MQM-P leaders in Karachi on Sunday last. An MQM leader was quoted as saying after the meeting that there would be smooth sailing of legislation pertaining to the army chief’s extension.
One would have thought that the prime minister would have realised the need to declare a ceasefire with the opposition, but this does not seem to be the case. The opposition is in majority in the Senate and even if the issue is to be settled through ordinary legislation the government needs opposition’s support. More so as after the exposure of its sheer incompetence, the government needed the helping hand of the opposition. The prime minister, however, continued to whip the dead horse of a “corrupt mafia.” It does not occur to him that in a case of suo moto notice, how the “corrupt mafia” figures in. The prime minister’s attitude is a recipe to embarrass the army and its chief in a parliamentary debate on proposed legislation. Some wonder if this is being deliberately done.
Significantly, after the short order was issued there has been no meeting of the corps commanders. Nor has there been any statement or tweet by the ISPR which otherwise leaves no opportunity to comment on any issue whether related to security or economy or the climate.
All this is on the debit side. On the credit side is the fact that for the first time the Parliament is faced with both an opportunity as well as challenge to legislate on the extension and terms and conditions of service of the army chief. So far, issues like these have been decided in complete darkness behind closed doors by the army leadership and never brought before the Parliament. Not long ago, 90 acres of prime land in Lahore was allotted to a former army chief as retirement benefit. When questioned as to under what law the allotment had been made, the ISPR angrily tweeted that it had been done under the Constitution, without of course quoting the relevant article. It warned also that asking such questions tantamount to instigating a clash between the institutions.
All Acts of the Parliament pertaining to the defence services are public documents and so must be the Rules, framed normally by the federal government, under those Acts. It is the responsibility of the Parliament to examine whether the Rules framed are inconformity with the Act of the Parliament or not. Keeping under wraps the Rules, as has been the case until now, raises serious questions.
One such Act of Parliament relating to defence services is the National Command Authority Act of 2010. About two years ago, the Defence Committee and the Committee on Delegated Legislation of the Senate separately asked for a copy of the Rules framed under the NCA Act but were denied. One hopes that during discussions, the Parliament will also make a fresh bid to look up the Rules to see whether these have been framed in accordance with the 2010 NCA Act or not. After army chief’s extension this indeed would be the most significant next step.
The writer is a former senator