ISLAMABAD: A controversy has cropped up over the drafting of services chiefs bills passed by parliament on Wednesday: whether the bills have bestowed more discretionary powers upon the president to give his consent or not in case of reappointment of services chiefs and extension in their tenures.

The question arose soon after a series of tweets by senior lawyer Salman Akram Raja. He wondered why the word “may” was written instead of “shall” in the clauses of the bills concerning reappointment of chiefs of the army, navy and air force and chairman of the joint chiefs of staff committee (CJCSC).

For instance, clause 8A of a bill to amend the Pakistan Army Act 1952 regarding appointment of the COAS (chief of the army staff) says: “The president shall, on the advice of the prime minister, appoint a general as chief of army staff, for a tenure of three (03) years.”

However, clause 8B, which is about reappointment or extension in tenure of the COAS, states: “Notwithstanding anything contained in the Act or any other law of the time being in force, the president, on the advice of the prime minister, may reappoint the COAS for additional tenure of three(03) years, or extend the tenure(s) of the COAS up to three years, on such terms and conditions, may be determined by the president on the advice of the prime minister, in the national security interest or exigencies, from time to time.”

Minister, PPP leader say word ‘may’ is always considered ‘shall’ in constitutional documents

On the other hand, Minister for Science and Technology Fawad Chaudhry and former law minister Farooq H. Naek of the PPP ruled out the possibility of any controversy over the bills and said the word “may” was always considered “shall” in such constitutional documents and in case of any contradiction between amendments to army, navy and air force rules and the Constitution, the latter would prevail as it is the supreme document.

Salman Raja in his tweets also pointed out a clause in the law suggesting that any decision taken in this regard cannot be called into question before any court and said even this provision could be challenged before the superior judiciary since its jurisdiction cannot be ousted through a subordinate law.

Talking to Dawn, he said the advice of the prime minister to the president under Article 48 of the Constitution was binding upon the latter and, therefore, no discretion in favour of the president can be created.

“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 contrast with the use of the word ‘shall’ for the original appointment,” he tweeted.

Section 8B (2) of the bill says: “Notwithstanding anything contained in this act or any other law, or any order or judgement of any court, the appointment, reappointment or extension of the COAS, or the exercise of discretion by the appointing authority in this regard, shall not be called into question before any court on any ground whatsoever.”

In another tweet, Mr Raja said: “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! 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 [of the Supreme Court] that discretion has not been exercised on the basis of objective facts? It does not.”

In another tweet, he said: “The exercise of power to re-appoint/extend by the President under Article 243 is bound by the PM’s advice under Article 48. The proposed amendment that seeks to convert re-appointment/extension into a function in exercise of the President’s discretion appears ultra vires Article 243 and Article 48.”

Thus the law, according to the counsel, was ultra vires of the Constitution and can be challenged before courts.

Pakistan Bar Council (PBC) vice chairman Syed Amjad Shah conceded that the law could be challenged before courts, but said no one would dare challenge it in view of the heavy majority with which the bill was passed in both houses of parliament — the National Assembly and the Senate. Through the law, he added, the prime minister had been vested with the power to grant extension in tenure of the army chief, but the authority had not been structured.

This means that the concept of civil supremacy will remain a pipedream since no parameters have been determined to explain which circumstances or what exigencies exist that warrant the grant of extension in service tenure of the army chief in future.

Former judge Shaiq Usmani said the law passed by parliament could be challenged before the court since it militated against the Constitution, adding that instead of amending the Army Act, the government should have brought changes in Article 243 through a constitutional amendment.

A senior lawyer on condition of anonymity said the constitutional jurisdiction of the Supreme Court could not be controlled, curtailed or ousted through ordinary legislation. “This means the possibility of judicial intervention in future remains open,” he said.

Fawad Chaudhry said there was no controversy over the bills as under Article 48 of the Constitution, the president was bound to act on the advice of the prime minister. He said that as a “principle of drafting” the word “may” was written in those places where something was not done according to the right of someone, but on the basis of discretionary powers. “Therefore, the word ‘may’ was used in the clauses where the prime minister will use his discretionary powers [like reappointment of COAS or extension in his service],” he added.

Senior lawyer Farooq Naek said that under Article 48, if the president rejected any advice of the prime minister and it was again sent to the president, he [president] had to accept it. He, however, said that those who had drafted the services chiefs bills should not have mentioned the word “may”.

Published in Dawn, January 9th, 2020