by Prakhar Raghuvanshi 1 February 2020
A series of convulsive events unravelled in Islamic Republic of Pakistan (Pakistan) in recent past. In August 2019, Pakistan’s government extended Army Chief General Bajwa’s term for 3 years. The Supreme Court of Pakistan (SCP) suspended the extension stating that there is no provision for extension or reappointment of Army Chief under the Constitution or the law. The latest development on the issue is that Pakistan’s Parliament in January 2020 has passed three bills to give effect to General Bajwa’s extension. What is the reason behind Pakistan’s willingness to not let go of General Bajwa is something of political importance. The Foreign Minister of Pakistan claimed that the extension was use of constitutional authority and was necessary to remind country’s neighbours that there is clarity and unity in Pakistan’s leadership. What I intend to argue in this article revolves around the principle of constitutionalism.
Article 243(4) of The Constitution of the Islamic Republic of Pakistan (Constitution) confers the power of appointing Chief or Armed Forces on the President of Pakistan. It is pertinent to note that there is provision of appointment only, the Article nowhere mentions reappointment or extension of term. Pakistan argued that extension was given under Army Regulation 255 by the Prime Minister and hence is valid, the SCP rejected the argument on grounds that Army Chief is not governed by the regulations in question. The Federal Cabinet amended the said regulations after the SCP suspended the extension, to include extension of tenure of Army Chief. This a fundamentally flawed way of addressing the issue. The appointment as mandated by the Constitution falls within the exclusive domain of President’s powers, the same power cannot be granted to the Prime Minister. The head of the State and head of the executive shall operate in their respective domains and adhere to the principle of separation of power.
The quintessential principle of constitutionalism envisages limited government or limitation on government. It is antithesis of arbitrary powers. The principle of constitutionalism in this case would envisage limitation on appointment of Chief of Armed Forces which includes reappointment, tenure and appointment only by the President. Therefore, although the appointment was suspended, the amendment in Army Regulations is yet another arbitrary exercise of power and shall be criticized for being violative of the fundamental principles which form the base of constitutions around the globe. Using powers to go beyond what is permitted for any reason is nothing but mockery of the constitution.
Ethics of Basic Structure
People who are familiar with Indian Constitutional Jurisprudence are well aware of the basic structure doctrine. The basic structure doctrine envisages the concept of limited power of the Parliament to amend the constitution. It bars the Parliament from using Article 368 of the Constitution of India to amend the basic structure of the Indian Constitution. Put in other words, the basic structure doctrine is an extension of the principle of constitutionalism. In 2016, South Asia saw a constitutional convergence when the SCP adopted this doctrine, in words of Salient Features Doctrine (SFD). SFD recognizes the power of judicial review of SCP in constitutional amendments. Amendments against the salient features of the constitution are liable to be struck down by court. Parliamentary form of government and independence of judiciary are held to be a salient feature of the government. The SCP expressly stated “no change in basic feature of the constitution is possible through amendment”, but provides for a different terminology than basic structure doctrine.
Since Parliamentary form of government mandates separation of powers, it will be violative of the SFD if the chief of armed forces is appointed/ reappointed or given extension by the Prime Minister. It will distort the very root of the constitution. Nonetheless, in particular, the Pakistan Army (Amendment) Act, 2020 will bring a crack in the recently established SFD. Section 8B of the bill provides –
“Notwithstanding anything contained in this Act or any other law, or any order or judgment of any Court, the appointment, reappointment or extension of the Chief of the Army Staff, 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.”
The extremely clever use of the word “appointing authority”, from past experiences, can be said to be aimed at conferring the power upon the Cabinet/Prime Minister by citing any exigency, which again threatens the SFD by cracking the fundamental of Parliamentary form of government. Moreover, the non-obstante clause barring judicial review of the process hits the indispensable requirement of conferment with SFD, it stands in the way of independent judiciary.
The arguments made above bring us to the point from where we started, is this a case for General Bajwa or Constitution. Who needs protection General or Constitution ? No doubt it’s the Constitution. Arguing purely from an academic perspective, I refrain from commenting upon the political wisdom of the government of Pakistan but the it’s high time for Pakistan to realize the Constitutional values embedded in their Constitution as well the universally accepted principles of Constitutional Law. If not, one won’t be surprised if another suspension of Constitution takes place in Pakistan.