Passage of Army Act: Constitutional, legal questions to be addressed by apex court: expert

The passage of the bill to amend Pakistan Army Act, 1952, will not have any bearing on the review petitions as constitutional and legal questions raised therein need to be addressed by the apex court, said a legal expert while talking to this correspondent.

Mohammad Azhar Siddique, a constitutional lawyer, said many issues have been outlined in the petitions that need to be examined and decided by the apex court in order to remove confusion and anomalies on several issues such as maintainability, direction to legislate with certain riders to Parliament and indirect interpretation of Article 243 of the Constitution as no condition regarding extension/re-appointment of army head chief has been laid down in the Article.

The review petitions submitted by the federal government and Chief of Army Staff General Qamar Javed Bajwa have raised questions of law against the judgement. It is argued that the apex court can not interfere in the legislative domain or equip itself with the function of a parallel legislative authority. "It is respectfully pointed out that the direction to the legislature could only be given by the courts so as to avert a situation of unconstitutionality or illegality. No judicial directions to the legislature could be given so as to convert a convention into codified law," reads the government petition.

A three-judge bench, headed by former Chief Justice of Pakistan Asif Saeed Khan Khosa, granted six months' extension to COAS General Bajwa on 28-11-2019 and directed Parliament to legislate during this period determining his tenure and other terms and conditions of service.

The federal government on 1st January, 2020, in pursuance of the order, approved amendments to the Army Act.

However, several senior lawyers maintain that there is a contradiction between the government's acts and deeds, as on the one hand in compliance of the Supreme Court direction it has approved the amendments in Army Act, 1952 and started the process to lay it before the Parliament, while on the other it has filed review petitions challenging the November 28 order of Supreme Court.

Sheikh Ahsanud Din, former President Lahore High Court, Rawalpindi bench, said the government, particularly the Law Minister Farough Naseem, has made the institution of army controversial, adding there was no need to file review petitions if they approve the amendments in the Army Act.

He said the government does not appear to have good intentions as the petitions would generate unnecessary discussion about army and the post of army chief.

Kamran Murtaza, former vice-chairman Pakistan Bar Council, said the government has mishandled this issue from the beginning, adding that the government can withdraw the review petition or court may dispose them by ruling that its directions have been complied with.

Kamran Murtaza warned that in case the court declines the requests and passes adverse observations then it will create further problems for the government.

Iftikhar Gilani, a senior lawyer, suggested that the government while withdrawing the petitions may ask the court to expunge certain observations or address other issues in the judgment. But it is up to the apex court to accept or reject the government plea, he added.

Hashmat Habib said the government filed the review petitions and approved the amendments in the Army Act to satisfy General Bajwa that they are very serious about his extension.