Imran ditched military by allowing SCP to illegally demand constitutional amendment and possible fresh election demand by Maulana. By Hem Raj Jain


It seems the Supreme Court of Pakistan (SCP) is trying to create a bizarre history in the annals of jurisprudence through the November, 28 reported order (on the controversy of extension of Army Chief General Bajwa) where it says that- 5. The learned Attorney-General has categorically assured the Court that this practice being followed is to be codified under the law and undertakes that the Federal Government shall initiate the process to carry out the necessary legislation in this regard and seeks a period of six months for getting the needful done. Considering that the COAS is responsible for the command, discipline, training, administration, organization and preparedness for war of the Army and is the Chief Executive in General Headquarters, we, while exercising judicial restraint, find it appropriate to leave the matter to the Parliament and the Federal Government to clearly specify the terms and conditions of service of the COAS through an Act of Parliament and to clarify the scope of Article 243 of the Constitution in this regard. Therefore, the current appointment of General Qamar Javed Bajwa as COAS shall be subject to the said legislation and shall continue for a period of six months from today, whereafter the new legislation shall determine his tenure and other terms and conditions of service.

The Courts are supposed to give orders / judgments on the basis of existing Laws & Constitution on statute and are not supposed to pass orders [like allowing the appointment of any person (including COAS) etc] on the basis of any legislation which may or may not come in future (next 6 months).

But in this entire controversy Imran Government has clearly ditched the military / General Bajwa. Many spokespersons of Imran Government and of PTI are appearing on TV debates where they are saying that ordinary legislation by simple majority is needed as per said SCP order for carrying out amendment in Army Act and constitutional amendment with two third majority of Parliament is not needed. This raises three important legal / constitutional  questions: -

[1]- The said SCP order clearly mentions that " to clarify the scope of Article 243 of the Constitution in this regard" .  Hence Constitutional amendment will be required in Article 343 as per said SCP order.

[2]- Even for argument sake if it is agreed that only amendment with simple majority in Army Act is required then why Imran Government  did not bring Presidential ordinance which not only could have been subsequently approved by Parliament (with much ease as compared to constitutional amendment) but also would have ruled out the possibility of SCP passing said order which has now unnecessarily made constitutional amendment a legal necessity.

[3]- The Imran Government could have easily brought this Presidential ordinance (for amendment in Army Act) because it is allowed by Article 243 which reads as [243. Command of Armed Forces.—(1) The Federal Government shall have control and command of the Armed Forces. (2) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President. (3) The President shall subject to law, have power— (a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; and (b) to grant Commissions in such Forces (4) The President shall, on advice of the Prime Minister, appoint — (a) the Chairman, Joint Chiefs of Staff Committee; (b) the Chief of the Army Staff; (c) the Chief of the Naval Staff; and (d) the Chief of the Air Staff, and shall also determine their salaries and allowances.] . Under existing Article 243 (4) (b)  the so-called extension / re-appointment of General Bajwa could have easily been termed as appointment in Presidential ordinance.

But now Imran Government either by mistake or by design has invited the burden of getting constitutional amendment which requires two third majority instead of Presidential ordinance which needed merely simple majority.  Given.slender majority of Imran Government in Lower House and even not so in Upper House the chances of getting two third majority for constitutional amendment are very remote especially given the background of Azadi -march, by opposition parties [including PML (N) and PPP] under the leadership of Maulana Fazal-ur-Rehman, which is undergoing plan -C with its main demand of re-election due to alleged illegitimate 2018 elections (because of alleged wide spread election-rigging).

The party JUI-F led by Maulana is a religion based party in theocratic Pakistan which has been talking repeatedly during this Azadi -march (going-on since October 27, 2019) including at 13 days Dharna (sit-in) at Islamabad about Jihad for getting resignation of PM Imran and re-election. Hence it is highly likely that Maulana ( as a leader of opposition parties) will demand re-election so that the new Parliament can legislate on the amendment of Article 243 of the Constitution as mandated by said November 28, 2019  order of Supreme Court of Pakistan.

The tweet of Imran after said SCP order where Imran branded opposition as "mafia within who have stashed their loot abroad and seek to protect their loot by destabilizing the country" will not help the matter about garnering support of opposition for two third majority in Parliament needed for said constitutional amendment.

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