Legislation is ‘required’: The Jurists Foundation v Federal Government on the tenure extension of Pakistan’s army chief

ABSTRACT

In The Jurists Foundation v Federal Government, the Supreme Court of Pakistan delivered a significant judgment about the country's Chief of Army Staff (COAS). The Court held that an executive attempt to extend the tenure of the COAS was ‘meaningless and of no consequence’ because Parliament had not legislated on the COAS’ tenure or terms of service. According to the Court, legislation was required on such terms based on ‘structural requirements’ of a repealed constitution and a universal premise that senior officers of the armed forces must be regulated by law. This note argues that the Court's approach is difficult to reconcile with key constitutional principles and that, on a proper understanding of the Court's role, the extension should have been subject to ordinary principles of judicial review.

KEYWORDS:

• Pakistan
• military
• jurisprudence
• separation of powers
• constitutional law

Acknowledgements

I am grateful to Thomas Poole, Tarunabh Khaitan, and Robert Craig for their valuable insights and comments on an earlier draft.

Disclaimer

The views expressed herein are my own and do not represent those of my employer.

Notes

1 ‘Once the COAS is selected … he emerges as the key interlocutor on security and defence arena … he must act as the ultimate grantor of internal stability and order … he is perceived as a potential praetor in the country’s political process’: Saeed Shafqat, ‘Pakistan Military: Sustaining Hegemony and Constructing Democracy?’ (2019) 42 Journal of South Asian and Middle Eastern Studies 33.

2 (2019) Constitution Petition No 39 (Supreme Court of Pakistan (SCP)).

3 ibid [9].

4 Constitution of the Islamic Republic of Pakistan 1973 (the Constitution), art 243(4) reads as follows:

The President shall, on advice of the Prime Minister, appoint— … (b) the Chief of the Army Staff; … and shall also determine their salaries and allowances.

5 The Jurists Foundation (n 2) [50].

6 The relevant legislation was the Pakistan Army Act 1952 but it was considered to be silent on these matters.

7 See section 2 below. In essence, the Constitution of Pakistan 1956 imposed an obligation on Parliament to enact laws relating to Pakistan's armed forces.

8 The Jurists Foundation (n 2) [50].

9 The Constitution of Pakistan 1956 was repealed by the Constitution of Pakistan 1962, which was later repealed by the Interim Constitution of Pakistan 1972. Article 266 (Repeal) of the present Constitution repealed the Interim Constitution.

10 I refer to the principle as articulated by Jeremy Waldron as ‘the principle of the separation of the functions of government from one another’: Jeremy Waldron, ‘Separation of Powers in Thought and Practice’ (2013) 54 Boston College Law Review 433, 438. The importance of the principle is predicated on the vital distinction between various functions of governance—legislative, adjudicative, and executive—considered in and of themselves.

11 For a contemporary example, consider R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (United Kingdom Supreme Court)—where the United Kingdom Supreme Court held that an Act of Parliament, rather than an Executive notification, would be required to give notice for the United Kingdom to leave the European Union.

12 In Pakistan, state institutions can only act in accordance with the Constitution. The Court explained the effect of this in Asma Jilani v Government of the Punjab PLD 1972 SC 139 [70]–[71]. Importantly, the judiciary cannot declare any of the Constitution’s provisions void or ineffective. The principle of constitutional supremacy is also codified in various articles of the Constitution itself—see in particular, the Constitution, art 141, which outlines that Parliament can only make laws ‘subject to the Constitution’ (emphasis added).

13 The Constitution, art 243(1).

14 The Constitution, art 243(2).

15 The Constitution, art 243(3) reads as follows:

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.

16 The Jurists Foundation (n 2) [27].

17 The relevant provisions from art 40 of the Constitution of Pakistan 1956 are:

(1) The Supreme Command of the Armed Forces shall vest in the President, and the exercise thereof shall be regulated by law. (2) Until Parliament makes provision by law in that behalf, the President shall have the power—(a) to raise and maintain … the Military …    … (c) to appoint the Commanders-in-Chiefs of the Army … and determine their salaries and allowances.

18 The Jurists Foundation (n 2) [15]–[18].

19 The Jurists Foundation (n 2) [22].

20 ibid [19]. The Court outlined a comparative table of the military laws of the United States, Australia, Canada, Singapore, Malaysia, and New Zealand to show that laws had been enacted in respect of certain structural areas (including the terms and conditions of senior officers) by legislative bodies.

21 ibid [21].

22 ibid [18]–[27].

23 ibid [27].

24 ibid [14].

25 See n 9.

26 The Jurists Foundation (n 2) [27]. The actual ambiguity concerned the laws applying to the COAS.

27 See Pakistan Lawyers Forum v Federation of Pakistan PLD 2005 SC 719 [75] (SCP) on the task of the court: ‘[i]f the words are clear and unambiguous it needs no external aids for interpretation’.

28 Diggory Bailey and Luke Norbury, Bennion on Statutory Interpretation (7th edn, Butterworths 2017) Ch 24.6.

29 The Jurists Foundation (n 2).

30 The Court acknowledged the textual differences between the Legacy Article and the General Provision but did not consider their effect: ibid [15].

31 ibid [29].

32 The Act was silent on these matters and the institutional practice was that such tenure would be of three years.

33 The Jurists Foundation (n 2) [29].

34 The Constitution, art 240. The relevant provisions of art 240 read as follows:

Subject to the Constitution, the appointments to and the conditions of persons in the service of Pakistan shall be determined—(a) in the case of the services of the Federation … by or under Act of Majlis-e-Shoora (Parliament) … 

35 We will explore the Court’s treatment of the Appointment Provision in s 5.

36 In the Constitution, art 240 sits under Ch 1, titled ‘Services’, whereas art 243 sits under Ch 2, titled ‘Armed Forces’. As such, art 240 also applies to civil servants and other members of service—it does not provide a special legislative mandate for the armed forces.

37 The Jurists Foundation (n 2) [50].

38 ibid [32] (emphasis added).

39 As discussed above, it is difficult for the duty to be carried forward by the mere phrase ‘subject to law’.

40 The Jurists Foundation (n 2) [32].

41 As a matter of structure—beyond art 240, there are no other provisions in the Constitution which could be said to impose an obligation on Parliament to enact laws, either generally or in respect of the armed forces. Parliament does retain discretion to make rules regulating a select number of categories, including parliamentary procedure and the custody of public funds. However, in each case, the drafting mirrors the language of the Legacy Article, namely that ‘until provision is made by [Parliament]’ another officer may exercise a certain power.

42 The Jurists Foundation (n 2) [18].

43 ibid [17].

44 ibid [16].

45 The Court has previously confirmed it is not appropriate to substitute its views for Parliament’s legislative choices; see Pakistan Lawyers Forum (n 27) [90].

46 The Constitution, art 238, 239.

47 See Asma Jilani (n 12) [70] where the Court held it was not possible for any document other than the lawfully adopted written Constitution to be given ‘a similar or higher status’.

48 The Jurists Foundation (n 2) [20].

49 There are various examples of South African cases where the courts have intervened and relied on the ‘governing principles’ in Chapter 9 of the 1996 Constitution to prevent any interference with the independence of these institutions. Most notably, see Glenister v President of the Republic of South Africa [2011] ZACC 6 (Constitutional Court of South Africa), where the Constitutional Court emphasised the meaning and importance of these institutions being independent.

50 Tarunab Khaitan, ‘The Importance of Fourth Branch Institutions to Constitutional Democracy’ (Indian Constitutional Law and Philosophy2019) <www.indconlawphil.wordpress.com/2019/04/07/the-importance-of-fourth-branch-institutions-to-constitutional-democracy-guest-post/> accessed 24 August 2020.

51 Fourth branch institutions could include constitutional courts, electoral commissions, human rights commissions, and central banks. For an insightful paper on the normative theory behind fourth branch bodies, see Tarunabh Khaitan, ‘The Guarantor Branch’ SSRN <papers.ssrn.com/sol3/papers.cfm?abstract_id=3766137> accessed 7 June 2021.

52 AJ Brown, ‘The Fourth, Integrity Branch of Government: Resolving a Contested Idea’ (Australian Political Studies Association Presidential Address 2018) <www.auspsa.org.au/wp-content/uploads/2020/09/Brown-A-J-2018-Fourth-Integrity-Branch-of-Government-APSA-Presidential-Paper.pdf> accessed 26 May 2021.

53 ibid.

54 The Jurists Foundation (n 2) [8].

55 It is difficult to identify a constitutional norm that the army has a specific responsibility to ‘guarantee’.

56 In Muhammad Hussain v Sikandar PLD 1976 SC 57 (SCP), the Court confirmed that it was not open to it to ask the legislature to make or unmake law.

57 This approach also departs from established precedent. In Asma Jilani (n 12), the Court established that the judiciary cannot declare any of the Constitution’s provisions void or ineffective.

58 Judicial review in Pakistan is, in part, inspired from 20th century English public law. Under ultra vires principles, administrative action must not exceed the powers that the law confers onto a public officer holder. An action may also be reviewed for the lawfulness of the manner in which certain powers are exercised. For instance, an act may be unlawful because it was unreasonable; see Muhammad Sharif v Federation of Pakistan PLD 1988 Lahore 725 (Lahore High Court).

59 The Jurists Foundation (n 2) [10].

60 ibid.

Additional information

Notes on contributors

Raza Nazar

Raza Nazar is an Associate in the Disputes and Investigations group at Slaughter and May in London. He read law (LLB) as an undergraduate at the London School of Economics and Political Science. His main interests include constitutional theory and jurisprudence.