Beware of perilous implications

PPP leader and former Supreme Court Bar Association’s President Aitzaz Ahsan on Wednesday said that it is the constitutional right of any prime minister to appoint the army chief of his choice. “This is a principle of the parliamentary sovereignty. The court should not have intervened in the matter. The Supreme Court is a respectful institution, but the principle of parliamentary sovereignty is also supreme,” he said. India media carried headlines stating “Pakistan top court challenges military over army chief extension”. It is an established fact that appointment and extension of the tenure of COAS is sole prerogative of the Prime Minister, and President of Pakistan is bound to act on the advice of the PM. Though one should not comment on the sub judice matter, but in Pakistan TV channels give running commentary of the proceedings and also speculate on the verdicts. Yet there are voices of dissent that courts are setting the trend of interfering in the matters of executive. There were comments that Chief Justice of Pakistan (CJP) has remarked that the issue is being misunderstood by the media as Suo motto notice. But according to TV channel reports, the petitioner had requested to withdraw its application, and the court order issued on Tuesday stated that the court will take suo motu of the case, as a matter of Public interest under 184(3). The situation on the LoC is precarious and violations by India have resulted in deaths of army personnel and civilians. If India taking advantage of the crisis decides to attack Pakistan, who will command Pakistan Army. Statement by the US Assistant Secretary of State on CPEC needs to be kept in view; and also the fact that Pakistan is gaining stability.
When the legislature is almost suspended due to boycott of opposition and the onus of legislature work is on the President through ordinances, the state stands paralyzed. As pointed out by the Attorney General, extension is not the first of its kind, previous COAS’ were also given extension. Especially the extension of General Kayani was made under similar circumstances by a democratic Government. The case was challenged in IHC which was turned down. In the past, certain SC decisions had created serious problems for Pakistan e.g. Decision on Reko Diq by CJ Iftikhar Chaudhry, which resulted in $6 billion fine on the state. Why the Ex CJ was not held responsible for the cost of his decision? Anyhow, the constitution of Pakistan does not state that a high court or the Supreme Court can strike down a law passed by parliament or a provincial assembly.
What the constitution confers on the superior judiciary is the power to interpret the constitution. It is from this function of the judiciary that the power of judicial review follows. While interpreting some provisions of the constitution, the courts may find that a particular law is in conflict with those provisions. Since the constitution is the fundamental law of the land, any law which conflicts with it shall be void. The legislature has to amend or repeal it. In India, there had been a long tussle between parliament and the Supreme Court on the scope and limits of judicial review. The twenty-fourth amendment to the constitution passed in 1971 authorised parliament to amend any provision of the constitution. However, the Supreme Court retaliated. This led the government of the then Prime Minister Indra Gandhi to introduce the forty-second amendment to the constitution during the proclamation of emergency, which stripped the apex court of the power of reviewing an amendment to the constitution. However, the forty-third and forty-fourth amendments undid the provisions of the forty-second amendment regarding powers of the Supreme Court to judge the validity of constitutional amendments.