Stop misleading through misinterpretation

The leading constitutional expert Salman Akram Raja in his tweets stirred controversy on the use of ‘may’ and ‘shall’, which has been criticized by section of legal community and the media. In regard to the amendment to Army Act he tweeted: “The exercise of power to re-appoint/extend by the President under Article 243 is bound by the PM’s advice under Article 48. The proposed amendment that seeks to convert re-appointment/extension into a function in exercise of the President’s discretion appears ultra vires Articles 243 and 48.” He interpreted the clause on the basis of the word ‘may’ differentiating with ‘shall’. In another tweet he stated: “The bill then says the exercise of ‘discretion’ by the Appointing Authority in the matter of re-appointment/ extension will not be called in question in any court. The bill has made re-appointment or extension a presidential function in the domain of his discretionary powers!”
With due respect the analysis offered by the Mr. Salman Akram Raja Advocate with regard to the recently inserted section 8-B of the Pakistan Army Act, 1952 (and other provisions in the Navy and Air Force Statutes) is patently incorrect and misleading. There is a plethora of law cases on the point that the words “may” and “shall” are interchangeable. Mr. Salman Akram Raja should look at the judgments of the Hon’ble Supreme Court of Pakistan which says this, including M. Saleh vs Chief Settlement Commissioner (PLD 1972 SC 326), Ghulam Qadir vs Deputy Commissioner 1984 SCMR 493 and M. Tajamul Hussain vs Shoukat Mahmood (PLD 2007 SC 277). The context of the recent amendments in the statutes pertaining to Armed Forces is that the first appointment of the COAS is to be mandatorily effected by the President upon the advice of the Prime Minister.
In other words, the position of the COAS cannot be left vacant. However, with regard to reappointment or extension, it is not mandatory that the person who has already been appointed as the COAS has to be mandatorily re-appointed or an extension is to be given to him. The amendment, by use of the word “may” in section 8-B of the Army Act stipulates that the Prime Minister may or may not give advice for re-appointment or extension. The amendment does not at all suggest that the President can ignore the advice of the Prime Minister with regard to the appointment or extension, once such advice is given, which is a case in point.
The Supreme Court in its recent order dated 28.11.2019 had directed that since Article 243(3) had required the President to raise and maintain an Army “subject to law”, the “re-appointment” or “extension” now being provided through a statute, also has its origins in the constitutional power being derived from Article 243 of the Constitution. In other words, the basic exercise of power for reappointment or extension of COAS also emanates from the Constitution i.e. Article 243 thereof. This further means that in terms of Article 48 of the Constitution, a constitutional power is to be exercised by the President upon the advice of the Prime Minister or the Cabinet, except where it is specified that the President has to act in his own discretion. This has been so held by the Supreme Court in Al-Jehad Trust PLD 1997 SC 84.
It is needless to stress that any “re-appointment” or “extension” fundamentally is an “appointment” in the first place, which is spelt out in Article 243(4) (b) of the Constitution. Conspicuously, section 8-B of the Army Act does not say that the President can act in his own discretion for the purposes of re-appointment or extension. Upon what basis Mr. Salman Akram Raja is saying that under section 8-B the President can ignore the Prime Ministerial advice, which is a mystery. It is not just in Pakistan where the words “may” and “shall” are used interchangeably; the Indian Supreme Court has also employed the rule that the use of word “may” is not determinative that this power is permissive.
Some judgments given by the Hon’ble Supreme Court of India which are reported as P.T. Rajan vs Sahir (2003) 8 SCC 498, UP State Electricity Board (2004) 8 SCC 402 and Dilip vs State AIR 2015 SC 2887 do not support the learned advocate. One could also see the vague analysis of Mr. Shaiq Usmani, Advocate which is to the effect that the judgment of the Supreme Court dated 28.11.2019 had required a constitutional amendment and not legislation through a simple majority. This really means that Mr. Shaiq Usmani has not even bothered to read the judgment of the Supreme Court, which does not require a constitutional amendment but through the act of Parliament.