Judicial restraint not be confused with doctrine of necessity

[ahlam1399]

ISLAMABAD: The Supreme Court’s detailed judgement on reappointment/extension of Gen Qamar Javed Bajwa mentioned for at least six times the words “legal vacuum” regarding the tenure, age of retirement and other terms of service of the top commander and army generals.Meanwhile, the verdict also said that the exercise of judicial restraint [by the apex court in this case] may not be mixed up or confused with the infamous and unpopular application of the doctrine of necessity, which amounts to going against the law of the land to attend to some political or other goal.The widely condemned doctrine of necessary was at times applied by the superior courts in the past in cases of political nature mostly involving dissolution of assemblies and dismissal of governments. The instant ruling explained that the doctrine was put into action against the law of the land.This is not so in the present case where there is no law; in fact, there is a total legal vacuum regarding the tenure of a General, the judgement said adding that it is also instructive to refer to the spirit of Article 203D of the Constitution where, under the Supreme Court, can direct the federal government to initiate process for making appropriate legislative amendments in the relevant law and can grant reasonable time for doing the needful.At one place, the ruling said after detailed examination of the laws relating to the army chief it is concluded that there is no provision providing for the tenure and age of retirement of a general and as a consequence of the army chief, as well as, for the extension of tenure or fresh appointment for another tenure.The summaries initiated by the Ministry of Defence and approved by the president, the prime minister and the cabinet, for the reappointment, extension and fresh appointment of the army chief seems to be meaningless and of no consequence in this legal vacuum.The judgement again referred to the legal vacuum when it said when confronted with the legal vacuum regarding the tenure, age of retirement and other terms of service of a General, the Attorney-General candidly responded that there is an unwritten institutional practice in vogue since long whereby the tenure of a General is considered to be of three years. He admitted that no tenure or age of retirement of a General has been provided under the law. Perusal of the earlier notifications placed before us relating to the former army chiefs and the process of reappointment, extension and fresh appointment of the incumbent, pre-suppose a fixed tenure of three years for a General/army chief. An institutional practice followed continuously and consistently by an institution for a considerable period of time may be used to resolve a controversy, in the absence of the law.At yet another place, the verdict said that the attorney-general assured the bench that necessary legislation will be brought into effect within six months to plug this legal vacuum. Again, it said that in this state of legal vacuum regarding the tenure of an army chief and in the light of the assurance given by the federal government to address these issues through fresh legislation within six months, the bench considering that the army chief is the commanding officer of the Pakistan Army and is responsible for the command, discipline, training, administration, organisation and preparedness for war of the military and in order to preserve smooth functioning of the Pakistan Army, finds it appropriate to allow the current status of the army chief to continue for a period of six months, where after the new legislation (Act of the Parliament) shall determine his tenure and other terms of his service.The judgement also said that in view of the legal vacuum regarding tenure and extension of a General and the assurance given by the attorney-general to process legislation on the subject within six months, and also considering the importance of the responsibilities of the army chief regarding administration and organisation of the army, it is appropriate that the incumbent army chief may continue for a period of six months, in order to preserve continuity of the institution.http://feeds.feedburner.com/~r/com/cwEr/~4/H0B7abOCcOA

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