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Wording of services chiefs bills sparks controversy

A controversy has cropped up over the drafting of services chiefs bills passed by parliament on Wednesday: whether the bills have bestowed more discretionary powers upon the president to give his consent or not in case of reappointment of services chiefs and extension in their tenures.
. Current Affairs Digest by Dr Safdar Mahmood

The question arose soon after a series of tweets by senior lawyer Salman Akram Raja. He wondered why the word “may” was written instead of “shall” in the clauses of the bills concerning reappointment of chiefs of the army, navy and air force and chairman of the joint chiefs of staff committee (CJCSC).

For instance, clause 8A of a bill to amend the Pakistan Army Act 1952 regarding appointment of the COAS (chief of the army staff) says: “The president shall, on the advice of the prime minister, appoint a general as chief of army staff, for a tenure of three (03) years.”

 

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However, clause 8B, which is about reappointment or extension in tenure of the COAS, states: “Notwithstanding anything contained in the Act or any other law of the time being in force, the president, on the advice of the prime minister, may reappoint the COAS for additional tenure of three(03) years, or extend the tenure(s) of the COAS up to three years, on such terms and conditions, may be determined by the president on the advice of the prime minister, in the national security interest or exigencies, from time to time.”

 

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On the other hand, Minister for Science and Technology Fawad Chaudhry and former law minister Farooq H. Naek of the PPP ruled out the possibility of any controversy over the bills and said the word “may” was always considered “shall” in such constitutional documents and in case of any contradiction between amendments to army, navy and air force rules and the Constitution, the latter would prevail as it is the supreme document.

Salman Raja in his tweets also pointed out a clause in the law suggesting that any decision taken in this regard cannot be called into question before any court and said even this provision could be challenged before the superior judiciary since its jurisdiction cannot be ousted through a subordinate law.

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Talking to Dawn, he said the advice of the prime minister to the president under Article 48 of the Constitution was binding upon the latter and, therefore, no discretion in favour of the president can be created.

“More than a bit surprised by the Army Act amendment bill passed yesterday. It says the President ‘may’ re-appoint or extend the chief on the advice of the PM. This contrast with the use of the word ‘shall’ for the original appointment,” he tweeted

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