COAS appointment: Will SC interfere to nip the potential crisis in bud?

As the controversy over the question of the appointment of the new army chief persists and conjectures are on the rise, the arbitrary role of the Supreme Court has once again gained weightage.

While some legal experts are of the view that the top court must remain aloof from the all-important military’s change of guard takes place, others reckon there is a chance of intervention from the court if a procedural lapse in the process occurs.

Although reports have indicated that the civil and military leaderships are liaising on the matter for a smoother process, dark clouds are hovering over the twin cities.

The court of the last, which has arbitrated contestations between political elites and stakeholders in order to nip serious constitutional crises in the bud, has been compelled to play a tutelary role of its own to restrain extra-constitutional steps in the rest past.

Senior lawyers believe that the Supreme Court must in principle refrain from interfering in the matter but suggest that the superior courts' judges should remain vigilant as they have been on previous occasions when a timely restraining order became the need of the hour.

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In August 2014, an SC bench led by ex-chief justice of Pakistan Nasir ul Mulk had to restrain all state functionaries from taking any extra-constitutional steps as both PTI and PAT were holding protests and sit-ins in the federal capital.

The court in its three-page order also asked the functionaries to act only in accordance with the constitution.

“All state authorities and functionaries are directed to act only in the accordance with the constitution and the law, who shall be guided by the principles of the constitution and Law enunciated in the case of Sindh High Bar Association 31, 2009 verdict and they are restrained from acting in any manner unwarranted by the constitution and law," said the court order, passed on August 15, 2014

Earlier, the same order was passed by a seven-member bench on November 3, 2007, against the promulgation of emergency and PCO.

On August 13, 2014, the then chief justice of Pakistan constituted a four-member bench to hear a plea of the Supreme Court Bar Association (SCBA), seeking a declaration that any extra-constitutional steps should be restrained in light of the present situation of the country.

The petition, filed by then SCBA president Kamran Murtaza, also sought a declaration that the fundamental rights of the citizens of the country should not be violated by any authority or state functionaries.

Recently, the Supreme Court set aside a ruling by the deputy speaker of the national parliament that had blocked an opposition-led vote of no confidence against former prime minister Imran Khan.

The controversial house ruling led to the dissolution of the National Assembly by President Arif Alvi, acting on Imran’s advice. The president had also called for fresh elections in 90 days and appointed Imran as the interim chief executive after the prime minister dissolved his cabin.

A three-judge bench of the apex court led by CJP Umar Ata Bandial barred all state institutions from taking any “extra-constitutional” steps in the wake of the dismissal of the no-confidence vote against Imran Khan and the subsequent dissolution of the National Assembly by the president.

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The extraordinary order from the top court was issued on Sunday. Usually, SC justices do not take up cases on the weekly holiday.

‘Procedural lapse’

Commenting on the possibility of an intervention from the top court a la its previous arbitrations, lawyers said there was a chance of such an event taking place only in case there was a procedural lapse in the process of the army chief's appointment.

"We have a deepening and fluid crisis at our hands. However, I do not foresee any significant risk of an extra-constitutional step(s). This does not preclude a possible procedural lapse or anomaly necessitating a Supreme Court intervention to clarify and resolve a plausible deadlock or a standoff," says former additional attorney general Tariq Mahmood Khokhar.

Another lawyer said that in case the matter ended up in the apex court, the composition of the bench will be crucial.

Since February, CJP Bandial has not formed larger/ special benches on the basis of seniority rather there were other considerations in his mind. There is also a strong perception of SC judges' division on ideological lines.

However, all current SC judges are beneficiaries of the lawyers' movement and there was a unity within superior courts that no unconstitutional step will be allowed in the prevailing situation.

Meanwhile, a constitutional petition has already been filed in the apex court requesting to issue direction to the prime minister and defence ministry to appoint the senior most/experience lieutenant general as chief of army staff to settle the issue forever in the interest of justice/state.

The petition is filed through Talib Hussain Maikan Advocate.