Ball in parliament's court to provide certainty to army chief's post with new law: SC detailed verdict

Updated December 16, 2019

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The Supreme Court has given the parliament six months to legislate on the matter of reappointment of Army Chief Gen Qamar Javed Bajwa. — Reuters/File
The Supreme Court has given the parliament six months to legislate on the matter of reappointment of Army Chief Gen Qamar Javed Bajwa. — Reuters/File

The Supreme Court on Monday released its detailed judgment in the case pertaining to the extension of Army Chief Gen Qamar Javed Bajwa, emphasising that it is now up to the parliament to carry out legislation that will provide "certainty and predictability" to the post of chief of army staff (COAS) for all times to come.

Prime Minister Imran Khan had extended Gen Bajwa's tenure through a notification in August, but the SC had suspended it on November 26 due to irregularities in the manner of extension. After three days of heightened uncertainty, the apex court, through a short order on November 28, had announced that Gen Bajwa would remain the COAS for another six months during which the parliament would legislate on the army chief’s extension/reappointment.

Related: Minister hints at seeking review of SC ruling on COAS extension

"We would like to emphasise that this crucial matter of the tenure of COAS and its extension, which has a somewhat chequered history, is before the Parliament, to fix for all times to come," wrote Justice Syed Mansoor Ali Shah, a member of the three-judge bench which heard the case, in the court's 43-page judgment.

"It is now for the people of Pakistan and their chosen representatives in the Parliament to come up with a law that will provide certainty and predictability to the post of COAS, remembering that in strengthening institutions, nations prosper."

Both Justice Mazhar Alam Khan Miankhel and Chief Justice Asif Saeed Khosa agreed with Justice Shah's judgment, with Justice Khosa saying in his additional note that it had been a "shocking revelation" to the bench that the terms and conditions of service of the COAS, the tenure of his office, extension in the tenure of his office or his reappointment to that office "have remained unregulated by any law so far".

The court summarised its findings after exploring the scope of Article 243 of the Constitution — which governs the army chief's appointment, reviewing the Pakistan Army Act, 1952, reviewing the Pakistan Army Act, 1952, the Pakistan Army Act Rules, 1954, and the Army Regulations (Rules). Some of the key points from the findings are:

  • The Pakistan Army Act, 1952, falls deficient of the structural requirements for raising and maintaining an Army under clause (3) of Article 243 of the Constitution. It does not provide for essential elements required to raise and maintain an Army, particularly the grant of commissions in the Army and the terms of service of the commissioned officers including tenure and extension of a general.

  • No tenure or age of retirement for the rank of general is provided under the law. As per the institutional practice a general retires on completion of a tenure of three years. Although an institutional practice cannot be a valid substitute of the law required to be made under clause (3) of Article 243 yet in the absence of such law the said practice can be enforced to remove uncertainty as to the tenure of a general and to make the constitutional post of COAS functional. However, in the first instance, the matter should be allowed to be regulated by law, made by the legislature, as mandated by the Constitution.

  • There is no provision in the law for extending service of a general for another tenure; nor is there any consistent and continuous institutional practice of granting such extension, which could be enforced in absence of the law on the subject.

  • The summaries of the Ministry of Defence approved by the president, the prime minister and the cabinet for the reappointment, extension and fresh appointment of Gen Bajwa seem to be meaningless and of no consequence, in absence of the law prescribing tenure of a general and providing extension for another tenure.

  • Regulation 255 of the Army Regulations (Rules), in its original as well as amended form, does not confer authority on the Federal Government to grant extension of another full tenure to a general. This regulation provides for only a temporary arrangement for a short term, if the exigencies of service so require in the public interest.

  • Regulation 255 and other Regulations of the Army Regulations (Rules) on the subject of “retirement” appear to be ultra vires the Pakistan Army Act, as Section 176 of the Pakistan Army Act has assigned the subject of “retirement” to be regulated under the Rules and not under the Regulations. The Regulations can be made only for the matters other than those which are to be dealt with under the Rules.

  • Section 176-A of the Pakistan Army Act and the regulations made under it appear to suffer from the excessive delegation of the essential legislative function, as neither that section nor any other section of the Pakistan Army Act provides the essential legislative policy guidelines for making the delegated legislation, viz the regulations, on the subjects mentioned therein.

  • In view of the assurance of the attorney general given on behalf of the Federal Government to process the legislation for meeting the deficiencies in the Pakistan Army Act, in particular, the tenure, age of retirement and if deemed proper, the extension of tenure of a general, it is appropriate to leave the matter, at the first instance, to be decided by the chosen representatives of the people of Pakistan by making an appropriate legislation.

  • 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 COAS regarding administration and organisation of the Army, it is appropriate that the incumbent COAS may continue for a period of six months, in order to preserve continuity of the institution.

The SC has clarified, however, that in case the federal government remains unable to regulate the tenure and terms of service of a general and as a consequence of the army chief through an appropriate legislation by the parliament within a period of six months, "the tenure of the constitutional post of COAS could not be left totally unregulated and to continue forever" because "this would be inconceivable and amount to a constitutional absurdity."

In case of such failure of the federal government, the verdict says, the institutional practice of retirement of a general on completion of the tenure of three years "shall stand enforced" to regulate the tenure of Gen Bajwa and consequentially his tenure as COAS, from the date of his promotion to the rank of general and appointment as the army chief, i.e. November 29, 2016.

In that scenario, "the president shall, on advice of the prime minister, appoint a serving general officer as the new COAS", the judgment adds.

The apex court has in its verdict dispelled the impression that the various summaries prepared by the government after the SC pointed out constitutional and legal flaws in the process of reappointment/extension of Gen Bajwa were drafted on the orders or directions of the SC.

"In fact, the court simply highlighted steps taken by the president, the prime minister and the cabinet, without any supporting law and as a consequence they on [their] own tried to rectify the same. The impression generated that the said steps were taken on the desire, orders or directions of the Court is dispelled."

'The law is above you'

Chief Justice Khosa, who is retiring as the top judge later this week, noted in the judgment that in Pakistan's "peculiar historical context", the army chief "holds a powerful position in ways more than one".

"Unbridled power or position, like unstructured discretion, is dangerous," he said.

The chief justice observed that Clause (3) of Article 243 of the Constitution mandates that the president’s power to raise and maintain the armed forces is to be “subject to law” and, therefore, "leaving some vital aspects relevant to the office of Chief of the Army Staff without being regulated by any law militates against the said express provision of the Constitution".

"In the backdrop of the last three scores and 12 years of our history I may observe with hope and optimism that framing of a law by the Parliament regulating the terms and conditions of the office of [the army chief] may go a long way in rectifying multiple historical wrongs and in asserting sovereign authority of the chosen representatives of the people besides making exercise of judicial power of the courts all pervasive," he wrote.

Justice Khosa concluded his note by using a quote by former chief justice of England Sir Edward Coke to stress the supremacy of the law, writing: "I understand that [the] democratic maturity of our nation has reached a stage where this court can proclaim that, as declared by Chief Justice Sir Edward Coke of England in the Commendam case in the year 1616 regarding the powers of King James I, 'Howsoever high you may be; the law is above you'."