• Authored by Justice Shah, 42-page verdict says there is no provision in law for extending service of army chief for second tenure

• CJP observes regulating term of COAS office may go a long way in rectifying multiple historical wrongs

• Verdict says president to appoint new chief on PM’s advice if parliament fails to regulate COAS tenure

ISLAMABAD: The Supreme Court on Monday held that Chief of the Army Staff (COAS) Gen Qamar Javed Bajwa would stand retired after six months unless parliament allowed him extension of tenure by amending the relevant army laws.

In the eventuality the parliament failed to regulate the tenure and terms of service of army general and COAS, the president would appoint a serving general as the new army chief on the advice of the prime minister, the apex court pronounced in a detailed judgement.

The 42-page verdict authored by Justice Syed Mansoor Ali Shah of a three-member bench, headed by Chief Justice Asif Saeed Khosa, said it was inconceivable that the constitutional appointment to the COAS post was unregulated under a written Constitution. It said: “The crucial matter of the tenure of COAS and its extension, which has somewhat a chequered history, is before the parliament, to fix for all times to come and 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, nation prospers.”

On Nov 28, after three days of tumultuous situation, the Supreme Court in a short order had allowed extension of tenure/reappointment of army chief Gen Bajwa for another six months. The extension had come on a challenge by Advocate Riaz Hanif Rahi.

While attending to different criticism, the detailed verdict also explained that the exercise of “judicial restraint” by the SC should not be confused with the infamous and unpopular application of the “doctrine of necessity” that amounted to going against the law of the land for some political or other goal. This was not so in the present case where there was no law, in fact there was a total legal vacuum regarding the tenure of the general, the order said.

In his additional note, the chief justice observed that [for] an army chief who held a powerful position, any unbridled power or position like unstructured discretion was dangerous.

It was a shocking revelation that the terms and conditions of the service of COAS, the tenure of his office, extension in the tenure of his office or his reappointment to that office had remained unregulated by any law so far, the chief justice said.

“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 COAS 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,” the chief justice said.

Democratic maturity of the nation had reached a stage where this court could 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”, the chief justice said.

In the detailed verdict, Justice Shah wrote that the court explored the scope of Article 243 of the Constitution, reviewed the Pakistan Army Act, 1952, the Pakistan Army Act Rules, 1954, and the Army Regulations (Rules) and found that the Pakistan Army Act, 1952 fell deficient of the structural requirements for raising and maintaining the army under Article 243 (3). “It does not provide for essential elements required to raise and maintain the army, particularly the grant of commissions in the army and the terms of service of the commissioned officers including tenure and extension of the general.

“Moreover, the terms of service of the general regulate the tenure and other terms of service (except salary and allowances) of the post of COAS. The salary and allowances of the COAS are to be determined by the President under Article 243(4) of the Constitution,” the judgment explained.

The verdict observed that no tenure or age of retirement for the rank of army general was provided under the law. It noted that as per institutional “practice”, a general retired on the completion of three-year tenure.

Although an institutional practice cannot be a valid substitute of the law required to be made under Article 243(3) yet in the absence of such law, the institutional practice can be enforced to remove uncertainty as to the tenure of the general and to make the constitutional post of COAS functional. But the matter should be allowed to be regulated by law, made by the legislature, as mandated by the Constitution, according the Supreme Court.

The judgement explained that there was “no provision in the law” for extending service of army general for another tenure, nor was there any consistent and continuous institutional practice of granting such extension, which could be enforced in the absence of the law on the subject.

The summaries of the Ministry of Defence approved by the President, PM and his cabinet for the reappointment, extension and fresh appointment of Gen Bajwa seemed to be “meaningless and of no consequence in absence of the law” prescribing tenure of the general and providing extension for another tenure, the Supreme Court ruled.

Army rules

Regulation 255 of the Army Regulations (Rules), in its original as well as amended form, did not confer authority on the federal government to grant extension of another full tenure to the general, the verdict said, explaining that this regulation provided for only a temporary arrangement for a short term if the exigencies of service so required in the public interest.

The Regulation 255 and other regulations of the Army Regulations (Rules) on the subject of retirement appear to be ultra vires the Pakistan Army Act (PMA) since Section 176 of the PMA had assigned the subject of “retirement to be regulated under the rules and not under the regulations”, the SC verdict observed.

Section 176A of the PMA and the regulations appeared to suffer from the excessive delegation of the essential legislative function, as neither provided the essential legislative policy guidelines for making the delegated legislation, viz. the regulations, according to the judgement.

The SC in its detailed order observed that it was appropriate to leave the matter to be decided by the chosen representative of the people by making an appropriate legislation.

Published in Dawn, December 17th, 2019