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says onus on Parliament to provide certainty to COAS post
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Govt calls special meeting to move forward on issue
By Shakeel Ahmed
ISLAMABAD: The Supreme Court on Monday released its detailed judgement 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.
“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 judgement. “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 judgement, 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.
