–Detailed SC verdict states only simple legislation is required for extending COAS’ tenure
—Failure to carry out legislation within six months would lead to Gen Bajwa’s retirement, court warns
ISLAMABAD: The Supreme Court (SC), in its detailed verdict on the army chief’s term extension, has rested the responsibility on the government to get the legislation passed in order to provide clarity for all times to come and added that no constitutional amendment is required for the purpose.
In the 43-page judgement, the three-member bench which heard the case stated that the “crucial matter of the tenure of COAS [chief of army staff] and its extension, which has a somewhat chequered history, is before the parliament, to fix for all times to come”.
“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,” the verdict added.
As per the verdict, the government is just required to pass simple legislation, which would only require a simple majority, to give legal cover to the army chief’s job extension.
On November 26, the apex court suspended the notification issued by Prime Minister Imran Khan for the army chief’s extension in August over technical irregularities. The issue went on for three days and on the third day the SC issued a short order, stating that the army chief’s tenure would be extended for six months during which the responsibility for the required legislation would be on the parliament.
The detailed verdict states that both Justice Mazhar Alam Khan Miankhel and Chief Justice of Pakistan (CJP) 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 army chief, 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”.
SC judge Justice Syed Mansoor Ali Shah, while authoring detailed judgment, said that the court exercised judicial restraint and gave an opportunity to the government after the attorney general’s assurance to carry out “appropriate legislation through an act of parliament within a period of six months”.
“This assurance has tempted us to exercise judicial restraint in the matter, so that people of Pakistan may decide this the question through the parliament,” he said.
Justice Shah also said that the exercise of judicial restraint may not be mixed up or confused with the infamous and unpopular application of the ‘doctrine of necessity’, which amounts to going against the law of the land to attain a political or another goal.
“This is not so in the present case where there is no law; in fact, there is a total legal vacuum regarding the tenure of a general. It is also instructive to refer to the spirit of Article 203D of the Constitution whereunder the court can direct the federal government to initiate process for making appropriate legislative amendments in the relevant law and can grant reasonable time for doing the need,” the verdict stated.
The court also noted that judicial restraint in its substantial approach urges judges considering constitutional questions to give deference to the views of the elected branches and invalidate their actions only when constitutional limits have clearly been violated
“The power of judicial review is a great weapon in the hands of Judges, but the judges must observe the constitutional limits set by our parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the parliament, the executive and the courts. Judicial review must, therefore, remain strictly judicial and in its exercise judges must take care not to intrude upon the domain of the other branches of government. Judicial restraint, in this perspective, is essential to the continuance of rule of law, and for the continued public confidence in the political impartiality of the judiciary and the voluntary respect for the law as laid down and applied by the courts,” the verdict added.
“Separation of powers is a cornerstone of a constitutional democracy and we do not wish to encroach upon the domain of the legislature. This court has, therefore, in many cases, exercised judicial restraint in deference to the principle of trichotomy of powers and given the other branches of government a fair opportunity to fulfill their constitutional mandate before making a final verdict on the disputed matters,” further stated the judgement.
The apex court, while justifying the maintainability of the case, also said that army chief is also the chief executive in the General Headquarters (GHQ) and an adviser to the government on military matters.
“The appointment of the COAS of the Pakistan Army is, thus, inextricably linked with the life, security and liberty of every citizen and is undoubtedly a question of grave and vital public importance. The army is perceived to play an intrinsic role in upholding constitutional values of sovereignty, freedom, democracy and the fundamental rights relating to life, liberty and dignity. Hence, the questions relating to its structure, command, governance and organisation are of public importance with reference to the enforcement of the fundamental rights,” the verdict added.
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 General 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 General 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 judgement added.
In his final remarks on the observations of the bench, CJP Khosa said, “In the backdrop of the last three scores and twelve 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 Chief of the Army Staff 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.”
“I understand that 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’,” he concluded.
READ THE COMPLETE VERDICT HERE: