Extension orders ‘meaningless’ if not as per law: Parliament decide or appoint new COAS

ISLAMABAD: The Supreme Court (SC) Monday released its detailed judgment in the Army Chief’s extension case stating that it was now up to 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.

A three-member bench of the apex court, headed by Chief Justice of Pakistan (CJP) Justice Asif Saeed Khan Khosa and comprising Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah, issued the judgment authored by Justice Syed Mansoor Ali Shah and authenticated by the other two judges on the bench.

“We would like to emphasize that this crucial matter of the tenure of COAS and its extension, which has a somewhat chequered history, is before Parliament, to fix for all times to come,” says the detailed judgment.

“It is now for the people of Pakistan and their chosen representatives in 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,” it said. It ruled that if the federal government remains unable to regulate the tenure and terms of service of a General and as a consequence of the Chief of the Army Staff through an appropriate legislation by 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.

It ruled that in case of such failure of the federal government, the institutional practice of retirement of a General on completion of the tenure of three years as pleaded by the Attorney-General and borne out from the record, 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 COAS, i.e. 29.11.2016.

The court held that the president shall, on advice of the prime minister, appoint a serving General officer as the new COAS.

Last month, the court had granted six-month extension in service to the Army Chief General Qamar Javed Bajwa after the government assured the court, through an undertaking, of proper legislation within six months specifying the terms and conditions of service of the COAS.

The court had held that the recent appointment of General Qamar Javed Bajwa as COAS will continue for six months subject to legislation to be made by the government, determining his tenure and other terms and conditions.

Agreeing to the detailed judgment, Chief Justice of Pakistan Justice Asif Saeed Khan Khosa added that in our peculiar historical context Chief of the Army Staff holds a powerful position in ways more than one.

"Unbridled power or position, like unstructured discretion, is dangerous,” the CJP observed adding, “It has been a shocking revelation to us that the terms and conditions of service of Chief of the Army Staff, 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.”

He observed that Clause (3) of Article 243 of the Constitution of the Islamic Republic of Pakistan, 1973 mandates that the president’s power to raise and maintain the armed forces is to be “subject to law” and, thus, 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 twelve years of our history I may observe with hope and optimism that framing of a law by Parliament regulating the terms and conditions of the office of Chief of the Army Staff may go a long way towards 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 CJP noted.

“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,” the CJP concluded.

The detailed verdict highlighted some further constitutional and legal flaws regarding exercise of jurisdiction by the President, the Prime Minister, the Cabinet and the Ministry of Defence, Government of Pakistan in the extension, reappointment and appointment of the COAS.

The verdict held that the prime minister appointed General Bajwa as the COAS for another term of three years from the date of completion of the current tenure vide his “order” dated 19.08.2019, while the prime minister had no such power under the Constitution.

“The tenure of 3 years mentioned in the above order of the prime minister has no legal basis while the extension of the tenure of COAS for a further period of three years vide notification dated 19.08.2019 is not supported by law as there is no provision of tenure or extension of tenure prescribed under the Constitution or the law,” the court verdict held.

The verdict noted that the summary initiated by the Ministry of Defence dated 19.08.2019 stated that General Qamar Javed Bajwa was due for retirement from 29.11.2019 by tenure but did not state the law providing for such tenure for retirement.

“The said summary mentioned that the general officer may be granted extension of one further tenure of three years under the Army Regulations 255, despite the fact that there is no tenure prescribed for a General and that there is no provision for extension for another tenure in the Pakistan Army Act, 1952, Pakistan Army Act Rules, 1954 or the Army Regulations (Rules)”, says the detailed verdict.

It further noted that the President under Article 243(4)(b) of the Constitution granted extension to General Bajwa for three years on 19.08.2019, while the President has no power to grant extension under the Constitution or the law.

However, it noted that the Government, the very next day, i.e. 20.08.2019, retracted from the earlier position and without withdrawing the notification regarding grant of extension to General Bajwa, issued under the approval/authority of the President a day before, took up the matter of extension of the tenure of General Bajwa with the Cabinet relying on Army Regulation 255 in the absence of any tenure or age of retirement prescribed for a General.

The court ruled that it had examined the laws relating to the Pakistan Army to determine the terms of service of a General, in particular his tenure and age of retirement and noted that the Pakistan Army Act, 1952 and the Pakistan Army Act Rules, 1954 are totally silent about the tenure or age of retirement of a General.

The verdict noted that Section 18 of the Act states that the prescribed authority may, in conformity with such rules as may be prescribed in this behalf, retire, release, or discharge from the service any person subject to this Act while Rule 12 of the Rules provides that the retirement or release of an officer shall be authorised by the federal government and notified in the official Gazette.

“Both these provisions do not provide the age of retirement or tenure of army officers including a General”, the detailed verdict ruled.

It further noted that the re-appointment, extension or fresh appointment of General Bajwa as COAS has been structured by the federal government by first limiting the retirement of the General under Regulation 255 for three years and then appointing him as COAS for another term under Article 243(4) of the Constitution.

During the course of hearing of this case, the said Regulation was amended overnight by the federal government on 26.11.2019 to include the expression “extension” in limiting retirement.

“In the absence of a tenure or age of retirement for the rank of a General under the law, this exercise to amend the Regulation 255 did not serve any purpose”, says the verdict.