ISLAMABAD-The Supreme Court on Monday made it clear in its detailed judgement in the army chief extension case the three-year institutional practice of retirement of a general would “stand enforced” if the government fails to legislate on tenure and terms of service of a general through the parliament within six months.
In the 43-page judgement, the apex court said it was now up to the parliament to do legislation to provide “certainty and predictability” to the post of the chief of army staff (COAS) in future. The judgement says: “The tenure of the constitutional post of COAS could not be left totally unregulated and to continue forever. This would be inconceivable and amount to a constitutional absurdity.”
Chief Justice Asif Saeed Khan Khosa, who is going to lay down his robe on December 20, wrote an additional note.
The judgement say, “In case of such failure of the federal government, the institutional practice of retirement of a general on completion of 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 [Qamar Javed] Bajwa and consequentially his tenure as COAS, from the date of his promotion to the rank of general and appointment as COAS, i.e. November 29, 2016. And the president shall, on advice of the prime minister, appoint a serving general officer as new COAS.”
The verdict said the matter of tenure of the COAS and his extension was before the parliament and it should be resolved once and for all. “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 judgement reads.
Justice Khosa wrote that in Pakistan’s context the chief of army staff holds a powerful position in more than one ways. Unbridled power or position, like unstructured discretion, is dangerous, he said.
“Against 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 terms and conditions for the office of the Chief of Army Staff may go a long way in rectifying multiple historical wrongs and 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,” wrote the chief justice.
The verdict said the Pakistan Army Act, 1952 falls deficient of 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 terms of service of the commissioned officers, including tenure and extension of a general.
It says that terms of service of the rank of general regulate the tenure and other terms of service (except salary and allowances) of the post of the COAS. The salary and allowances of the COAS are to be determined by the president under clause (4) of Article 243 of the Constitution.
It said that 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 his tenure of three years. Although an institutional practice cannot be a valid substitute for the law required to be made under clause (3) of Article 243 yet in the absence of such a 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, the judgement says.
The verdict continued that there is no provision in the law for extending service of a general for another tenure and 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 judgment noted that summaries of the Ministry of Defence approved by the president, the prime minister and the cabinet for 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.
It added that 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 only for a temporary arrangement for a short term if exigencies of service so require in the public interest.
The apex court maintained that 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.
The judgement said that Section 176A 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.
It mentioned that in view of the assurance of the Attorney General of Pakistan [Anwar Mansoor Khan] given on behalf of the Federal Government to process the legislation for meeting 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 representative of the people of Pakistan by making an appropriate legislation.
The verdict said that 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.
It said the power of the Parliament under the Constitution cannot be delegated to the Federal Government without the Parliament performing the basic essential legislative function, i.e. providing policy guidelines on these areas.
The judgement maintained that legislature cannot abdicate performance of the function assigned to it by the Constitution and set up a parallel legislative authority. Though the legislature can confer upon any person or body the power to make subordinate/delegated legislation (rules, regulations or byelaws, etc) in order to give effect to the law enacted by it yet it must perform itself the essential legislative function, i.e. to exercise its own judgement on vital matters of policy and enact the general principles providing guidance for making the delegated legislation.
It said about a copy of the Army Regulations (Rules), which carries a stamp of “Restriction”, the acts of the Parliament or subordinate legislation are public documents and must be readily available to the citizens of the country subject to the exceptions provided under the Right of Access to Information Act, 2017.
Had the Army Regulations been made accessible to public and these matters discussed earlier, he said, the omissions pointed out for the first time since 1947 could have been remedied much earlier. Therefore, every legislative instrument must be made accessible to public.
The judgement noted that appointment of the COAS was, thus, inextricably linked to the life, security and liberty of every citizen and was 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,” said the verdict.