Top court tells govt to fix COAS tenure ‘via act of parliament’

SC detailed judgment says there is no legal provision for army chief’s tenure or extension or reappointment

ISLAMABAD: The Supreme Court has declared that the tenure and other service terms of the post of chief of army staff (COAS) shall be determined through simple legislation (act of parliament).

“In this state of legal vacuum regarding the tenure of a COAS and in the light of the assurance given by the federal government to address these issues through fresh legislation within six months, we, considering that the COAS is the commanding officer of the Pakistan Army and is responsible for the command, discipline, training, administration, organisation and preparedness for war of the army and in order to preserve smooth functioning of the Pakistan Army, find it appropriate to allow the current status of the COAS to continue for a period of six months, whereafter a new legislation (act of the parliament) shall determine his tenure and other terms of his service,” reads the 42-page detailed judgment of the apex court.



A three-judge bench – headed by Chief Justice Asif Saeed Khosa – has adjudicated whether the top military post in the country, that of the COAS, is regulated by the Constitution and the law; and whether the COAS has a tenure or can seek an extension or has any terms of service under the law.

In the detailed judgment – authored by Justice Syed Mansoor Ali Shah – the top court has clarified that in case the federal government fails to regulate the tenure and terms of service of the COAS through legislation within six months, 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. Therefore, 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 [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. 29.11.2016. And the president shall, on advice of the prime minister, appoint a serving general officer as the new COAS,” says the verdict.

It further says that after detailed examination of the laws relating to the army it is concluded that there is no provision providing for the tenure and age of retirement of a general and as a consequence of the COAS, as well as, for the extension of tenure or fresh appointment for another term.

“The summaries initiated by the ministry of defence and approved by the president, the prime minister and the cabinet, for the reappointment, extension and fresh appointment of the COAS seems to be meaningless and of no consequence in the said legal vacuum,” it further says.

Legal experts believe the detailed judgment is a relief for the government as the top court has not ordered a constitutional amendment, which would require a two-thirds majority in parliament. The government only requires simple legislation, which would only require simple majority, to give a legal cover to the army chief’s extension.



However, Federal Minister for Science and Technology Chaudhry Fawad Hussain has expressed reservation over the SC direction for appropriate legislation in this matter. He expected that a review petition will be filed against the verdict.

Senior lawyers wonder why government officials are upset over the verdict because Attorney General for Pakistan (AGP) Anwar Mansoor Khan has himself assured the apex court that the government would carry out appropriate legislation on the army chief’s tenure.

The detailed judgment also notes that the AGP has assured the court that the federal government will carry out legislation through parliament in the shape of an act within six months to provide for the terms of service of a general (and as a consequence of COAS), so that effect can be given to Article 243 in letter and spirit and functionality of the constitutional provisions be realised at the earliest.

“Even otherwise, this court could have directed the federal government to initiate and process legislation to give effect to a constitutional mandate. The federal government may also, if deems appropriate, specifically provide for extension of the tenure of an army officer of the rank of a general in the act with grounds for granting such an extension, so that the discretion of the federal government in granting extension to a general is structured.

“It may also carry out necessary amendments in the law to protect the Army Regulations (Rules) as discussed above, which appear to be without any legal cover and fall outside the scope of the Pakistan Army Act, 1952. When confronted with the legal vacuum regarding the tenure, age of retirement and other terms of service of a general, the learned Attorney-General candidly responded that there is an unwritten institutional practice in vogue since long whereby the tenure of a general is considered to be of three years.



“He admitted that no tenure or age of retirement of a general has been provided under the law. Perusal of the earlier notifications placed before us relating to the former chiefs of army staff and the process of reappointment, extension and fresh appointment of the incumbent, pre-suppose a fixed tenure of three years for a general/COAS.

“An institutional practice followed continuously and consistently by an institution for a considerable period of time may be used to resolve a controversy, in the absence of the law.

“We can, therefore, place reliance on the institutional practice in order to ensure realisation of the constitutional scheme under which it is inconceivable for a constitutional post in the service of Pakistan to be left totally unregulated and to continue forever. We are, however, of the view that, in the first instance, this matter should be allowed to be regulated by law as mandated by the Constitution, so that the people of Pakistan decide through their chosen representatives the length of tenure of a general, as this will consequentially determine the tenure of the COAS. The people of Pakistan may accept or reject the institutional practice through their chosen representatives in the Parliament. Besides, the question before us is not only regarding the tenure but also regarding the extension of tenure for another term, which in any case, requires legislation. The attorney general has assured us that necessary legislation will be brought into effect within six months to plug this legal vacuum. This assurance has tempted us to exercise judicial restraint in the matter, so that people of Pakistan may decide this question through the Parliament,” says the judgment.

Justice Shah also clarified 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 attend to some political or other 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 needful,” adds the verdict.



Renowned lawyer Salahuddin Ahmad said that if no law could be framed by parliament within six months, then the COAS shall stand retired and the government shall appoint a new one. “What can be done in six months could have just as easily be done today! What was the need to exercise ‘judicial restraint’ to safeguard the position of one individual?”

“In Sharaf Faridi, Sindh High Court Bar and Nadeem Ahmed cases mentioned in Mansoor Shah’s judgment, no doubt parliament was given some time to legislate (on separation of judiciary from executive, on saving of ordinances promulgated by Musharraf and on constitutional appointment of judges) but in none of the three cases was the question of a single individual’s continuation in office involved,” he said while speaking to The Express Tribune.

The judgment also says that an institutional practice cannot be a valid substitute of the law required to be made in pursuance of the constitutional mandate under Article 243(3) of the Constitution. This is a serious legislative omission. Service in the armed forces, being “Service of Pakistan” must be regulated by or under the law in accordance with the provisions of Article 240 of the Constitution read with Article 243(3). Otherwise, it is inconceivable that the highest rank in the army would have no tenure or age of retirement or other terms of service.

The court also notes that submission of the AGP, if accepted, immediately gives rise to a number of questions: Who can be appointed as a COAS? Can a COAS be a serving or a retired army officer? What will be the rank of such army officer? What will be the tenure of COAS? What will be the age of his retirement? Can he be removed from service? Can he resign or step down due to personal reasons? How will the president, the Supreme Commander of the Armed Forces, or the federal government, having the command and control of the armed forces, regulate the post of COAS? These questions are of importance for the nation and for the armed forces as a premier security institution of the country. It is inconceivable that the constitutional appointment to the post of COAS in the “service of Pakistan” goes unregulated under a written Constitution.

“We have examined the laws relating the Pakistan Army to determine the terms of service of a general, in particular his tenure and age of retirement. 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,” reads the detailed judgment.

The court also wondered that acts of parliament or subordinate legislation are public documents and must be readily available to the citizen of the country subject to the exceptions provided under the Right of Access to Information Act, 2017. Those exceptions extend only to record relating to defence forces, defence installations or connected therewith and ancillary to defence and national security, and not to the army laws.

“It is important to remember that when there is information, there is enlightenment and when there is debate, there are solutions. Had the Army Regulations been made accessible to public and had these matters been discussed earlier, 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,” it adds.

Public interest litigation

The court also notes that a public interest litigation can only be withdrawn with the permission of the court. This is because it does not raise a personal issue limited to the petitioner; it is not a dominislitis (the person to whom a suit belongs) that would give a right to the petitioner to withdraw it as a matter of choice.

“In granting the permission (to withdraw) the court would be guided by considerations of public interest and would also ensure that it does not result in the abuse of the process of law. Courts must guard against possibilities of such litigants settling the matters out of court to their advantage and then seeking withdrawal of the case,” it reads.

Sometimes withdrawal of a public interest litigation, for oblique ends, can be used to the detriment of the public interest agitated therein. The court has to be cautious not to fall prey to such oblique motives. The proceedings in public interest litigation are inquisitorial in nature and, therefore, the request for withdrawal of such litigation must always be weighed in the light of the question of public importance raised in it. A petitioner initiating public interest litigation is, therefore, not entitled to withdraw the petition at his sweet will. The court, however, may permit withdrawal of such litigation on considering the nature of the matter agitated therein and ensuring that it does not involve abuse of the process of law.

Maintainability

Regarding maintainability of the judgment, the court says that armed forces are to defend Pakistan against external aggression and threat of war, under our Constitution. The COAS is an officer commanding the Pakistan Army and is responsible for the command, discipline, training, administration, organisation and preparedness for war of the Army. He is also the chief executive in the General Headquarters 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.

Even the court notes that the AGP appearing for the federal government and the counsel for the COAS thought it appropriate, in this case, not to raise any objection to the assumption of jurisdiction by this court or to the maintainability of this petition.

"They, during the hearing, rather tried to satisfy and convince the court about the legality of the extension granted to the COAS and practically demonstrated that “it is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law.” They in the course of arguments beseeched the court to provide guidance to the Federation in this important matter."