Detailed verdict: SC identifies 'deficiencies' in army law

The Supreme Court has clarified if the government fails to legislate tenure and terms of service of a general and consequently as Chief of Army Staff (COAS) through Parliament within six months, the three-year institutional practice of retirement of a general will stand enforced to regulate General Qamar Javed Bajwa's tenure - November 29, 2016.

"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," said the detailed judgment of the Supreme Court regarding the extension/reappointment of General Qamar Javed Bajwa. Chief Justice Asif Saeed Khan, who is going to lay down his robes on 20th December, wrote an additional note.

A three-member bench, headed by Chief Justice Asif Saeed Khan Khosa, left the matter to the Parliament and the federal government to clearly specify the terms and conditions of service of the COAS through an Act of Parliament. It allowed six months to General Qamar Javed Bajwa to serve as the COAS.

The detailed judgment said; "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. And the President shall, on advice of the Prime Minister, appoint a serving general officer as the new COAS."

The judgment said the crucial matter of tenure of COAS and its extension 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."

Justice Khosa wrote; "In our peculiar historical context, the Chief of the Army Staff holds a powerful position in ways more than one. Unbridled power or position, like unstructured discretion, is dangerous.

"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," wrote Justice Khosa. The judgment said 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.

The terms of service of the rank of general regulates 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.

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 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.

It said 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 judgment noted that the summaries of the Ministry of Defense 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.

The judgment said 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.

The court said that in view of the assurance of the Attorney-General for Pakistan [Anwar Mansoor Khan] 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.

The judgment 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 organization 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 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 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 judgment on vital matters of policy and enact the general principles providing guidance for making the delegated legislation.

About copy of Army Regulations (Rules) which carries a stamp of "Restriction" said that 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 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.

The judgment noted that 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."