Supreme Court’s detailed judgement in Army Chief case

Islamabad: The Supreme Court of Pakistan on Monday issued the detailed verdict in case pertaining to the extension in the tenure of Chief of the Army Staff General Qamar Javed Bajwa.

Below is the complete judgement:

ORDER

Asif Saeed Khan Khosa, CJ.: The Court-Associate has
produced before us a handwritten application statedly submitted
by the petitioner seeking permission to withdraw this petition. The
petitioner has failed to appear in person nor anybody else has
appeared on his behalf. The application received does not carry
any date and the same is not accompanied by any affidavit. There
is nothing before us to accept or to presume that the said
application has actually been submitted by the petitioner himself
or that he has submitted the same voluntarily. Be that as it may
Constitution Petition No. 39 of 2019 2
the petition in hand invokes Article 184(3) of the Constitution and
the subject matter of the petition involves a question of public
importance with reference to enforcement of fundamental rights
and, thus, the individual capacity of the petitioner pales into
insignificance even if he decides not to pursue the present petition.
The application attributed to the petitioner is, therefore, not
entertained.

  1. The learned Attorney-General for Pakistan is in attendance
    on his own and he has presented before us photocopies of many
    documents leading to an order passed by the President approving
    the summary sent to him by the Prime Minister along with his
    advice for extension/re-appointment of General Qamar Javed
    Bajwa, Chief of the Army Staff for a fresh term of three years in
    that office after expiry of his first term in that office. With the
    assistance of the learned Attorney-General for Pakistan we have
    gone through the said documents and have ex facie noticed the
    following things:
    i) A summary had initially been moved by the Ministry of
    Defence for extension of the term of office of the Chief of
    the Army Staff and subsequently he was appointed as
    Chief of the Army Staff for a second term of three years
    after completion of his first term in that office but the
    learned Attorney-General for Pakistan has not been able to
    refer to any provision in any legal instrument regarding
    extension in service of a Chief of the Army Staff upon
    completion of his first term in that office or for his reappointment to that office after completion of his first
    term.
    ii) In the case in hand the Prime Minister had himself passed
    an order appointing the current Chief of the Army Staff for
    a second term in that office on 19.08.2019 whereas under
    Article 243 of the Constitution it is the President who is
    the appointing authority for that office. Apparently that
    mistake came to notice straightaway and on the same day,
    i.e. 19.08.2019 a summary was moved from the Prime
    Minister’s office to the President for extension/reappointment of the incumbent Chief of the Army Staff and
    on that very day, i.e. 19.08.2019 the President was
    pleased to approve the summary in that regard and,
    hence, the advice of the Prime Minister was apparently
    accepted and acted upon. It appears that even that
    process was found to be flawed and on that very day it
    was realized that the Prime Minister or the President could
    not take the above mentioned actions without the
    Constitution Petition No. 39 of 2019 3
    approval of the Cabinet and, thus, on the next day, i.e.
    20.08.2019 a summary was moved in the relevant regard
    for approval of the Cabinet and on 21.08.2019 the Cabinet
    was said to have approved the said proposal through
    circulation. The opinion of the Cabinet recorded in this
    regard, photocopies whereof have been produced before
    us, shows that there are 25 members of the Cabinet and
    out of those 25 members only 11 had agreed to the
    proposal which shows that the majority of the Cabinet had
    not approved the said proposal. Yet another peculiar
    aspect is that after the purported or so-called approval of
    the Cabinet regarding extension/re-appointment of the
    incumbent Chief of the Army Staff the matter was never
    sent to the Prime Minister or the President again for the
    purposes of a fresh advice or a fresh order of the Prime
    Minister and the President respectively.
    iii) After our repeated queries the learned Attorney-General
    for Pakistan has referred to Regulation No. 255 of the
    Army Regulations (Rules) according to which a retirement
    of an Army officer can temporarily be suspended or
    limited. By placing reliance upon the said Regulation the
    learned Attorney-General for Pakistan has maintained
    that the Federal Government has the requisite authority to
    re-appoint or extend the services of an incumbent Chief of
    the Army Staff prior to his retirement if the exigencies of
    the service so require or the public interest so demands. A
    bare perusal of Regulation No. 255, however, prima facie
    shows that the said provision can be invoked after an
    officer has already retired from service and that is why the
    said Regulation speaks of suspension of retirement or
    limiting of retirement. Suspending a retirement or limiting
    a retirement before the retirement has actually taken
    effect may amount to putting the cart before the horse.
    The learned Attorney-General for Pakistan has, however,
    very candidly submitted before us that in the entire body
    of laws pertaining to the Pakistan Army there is no
    express provision available regarding re-appointment or
    extension in the service of a Chief of the Army Staff.
    iv) The stated purpose for the proposed reappointment/extension in the term of office of the
    incumbent Chief of the Army Staff is “regional security
    environment”. The said words are quite vague and if at all
    there is any regional security threat then it is the gallant
    armed forces of the country as an institution which are to
    meet the said threat and an individual’s role in that regard
    may be minimal. If the said reason is held to be correct
    and valid then every person serving in the armed forces
    would claim re-appointment/extension in his service on
    the basis of the said reason.
  2. The points noted above call for a detailed examination of the
    matter of extension/re-appointment of General Qamar Javed
    Bajwa, Chief of the Army Staff and, therefore, he is hereby made a
    respondent to this petition and the office is directed to carry out
    the necessary addition in the memorandum of this petition. Let
    notice of this petition be issued to all the respondents for
    Constitution Petition No. 39 of 2019 4
    tomorrow, i.e. 27.11.2019, as requested by the learned AttorneyGeneral for Pakistan. In the meanwhile the operation of the
    impugned order/Notification in respect of extension/reappointment of General Qamar Javed Bajwa, Chief of the Army
    Staff for another term in the said office shall remain suspended.
    Chief Justice
    Judge
    Judge
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