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
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   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