Const.p. 39 16122019

IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
PRESENT:
Mr. Justice Asif Saeed Khan Khosa, CJ
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Syed Mansoor Ali Shah
Constitution Petition No. 39 of 2019

(In the matter of the Tenure and Extension of the Chief of the Army
Staff)
The Jurists Foundation through its Chairman

…Petitioner
versus
Federal Government through Secretary Ministry of Defence,

etc.
…Respondents
Petitioner: In person.
For the respondents: Mr. Anwar Mansoor Khan, Attorney-

General for Pakistan with
Mr. Sajid Ilyas Bhatti, Addl. Attorney-
General
Mr. Amir-ur-Rehman, Addl. Attorney-
General
Ch. Ishtiaq Ahmed, Addl. Attorney-
General.
Mr. Sohail Mehmood, Dy. Attorney-
General.
Mian Asghar Ali, Dy. Attorney-General.
Assisted by Ms. Faryal Shah Afridi,
Advocate.
Syed Iqbal Hashmi, ASC.
Brig. Falak Naz, Director (Law), Ministry
of Defence.
Flt. Lt. Khalid Abbas, Asst. Director (Law),
Ministry of Defence..
Brig. Muhammad Khalid Khan, JAG
Department, GHQ.
Lt. Col Rai Tanveer Ahmed Kharral, OIC,
JAG Department, GHQ.
Dr. Farogh Nasim, ASC for respondent
No.4, alongwith
Mr. Abid S. Zuberi, ASC.
assisted by M/s Ayan Memon, Shahid
Naseem Gondal & Barrister Maleeka Ali
Bukhari.
Mr. Mehmood A. Sheikh, AOR.
Constitution Petition No. 39 of 2019 2
Research Assistance: Supreme Court Research Centre (SCRC)
Dates of hearing: 26th, 27th & 28th November 2019.
JUDGEMENT
Syed Mansoor Ali Shah, J.- At the heart of this case lies
the fundamental question of rule of law: Is our government of laws
or of men?1 The case before us questions whether the top military
post in the country, that of the Chief of the Army Staff (“COAS”),
the commanding officer of the Pakistan Army, is regulated by the
Constitution and the law; whether the COAS has a tenure or can
seek an extension or has any terms of service under the law.
2. The proceedings of the case brought to fore more

questions: Whether the constitutional mandate since 1956 of
raising and maintaining an Army under the law, has been fulfilled
by the Pakistan Army Act, 1952; whether Regulation 255 of the
Army Regulations (Rules) is designed to grant extension to a COAS
for another term; whether at all, the Army Regulations (Rules),
inherited from the British India, enjoy the protection of the
Pakistan Army Act, 1952? This judgment addresses these
questions.
3. The history of our Army has seen successive

appointments, retirements and extensions of several Chiefs of the
Army Staff since Independence. However, for the first time the
matter has come to the highest Court of the land questioning the
legal framework under which these appointments, retirements and
extensions take place.
Facts
4. The Prime Minister appointed the current COAS for

another term of three years through his “order” dated 19.08.2019.
Thereafter, the President on the advice of the Prime Minister
1 Marbury v. Madison, 5 U.S. 137, per John Marshal CJ.

granted “extension” for one further tenure of three years to the

COAS w.e.f. 29.11.2019. This public interest litigation (PIL) has
challenged the extension of the COAS on the ground that it is
offensive to Article 243(4)(b) of the Constitution of the Islamic
Republic of Pakistan, 1973 (“Constitution”), thereby urging the
Court to strike it down.
5. The petitioner did not appear on the first date of

hearing. The Court Associate placed an undated handwritten
application before the Court, which prayed that the petitioner be
allowed to withdraw the petition. This application was not
entertained by the Court for the following reasons recorded in the
order dated 26.11.2019:
“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 summited by the petitioner himself or that he has submitted the
same voluntarily. Be that as it may 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.”
The Petitioner appeared in person, on the next date of hearing and

made an oral request seeking permission to withdraw the petition.
He was apprised of the above quoted observation of the Court, and
his request was turned down.
Public Interest Litigation (PIL) – Withdrawal
6. A public interest litigation (PIL) 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 dominis litis
(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.”2 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.3 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 and Jurisdiction under Article 184(3)
7. The Armed Forces are to defend Pakistan against

external aggression and threat of war, under our Constitution.4
The COAS is an officer commanding the Pakistan Army5 and is
responsible for the command, discipline, training, administration,
organization 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.6 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 organization are of public importance
with reference to the enforcement of the fundamental rights. In
this age of information, the issues raised also attract fundamental
right to information under Article 19A, as well as, the right to non-
discrimination in services under Article 27 of the Constitution.
2 AIR 1997 SC 272

3 See PLD 2017 Lah 588; PLD 2014 Bal. 1; AIR 1988 SC 2211
4 The Constitution of Pakistan, 1973, Article 245
5 The Pakistan Army Act, 1952, Section 8(2)
6 The Army Regulations (Rules), Regulation 19
Fundamental rights in a living Constitution are to be liberally

interpreted so that they continue to embolden freedom, equality,
tolerance and social justice.
8. Even the learned Attorney-General appearing for the

Federal Government and the learned 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.”7 They in the course of arguments
beseeched the Court to provide guidance to the Federation in this
important matter.
9. The case proceeded as the Attorney-General for

Pakistan (“Attorney-General”) was already in attendance on his
own, on the first date of hearing, and took us through the
Summaries, approvals and orders passed regarding the extension
of the COAS. The Court in its order dated 26.11.2019 identified
some prima facie constitutional and legal flaws in the process of
granting extension to the COAS and issued notices to all the
respondents after impleading General Qamar Javed Bajwa, the
COAS, as a respondent in the petition. The Court also suspended
the operation of the notification of his extension dated 19.08.2019.
The case was fixed for hearing the next day, on the request of the
Attorney General. Relevant extract of the order dated 26.11.2019 is
given as follows for ready reference:
“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 re-
appointment 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
7 Bush v. Gore, 531 U.S. 98, p. 128, per Stevens J.

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/re-
appointment 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
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 re-

appointment/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.”
Submissions of Attorney-General
10. The Attorney-General defended the Federal

Government by arguing that the fresh appointment/extension of
the COAS is fully within the constitutional and legal fold. He
submitted that the tenure of a General/COAS is three years as per
unwritten convention and practice; that the tenure of a
General/COAS can be extended under Regulation 255 of the Army
Regulations (Rules); that the said Regulations have been framed
under section 176-A of the Pakistan Army Act, 1952 and,
therefore, have statutory force; and that even a retired Army
General can be appointed as COAS under Article 243(4) of the
Constitution, as the said clause of Article 243 is not subject to law.
The Attorney-General took us through a series of documents,
prepared prior to the filing of the instant petition and also those
prepared during the course of hearing of the case, comprising the
Summaries put up before the President, Prime Minister and the
Cabinet; the subsequent approvals; and the relevant notifications
regarding “reappointment”, “extension”, “limit-in-retirement” and
“appointment” of General Qamar Javed Bajwa. A brief summary of
the said documents is given as follows:
Initial appointment of General Bajwa as COAS
a. On 15.11.2016, the Ministry of Defence moved a

Summary for the Prime Minister seeking approval of
the Prime Minister under Rule 12 of the Pakistan Army
Act Rules, 1954 for the retirement of General Raheel
Sharif, COAS w.e.f. 29.11.2016.
b. On 28.11.2016, the Ministry of Defence notified the

approval granted by the Federal Government for the
retirement of General Raheel Sharif, COAS w.e.f.
29.11.2016.
c. On 26.11.2016, the Prime Minister gave advice to the

President to promote General Qamar Javed Bajwa to
the rank of General and to appoint him as COAS
under Article 243(4)(b) of the Constitution.The
President approved the advice on the same date.
d. On 26.11.2016, the Ministry of Defence notified the

promotion of General Bajwa to the rank of General and
his appointment as COAS w.e.f. 29.11.2016.
Extension of General Bajwa as COAS
First Proceedings dated 19.08.2019
e. The Prime Minister of Pakistan made an “order”

appointing General Bajwa, as the COAS for another
term of three years from the date of completion of
current tenure. He stated “the regional security
environment” as a reason of his said order.
f. The Prime Minister’s office addressed a letter to the

Defence Secretary stating that the Prime Minister had
desired the extension of service of General Bajwa as
COAS for another term of three years from the date of
completion of the current tenure, and directed the
Ministry of Defence to initiate a Summary to that
effect.
g. The Ministry of Defence initiated a Summary for the

Prime Minister stating therein that General Bajwa was
due for retirement from 29.11.2019 by tenure and the
Prime Minister was desirous for the extension of
tenure of the General Officer for another term of three
years from the date of completion of current tenure.
The Ministry recommended that the General Officer
may be granted extension under the Army Regulations
(Rules) 255 for one further tenure (3 years) w.e.f.
29.11.2019 and beyond superannuation. The Ministry
proposed the Prime Minister to advise the President to
approve the recommendation regarding extension of
the General Officer under Article 243(4)(b) of the
Constitution. The Prime Minister advised accordingly
and the President approved the Summary on the same
day.
h. The Ministry of Defence notified that General Bajwa,

COAS, had been granted extension for one further
tenure (03 years) w.e.f. 29.11.2019 to 29.11.2022.
Second Proceedings dated 20.08.2019 & 21.08.2019
i. The Ministry of Defence, on 20.08.2019, initiated a

Summary stating that the President has been pleased
to approve the extension of the term of the General
Officer for another 3 years from 29 Nov 2019 to 29 Nov
2022; that Rule 255 of the Army Regulations (Rules)

stipulates that the retirement of officers will always be
subject to the exigencies of service. Full power is
reserved to Federal Government to “limit retirement in
general or in individual cases whenever it may be
necessary to do so in the public interest”. With the
said statements of fact and of law, the Ministry of
Defence recommended that approval of the Federal
Government was solicited for extension of the term of
the General Officer for another 3 years from 29 Nov
2019 to 29 Nov 2022 and proposed obtaining approval
of the Summary from the Cabinet through circulation.
j. The Cabinet Division, on 21.08.2019, circulated the

said Summary amongst the members of the Cabinet
with the approval of the Prime Minister. 11 (eleven)
members of the Cabinet endorsed the Summary, while
approval of 11 (eleven) members remained “awaited”,
while 03 (three) members were stated to be out of city
or country. The Cabinet Division, however, considered
the Summary to have been endorsed by the available
members of the Cabinet by circulation. But the
extension purportedly granted by the Federal
Government was not notified.
Third Proceedings dated 26.11.2019
k. The Ministry of Defence moved the following three

Summaries for the consideration of the Cabinet:-
i. Summary for withdrawal of the earlier

Summary dated 20.08.2019 which was got
approved by circulation on 21.08.2019;
ii. Summary for amendment/substitution of

Rule 255 of the Army Regulations (Rules);
and
iii. Summary for limiting the retirement of

and grant of extension in service to
General Qamar Javed Bajwa.
The Cabinet approved all the said three Summaries in
its meeting held on 26.11.2019.
Fourth Proceedings dated 26.11.2019
l. The Ministry of Defence notified the

amendment/substitution of Rule 255 of the Army
Regulations (Rules), and also moved the following two
Summaries for the Prime Minister:-
i. Summary for proposing withdrawal of the

advice dated 19.08.2019 given to the
President so that the President may
withdraw the appointment of the COAS
dated 19.08.2019 and any subsequent
order or notification; and
ii. Summary for proposing the Prime Minister

to advise the President to re-appoint
General Bajwa for another term of three
years as COAS under Article 243(4)(b) of
the Constitution.
The Prime Minister advised accordingly, and the

President approved the said Summaries.
m. The Ministry of Defence issued Notification

No.3/11/D-2(A-II)/2019 dated 26.11.2019 stating
thus:
“This Ministry’s Notification of even No. dated 19
August, 2019 regarding extension in service in
respect of PA-19617 General Qamar Javed Bajwa,
NI(M), HI(M), Chief of the Army Staff (CAOS) is
hereby withdrawn.”
The Ministry of Defence, on the same day, issued

another Notification No.F.3/11/D-2(A-II)/2019 stating
that:
“PA-19617 General Qamar Javed Bajwa, NI(M),
HI(M), Chief of the Army Staff’s (CAOS) retirement
has been limited and he has been granted extension
for one further tenure (03 years) with effect from 29
November 2019 to 29 November 2022.”
Fifth Proceedings dated 28.11.2019
n. The Ministry of Defence initiated yet another Summary

stating that the earlier Summaries and subsequent
orders and notifications are liable to be withdrawn,
and proposed the Prime Minster to advise the
President:-
i. to approve the appointment of General

Qamar Javed Bajwa, Chief of the Army
Staff (CAOS) with effect from 28.1.2019, in
view of the exigencies and highest public
interest, in terms of Article 243(4)(b) of the
Constitution of the Islamic Republic of
Pakistan, 1973;
ii. to determine that General Qamar Javed

Bajwa, Chief of the Army Staff, shall be
entitled to salary and allowances as
prescribed under the Pay and Allowances

Regulations (Army) as amended from time
to time; and
iii. to supersede the earlier approval of the

President on the advice of the Prime
Minister dated 26.11.2019.
The PM advised accordingly and the President

approved the Summaries.
o. The Ministry of Defence, on the same day, finally

issued Notification No.F.3/11/D-2(A-II)/2019 stating
thus:
“In exercise of the powers conferred under Article

243(4)(b) of the Constitution of the Islamic Republic
of Pakistan, 1973, the President, on advice of the
Prime Minister, is pleased to appoint PA-19617
General Qamar Javed Bajwa, NI(M), HI(M), Chief of
the Army Staff (CAOS) with effect from 28th November
2019, on salary and allowances prescribed under the
Pay and Allowances Regulations (Army) as amended
from time to time.
2. This Ministry’s Notification No.3/11/D-2(A-

II)/2019 dated 26 Nov, 2019 regarding limiting
retirement and granting extension in service to the
above named General Officer and Notification
No.3/11/D-2(A-II)/2019 dated 27 November 2019
are hereby withdrawn.”
Flaws in the above process
11. In addition to the flaws noted in the process in our

order dated 26.11.2019, the exercise of jurisdiction by the
President, the Prime Minister, the Cabinet and the Ministry of
Defence, Government of Pakistan in the extension, reappointment
and appointment of the COAS highlights some further
constitutional and legal flaws which are stated as follows:
a. The Prime Minister appointed General Bajwa as the

COAS for another term of three years from the date of
completion of the current tenure vide his “order” dated
19.08.2019, while the Prime Minister has no such
power under the Constitution.
b. The tenure of 3 years mentioned in the above order of

the Prime Minister has no legal basis.
c. The extension of the tenure of COAS for a further

period of three years vide Notification dated
19.08.2019 is not supported by law as there is no
provision of tenure or extension of tenure prescribed
under the Constitution or the law.
d. The Summary initiated by the Ministry of Defence

dated 19.08.2019 stated that General Qamar Javed
Bajwa was due for retirement from 29.11.2019 by
tenure but did not state the law providing for such
tenure for retirement.
e. The said Summary mentioned that the General Officer

may be granted extension of one further tenure of
three years under the Army Regulations 255, despite
the fact that there is no tenure prescribed for a
General and that there is no provision for extension for
another tenure in the Pakistan Army Act, 1952,
Pakistan Army Act Rules, 1954 or the Army
Regulations (Rules).
f. The President under Article 243(4)(b) of the

Constitution granted extension to General Bajwa for
three years on 19.08.2019, while the President has no
power to grant extension under the Constitution or the
law.
g. The Government, the very next day, i.e. 20.08.2019,

retracted from the earlier position and without
withdrawing the notification regarding grant of
extension to General Bajwa, issued under the
approval/authority of the President a day before, took
up the matter of extension of the tenure of General
Bajwa with the Cabinet relying on Army Regulation
255 in the absence of any tenure or age of retirement
prescribed for a General.
h. Only 11 members of the Cabinet out of 25 approved

the above Summary through circulation. However, no
notification was issued under the authority or
approval of the Federal Government regarding
extension of the tenure of General Bajwa. Thus, this
exercise served no purpose.
i. This approval through circulation failed to comply with

Rule 19 of the Rules of Business, 1973 which requires
that the Cabinet Secretary is to specify the time by
which the opinions of the Ministers should be
communicated to him. No such timeframe was

specified.
j. The Ministry of Defence issued notification dated

26.11.2019 stating that retirement of General Bajwa,
as a General Officer has been limited and he has been
granted extension for further three years. This exercise
conducted under the freshly amended Army
Regulations (Rules) 255 (including the word
“extension”) could only be useful if there had been
tenure or retirement age of a General provided under
the law.
k. Finally on 28.11.2019, a fresh Summary was put up

before the Prime Minister for appointment of General
Bajwa as COAS w.e.f. 28.11.2019 under Article
243(4)(b) of the Constitution which was approved by
the President, leading to notification dated 28.11.2019.
This Notification stated that the notification dated
26.11.2019 regarding limiting retirement and granting
extension of service to General Bajwa stands
withdrawn. This shows that there remains no
notification in the field regarding limiting retirement
and granting extension of service to General Bajwa.
The appointment of General Bajwa on 28.11.2019 is
again based on the assumption that his tenure has
expired.
12. Some Summaries mention that the same have been

prepared in due deference to observations of the Supreme Court of
Pakistan. This generates an impression that the same have been
made on the orders or directions of this Court. This is totally
incorrect. In fact the Court simply highlighted steps taken by the
President, the Prime Minister and the Cabinet, without any
supporting law and as a consequence they on its own tried to
rectify the same. The impression generated that the said steps
were taken on the desire, orders or directions of the Court is
dispelled.
Scope of Article 243 of the Constitution
13. The questions highlighted above require us to

understand the legal structure of the Pakistan Army and the terms
of service of its Commander, i.e. the Chief of the Army Staff.
Therefore, it is most appropriate to begin with the understanding of
the scope of Article 243 of the Constitution, which relates to

raising and maintaining the Armed Forces and the appointment of
their Chiefs.
14. “It is a constitution we are expounding8.” As Chief

Justice Dickson of the Supreme Court of Canada noted that “the
task of expounding a constitution is crucially different from that of
construing a statute. A statute defines present rights and
obligations. It is easily enacted and as easily repealed. A
constitution, by contrast, is drafted with an eye to the future. Its
function is to provide a continuing framework for the legitimate
exercise of governmental power and, when joined by a Bill or
Charter of rights, for the unremitting protection of individual rights
and liberties. Once enacted, its provisions cannot easily be
repealed or amended. It must, therefore, be capable of growth and
development over time to meet new social, political and historical
realities often unimagined by its framers. The judiciary is the
guardian of the constitution and must, in interpreting its
provisions, bear these considerations in mind.9” “Any
interpretation of the Constitution must be grounded in its own
language.” It is a language written in invisible ink, between the
lines, and derived from the structure of the Constitution.10
15. The history of Article 243 of the Constitution begins

with Article 40 of the Constitution of the Islamic Republic of
Pakistan, 1956 (“1956 Constitution”) and travels through 54
years to take its present shape in the year 2010 through the
Constitution (Eighteenth Amendment) Act, 2010. Evolution of
Article 243 through time has been traced and is reproduced
hereunder for better understanding of the Article.
Comparative History of Article 243
1956 Constitution 1962 Constitution 1973 Constitution 1973 Constitution

(Original (Present Provision)
Provision)
40. Supreme 17. President to 243. Command of 243. Command of
Command of the have Supreme Armed Forces. Armed Forces.
Armed Forces.- Command of the
Defence Services.—
8 McCullock v. Maryland, 17 U.S. (4 Wheat) 316, 407 (1819), per Marshall CJ.
9 Hunter v. Southam Inc., [1984] 2 SCR 145, 156
10 Laurence H. Tribe, American Constitutional Law (3rd ed. 2000); Barak, The
Judge in A Democracy, p. 127

(1) The Supreme (1) The Supreme (1) The Federal (1) The Federal
Command of the Command of the Government shall Government shall
Armed Forces shall Defence Services of have control and have control and
vest in the President, Pakistan is vested command of the command of the
and the exercise in the President, to Armed Forces. Armed Forces.
thereof shall be be exercised by him
regulated by law. subject to law.
(2) without
prejudice to the
generality of the
foregoing provision,
the Supreme
Command of the
Armed Forces shall
vest in the President.
(2) Until Parliament (2) Without (2) The President (3) The President
makes provision by limiting the shall subject to law, shall subject to law,
law in that behalf, generality of clause have power — have power —
the President shall (1) of this Article,
have the power- the President has
power, subject to
law ;
(a) to raise and (a) to raise and (a) to raise and (a) to raise and
maintain the Naval, maintain the maintain the maintain the
Military and Air Defence Services of Military, Naval and Military, Naval and
Forces of Pakistan Pakistan and the Air Forces of Air Forces of
and the Reserves of Reserves of those Pakistan; and the Pakistan; and the
such Forces ; Services ; Reserves of such Reserves of such
Forces; Forces; and
(b) to grant (b) to grant (b) to grant
Commissions in such Commissions in Commissions in such (b) to grant
Forces ; and those Services; and Forces; and Commissions in such
Forces.
(c) to appoint (c) to appoint chief (c) to appoint the
Commanders-in-Chie commanders of Chief of the Army (4)The President
f of the Army, Navy those Services and Staff, the Chief of the shall, on advice the
and Air Forces and determine their Naval Staff and the Prime Minister,
determine their salaries and Chief of the Air Staff, appoint-
salaries and allowances. and determine their (a) the Chairman,
allowances. salaries and Joint Chiefs of Staff
allowances. Committee;
(b) the Chief of the
Army Staff;
(c) the Chief of the
Naval Staff; and
(d) the Chief of the
Air Staff,
and shall also
determine their
salaries and
allowances.
16. Article 40 of the 1956 Constitution shows that the

President was made the Supreme Commander of the Armed Forces
and the said command was to be exercised by him under the law.
The Article further provided that until the Parliament made law,
the President would raise and maintain an Army and grant
Commissions in Forces and appoint, inter alia, Commander-in-
Chief of the Army. The underlying constitutional spirit gathered
from the said Article is that the President was to raise and
maintain an Army, to command it, to grant Commissions in it and
to appoint its Commander-in-Chief under the law. It is important
to note that the Pakistan Army Act, 1952 (“Act”) was in force at the
time of promulgation of the 1956 Constitution and despite its
existence the framers of the Constitution required the Parliament
to make provision by law to regulate the above matters. Article 40,
thus, underlined that the Act had to provide the necessary
structural underpinning that would constitute raising and
maintaining of an Army, granting Commissions in the Forces and
appointing its Commander-in-Chief.
17. Article 17 of the Constitution of the Republic of

Pakistan, 1962 (“1962 Constitution”) carried the spirit of Article
40 of the erstwhile Constitution; this time without awaiting for the
legislation by the Parliament made the exercise of the President in
relation to raising and maintaining the Armed Forces and granting
Commissions in and appointing Chiefs of, such Forces, subject to
law. No changes had been made in the Pakistan Army Act, 1952
since 1956 till 1962, therefore, the Act remained devoid of these
constitutional structural requirements, in as much as, no
provisions were added therein as to command of the Armed Forces
by the President as the Supreme Commander, the powers to be
exercised by him to raise and maintain an Army, to grant
Commissions in the Forces and to make appointment of the “Chief
Commander.” This constitutional mandate was not actualized in
law by the Legislature and the Government of the time, and
remains unrealized even today.
18. This brings us to the present Constitution of 1973.

The unrealized constitutional mandate once again is repeated in
Article 243 with the same vigour and flair as it was done in the
Constitutions of 1956 and 1962. Clauses (1) and (2) of Article 243
of the Constitution provide that the Federal Government shall

command and control the Armed Forces and the President shall be
its Supreme Commander. Clause (3) Article 243 of the Constitution
provides that the President shall subject to law raise and maintain
the Military, Naval and Air Forces of Pakistan and the Reserves of
such Forces and grant Commissions in the Forces. Integral and
intrinsic to raising and maintaining an Army is to first provide for
the post of Commander in Chief of the Army, the General Officers
and other Commissioned Officers that stand behind him and
constitute the body of the valiant Army. No Army can be visualized
without its gallant commanders. Once the structure including
terms of service and tenure of the General Officers is put in place
under the law envisaged by the Constitution, the role of the
President to appoint the Chief of the Army Staff, under clause (4) of
Article 243, from amongst the General Officers, on the advice of the
Prime Minister is then simply a matter of selecting the most
appropriate and suitable General officer to act as COAS. The power
to appoint COAS under Article 243(4) is, therefore, not an exercise
in isolation but stands rooted and connected to the Army raised
and maintained under Article 243(3) of the Constitution.
19. Review of the Military Laws of other countries shows

that the law must provide for essential structural areas that would
pass for raising and maintaining an Army. A comparative chart of
the Laws of the Armed Forces of different countries is given
hereunder:
Constituents of raising and maintaining Armed Forces
UNITED AUSTRALIA CANADA SINGAPORE MALAYSIA NEW

Structural STATES (Defence Act (National (Armed (Armed ZEALAND
Areas (10 U.S. 1903) Defence Forces Act Forces Act (Defence
Code Act 1972) 1972) Act 1990)
Title- 1985)
Armed
Forces)
Organization Organiza
- tion and Control and Canadia Organizatio The New
Control & General administrat n Forces n of Regular Zealand
Administrati Military ion Organiz Singapore Forces of Defence
on Powers (Part II) ation Armed Malaysia Force
(Part II) Forces (Part II) (Part II)
(PART II)
Appointment Personne Appointme Enrolme Appointme Appointm Appoint

Resignation, l nt, nt, nts, Pay, ent of ment of
Termination, Resignation Promoti Pension, Officers of Chiefs,
Remuneratio , on, Terms & The Terms &
n, Terminatio Service, Conditions, Regular conditio
Superannua n, Pay Remunerati Forces & ns of
tion and Remunerati (Part-II) on. Terms of Service
other Terms on, (Ss 10- Service in
& Superannu 10C,192- (Part III, Armed
Conditions ation 197,202- IV & VI) Forces &
208) Superan
nuation
(Part 3-
5)
Military Offences & Service Service Offences
Offences Punitive Offences in Offences Military Offences punisha
Matters relation to & Offences and ble by
(Subcha service Punish (PART III) Punishme Civil
pter VIII) tribunal ments nts Courts
(Part VII- infractio (Part V) (Part VII)
VIII) n
(Part-III
Dv2)
Trial by Trial by Trial by Offences Redress
Subordinate Uniform Defence Court Subordinat relating to of
Military Code of Force Martial e Military the Armed complai
Courts Military Discipline & Civil Courts Forces nts (Sec
Justice Act, 1982 Court (PART V) punishabl 49) & &
(Chapter (Part-III e by Civil Armed
47) Dv6, Courts Forces
Part-VII) (PART VII) Disciplin
e Act
1971
Punishment Member
s of Military Service Punishmen Service s may be
Offences Punitive Penalty Offences ts of Offences discharg
Articles (Part VII & Military and ed or
(Subcha Sec 73-F) Punish Offences Punishme released
pter X) & ments and nts for
Sentence infractio Execution (Part V) incompa
s n of tible
(Subcha (Part-III Sentences behavior
pter VI) Dv2) (PART VI) &
disciplin
ary
proceedi
ngs (57
& 57A)
Court of Defence Grievan Military Offences Court
Appeal Uniform Honors and ces Court of relating to Martial
Code of Awards (Right of Appeal the Armed Appeals
Military Appeals Appeal) (PART VII) Forces Act 1953
Justice Tribunal (Part-II punishabl & Armed
(Chapter (Part VIIIC) Dv9) e by Civil Forces
47) Courts Disciplin
(PART VII) e Act
1971
Training & Training Australian The General Training Cadet
Development and Defence Governo Orders of and Forces
Educatio Force r in Ministry of attachme (Part VI)
n Cadets Council Defence nt
(§§ ) (Part V) make (Sec 208 d) (Sec 191,
regulatio 201 &
ns 201B)
for the
training
&
disciplin
e of
Armed
Forces
(Sec 12
(1))
20. The above mentioned laws provide the essential

structural areas that constitute raising and maintaining an Army.
The key structural areas include Organization; Control; Personnel;
Terms and Conditions of services of officers of the Armed Forces
including Appointments, Ranks, Remuneration, Promotion,
Resignation, Termination, Superannuation, Command, Rank;
Discipline, Administration, Training & Development, Education and
Offences. The United States Law of Armed Forces also provides for
Procurement, Supply and Acquisitions for the Armed Forces. The
above laws strongly underline that the officers, who are to
command and control the Army, unquestionably form an essential
component of the Army and must, therefore, be explicitly
recognized under the law.
Review of the Pakistan Army Act, 1952
21. When the Pakistan Army Act, 1952 is reviewed in the

context of raising and maintaining an Army, we see that it largely
deals with offences, courts martial and punishments. There is no
mention of the Chief of the Army Staff, the commanders of the
Pakistan Army. There is no mention of the General Officers or the
other Commissioned Officers or terms of their service. Only three
chapters briefly touch upon definitions, appointment and
termination of service. While the Act governs Commissioned
Officers there is nothing in the Act that prescribes the terms and
conditions of service of the said Officers. Chapter II deals with the
Appointment, Enrolment and Attestation of Junior Commissioned
Officers and Warrant Officers and not of Commissioned Officers,
while section 18 in Chapter III, relating to Termination of Service
deals with the retirement, release or discharge of persons subject
to the Act. The Act is silent about key structural areas that
constitute raising and maintaining an Army especially about the
Commissioned Officers and their Commander-in-Chief.
22. In order to meet this structural constitutional

requirement of Article 243(3) of the Constitution, it seems that a
hurried effort was made and some key structural areas that are
necessary for raising and maintaining an Army were inserted in

section 176A of the Act in the year 196511 empowering the Federal
Government to make Regulations in respect of “governance,
command, discipline, recruitment, terms and conditions of service,
precedence, and administration of the Pakistan Army.” This
slipshod legislative upload, however, does not meet the
requirement of Article 243(3) of the Constitution, without providing
for core, primary and essential legislation on these structural areas
by the Parliament. This aspect is discussed in detail in later part of
the judgment while examining the status of the Army Regulations
(Rules). For now it would suffice to observe that the Pakistan Army
Act, 1952, falls deficient of the Constitutional requirement under
Article 243(3) as it does not provide for essential elements required
to raise and maintain an Army, in particular, the grant of
Commissions in the Army and the terms of service of the
Commissioned Officers. Had this been done, the questions raised
before the Court today, would not have arisen.
Post of COAS – Whether Unregulated
23. The appointment to the post of COAS is made under

Article 243(4)(b) of the Constitution. It would be advantageous to
have a look at the history of the successive amendments in the
said Article before discussing various aspects surrounding the
appointment of the COAS. The trajectory of constitutional
amendments made in Article 243 is given as under:-
Constitutional amendments in Article 243
(Amendments are given in bold for convenience)
1973 After 1985 After 1997 After 2002 After 2003 After 2010
Original Amendmen Amendmen Amendmen Amendment Amendment
Position t t t /
Substitution
(1) The (1) The (1) The (1) The (1) The (1) The
Federal Federal Federal Federal Federal Federal
Government Government Government Government Government Government
shall have shall have shall have shall have shall have shall have
control and control and control and control and control and control and
command of command of command of command of command of command of
the Armed the Armed the Armed the Armed the Armed the Armed
Forces. Forces. Forces. Forces. Forces. Forces.
11 The Pakistan Army (Amendment) Ordinance, 1965

Position t t t /
Substitution
(1A) without (1A) without (1A) without (1A) without (2) without
prejudice to prejudice to prejudice to prejudice to prejudice to
the the the the generality the generality
generality generality of generality of of the of the
of the the foregoing the foregoing foregoing foregoing
foregoing provision, provision, provision, the provision, the
provision, the Supreme the Supreme Supreme Supreme
the Command of Command of Command of Command of
Supreme the Armed the Armed the Armed the Armed
Command Forces shall Forces shall Forces shall Forces shall
of the vest in the vest in the vest in the vest in the
Armed President. President. President. President.
Forces shall
vest in the (This clause
President. was
(This clause renumbered
was added) as clause (2)
(2) The (2) The (2) The (2) The (2) The (3) The
President President President President President President
shall subject shall subject shall subject shall subject shall subject shall subject
to law, have to law, have to law, have to law, have to law, have to law, have
power — power — power — power — power — power —
(a) to raise (a) to raise (a) to raise (a) to raise (a) to raise (a) to raise
and and and and and maintain and maintain
maintain the maintain the maintain the maintain the the Military, the Military,
Military, Military, Military, Military, Naval and Air Naval and Air
Naval and Naval and Naval and Naval and Forces of Forces of
Air Forces of Air Forces of Air Forces of Air Forces of Pakistan; and Pakistan; and
Pakistan; Pakistan; Pakistan; Pakistan; the Reserves the Reserves
and the and the and the and the of such of such
Reserves of Reserves of Reserves of Reserves of Forces; and Forces; and
such Forces; such Forces; such Forces; such Forces; (b) to grant (b) to grant
(b) to grant (b) to grant (b) to grant and Commissions Commissions
Commission Commission Commission (b) to grant in such in such
s in such s in such s in such Commission Forces. Forces.
Forces; and Forces; and Forces; and s in such (This clause
(c) to appoint (c) to appoint (c) to appoint Forces. was
the Chief of in his the Paragraph renumbered
the Army discretion Chairman, (c) of clause as clause (3)
Staff, the the Joint Chiefs (2) was
Chief of the Chairman, of Staff omitted and
Naval Staff Joint Chiefs Committee, clause (3)
and the of Staff the Chief of was added
Chief of the Committee, the Army
Air Staff, the Chief of Staff, the
and the Army Chief of the
determine Staff, the Naval Staff
their salaries Chief of the and the
and Naval Staff Chief of the
allowances. and the Air Staff,
Chief of the and
Air Staff, determine
and their salaries
determine and
their salaries allowances.
and (Words “in
allowances. his
discretion”
(The from clause
highlighted (2)(c) were
words were omitted)
added)
Position t t t /
Substitution
(3) The (3) The (4) The
President President President
shall, in his shall, in shall, on
discretion, consultation advice the
appoint- with the Prime
Prime Minister,
Minister, appoint-
(a) the appoint-
Chairman,
Joint (a) the (a) the
Chiefs of Chairman, Chairman,
Staff Joint Chiefs Joint Chiefs
Committee of Staff of Staff
; Committee; Committee;
(b) the (b) the Chief (b) the Chief
Chief of the of the Army of the Army
Army Staff; Staff; Staff;
(c) the (c) the Chief (c) the Chief
Chief of the of the Naval of the Naval
Naval Staff; Staff; and Staff; and
and (d) the Chief (d) the Chief
(d) the of the Air of the Air
Chief of the Staff, Staff,
Air Staff, and shall and shall
and shall also also
also determine determine
determine their salaries their salaries
their and and
salaries allowances. allowances.
and
allowances. (In clause (3), (In clause (4),
for the for the
words "in his words "in
discretion" th consultation
e words "in with the
consultation Prime
with the Minister" the
Prime words "on
Minister" wer advice of the
e Prime
substituted.) Minister" wer
e
substituted.)
24. Article 243(4), which carries a long constitutional

ancestry since 1956, provided in its original form that the
President shall “subject to law” appoint and determine salary and
allowances of the COAS, alongwith matters of raising and
maintaining Armed Forces and granting Commissions in Forces.
Under the Legal Framework Order, 2002 the matter of
appointment of COAS was separated and provided for under clause
(3) of Article 243 which was renumbered as clause (4) in the year
2010. Post 2002, clause (3), now clause (4) of Article 243, does not
contain the expression “subject to law.” Relying on the current
language of clause (4) of Article 243 the learned Attorney-General
submitted that the post of the COAS not being “subject to law”
allows appointment of even a retired General as the COAS.
25. The submission of the learned Attorney-General, 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 the COAS in the “service of Pakistan12” goes
unregulated under a written Constitution.
26. The interpretation put by the learned Attorney

General, to the provisions of clause (4) of Article 243 is the result of
reading it in isolation from the other clauses of Article 243,
particularly the immediately preceding clause, i.e. clause (3), and
in oblivion of the overall constitutional scheme of appointment to
the constitutional posts and their tenure. It is a settled principle of
interpretation that the words in a provision cannot be read and
interpreted in isolation. The meaning and scope of a provision is
determined by looking not to the isolated words used therein but
by reading its text in context. The relevant provision of the
Constitution is, therefore, to be read in its immediate context as
well as in the overall scheme of the constitutional appointments.13
27. Clause (3) of Article 243 as elaborated earlier,

contemplates raising and maintaining the Armed Forces and
granting Commissions in such Forces under a law enacted by the
Parliament. Such a law must provide for a cadre of commanders
12The Constitution of Pakistan, 1973, Article 260

13Gundy v. United States, 139 S. Ct. 2116 (2019), p. 2126; Bennion, Statutory
Interpretation, Fourth Edition, p. 501-502; Craies on Statute Law, Sixth Edition,
p.159-160; Craies on Legislation, Ninth Edition, p. 682-683; and S.M.Zafar,
Understanding Statutes, Fourth Edition, p. 575-580
who will eventually head the Army. Article 243(4) simply deals with
selection/appointment of the COAS by the President on the advice
of the Prime Minister. This selection/appointment is naturally to
be made from amongst the General Officers of the Army raised and
maintained under Article 243(3) and is solely the prerogative of the
President on the advice of the Prime Minister which cannot be
curtailed by law. Both clauses (3) and (4) of Article 243 work in
tandem, without disturbing each others powers. Therefore,
separation by the Legal Framework Order 2002, of clause (4) from
that of clause (3) and omission of the expression “subject to law” in
clause (4) has only given more autonomy to the Prime Minister, the
head of the Executive branch, in selection and appointment of a
General Officer as a COAS. The removal of the term “subject to
law” does in no manner lessen the importance of Article 243(3),
which envisages that the terms of service of the General Officers
should be provided under the law.
28. A look at the scheme of the Constitution shows that

the President in whom the Supreme Command of the Armed
Forces vests, has a fixed tenure under the Constitution.14 The
Prime Minister, on whose advice the COAS is appointed, being a
Member of the National Assembly, has also a fixed term under the
Constitution. A survey of the constitutional appointments to be
made by the President is given as under:
Constitutional Appointments
Article Constitutional Office Article Tenure or Age of Retirement
92(1) Federal Ministers and 92(3) May be removed from office at

Minister of State anytime on the advice of the
Prime Minister (NOT A SERVICE
OF PAKISTAN- Article 260)
93(1) Advisors 93(1) The terms and conditions of
appointment are determined by
the President, on the advice of
the Prime Minister. (NOT A
SERVICE OF PAKISTAN- Article
260)
100(1) Attorney-General for 100(2) Holds office during the pleasure
Pakistan of the President. (NOT A
SERVICE OF PAKISTAN- Article
260)
101(1) Governors of Provinces 101(3) Hold offices during the pleasure
of the President.
168(1) Auditor General of 168(3) 4 years tenure, or age of 65 years
14 see Article 44(1) of the Constitution

Pakistan whichever is earlier

177(1) Chief Justice of Pakistan 179 No tenure or age of retirement
Connected with the Judge of the

Supreme Court who holds office
till age of 65 years.
177(1) Judges of Supreme 179 Hold offices till age of 65 years
Court
193 Chief Justices of High 195 No tenure or age of retirement
Courts
Connected with the Judge of the
High Court who holds office till
the age of 62 years.
193 Judges of High Courts 195 Hold offices till age of 62 years
203C Chief Justice Federal 203C Tenure not exceeding 3 years;
(2) Shariat Court (4) and may be appointed for further
term(s)
203C Judges of Federal 203C Tenure not exceeding 3 years;
(2) Shariat Court (4) and may be appointed for further
term(s)
203F Judges of Supreme 203F(4) Holds office for such period as
Court Shariat Appellate the President may determine
Bench
213(1) Chief Election 215(1) 5 years tenure
Commissioner
218(2) Members of Election 215(1) 5 years tenure

(b) Commission
228(2) Members of Council of 228(5) 3 years tenure
Islamic Ideology
228(4) Chairman, Council of 228(5) No tenure.
Islamic Ideology
But same as that of a Member,
i.e., 3 years under article 228(5).
242 Chairman of Public No tenure or age of retirement.
(1A) Service Commission
Terms of service of a Member
applicable. Section 4(1) of the
FBSC Ordinance, 1977 provides
a tenure of three years or an age
of 65 years, whichever is earlier
of a Member the Commission.
243(4) Chairman, Joint Chiefs No tenure prescribed in the
of Staff Committee; Constitution and the law
and relating to the Armed Forces
Chiefs of Armed Forces
The above provisions of the Constitution provide for the following

constitutional positions as to tenure or age of retirement: (i) posts
with specific tenure or age of retirement in the Constitution, (ii)
posts with no specific tenure or age of retirement but are regulated
at the pleasure of the President, and (iii) posts with no specific
tenure or age of retirement but are regulated with the tenure or age
of retirement of the persons so appointed to the posts. A quick
reference can be made to the appointment of Chief Justice of the
Supreme Court or of a High Court, which is an appointment
without a tenure or age of retirement. This falls in the third

category. Chief Justice of the Supreme Court or of a High Court is
appointed from amongst the Judges of these Courts and it is the
age of retirement of these Judges, under the Constitution, that
regulates the age of retirement of the Chief Justices. Therefore, if a
Judge of Supreme Court retires at 65 years of age, so does the
Chief Justice of Pakistan. Similarly, the Chairman of the Council
of Islamic Ideology has no tenure or age of retirement under the
Constitution. However, as the Chairman of the Council is
appointed from amongst the Members of the Council, it is his
tenure as a Member that regulates his tenure in the post of
Chairman. Another example is of the tenure of the Chairman of the
Public Service Commission, who is not provided under Article
242(1A). However, being a Member15 of the Public Service
Commission his tenure and age of retirement stand regulated
under section 4(1) of the Federal Public Service Commission
Ordinance, 1997 which determines tenure and age of retirement of
a Member.
29. Army Regulations (Rules) 125 read with Annex D

shows that an officer of the Army holding the rank of a “General” is
appointed as a COAS. This is also an admitted position according
to the submissions made by the Attorney-General besides being
visible from the appointment notifications of the earlier and the
present COAS, placed on the record. The appointment notifications
provide that a Lieutenant-General is first promoted to the rank of a
General and then appointed to the post of COAS. It is for this
reason that the Federal Government in the Summaries and
notifications, referred to above, have taken pains to extend the
tenure of General Bajwa for a period of three years either through
extension in service or limiting his retirement in order to make him
available for re-appointment to the post of COAS. Therefore, the
substantive rank of the army officer who is posted as a COAS is
that of a General, which in turn then regulates the tenure, as well
as, the other terms of service of the COAS. This puts to rest the
impression that the post of COAS is without any tenure under
15
section 2(b) of the Federal Commission Ordinance, 1977
Article 243(4)(b). Thus, the constitutional appointment of COAS,

like similar constitutional appointments, stands regulated and falls
in line with the constitutional scheme. It is important to underline
that it is only a serving General who can be appointed as the
COAS. This is because only a serving army officer is subject to the
Pakistan Army Act, 1952.16 A retired army officer has no terms of
service and is not regulated under the Act. Therefore, the terms of
service of the rank of the General appointed as COAS regulates the
tenure and terms of service of the COAS, other than his salary and
allowances which are to be determined by the President under
Article 243(4) of the Constitution.
Tenure or Age of Retirement of a General
30. 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. Section 18 of the Act states that
the prescribed Authority may, in conformity with such rules as
may be prescribed in this behalf, retire, release, or discharge from
the service any person subject to this Act. While Rule 12 of the
Rules provides that the retirement or release of an officer shall be
authorized by the Federal Government and notified in the official
Gazette. Both these provisions do not provide the age of retirement
or tenure of army officers including a General.
31. The Army Regulations, however, contain the provisions

regarding the retirement of the army officers. Regulations 262,
262-A & 262-C deal with normal retirement of officers. Regulation
262 deals with normal retirement of officers who were on the
Effective List17 on 1.07.1970 (commissioned prior to 1970) and
provides their retirement age and service limit including that of a
General as follows:
16The Pakistan Army Act, 1952, Section 2(2)

17Personnel actually holding army appointments/posts are borne on this List –
Army Regulations (Rules), Regulation 42
Rank Age (yrs) Service

(a) Major and below 47 23
(b) Lieut-Colonel 50 25
(c) Colonels 53 26
(d) Brigadiers 55 28
(e) Major Generals 57 30
(f) Lieut-Generals 58 32
(g) Generals 60 35
Regulation 262-A deals with officers commissioned after 1970

which includes the incumbent COAS, while Regulation 262-C deals
with the officers commissioned after 1988. Regulation 262-A,
which is applicable to General Bajwa, does not provide for age of
retirement for the officer of the rank of a General as seen from the
relevant provision reproduced hereunder:
Rank Age Limit

(a) Major and below 48
(b) Lieut-Colonel 50
(c) Colonel 52
(d) Brigadier 53
(e) Major General 55
(f) Lieut-General 57 years or on completion of

one tenure of four years
which ever is earlier.
However, an officer may be
retained in service as a
special case by the Federal
Government for an extra year
on completion of his tenure
of four years.
32. The laws relating to the Army discussed above do not

provide for the tenure or age of retirement of a General. The
learned Attorney-General has also conceded this legal deficiency
and submitted that the tenure of a General, at present, is being
regulated by the institutional convention and practice. As per the
said practice, he submitted, the tenure of a General and
consequentially of a COAS is three years. This institutional
practice pleaded by the Attorney-General is discussed in detail in
the later part of the judgment. It would suffice here to observe that
such 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.
Extension in service and limit in retirement of a General
33. The re-appointment, extension or fresh appointment of

General Bajwa as COAS has been structured by the Federal
Government by first limiting the retirement of the General under
Regulation 255 for three years and then appointing him as COAS
for another term under Article 243(4) of the Constitution. During
the course of hearing of this case, the said Regulation was
amended overnight by the Federal Government on 26.11.2019 to
include the expression “extension” in limiting retirement. In the
absence of a tenure or age of retirement for the rank of a General
under the law, this exercise to amend the Regulation 255 did not
serve any purpose.
Scope and Meaning of Army Regulation (Rules) 255
34. The above Regulation has been provided in the

Chapter dealing with Termination of Service of Army Regulations
(Rules) and bears the heading Retirement and Resignation. This
Regulation can only be invoked for an officer who has retired or is
about to retire. The emphasis is to delay the retirement either by
limiting the retirement or by extending the date of retirement or
suspending retirement after retirement. This is a temporary
arrangement and can only be availed if the exigencies of service
and public interest so require. The essence of the Regulation is
that if an officer is on the way out (about to retire) and urgent or
pressing circumstances require that he be retained in service, this
Regulation comes into play. An example could be that during war,
an army officer may not be allowed to leave the war front just
because he is about to retire or has retired, in such a situation the

retirement can be limited, extended or suspended. This is in line
with Regulation 255A. The exercise of discretion by the Federal
Government under the said Regulation has to be structured on
parameters of exigency of service with a corresponding temporary
period in mind. The words suspension, limiting retirement and
extension do not connote permanency and cannot be equated with
grant of new tenure or a fresh appointment. Therefore, a new
tenure or fresh appointment for a full new tenure cannot be given
or granted to an army officer under Army Regulation (Rules) 255.
Status of Regulations 255
35. Reading of Regulation 255 in the light of the relevant

provisions of the Act and the Rules has given rise to some serious
doubts as to the vires of its provisions which we would like to
highlight in the public interest so that the Federal Government
when initiates a legislative process on the subject, may take it also
into consideration. Section 18 of the Act provides as under:
18. Retirement, release or discharge - The prescribed Authority

may, in conformity with such rules as may be prescribed in this
behalf, retire, release, or discharge from the service any person
subject to this Act.
Section 176(2)(a) empowers the Federal Government to make Rules

on the subject of “retirement” and as a consequence Rule 12 of the
Pakistan Army Act Rules, 1965 provide as follows:
12. Authorities empowered to authorize retirement, release or

discharge – (a) The retirement or release of an officer shall be
authorized by the Federal Government and notified in the official
Gazette. The Federal Government may at any time terminate the
services of an officer.
36. Army Regulation (Rules) 255 appears in Chapter XI of

the Regulations dealing with Termination of Service under the
head Retirement and Resignation. Regulation 255, prior to the
recent amendment, provided as follows:
Retirement and Resignation

255. General Provision:- Retirement of officers will always be
subject to the exigencies of service. Full power is reserved to the
Federal Government temporarily or limit retirement, in general or

in individual cases wherever it may be necessary to do so in public
interest. Officer of the rank of Colonel and above will not be
permitted to retire voluntarily unless deemed expedient by the
Federal Government.
The above Regulation was amended in one day on 26.11.2019

during the pendency of this case. This was done when the Court
asked the Attorney-General to show if there was any provision of
the law dealing with “extension” of the tenure of a General or
COAS. The amended Regulation is as follows:
Retirement and Resignation
255. General Provision:- Notwithstanding anything contained in

the Army Regulations, Volume-I (Rules), 1998, the Federal
Government shall have the power to suspend temporarily or limit
retirement, the latter including the grant of extension in the
service of any officer, in general or in individual cases, during the
currency of tenure or upon reaching retirement, wherever it is
necessary to do so in any exigency or in the public interest. Officer
of the rank of Colonel and above will not be permitted to retire
voluntarily unless deemed expedient by the Federal Government
37. Section 176A of the Act clearly provides that the

Federal Government shall make Regulations for all or any of the
purposes of the Act but other than those in respect of which Rules
have been made under section 176. Rule 12 specifically covers the
subject of “retirement”; therefore, Regulations could not deal with
the subject of retirement. While the Act and the Rules mention
simple retirement, the Regulation introduces a totally new concept
of suspending, limiting in and extending retirement, which
apparently exceeds the mandate of the Act.
Status of Section 176A of the Act and the Army Regulations
38. The examination of Regulation 255 has lead us to

examine the history and constitutionality of section 176A of the Act
and the vires of the Army Regulations as a whole. Before
Independence, Army of the British India was governed by the
Indian Army Act, 1911. After 1947, the Pakistan Army continued
to be governed by the said Act by virtue of section 18 of the Indian
Independence Act, 1947. The Act of 1911 was repealed and
replaced by the Pakistan Army Act, 1952. We could not trace the
history of Army Regulations (Rules) and their legislative authority

before 1960 or 1965 when they are said to have been made under
section 176A of the Act. The Regulations were in existence even in
1945 but did not have a legislative cover under the Indian Army
Act, 1911 as there was no provision under the said Act to make the
Regulations. India resolved this anomaly by adding sections 192,
193 and 193A in the Indian Army Act, 1950; and Pakistan did this
in the year 1965 by adding section 176A to the Pakistan Army Act,
1952.
Essential Legislative Function – Excessive Delegation
39. In order to provide a legal cover to the Army

Regulations, section 176A was inserted in the Act vide the Pakistan
Army (Amendment) Ordinance, 1965 (Act XV of 1965) which
empowered the Federal Government to make Regulations in the
following manner:
176A. Power to make regulations. The Federal Government may

make regulations for the governance, command, discipline,
recruitment, terms and conditions of service, rank, precedence,
and administration of the Pakistan Army and generally for all or
any of the purposes of this Act, other than those in respect of
which rules have been made under section 176. (emphasis
supplied)
It is useful to refer to the debates18 in the National Assembly when

Section 176-A was introduced through the Pakistan Army
(Amendment) Ordinance, 1965. Dr. Aleem Al-Razi, the then
Member of the National Assembly pointed out as follows:
“Thirdly, the last clause in section 176 of the Act is absolutely

unnecessary. It takes away the entire thing from the purview of
this Legislature to the Executive Government alone who will be
determining the factors whom to be given precedence and whom
to be given a new title or new favour this is absolutely in the hand
of the Central Government. Under the previous rules, under
section 176 of the Pakistan Army Ordinance, 1952, Mr. Speaker,
the wording of that section are not so quiet but unfortunately by
adding new section 176-A a comprehensive power we are giving to
the Executive Government and we shall not know anything. Even
there is no provision of publication of those rules and regulations
in the official Gazette of Pakistan. So, Mr. Speaker, Sir, may I ask
18 National Assembly Of Pakistan, Assembly Debates, Friday, the 16th July,

1965, p. 1612 available online on the official website of the National Assembly
at http://www.na.gov.pk/uploads/documents/1447313728 418.pdf
the Members of the Treasury Benches that they may publish

these rules and regulations in the Official Gazette and if
necessary produce those rules and regulations on the floor of the
House if not for approval may be for our reading, for our
understanding so that we may know the fate of our Army, we may
know the rules and regulations by which our Armed Forces are
governed so that we may also go in the Armed Forces of
Pakistan.” (emphasis supplied)
Mr. Muhammed Qasim Malik, the then Parliamentary Secretary to

the Defence Division, who tabled the Ordinance for approval by the
Assembly under clause (3) of Article 29 of the Constitution, 1962
pointed out as under:
“… This is actually to legalize the Pakistan Army Regulations

which are already in existence. But unfortunately it was found
later on that they had no legal force under the Army Act. Under
the Army Act, Army regulations can be made and they already
exist and there is a great necessity of these Regulations.
Therefore, this Ordinance had to be brought in. The main
purpose is to legalize this and to give a certain legal force behind
those regulations because they could not be framed unless and
until this Ordinance was passed or this Resolution is passed…….”
40. The debates are self-explanatory and set out the

purpose of inserting section 176A in the Act. It can be safely
maintained that the said Regulations existing from the time of the
British India were promulgated as statutory Regulations by the
Federal Government under section 176A of the Act after 1965. The
only problem is that these Regulations once brought within the
statutory fold must flow from the Act. Regulations which do not
meet this requirement would be ultra vires the Act. The scope of
the Act or the vires of the Regulations cannot be determined by the
words inserted in section 176A like governance, command,
discipline, recruitment, terms and conditions of service, rank,
precedence and administration of the Pakistan Army. These words
are mere words when there is no essential or core legislation on
these subjects. Article 142(a) of the Constitution provides that the
Parliament shall have exclusive power to make laws with respect to
any matter in the Federal Legislative List. Item No.1 of the said List
provides for Military, Naval and Air Forces raised and maintained
by the Federation. However, no such legislation was ever made
since it was first clearly mandated under the 1956 Constitution.
Section 176-A inserted in 1965 provided a shortcut and authorized
the Federal Government to regulate areas like governance,
command, discipline, recruitment, terms and conditions of service,

rank, precedence and administration of the Pakistan Army through
Regulations. 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.
41. This Court has time and again held that the essential
legislative function of the Parliament cannot be delegated.19 The
wisdom behind it is that the delegatee must have legislative
guidelines to formulate Rules and Regulations, and that guidelines,
contours or boundaries must come from the Legislature itself.
Delegation of an “essential legislative function” by the Legislature
to the Executive is not permissible under the Constitution. The
foundation of embargo owes its genesis to the concept of
trichotomy of powers between the Legislature, the Executive and
the Judicature, which is a fundamental principle of our
constitutional construct. Under the Constitution, these three
organs of the State have been entrusted with separate and
specified functions. The primary function of the Legislature is to
legislate laws, of the Executive to execute laws, and of the
Judicature to interpret laws.20 The words of Chief Justice Marshall
of the US Supreme Court frequently quoted, in explaining the
doctrine of separation of powers, by the Courts of various
jurisdictions in the last about two centuries still hold: “the
Legislature makes, the Executive executes, and the Judiciary
construes, the law." 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.
Through section 176A, the Parliament appears to have divested
19 See PLD 2005 SC 873; PLD 2002 SC 460; PLD 1983 SC 358
20 See PLD 2015 SC 401; PLD 2014 SC 1; PLD 2012 SC 466; PLD 2012 SC 132
itself of the essential legislative function which amounts to

excessive delegation.
42. The Army Regulations (Rules) will be rendered ultra

vires if they do not draw their power from the parent Act, i.e. the
Pakistan Army Act, 1952 and will suffer from excessive delegation
if they draw their strength only from section 176A of the Act. The
Regulations have to be fully examined in the light of these
principles. Once again it is for the Federal Government to bring
about appropriate legislation to remove these defects so that the
Regulations have a proper legal cover and are fully enforceable
under the law.
Accessibility of Regulations
43. The copy of the Army Regulations (Rules) carries a

stamp of “Restriction” stating as follows:
RESTRICTED
The information given in this document

is not to be communicated either directly
or indirectly, to the press or to any
person not authorized to receive it.
Acts of the 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,21and 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.22 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.
21 The Right of Access to Information Act, 2017, Section 7(e)

22 Atifete Jahjaga, President of Kosovo (2011-2016)
Legal Vacuum and the Assurance by the Federal Government
44. 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 tenure. 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. The learned Attorney-
General has assured the Court that the Federal Government will
carry out legislation through the 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 realized at the earliest. Even
otherwise, this Court could have directed23 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.
Institutional Practice
45. 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
23See PLD 1993 SC 341; 1999 SCMR 1379; 2006 SCMR 145; PLD 2008 SC 673;
PLD 2011 SC 811; PLD 2014 SC 668
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.24 We can, therefore, place
reliance on the institutional practice in order to ensure realization
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.
Judicial Restraint
46. Judicial restraint in its substantial approach urges

Judges considering constitutional questions to give deference to
the views of the elected branches and invalidate their actions only
when constitutional limits have clearly been violated;25 while the
principle, “if it is not necessary to decide more, it is necessary not
to decide more”26 well states the procedural aspect of judicial
restraint. The power of judicial review is a “great weapon in the
24 See 2011 SCMR 408; PLD 1990 SC 612

25 Judicial Restraint, definition by Kermit Roosevelt, available online at
https://www.britannica.com/topic/judicial-restraint
26
PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786 (CADC 2004), per
John Roberts, J.
hands of Judges”, but the Judges must observe the Constitutional

limits set by our parliamentary system on their exercise of this
beneficial power, namely, the separation of powers between the
Parliament, the Executive and the Courts. Judicial review must,
therefore, remain strictly judicial and in its exercise Judges must
take care not to intrude upon the domain of the other branches of
Government. Judicial restraint, in this perspective, is essential to
the continuance of rule of law, and for the continued public
confidence in the political impartiality of the judiciary and the
voluntary respect for the law as laid down and applied by the
Courts.27
47. Separation of powers is a cornerstone of a

constitutional democracy and we do not wish to encroach upon the
domain of the legislature. This Court has, therefore, in many
cases, exercised judicial restraint in deference to the principle of
trichotomy of powers and given the other branches of Government
a fair opportunity to fulfill their constitutional mandate before
making a final verdict on the disputed matters. The cases of Sind
High Court Bar Association28, Sharaf Faridi29 and Nadeem Ahmad30
may be cited with advantage. We, therefore, exercise judicial
restraint and give an opportunity to the Federal Government in the
light of the assurance of the Attorney-General to carry out
appropriate legislation through an Act of Parliament within a
period of six months.
Continuity of Incumbent COAS for Six Months
48. 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 Army31 and is responsible for
the command, discipline, training, administration, organization
27 Imtiaz Ahmad v. Government of Pakistan, 1994 SCMR 2142, per Fazal Karim,
J.
28 Sind High Court Bar Association v. Federation of Pakistan, PLD 2009 SC 879.
29 Government of Sindh v. Sharaf Faridi, 1990 SCMR 91, final decision reported
in PLD 1994 SC 105
30 Nadeem Ahmad v. Federation of Pakistan, PLD 2010 SC 1165.
31 The Pakistan Army Act, 1954, Section 8(2)
and preparedness for war of the Army 32 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 the new legislation (Act of the Parliament) shall
determine his tenure and other terms of his service.
49. This 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.
Summary of Findings of the Court
50. In our endeavour to address the legal questions raised

in this case, we have explored the scope of Article 243 of the
Constitution, reviewed the Pakistan Army Act, 1952, the Pakistan
Army Act Rules, 1954, and the Army Regulations (Rules) and have
found:
1) That 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.
2) That 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.
32 Army Regulations (Rules) 19 of

3) 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 a
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.
4) That 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.
5) That the Summaries of the Ministry of Defence 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.
6) 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 for only a temporary arrangement for a short
term, if the exigencies of service so requires in the public
interest.
7) 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.
8) 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.
9) That in view of the assurance of the Attorney-General

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 representative of the people of
Pakistan by making an appropriate legislation.
10) 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.
51. These are the detailed reasons of our short order dated
28.11.2019 whereby the instant petition was disposed of in the
following terms:
“The learned Attorney-General has categorically assured

the Court that this practice being followed is to be
codified under the law and undertakes that the Federal
Government shall initiate the process to carry out the
necessary legislation in this regard and seeks a period of
six months for getting the needful done. Considering that
the COAS is responsible for the command, discipline,
training, administration, organization and preparedness
for war of the Army and is the Chief Executive in General
Headquarters, we, while exercising judicial restraint, find
it appropriate to leave 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 and to clarify the scope of Article 243 of the
Constitution in this regard. Therefore, the current
appointment of General Qamar Javed Bajwa as COAS
shall be subject to the said legislation and shall continue
for a period of six months from today, whereafter the new
legislation shall determine his tenure and other terms
and conditions of service.”
52. It is, however, clarified that in case the Federal

Government remains unable to regulate the tenure and terms of
service of a General and as a consequence of the COAS through an

appropriate legislation by the Parliament as assured by the
Attorney-General, within a period of 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 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.
53. In the end, we would like to emphasise that this

crucial matter of the tenure of COAS and its extension, which has
a somewhat chequered history, 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.
(Syed Mansoor Ali Shah)

Judge
54. I agree.
(Mazhar Alam Khan Miankhel)

Judge
Asif Saeed Khan Khosa, CJ.
55. I agree with the judgment authored by my learned

brother Syed Mansoor Ali Shah J., and would like to add that in
our peculiar historical context Chief of the Army Staff holds a
powerful position in ways more than one. Unbridled power or
position, like unstructured discretion, is dangerous. It has been a

shocking revelation to us that the terms and conditions of service
of Chief of the Army Staff, the tenure of his office, extension in the
tenure of his office or his reappointment to that office have
remained unregulated by any law so far. Clause (3) of Article 243 of
the Constitution of the Islamic Republic of Pakistan, 1973
mandates that the President’s power to raise and maintain the
armed forces is to be “subject to law” and, thus, leaving some vital
aspects relevant to the office of Chief of the Army Staff without
being regulated by any law militates against the said express
provision of the Constitution. 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, as declared by
Chief Justice Sir Edward Coke of England in the Commendam case
in the year 1616 regarding the powers of King James I, “Howsoever
high you may be; the law is above you”.
Chief Justice
Islamabad.
28th November, 2019
Approved for reporting
Sadaqat

Const.p. 39 16122019

Uploaded by

Copyright:

Available Formats

Const.p. 39 16122019

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Const.p. 39 16122019

Uploaded by

Copyright:

Available Formats

IN THE SUPREME COURT OF PAKISTAN

Constitution Petition No. 39 of 2019

The Jurists Foundation through its Chairman

Federal Government through Secretary Ministry of Defence,

For the respondents: Mr. Anwar Mansoor Khan, Attorney-

Research Assistance: Supreme Court Research Centre (SCRC)

Dates of hearing: 26th, 27th & 28th November 2019.

2. The proceedings of the case brought to fore more

3. The history of our Army has seen successive

4. The Prime Minister appointed the current COAS for

1 Marbury v. Madison, 5 U.S. 137, per John Marshal CJ.

granted “extension” for one further tenure of three years to the

5. The petitioner did not appear on the first date of

“The Court-Associate has produced before us a handwritten application

The Petitioner appeared in person, on the next date of hearing and

Public Interest Litigation (PIL) – Withdrawal

6. A public interest litigation (PIL) can only be withdrawn

against possibilities of such litigants settling the matters out of

Maintainability and Jurisdiction under Article 184(3)

7. The Armed Forces are to defend Pakistan against

2 AIR 1997 SC 272

Fundamental rights in a living Constitution are to be liberally

8. Even the learned Attorney-General appearing for the

9. The case proceeded as the Attorney-General for

“i) A summary had initially been moved by the Ministry of

7 Bush v. Gore, 531 U.S. 98, p. 128, per Stevens J.

Article 243 of the Constitution it is the President who is

iii) After our repeated queries the learned Attorney-General

iv) The stated purpose for the proposed re-

10. The Attorney-General defended the Federal

Initial appointment of General Bajwa as COAS

a. On 15.11.2016, the Ministry of Defence moved a

b. On 28.11.2016, the Ministry of Defence notified the

c. On 26.11.2016, the Prime Minister gave advice to the

d. On 26.11.2016, the Ministry of Defence notified the

Extension of General Bajwa as COAS

First Proceedings dated 19.08.2019

e. The Prime Minister of Pakistan made an “order”

f. The Prime Minister’s office addressed a letter to the

g. The Ministry of Defence initiated a Summary for the

h. The Ministry of Defence notified that General Bajwa,

Second Proceedings dated 20.08.2019 & 21.08.2019

i. The Ministry of Defence, on 20.08.2019, initiated a

2022; that Rule 255 of the Army Regulations (Rules)

j. The Cabinet Division, on 21.08.2019, circulated the

Third Proceedings dated 26.11.2019

k. The Ministry of Defence moved the following three

i. Summary for withdrawal of the earlier

ii. Summary for amendment/substitution of

iii. Summary for limiting the retirement of

Fourth Proceedings dated 26.11.2019

l. The Ministry of Defence notified the

i. Summary for proposing withdrawal of the

ii. Summary for proposing the Prime Minister

The Prime Minister advised accordingly, and the

m. The Ministry of Defence issued Notification

The Ministry of Defence, on the same day, issued

Fifth Proceedings dated 28.11.2019

n. The Ministry of Defence initiated yet another Summary