Daily Times

On November 26, on the application of a member of the public, the Supreme Court (SC) took up the matter of the extension in the tenure or the reappointment of Chief of Army Staff (COAS), General Qamar Javed Bajwa. On November 28, through a short order, the SC announced to permit the COAS to continue with his service for another six months. The SC also asked the government to take the matter to parliament to carry out the necessary legislation to legalise the extension.

As per the short order, the federal government “has presented this court with a recent summary approved by the president on the advice of the prime minister along with a notification dated 28.11.2019, which shows that General Qamar Javed Bajwa has been appointed as COAS under Article 243 (4) (b) of the Constitution with effect from 28.11.2019.”

This piece will discuss the case of the extension in the service tenure or the reappointment of the COAS in light of the constitutional rationale.

Chapter two of the Constitution of Pakistan demarcates the SC’s three jurisdictions: first, original jurisdiction (under Article 184); second, appellate jurisdiction (under Article 185); and third, advisory jurisdiction (under Article 186).

In the context of original jurisdiction, Article 184 offers the SC two powers: first, to decide any dispute arising between the provinces and between a province and the Centre by pronouncing declaratory judgements only, and second, to have the discretion of taking a suo moto notice, if the SC considers that a question of public importance with reference to the enforcement of any of the fundamental rights mentioned in the constitution are involved.

The original jurisdiction of the SC is meant for settling disputes between the provinces, between institutions, or between a province and the Centre. Here, the SC acts as a constitutional court. The precondition to invoke this article is the presence of a dispute. In the matter under discussion, however, a member of the public disputed the extension/reappointment issue by filing an application. Otherwise, the federal government was not in dispute with any of its institution or the provinces. This was why the application filed was considered for hearing under the head of public interest litigation and not under the purview of original jurisdiction outlined by Article 184 (1 and 2).

It is not known, through the short order, under what law the SC offered an interim period of six months of an extended service tenure to the incumbent COAS

The SC derives its suo moto power from Article 184(3), which leaves it to the discretion of the SC to see “if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights” is involved – a precondition for the invocation of suo moto to enter the domain of Article 199. That is if the SC considers that a question of public importance to enforce fundamental rights is not involved, it is empowered to let go an application or a writ petition filed as a public interest litigation. In the matter under discussion, however, neither did the issue of an extension in the service tenure or the reappointment of the COAS falls under the fundamental rights of the public to be enforced through suo moto powers nor was it the fundamental right of the COAS to claim extension/reappointment.

Regarding Article 184, a relevant question could be this: can the SC take up on the original jurisdiction a case on its own? The answer is that if the SC interprets a lingering/presented dispute between the provinces, between institutions, or between a province and the Centre, involving a question of public importance to enforce fundamental rights of the public, the SC can take a suo moto notice under Article 184 (3), otherwise not. In the matter under discussion, neither was any question of public importance involved nor had any fundamental rights of the public infringed. This part of discussion rules out the role of Article 184 in the matter under discussion.

In the context of appellate jurisdiction, Article 185 states that the “Supreme Court shall have jurisdiction to hear and determine appeals from judgements, decrees, final orders or sentences.” In the matter under discussion, no one filed an appeal against the decision of any high court. This part of discussion rules out the role of Article 185 in the matter under discussion.

In the context of advisory jurisdiction, Article 186 not only permits the president of Pakistan to refer a question of law, which he considers of public importance, to the SC for its opinion, but it also makes it binding on the SC to consider the question and report its opinion on the question.

Article 186 talks about two preconditions: one, in the eyes of the president, a given question of law is of pubic importance; and second, the SC can give its opinion only when the president refers to it the question of law that he considers of public importance. To extend the argument further, Article 186 excludes two possibilities: first, the option of taking a suo moto notice; and second, the option of converting an application, filed by a member of the public, into a public interest litigation. In the matter under discussion, and as mentioned in the short order, the president did not invoke Article 186. That is the SC was not empowered to invoke its advisory jurisdiction unless requested in writing by the president who had to make a case that the matter entailed a question of law that he considered of public importance to be opinionated by the court. This part of discussion rules out the role of Article 186 in the matter under discussion.

In short, the short order of the SC issued on November 28 is silent on these points. It is not known, through the short order, under what law the SC offered an interim period of six months of an extended service tenure to the incumbent COAS.

The writer can be reached at anwarali_60@yahoo.com