Legal rationale for the COAS’ extension? | Pakistan Today

Legal rationale for the COAS’ extension?

  • Did the Supreme Court have jurisdiction

By: Anwar Ali

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 the Chief of Army Staff (COAS), Gen Qamar Javed Bajwa. On November 28, through a short order, the SC permitted the COAS to continue for another six months. The SC also asked the government to take the matter to Parliament to carry out the necessary legislation to legalize 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.”

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

Chapter 2 of the Constitution demarcates the SC’s three jurisdictions: original jurisdiction (under Article 184); appellate jurisdiction (under Article 185); and 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. Second, to have the discretion of taking a suo motu 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 SC’s original jurisdiction 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 institutions 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).

The SC derives its suo motu 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 motu 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 fall under the fundamental rights of the public to be enforced through suo motu 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 in its 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 motu 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 been infringed. This 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 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 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 it.

Article 186 gives two preconditions: one, the President sees a given question of law as of pubic importance; and second, the SC can give its opinion only when the President refers to it such a question. To extend the argument further, Article 186 excludes two possibilities: first, the option of taking a suo motu 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 which he considered of public importance for the court to opine. This 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.

Email: [email protected]



Top