Govt gets six months for legislation for appointment of COAS Gen Bajwa
A three-member SC bench announced short verdict in General Bajwa extension case.
ISLAMABAD (Dunya News) – Supreme Court on Thursday granted a six-month conditional extension to incumbent General Qamar Javed Bajwa in his service as the chief of army staff (COAS), and ordered the government to complete the required legislation within six months for extension/appointment of an army chief.
A three-member bench comprising of Chief Justice Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah announced short verdict on a petition filed by The Jurists Foundation through its Chairman Riaz Rahi against Extension of Tenure of Chief of the Army Staff.
In its short order, the Supreme Court remarked: "The extension/reappointment of General Qamar Javed Bajwa, Chief of the Army Staff (COAS) has been challenged before us. In the proceedings before us during the last three days the Federal Government has moved from one position to another referring to it as reappointment, limiting of retirement or extension of tenure and has also interchangeably placed reliance on Article 243(4)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 and Regulation 255 of the Army Regulations (Rules), 1998. However, finally today the Federal Government through the learned Attorney General for Pakistan has presented this Court with a recent summary approved by the President on the advice of the Prime Minister alongwith 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."
"We have examined Article 243(4)(b) of the Constitution, Pakistan Army Act, 1952, Pakistan Army Act Rules, 1954 and Army Regulations (Rules), 1998 and inspite of the assistance rendered by the learned Attorney-General, we could not find any provision relating to the tenure of COAS or of a General and whether the COAS can be reappointed or his term can be extended or his retirement can be limited or suspended under the Constitution or the law. The learned Attorney-General has taken pains to explain that the answers to these questions are based on practice being followed in the Pakistan Army but the said practice has not been codified under the law," the apex court stated.
The court stated that Article 243 of the Constitution clearly mandates that the Federal Government shall have control and command of the Armed Forces and the supreme command of the Armed Forces shall vest in the President. It further provides that the President shall, subject to law, have power to raise and maintain the military, etc. and it is the President who on the advice of the Prime Minister shall appoint, inter alia, COAS.
Article 243 of the Constitution, therefore, clearly shows that the President shall, subject to law, raise and maintain the military, however, the laws referred to above do not specify the tenure, retirement, reappointment and extension of the COAS or of a General of the Pakistan Army, the three-member bench added.
"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."
The court further said: "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," the Supreme Court announced.
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Prior to announcement of the verdict, the top court ordered the government to submit, firstly, an undertaking that the parliament will pass legislation within six months, and secondly, an amended notification of the third summary passed by the federal cabinet for granting an extension to General Bajwa.
The amendments in the summary included removing, the mention of the Supreme Court, the duration of the army chief’s tenure and the description of army chief’s salary and incentives.
In the case pertaining to the extension/reappointment of the army chief, mainly three legal points were considered; the provisions of the Constitution which support the move, the method, and the grounds or reasoning for granting the extension.
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Before those orders, the CJP inquired from Attorney General of Pakistan Anwar Mansoor Khan if the required legislation could be passed within three months. “If the laws are legislated within three months, then the army chief will have an extension for three months […] should we write on your stance that the laws will be legislated within three months?” the top judge questioned.
To this, the attorney general requested the court to not mention the timeframe in its ruling and that the matter will be done by the government as the draft of new laws are required to be presented before the parliament for approval.
Before adjourning the hearing till 1pm, the chief justice told Mr Farogh Naseem that the government should submit a written statement to ensure that the parliament will legislate on the matter within six months.
"If legislation is not done within six months, the appointment will become illegal," the CJP warned. The court had reviewed the laws contained within Article 243 of the Constitution while deciding on the matter. "The court has thoroughly examined Article 243(b)," said Chief Justice Khosa.
The court observed that there was "ambiguity in the Army Act […] parliament has to remove that ambiguity."
He also said to make sure that the court’s mention was removed from the summary and that the summary should also make no mention of the duration of the extension [of the army chief].
"The parts about salary and incentives should also be removed from the summary […] we want all of this to be part of the record," the court directed.
The petition was filed by Advocate Riaz Hanif Rahi of The Jurist Foundation challenging the extension/reappointment of COAS General Qamar Javed Bajwa. And his “hand-written” application to withdraw the petition was turned down by the apex court under Article 184 (3) of the Constitution as it involved a question of “public importance”.
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It may be mentioned here that the Supreme Court had suspended the COAS tenure extension this week, citing a series of irregularities and ordering the government to produce legal provisions and detailed arguments on the reasoning behind the move.
General Bajwa was appointed to lead the military in 2016, taking over from the massively popular General Raheel Sharif, who won the hearts of millions with his blistering fight against terrorism.
