The Supreme Court on Thursday granted a six-month conditional extension to General Qamar Javed Bajwa as chief of army staff (COAS).
A three-member bench, headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Mazhar Alam Khan and Justice Syed Mansoor Ali Shah, announced the short order. Chief Justice Asif Saeed Khosa read out the short judgment and stated that the detailed order will be issued later.
“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,” the short order read. “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 November 28, whereafter the new legislation shall determine his tenure and other terms and conditions of service,” it said.
“The extension/reappointment of General Qamar Javed Bajwa, Chief of the Army Staff (COAS) has been challenged before us. In the proceedings, 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 and Regulation 255 of the Army Regulations (Rules), 1998,” the order read. “However, finally 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 along with 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 added.
“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 in spite 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 short order read. “The Attorney General has explained 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,” it added.
“Article 243 of the Constitution clearly mandates that the supreme command of the Armed Forces – Constitution Petition No 39 of 2019 3 – 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,” the order read. “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,” it continued.
“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,” it added.
The verdict was announced around 3:45pm, prior to which the court had asked the government to submit the following: an undertaking that the parliament will pass legislation in this regard within six months; an amended notification (amendments to the notification included the elimination of the mention of the Supreme Court, duration of the Army chief’s tenure, and the description of Army chief’s salary and incentives).
Before adjourning the hearing at 11:30am, the chief justice told the government’s court representative 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,” he warned.
The chief justice observed that there was ‘ambiguity in the Army Act’. “Parliament has to remove that ambiguity,” Justice Shah said and added, “There is no better forum than the parliament to fix the system.”
Justice Miankhel said that it should also be clarified whether in the future the tenure would be extended or if there will be a reappointment. “The legal complications that we are pointing out will cause you difficulties but do not consider this embarrassing,” the chief justice said.
Justice Khosa also said to make sure that the court’s mention is removed from the summary and that the summary should also make no mention of the duration of the extension. “The parts about salary and incentives should also be removed from the summary,” he said. “We want all of this to be part of the record.”
Addressing AG Khan, the top judge remarked, “Put your house in order.”
