Staff Reporter
Islamabad
The Supreme Court on Thursday approved a conditional extension in Chief of the Army Staff General Qamar Javed Bajwa’s tenure for an additional six months.
General Qamar was set to retire at midnight on Thursday. The three-judge bench headed by Justice Asif Saeed Khosa announced the short order and ruled that General Qamar will serve as the army chief for six more months based on the undertaking submitted by the government.
The undertaking states that the parliament will draft legislation on the issue of an army chief’s tenure within six months. “The federal government will make the necessary legislation in this matter,” assured Attorney General Anwar. The three-member bench added that the court has now left the matter up to the parliament.
“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,” said the short order. The bench added that the government remained dependent on Article Article 243(b) in its arguments.
“A new summary and notification were presented in the court today. As per the notification, General Bajwa has been appointed as the army chief.”
“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 short order by the three-member bench further added that the attorney general “has taken pains to explain that the answers to these questions are based on practice being followed in the Pakistan Army”. However, the said practice “has not been codified under the law”.
The SC in Thursday’s hearing had instructed the government to approach the parliament as the “parliament should pass legislation on the matter within six months”.
“If the legislation is not passed during the given time, the appointment will become illegal.” The hearing was earlier adjourned till 1 pm, but resumed after a delay of more than two hours. The apex court had further instructed the government to correct the notification and the summary. “Make the required changes and bring it to the court. We will announce the judgement,” said the chief justice. Justice Syed Mansoor Ali Shah also observed that the parliament has to remove the ambiguity present in the Army Act. “There is no better forum than the parliament to fix the system.”
Justice Mazhar Alam Khan Miankhel further said that it should also be specified if the tenure would be extended or reappointment will be made in the future.
At the start of the day’s proceedings at 9:30 am, the court directed the AG to submit documents related
to the retirement Gen (Retd) Raheel Sharif and the extension of Gen (retd) Ashfaq Pervez Kiyani. A brief adjournment then took place to provide time to the attorney general for submission of said documents. “The documents will be presented in the court shortly.
The army chief was reappointed as per Article 243,” said AG Anwar. Going through the documents after resuming the hearing, the chief justice said that the documents do not mention who granted an extension to General Kiyani and neither do the documents mention “under which law he was given the extension”.
“There should not be any confusion over such an important post.” “We want to see what is written on those documents. We have been told that a general never retires. If a general never retire then there must be no pension and if there is no retirement for generals, then what is their mode of earnings,” questioned the chief justice.
“How is the appointment that took place today different from the previous ones? You will have to convince us, how the latest appointment is accurate,” continued Justice Khosa.
“Extensions were happening in the past but no one took notice of it. No one is watching what is happening in cantonments. Under which law does this practice continuing? Now a constitutional institution is reviewing this matter. The appointment procedure should be clearly written on the constitutional post,” said the CJP. Justice Mansoor Ali Shah said that the appointment of an army chief should be as per the law and noted that the law does not mention a tenure of three years.
The chief justice added that “Article 243 does not mention the three-year duration”.
“If an extraordinary general is found tomorrow, will he be given an of 30 years?” said Justice Khosa and added that the government may also want to appoint the next army chief for a one year tenure,
Regretting that no one had examined the law while extensions were being granted, Justice Khosa said there is no check on what is happening within the cantonments. “A constitutional institution is now examining the matter.” Referring to the instructions for new legislation to be drafted in this regard, the chief justice said: “We are not telling you to pass the legislation immediately. A law which has not been drafted for 72 years can not be made in a hurry.”
