Syed Qamar Afzal Rizvi
RECENTLY, the Pakistani Parliament passed the bill known as the Pakistan Army (Amendment) Act, 2020 which seeks to amend the Pakistan Army Act, 1952. It rightly provides a measure to President of Pakistan acting on advice of Prime Minister of Pakistan to extend the tenure of Chief of Army Staff (COAS) by three years. This very amendment also bars the act of the extension of tenure from being challenged in any court of the country. The said Act sets an upper age limit of 64 years for Chief of the Army Staff (COAS). Undeniably, the Supreme Court of Pakistan’s detailed order of December 16 co-drafted by a three member bench chaired by the then Chief Justice of Pakistan (CJP) Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah— posits a striking balance between the forces of judicial pragmatism and that of parliamentary legislative review vis-à-vis the issue of the tenure of Pakistan’s Army Chief.
Understandably, under Pakistan’s constitution, the Army Chief of Staff (COAS) generally and normally serves a three-year term, a rule, which was established in 1972, However, Gen Bajwa was handed a rare three-year extension because of the emerging security situation on our eastern and western borders. And hence the government had issued notification of Gen Bajwa’s extension in August. Consequent upon filing a petition— challenging the said extension, the Supreme Court under the auspices of Chief Justice Asif Saeed Khosa heard the case for three days consecutively (November 26-27-28) and then finally passed a short order granting the six-month extension to the present Chief of Army Staff, Qamar Javed Bajwa.
The Supreme Court of Pakistan in its pragmatic judgment ruled: “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 re-appointed or his term can be extended or his retirement can be limited or suspended under the Constitution or the law. “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. As per the order of the Court “We have reviewed several laws including Army Act 1952 and Rule 1954 before announcing the judgment,” the former CJ said. Nonetheless, the Court ruling was the outcome of supporting the doctrine of legal restraint.
By all legal connotations, legal pragmatism is an objectively glassed doctrine, a theory critical of more traditional pictures: the framing of law and, more specifically, judicial decision-making. This classical view of law offers a case-based theory of law emphasizing the universal and foundational quality of specifically legal facts, the meticulous analysis of precedent and argument from analogy. Judicial restraint is a procedural or substantive approach to the exercise of judicial review. As a procedural doctrine, the principle of restraint urges judges to refrain from deciding legal issues, exclusively constitutional in nature, unless the decision is imperative for the resolution of a concrete dispute between adverse parties. In deciding questions of constitutional law, judicially restrained jurists believe that it is important to defer to legislative intent, stare decisis, the Plain Meaning Rule, and a generally strict and textualist view of judicial interpretation.
Consequent upon making a compliance of the Court ruling – to pass the required legislation vis-à-vis the reappointment/ extension in the service tenure of the Army Chief – the August House of Parliament has duly amended the Pakistan Army act-1952. According to the Pakistan Army (Amendment) Act, 2020 has been unanimously passed ‘’-8A. Appointment of the Chief of the Army Staff- (1) The President shall, on the advice of the Prime Minister, appoint a General as the Chief of the Army Staff for tenure of three (03) years. (2) The terms and conditions of the Chief of the Army Staff shall be determined by the President, on the advice of the Prime Minister. Reappointment or extension of Chief of the Army Staff: (1) Notwithstanding anything contained in this Act or any other law for the time being in force, the President, on the advice of the Prime Minister, may reappoint the Chief of the Army Staff for additional tenure of three (03) years, or extend the tenure(s) of the Chief of the Army Staff up to three (03) years, on such terms and conditions, as may be determined by the President on the advice of the prime Minister, in the national security interest or exigencies, from time to time. (2) Notwithstanding anything contained in this- Act or any other law, or any older or judgment of any Court, the appointment, reappointment or extension of the Chief of the Army Staff, or the exercise of discretion by the appointing authority in this regard, shall not be called into question before any Court on any ground whatsoever.’’
8E, Re-appointment or extension of the Chairman, Joint Chiefs of Staff Committee.- (1) Notwithstanding anything contained in this Act or any other law for the time being in force, the President, on the advice of the Prime Minister, may reappoint the Chairman, Joint Chiefs of Staff Committee for additional tenure of three (03) years, or extend the tenure(s) of the Chairman Joint Chiefs of Staff Committee up to three (03) years, on such terms and conditions, as may be determined by the President on the advice of the Prime Minister in the national security interest or exigencies, from time to time. (2) Notwithstanding anything contained in this Act or any other law, or any order or judgment of any Court, the appointment, reappointment or extension of the Chairman, Joint Chiefs of Staff Committee, or the exercise of discretion by the appointing authority in this regard, shall not be called into question before any Court on any ground whatsoever.’’ To conclude, with the current legislation the debate regarding the reappointment/extension of the COAS has been legally closed.
—The writer, an independent ‘IR’ researcher-cum-analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law.