ISLAMABAD: The Supreme Court of Pakistan extended on Thursday Chief of Army Staff General Qamar Javed Bajwa’s tenure by six months. It announced the verdict in a petition challenging the three-year extension granted by the government.
The court asked the government to submit an undertaking that Parliament would enact a law on this in six months. In the interim, it extended General Bajwa’s tenure. His tenure was supposed to finish at midnight on Thursday. According to this order, it will now end in May, 2020.
“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,” read the short order.
It directed the 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 hearing resumed at 3:30pm, two hours and 34 minutes after the assigned time, with Attorney General Khan presenting the new documents to the court. The judges are reviewing them.
What will you do about the legislation, the top judge asked the AGP. He replied that they have undertaken that a new law will be made in six months.
Justice Khosa announced that they would extend General Bajwa’s tenure by six months as the government had undertaken to enact a new law.
What will you do about the legislation, the top judge asked the AGP. He replied that they have undertaken that a new law will be made in six months.
He said the Constitution and law have not mentioned the term of appointment of the army chief. The Constitution and law are also silent on the retirement of the army chief and a general, observed the court.
It was said that generals never retired, said Justice Khosa. If they never retire then what is their source of income, he asked. He summoned the complete details of this from the attorney general in 15 minutes.
The court summoned details of former COAS General (Retd) Raheel Sharif’s retirement and General (Retd) Ashfaq Parvez Kayani’s extension.
AGP Khan said the army chief has been reappointed under Article 243. Justice Khosa asked how today’s appointment was different from the previous one. Khan replied that today’s appointment was under Article 243 (4) B. You will have to satisfy us on how this appointment is valid, said Justice Khosa.
The summary mentions the judicial investigation into the matter, noted Justice Khosa. Shoulder the burden yourselves, he said. Why are you trying to use our shoulders, he asked.
He ordered the AGP to remove the court’s name from the summary. He told the AGP to specifically remove the part referencing the court’s advice from the summary. If the president wants our advice, that is a different matter, he said.
“We will see whether the appointment is legal or not,” he added.
The chief justice observed that the reappointment had been made from November 28 (today). But today General Bajwa is already the army chief, so how can a reappointment be made on a post that is not empty, he asked.
Justice Shah noted that there is no mention of tenure of three years in the law. He said the appointment must be according to the law.
Justice Khosa noted that extensions had been given before and no one took notice. No one looked at what’s happening in the cantonments, he said. Now the court of law is looking into it, he said.
The CJP added that the law must clearly mention the appointment procedure. Justice Shah noted that the summary did not mention the army chief’s salary or privileges.
Yesterday, when we looked at the Army Act, there were calls of Indian and CIA agents, said the chief justice. The attorney general replied that India took advantage of the arguments in court.
We were made a part of “fifth generation warfare”, said Justice Khosa, reminding everyone that it is the court’s right to ask questions.
Justice Shah observed that yesterday was probably the first time the AGP had read the army laws. Suggest how we should amend the army laws, he told the AGP.
The extension notification says three years, noted Justice Khosa. If we got an amazing general, perhaps the extension summary would have 30 years written on it, he said.
This three-year appointment will now become a precedent, he said. The government may want to keep the next army chief for just one year, he said. It should be clear whether or not a general gets a pension, said Justice Shah.
After his tenure ends, a general retires, said the attorney general. But yesterday you said generals don’t retire, reminded Justice Shah. He said there is no better forum than Parliament to fix the system. If Parliament updates the Army Act, new rules can be made, said Justice Khosa.
I see 18 different errors in the law, said AGP Khan. Regardless of these errors, we respect the law, said Justice Khosa.
Justice Miankhel said it should also be clarified whether in the future it will be an extension or reappointment.
The attorney general assured the court that the Army Act would be put before the cabinet and necessary changes would be made.
Justice Khosa noted that this is the first time the government has returned to the Constitution. When anything is done according to the law, our hands are tied, he said. Don’t use the court’s shoulders, he warned.
He said Article 243 did not mention a three-year appointment. A three-year appointment has become a precedent but it is not legal, he said.
If the court extends the appointment, it will become precedent, said the CJP. AGP Khan said where a fixed term has not been mentioned, it is determined by the situation. It seems like at the time of the appointment, the government read Article 243 and increased it, said Justice Khosa.
Extending the army chief’s tenure is not constitutional tradition, said Justice Khosa.
Of the past three army chiefs, one received an extension, while the other didn’t, noted the CJP. Now the third army chief seems to be getting an extension, he observed. If you’re making appointments under Article 243 then remove the tenure duration, said Justice Khosa.
At least completely follow Article 243, said Justice Shah. But an indefinite appointment can’t be made either, said the AGP. General Bajwa was initially appointed for an unspecified duration as well, noted Justice Khosa.
“We will need time to make a new law, said the AGP. In 72 years you weren’t able to make a new law, how will you make it so fast, asked Justice Khosa. We will try to do it in three months, replied the AGP. We will make a separate law pertaining to the army chief,” he vowed.
The court asked whether it should approve a three-month extension.
The documents relating to General (Retd) Kayani’s extension were presented in court. It doesn’t say anywhere who gave General Kayani the extension, noted Justice Khosa.
You should also mention the law under which the extension was granted, he said. This is an important position, there should be no confusion, he said.
The CJP noted that General (Retd) Sharif was drawing a pension. But the rules don’t mention a pension for generals, he observed.
We respect the people in government, said the chief justice. But the Constitution and law are the most respected, he said.
The chief justice once again said that the court had nothing to do with the government’s summaries. When the notification is not according to Article 243, how can it be valid, asked Justice Shah.
How can we say three-year tenure is according to the law when tenure is not mentioned in Article 243, asked Justice Khosa.
Naseem promised the court that they would remove any mention of it in the government’s summary and enact a law within three months. How long will it take to fix the summary and notification, asked the chief justice.
To get all the signatures, the person doing it will have to go around the whole city, said AGP Khan. He vowed that the corrections would be made in three days.
Should the army chief handle the country’s defence or sit with you and look over legal mistakes, asked the chief justice. The AGP said that each time they read the Constitution, new things pop up. The first time we read it, something pops up, countered the CJP.
He said the court would announce the verdict this evening after deliberations. If the corrections are made by this afternoon, it would be better, he said, directing the government to present the amended notification and summary by 1pm. It also wants an undertaking that
Parliament will pass legislation on this within six months.
The order noted “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 (“Constitution”) 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 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.”
The order further said, “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.”
“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, re-appointment and extension of the COAS or of a General of the Pakistan Army.”
“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.”
“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. -NNI