Bajwa allowed to remain COAS for at least 6 months

The Supreme Court has granted six months extension to incumbent Chief of Army Staff General Qamar Javed Bajwa from 28th November and during this period, the Parliament shall be required to legislate to determine his tenure and other terms and conditions of service.

"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 (28-11-19), thereafter the new legislation shall determine his tenure and other terms and conditions of service," said a three-page order, which was announced at around 3:45pm on Thursday.

General Bajwa's three-year tenure as COAS ended on 28th November midnight.

A three-judge bench, headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah on Thursday heard Jurists Foundation's petition filed through Riaz Hanif Rahi against the extension in tenure of Army Chief General Bajwa. He had challenged the extension/ reappointment of General Qamar Javed Bajwa on November 25. The following day when the court heard it, he through a handwritten application sought to withdraw it. However, the court denied his request and decided to proceed with the matter.

During the last three days, the federal government moved from one position to another referring to it as 'reappointment', 'limiting of retirement' or 'extension in tenure' and has also interchangeably placed reliance on Article 243(4)(b) of Constitution and Regulation 255 of the Army Regulations (Rules), 1998.

The federal government finally on Thursday presented the latest summary approved by the President on the advice of the Prime Minister (Imran Khan) along with the notification dated 28.11.2019 which shows that General Qamar Javed Bajwa has been appointed as the COAS under Article 243(4)(b) of the Constitution with effect from 28.11.2019.

The bench examined the Article 243(4)(b) of Constitution, the Pakistan Army Act, 1952, the Pakistan Army Act Rules, 1954 and the Army Regulations (Rules), 1998. The court in spite of the assistance rendered by the Attorney General for Pakistan (AGP) 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.

AGP Anwar Mansoor explained that the questions 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 are based on practice being followed in the Pakistan Army but the said practice has not been codified under the law.

The bench noted that Article 243 of 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 with 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 do not specify the tenure, retirement, re-appointment and extension of the COAS or of a general of the Pakistan Army."

The AGP categorically assured the court that this practice being followed is to be codified under the law and gave undertaking that the federal government shall initiate the process to carry out the necessary legislation in this regard and sought a period of six months for getting the needful done.

The court 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, exercised judicial restraint and found 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.

Earlier, the court had asked the government to submit an undertaking that the Parliament will pass legislation in this regard within six months, an amended notification. The amendments to the notification included the elimination of the mention of the Supreme Court, duration of the army chief's tenure, the description of army chief's salary and incentives.

Before adjourning the case at 11:30am, the Chief Justice told General Bajwa's counsel Farogh Naseem that the government should submit a written statement to ensure that the Parliament will legislate on the matter within six months.

The Chief Justice observed that there was 'ambiguity in the Army Act'. "Parliament has to remove that ambiguity," said Justice Shah and added, "There is no better forum than the Parliament to fix the system."

Justice Mazhar Alam 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," said the CJP.

Justice Khosa also asked to make sure that the mention of Supreme Court order be deleted from the summary and three years term in the notification.

During the proceeding, AGP in pursuance of the court direction supplied the notifications of the then army chiefs General Ashfaq Parvez Kiyani and General Raheel Sharif.

The Chief Justice said: "We respect those who serve the country, but have more respect for the Constitution." The Chief Justice said that during the high level meeting previous day, the COAS also reached there to assist the government officials.