The SC asks law makers to do constitutional amendment as well as amendment in the Army rules regarding extension of Army Chief General Bajwa.
ISLAMABAD: (Urdu Point/Pakistan Point News-Dec 16th, 2019) Chief of Army Staff (COAS) General Qamar Javed Bajwa will retire automatically if the required legislation was not done within six months time, the written order issued by the country's top court says here on Monday.
The three-member bench headed by Chief Justice of Pakistan Asif Saeed Khan Khosa issued the written order of the case. The detailed judgment has been written by Justice Syed Mansoor Ali Shah, with additional note by Chief Justice of Pakistan Justice Khosa. The written judgment said that
The country's top court has issued written order on extension of Chief of Army Staff (COAS) General Qamar Javed Bajwa. The court held in its written order that the COAS General Bajwa will go home if the constitutional amendment as well as change in the army rules was not made.
In the detailed verdict penned by Justice Mansoor Ali Shah and issued today, the court states that SC bench "explored the scope of Article 243 of the Constitution, reviewed the Pakistan Army Act, 1952, the Pakistan Army Act Rules, 1954".
The court "found that the Pakistan Army Act, 1952 falls deficient of the structural requirements for raising and maintaining an Army under clause (3) of Article 243 of the Constitution".
The verdict noted that "no tenure or age of retirement for the rank of General is provided under the law. As per the institutional practice a General retires on completion of a tenure of three years. Although an institutional practice cannot be a valid substitute of the law."
"There is no provision in the law for extending service of a General for another tenure; nor is there any consistent and continuous institutional practice of granting such extension," Justice Shah wrote, adding that the summaries for the reappointment, extension and fresh appointment of General Bajwa were "meaningless" in absence of the relevant law.
The verdict further stated that in the light of the attorney general's assurances as well as the importance of the responsibilities of the COAS, the court it is appropriate that the incumbent COAS may continue for a period of six months.
However, the court warns that in the absence of legislation on the matter within six months, the institutional practice of retirement of a General on completion of the tenure of three years "shall stand enforced".
The written order also said that salary, perks and privileges of the Army Chief are approved by the President. “An indefinite discretion without fixing the tenure of his extension may be dangerous,” the written order made it clear while urging the law makers to do legislation about Army Chief’s extension.
A three-member bench headed by Chief Justice of Pakistan Asif Saeed Khosa and comprising Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah had earlier verbally announced the reserved verdict. However, the court sought undertaking from the government that the parliament would pass legislation in this regard within six-month time. The government in compliance of the court orders eliminated the mention of courts in draft notification issued for extension in tenure of sitting Army Chief. The mention of salary and incentives of army chief have also been eliminated.
General Qamar Javed Bajwa was due to retire at midnight on Nov 29.
“We are giving six-month time to the government to do legislation on the matter,” the bench observed. The bench also observed that the government kept changing its stance, sometimes seeking reappointment and sometimes mentioning extension since after the reappointment or extension of the sitting army chief was challenged. The court further observed that Gen Bajwa was appointed as Army Chief according to the new summary notification presented before it. The court also reviewed all laws that were associated and linked with Article 243 of the Constitution.
“Article 243 (b) has also been examined deeply,” the top judge remarked.
Earlier, the government presented summary of notification before the top court for the third time and sought extension in the tenure of sitting Army chief Gen Bajwa. The bench after hearing arguments of the government, reserved its judgment after the government assured it that legislation would be made within the given time.
The court, however, was asked not to mention time-limit in the order.
The CJP snubbed the top law officer for mentioning court in draft notification issued for extension in tenure of Army Chief General Qamar javed Bajwa. During the hearing, Attorney General Mansoor Anwar Khan submitted the summary of draft notification for General Bajwa’s extension prepared by the government. The CJP surprised to read the name of the court in summary of draft notification.
“Why you are dragging us in the middle? Do it, because it is your work?,” the CJP snubbed the AGP. He also remarked: “Bear your own burden rather than dragging the courts into it,”. “It will become a precedent if we allow three-year extension,” CJP remarked and said that they did not want the courts to be dragged in the middle.
The CJP directed the AGP to eliminate the mention of the courts from the draft notification, observing that we could not even point out what is wrong if the court name is used here. He also noted that the post of Army chief was already occupied by General Bajwa. “When a post is already occupied then how an appointment can be made,” the CJP asked the AGP. He also directed the attorney general to remove the words “court’s advice” and observed that “it is different matter if the president seeks our advice,”.
The government failed to satisfy the top court regarding the matter of extension in tenure of Army chief General Qamar Bajwa. Soon after the court hearing, Prime Minister Imran Khan called an emergency meeting of the cabinet to discuss the government’s strategy for Supreme Court’s proceedings on Thursday. Chief of Army Staff (COAS) General Qamar Javed Bajwa himself also attended the cabinet meeting along with Prime Minister Imran Khan.
