The Supreme Court on Thursday in its short order announced that Gen Qamar Javed Bajwa will remain the Chief of Army Staff (COAS) for another six months, during which the parliament will legislate on the extension/reappointment of an army chief.
A three-member bench — comprising Chief Justice of Pakistan (CJP) Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah — announced the much-anticipated verdict after being assured by the government that parliament will pass legislation within six months.
According to the short order, the federal government "has presented this court with a recent summary approved by the president on the advice of the prime minister along with a 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 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 court order.
The verdict was announced around 3:45pm, prior to which the court had asked the government to submit the following:
- 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
The top court's ruling comes in the nick of time as Gen Bajwa was set to retire at midnight. Prime Minister Imran Khan had extended Bajwa's tenure through a notification in August, but the top court suspended it on November 26 due to irregularities in the manner of extension.
'Attorney general failed to point to any existing law'
The court, while pronouncing the decision today, said that the government has been given six months to legislate on the duration of service of an army chief.
It said that Attorney General Anwar Mansoor Khan has "categorically assured the Court" 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".
"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," read the court's short order.
The order observed that the matter of the army chief's reappointment or extension had been challenged before the court. It also observed that in the three days of proceedings that followed, the government kept changing its stance, interchangeably "referring to it as reappointment, limiting of retirement or extension of tenure".
The SC observed that the government had been relying on Article 243(4)(b) of the 1973 Constitution and Regulation 255 of the Army Regulations (Rules), 1998. The court observed that when it asked questions pertaining to the army chief's appointment, duration of service and extension, the attorney general was unable to refer to any existing 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," said the court order.
The court reviewed the laws contained within Article 243 of the Constitution while deciding on the matter. "The court has thoroughly examined Article 243(4)(b)," said Chief Justice Khosa.
The short order noted that according to Article 243, the authority to appoint an army chief lies with the president. However, there is no duration of appointment specified in the Article.
(The legality) of Gen Bajwa's appointment will rest on the government's legislation, said the court, observing that prior to this occasion, the appointments had been made as per the existing practices.
'Put your house in order'
Before adjourning the hearing at 11:30am, the chief justice told Gen Bajwa's representative Farogh Naseem that the government should submit a written statement to ensure that the parliament will legislate on the matter within six months.
"If legislation is not done within six months, the appointment will become illegal," he warned.
The chief justice observed that there was "ambiguity in the Army Act".
"Parliament has to remove that ambiguity," Justice Shah said and added: "There is no better forum than the parliament to fix the system."
Justice Miankhel 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," the chief justice said.
Justice Khosa also said to make sure that the court's mention is removed from the summary and that the summary should also make no mention of the duration of the extension.
"The parts about salary and incentives should also be removed from the summary," he said. "We want all of this to be part of the record."
Addressing AG Khan, the top judge remarked: "Put your house in order."
Notifications of previous army chiefs
At the outset of the hearing at 9:30am, the bench directed AG Khan to submit the notification issued for former army chief retired Gen Ashfaq Pervez Kayani's extension as well as that of retired Gen Raheel Sharif's retirement to the court.
It is pertinent to mention that over the past two decades, Gen Raheel Sharif is the only army chief to have retired on time. Gen Kayani's tenure was extended for another three years by the PPP-led government in 2010. Interestingly, the service extension given to Kayani was also challenged in the Islamabad High Court in 2012. However, it was dismissed by the bench as "non-maintainable" because Article 199 (3) of the Constitution barred the high court from hearing a case against persons subject to the Pakistan Army Act (PAA).
"Under what section was retired Gen Kayani granted an extension?" the chief justice asked during today's hearing. "We want to see what pension and perks Gen Kayani got after retirement."
Referring to the retirement of army generals, Justice Khosa said: "If an army general never retires, then under what rule did Raheel Sharif retire?"
"You said that generals never retire; if they don't retire, then they wouldn't be entitled to pension either," he observed. The attorney general said that he wanted to assist the court on the matter.
Justice Khosa said that the court will examine the grounds on which retired Gen Kayani was granted an extension and adjourned the hearing for 15 minutes.
Meanwhile, the Pakistan Bar Council restored the license of Farogh Naseem, who had stepped down as law minister to represent Gen Bajwa. The CJP had told him yesterday that the court did not want to waste time on a side issue and did not want to let the institution of the army suffer. He had asked Naseem to settle the licence issue or come with an associate if he wanted to argue on behalf of the army chief.
CJP irked over court's mention in draft notification
After the hearing resumed, the AG submitted the summary of the draft notification for Gen Bajwa's extension prepared by the government yesterday. Following the court's adjournment on Wednesday, an emergency meeting was called at Prime Minister House in the evening to debate the government's strategy for today's hearing. The meeting was attended by Gen Bajwa himself, along with Prime Minister Imran and several ministers.
Upon examining the summary, the CJP berated the attorney general over the mention of the Supreme Court's proceedings in the draft notification.
"Bear your own burden, why do you use our name?" Justice Khosa asked. "Do your own work, why do you drag us in the middle?"
He directed the attorney general to eliminate the mention of the court from the summary, saying: "The court's name has been used so we cannot even point out what's wrong."
He raised questions over the appointment of the army chief, noting that the post was already occupied by Gen Bajwa.
"How can an appointment be made on a position that is already occupied?" the chief justice asked.
It seems like this time a lot of thought has been put into drafting the notification, the chief justice remarked. "Take out the part about the court's advice," Justice Khosa directed the attorney general. "If the president seeks our advice, that is a different matter."
Referring to the army chief's participation in yesterday's meeting, Justice Khosa said: "It is embarrassing that the army chief has to keep an eye on summaries instead of the country's defence."
Loophole in laws
Justice Shah noted once again that the law does not mention that the duration of the tenure is three years.
The chief justice noted that the summary had mentioned that the army chief's tenure will be three years. He said that Article 243 does not mention the three-year duration.
"If they find an extraordinary general tomorrow, will they grant him an extension of 30 years?" he remarked and stressed that there should be a clear system that everyone is aware of. He said that the three-year appointment will "become an example".
"The government may want to appoint the next army chief for one year," he commented.
The chief justice regretted that no one had examined the law while extensions were being granted all these years.
"There is no check on the activities that are going on in cantonment or under which law an action is being taken," he said.
"Now a constitutional institution is examining this matter."
He said that the process of appointment on a constitutional post should be clear and asked AG Khan how long it would take for the government to draft laws in this regard. The attorney general told the bench that the government will require three months, adding that a separate law will be drafted in relation to the army chief.
Justice Shah, in his remarks, said that yesterday the bench had said that generals retire but the attorney general had insisted that they don't.
"The summary neither mentions the army chief's salary nor the perks he is receiving," Justice Shah pointed out. "The attorney general too must have read the laws regarding the army for the first time."
"We are not telling you to pass legislation straight away," Justice Khosa said. "A law that has not been drafted in 72 years cannot be made in a hurry."
He added that the government had "reverted to the Constitution for the first time".
"When a decision is taken in accordance with the Constitution, our hands are tied," the CJP said.
"We were labelled as agents of India and the CIA when we examined the Army Act yesterday," the chief justice regretted. AG Khan told him that India "took a lot of advantage" of yesterday's arguments.
"It is our right to ask questions," the CJP declared. The attorney general lamented that "social media was not under anyone's control".
Justice Shah asked the AG to "suggest how to fix laws regarding the army".
Govt fails to satisfy court
On Wednesday, the chief justice before adjourning the hearing, said that there were three points which the court will consider:
- the law
- the procedure involved
- the grounds for granting the army chief an extension
He had said that the first two issues are very important and based on those, the court will announce its decision. Gen Bajwa will be able to continue his service if the Supreme Court decides the case in his favour before November 29.
During yesterday's hearing, the bench was irked by the fact that after Tuesday’s cabinet meeting, Prime Minister Imran Khan submitted a summary to President Arif Alvi for approval to "reappoint" the army chief on his retirement and the new appointment was made under Article 243(4) of the Constitution, but the notification later issued pertains to the "grant of extension" to the COAS for another term of three years.
The attorney general chalked the gaffe up to "clerical errors" by the ministry.
"No one even bothered to read what they are issuing," Justice Khosa observed, regretting the way the law ministry dealt with the issue.
"Please settle the matter by Thursday because you have only one day or the time will be over and the court will decide in accordance with the Constitution and the law," the chief justice said, highlighting the need for urgency in view of COAS' fast-approaching retirement. “You have amended Regulation 255 of the army rules in Tuesday’s cabinet meeting when it does not deal with the appointment of the army chief but that of other officers,” he observed.
Recalling that several generals in the past had granted themselves extension, the court observed that it was necessary to settle the service matters of the army chief for all times to come.
“Personalities don’t matter to us since it is a court of law,” the CJP said, explaining that the court would be satisfied if everything was done in a legal manner. To understand the scheme of the service structure, the court also asked the AG to read one by one the entire provisions of the Pakistan Army Act (PAA) 1952 as well as the army rules and regulations.
Suspension of notification
In an unanticipated development on Tuesday, CJP Khosa had suspended the federal government's notification of Gen Bajwa's extension and issued notices to the army chief, defence ministry and the federal government.
The Supreme Court said the AG could not refer to any provision in any legal instrument regarding extension in service of the army chief upon completion of his first term for his re-appointment.