SC calls for new legislation to end uncertainty over army chief's extension

ISLAMABAD - The Supreme Court on Monday issued its detailed verdict on the extension of the chief of the army staff, stressing that it is now up to “the Parliament to come up with a law that will provide certainty and predictability to the post”.

Prime Minister Imran Khan had extended COAS General Qamar Javed Bajwa’ tenure for three years in August, but the apex court suspended the notification on Nov 26 due to loopholes in the process. On Nov 28, the top court granted extension for six month to army chief, directing the Parliament to legislate on the reappointment of top army general.

The SC highlighted deficiencies in the existing legislation about COAS’ term, adding that nations prosper by strengthening the institutions.

On November 28, the top court, in its short order, had allowed the federal government to grant a six-month extension to COAS General Qamar Javed Bajwa.

The bench comprising, Chief Justice Asif Saeed Khosa, Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah"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 all procedures for the reappointment of General Bajwa were "meaningless" in absence of the relevant legislation.

“That in view of the legal vacuum regarding tenure and extension of a General and the assurance given by the Attorney-General to process legislation on the subject within six months, and also considering the importance of the responsibilities of the COAS regarding administration and organization of the Army, it is appropriate that the incumbent COAS may continue for a period of six months, in order to preserve continuity of the institution”.

The chief justice in his additional note said, “I agree with the judgment……., and would like to add that in our peculiar historical context Chief of the Army Staff holds a powerful position in ways more than one. Unbridled power or Constitution Petition No. 39 of 2019 43 position, like unstructured discretion, is dangerous”.