ISLAMABAD - Supreme Court of Pakistan Thursday granted six months to government for legislation to streamline the process of appointment of the chief of country’s army.

The new service tenure of incumbent Army Chief started from November 28 which shall be subject to the new laws or legal amendments affected by the Parliament regarding the COAS tenure and relevant terms and conditions of service.

As against the common perception, the case heard by the apex court was not specific to the service of the incumbent army chief; rather, the court acted to bring clarity to rules and laws governing the office of the Chief of Army Staff, their appointment and reappointment/service extension.

In its Thursday’s short order, the court noted that the federal government had presented 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 (28-11-19), whereafter the new legislation shall determine his tenure and other terms and conditions of service.”

A three-member bench of the Supreme Court headed by Chief Justice Asif Saeed Khan Khosa, and comprising Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah conducted hearing of Jurists Foundation’s petition moved through advocate Riaz Hanif Rahi against the extension of COAS’ tenure.

The bench examined that Article 243(4)(b) of Constitution, Pakistan Army Act, 1952, Pakistan Army Act Rules, 1954 and Army Regulations (Rules), 1998. The court in spite of the assistance rendered by the Attorney General of Pakistan could not find any provision relating to the tenure of COAS or of an army general. Also, there existed no law or constitutional provision telling if a COAS can be reappointed or his term extended, or his retirement can be limited or suspended.

AGP Anwar Mansoor explained that the questions relating to the above said matters were being addressed by the practice or conventions being followed in the Pakistan Army but those had 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 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.

“.... 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 attorney general categorically assured the court that the practice being followed will be duly codified and gave an undertaking that the federal government shall initiate the process to carry out the necessary legislation. He sought a period of six months for it.

The apex court noted that 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.

Considering this fact, the court said, it has 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.

The petitioner had challenged the extension/reappointment of the army chief on November 25. The following day when the court heard it, he through a hand written application sought to withdraw it. However, the court denied his request and decided to proceed with the matter.

Because of the legal cloudiness on the matter of COAS’ continuation of service, the government during the last three days 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 Constitution and Regulation 255 of the Army Regulations (Rules), 1998.

The government on Thursday presented its final summary, approved by the President on the advice of the Prime Minister, along with the notification dated 28-11-2019 which shows that General Bajwa has been appointed as COAS under Article 243(4)(b) of the Constitution with effect from 28-11-2019, the day his first three-year tenure came to an end.

Earlier, the amendments to an earlier government notification on the subject 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 army chief’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 an ‘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 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 (process) embarrassing,” the chief justice said.

Justice Khosa also told the government to make sure that the mention of Supreme Court order is deleted from the summary of COAS appointment.