Gen Bajwa to stay on as COAS for 6 more months: SC

The Supreme Court announced Thursday in its brief order that General Qamar Javed Bajwa will remain the Chief of the Army General Staff (COAS) for another six months, during which Parliament will legislate on the extension / re-election of an army chief.

A three-member bank, composed of the President of the Supreme Court of Pakistan (CJP), Asif Saeed Khosa, Judge Mian Mazhar Alam Khan Miankhel and Judge Syed Mansoor Ali Shah, announced the long-awaited verdict after the government He said parliament will approve the legislation within six months.

According to the brief order, the federal government "has presented to this court a recent summary approved by the president on the advice of the prime minister along with a notification dated 28.11.2019 that shows that General Qamar Javed Bajwa has been designated as COAS under Article 243, paragraph 4, letter b), of the Constitution with effect as of 28.11.2019 ".

"The current appointment of General Qamar Javed Bajwa as COAS will be subject to such legislation and will continue for a period of six months from today, after which the new legislation will determine his mandate and other terms and conditions of service," he said. court. order.

The verdict was announced around 3:45 p.m., before which the court had asked the government to present the following:

  • a commitment that parliament promulgates legislation in this regard within six months
  • a modified 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 the salary of the head of the army and the incentives

The upper court ruling comes just in time, as Gen Bajwa will retire at midnight. Prime Minister Imran Khan had extended Bajwa's mandate through a notification in August, but the superior court suspended him on November 26 due to irregularities in the extension form.

& # 39; The attorney general did not point out any existing law & # 39;

The court, in ruling on the decision today, said the government has been given six months to legislate on the duration of the service of an army chief.

He said that Attorney General Anwar Mansoor Khan has "categorically assured the Court" that the federal government "will begin the process to carry out the necessary legislation in this regard and seeks a period of six months to do what is necessary."

"We, while exercising judicial moderation, consider it appropriate to leave the matter to Parliament and the Federal Government to clearly specify the terms and conditions of service of the COAS through a Law of Parliament and clarify the scope of Article 243 of the Constitution to this respect, "read the brief court order.

The order noted that the issue of re-election or extension of the army chief had been challenged in court. He also noted that in the three days of procedures that followed, the government continued to change its position, indistinctly "referring to it as re-election, limitation of retirement or extension of tenure."

The SC noted 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 noted that when it asked questions related to the appointment of the Army chief, length of service and extension, the attorney general could not refer to any existing law.

"The wise Attorney General has struggled to explain that the answers to these questions are based on the practice that is followed in the Pakistan Army, but that practice has not been codified by law," the court order said.

The court reviewed the laws contained in article 243 of the Constitution when deciding on the matter. "The court has thoroughly examined Article 243 (4) (b)," said Khosa Supreme Court President.

The short order noted that according to Article 243, the authority to appoint an army chief rests with the president. However, there is no duration of the appointment specified in the article.

(The legality) of General Bajwa's appointment will be based on government legislation, the court said, noting that prior to this occasion, appointments had been made according to existing practices.

& # 39; Put your house in order & # 39;

Before postponing the hearing at 11:30 am, the president of the court told Gen Bajwa's representative, Farogh Naseem, that the government must submit a written statement to ensure that parliament legislates on the matter within six months .

"If the legislation is not made within six months, the appointment will be illegal," he warned.

The president of the court noted that there was "ambiguity in the Army Law."

"Parliament has to eliminate that ambiguity," Judge Shah said and added: "There is no better forum than parliament to fix the system."

Judge Miankhel said it should also be clarified if the tenure will be extended in the future or if there will be a new designation.

"The legal complications we are pointing out will cause you difficulties, but don't consider it embarrassing," said the president of the court.

Judge Khosa also said to make sure that the mention of the court is removed from the summary and that the summary does not mention the length of the extension.

"The parties on salary and incentives should also be removed from the summary," he said. "We want all this to be part of the record."

Addressing AG Khan, the superior judge commented: "Put your house in order."

Notifications from former army chiefs

At the beginning of the hearing at 9:30 am, the bank ordered AG Khan to present to the court the notification issued for the extension of former retired army chief Ashfaq Pervez Kayani, as well as the withdrawal of retired general Raheel Sharif .

It is pertinent to mention that in the last two decades, General Raheel Sharif is the only army chief who retired on time. The possession of General Kayani was extended for another three years by the PPP-led government in 2010. Interestingly, the extension of the service granted to Kayani was also challenged in the Islamabad High Court in 2012. However, the bank dismissed it for "not maintainable" because Article 199 (3) of the Constitution prohibited the superior court from hearing a case against persons subject to the Pakistan Army Law (PAA).

"Under what section was General Kayani granted an extension granted?" asked the president of the court during today's hearing. "We want to see what pensions and benefits Gen Kayani got after retirement."

Referring to the withdrawal of army generals, Judge Khosa said: "If an army general never retires, then under what rule did Raheel Sharif retire?"

"You said the generals never retire; if they don't retire, they would not be entitled to a pension either," he said. The attorney general said he wanted to help the court in the matter.

Judge Khosa said the court will examine the reasons why retired General Kayani received an extension and postponed the hearing for 15 minutes.

Meanwhile, the Pakistan Bar Council restored the license of Farogh Naseem, who resigned as law minister to represent General Bajwa. The CJP had told him yesterday that the court did not want to waste time on a secondary issue and did not want to let the army institution suffer. He had asked Naseem to solve the licensing problem or come with an associate if he wanted to argue on behalf of the army chief.

CJP was bothered by the mention of the court in the draft notification

After the hearing resumed, the AG presented the summary of the draft notification for the extension of the Gen Bajwa prepared by the government yesterday. Following the suspension of the court on Wednesday, an emergency meeting was convened at the Prime Minister's House in the afternoon to discuss the government's strategy for today's hearing. The meeting was attended by Gen Bajwa himself, along with Prime Minister Imran and several ministers.

In examining the summary, the CJP reprimanded the attorney general for mentioning the procedures of the Supreme Court in the draft notification.

"Take your own load, why do you use our name?" Judge Khosa asked. "Do your own work, why do you drag us through the middle?"

He ordered the attorney general to remove the mention of the summary court, saying: "The name of the court has been used, so we cannot even point out what is wrong."

He raised questions about the appointment of the army chief and noted that the post was already occupied by General Bajwa.

"How can you make an appointment for a position that is already filled?" asked the president of the court.

It seems that this time there has been much thought in the drafting of the notification, commented the president of the Supreme Court. "Take out the part about the court council," Judge Khosa addressed the attorney general. "If the president seeks our advice, that is a different matter."

Referring to the participation of the army chief in yesterday's meeting, Judge Khosa said: "It is shameful that the army chief has to be aware of the summaries rather than the defense of the country."

Escape in the laws

Judge Shah once again pointed out that the law does not mention that the term of office is three years.

The president of the court said the summary had mentioned that the mandate of the army chief will be three years. He said that article 243 does not mention the duration of three years.

"If they find an extraordinary general tomorrow, will they grant him an extension of 30 years?" He commented and emphasized that there should be a clear system that everyone is aware of. He said the three-year date "will become an example."

"The government may want to name the next army chief for a year," he said.

The president of the court regretted that no one had examined the law while granting extensions all these years.

"The activities that are carried out in the cantonment or under what law an action is being taken are not verified," he said.

"Now a constitutional institution is examining this issue."

He said the process of appointing a constitutional position should be clear and asked AG Khan how long it would take the government to write laws about it. The attorney general told the bank that the government will require three months, adding that a separate law will be drafted regarding the head of the army.

Judge Shah, in his comments, said that yesterday the bank had said that the generals were retiring but that the attorney general had insisted that he not.

"The summary does not mention the salary of the army chief or the benefits he is receiving," Judge Shah said. "The attorney general must also have read the laws about the army for the first time."

"We are not telling you to pass the legislation immediately," Judge Khosa said. "A law that has not been drafted in 72 years cannot be done in a hurry."

He added that the government had "returned to the Constitution for the first time."

"When a decision is made in accordance with the Constitution, our hands are tied," said the CJP.

"We were labeled as agents of India and the CIA when we examined the Army Law yesterday," lamented the president of the court. AG Khan told him that India "took advantage" of yesterday's arguments.

"It is our right to ask questions," said the CJP. The attorney general lamented that "social networks were not under anyone's control."

Judge Shah asked the AG to "suggest how to fix the laws on the army."

Government does not satisfy court

On Wednesday, the president of the court before postponing the hearing, said there were three points that the court will consider:

  • the law
  • the procedure involved
  • the reasons for granting an extension to the army chief

He said the first two issues are very important and, based on them, the court will announce its decision. General Bajwa may continue his service if the Supreme Court decides the case in his favor before November 29.

Pakistan's attorney general, Anwar Mansoor Khan, outside the Supreme Court yesterday. – White Star

During the hearing yesterday, the bank was bothered by the fact that after Tuesday's cabinet meeting, Prime Minister Imran Khan presented a summary to President Arif Alvi for his approval to "rename" the army chief in his withdrawal and the new appointment was made under article 243 (4) of the Constitution, but the subsequent notification refers to the "extension grant" to the COAS for another period of three years.

The attorney general attributed the error to "office errors" by the ministry.

"Nobody bothered to read what they are issuing," Judge Khosa observed, lamenting the way the law ministry dealt with the issue.

"Please resolve the matter before 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," said the president of the court, highlighting the need for urgency in view of the fast of COAS – Approach to retirement. "They amended Regulation 255 of the army rules at the cabinet meeting on Tuesday when it is not about the appointment of the army chief but other officers," he said.

Recalling that several generals in the past had been granted the extension, the court noted that it was necessary to resolve the service affairs of the army chief for all times to come.

"The personalities do not matter to us since it is a court of justice," said the CJP, explaining that the court would be satisfied if everything was done legally. To understand the scheme of the service structure, the court also requested the AG to read one by one the complete provisions of the Pakistan Army Act (PAA) of 1952, as well as the army rules and regulations.

Notification Suspension

In an unexpected development on Tuesday, CJP Khosa had suspended the federal government's notification about the extension of General Bajwa and issued notices to the army chief, the defense ministry and the federal government.

Read more: General Bajwa's extension sways while CJP suspends government notification

The Supreme Court said that the AG could not refer to any provision in any legal instrument with respect to the extension to the service of the head of the army when completing his first term for his new appointment.



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