SC detailed verdict on General Qamar Javed Bajwa's extension

[ghazi52]

SC detailed verdict on General Qamar Javed Bajwa's extension likely tomorrow

ISLAMABAD: Eagerly awaited detailed verdict of the three-member bench of the Supreme Court (SC) on petition regarding extension of the Chief of Army Staff (COAS) service period will be announced tomorrow (Monday) as the learned court issued brief orders last month wherein it asked for legislation within six months for determination of length of the service of the COAS and till then General Qamar Javed Bajwa will continue in the office.

Well-placed sources told The News here Saturday that the detailed judgment will not be delayed any further beyond Tuesday in case it isn’t announced on Monday.

The detailed judgment is likely to conclude the controversy regarding the determination of the term of the Army Chief’s service either through constitutional amendment or by an act of Parliament since the debate was generated among constitutional experts, political commentators and legislators about the subject.

The major political parties of the country including Pakistan Muslim League (PML-N) and PPP were also sitting with their fingers crossed to wait the detailed judgment for taking position on the question of service period of the Army Chief. Some federal ministers were of the view that the requisite legislation could be undertaken through act of Parliament while some political stalwarts insisted that the needful could be done through an amendment in Article 243 of the Constitution only and it couldn’t be done without bringing about constitutional amendment.

The act of Parliament could be adopted through simple majority of the members in the house while for constitutional amendment two-third support of the house members would be required for passage.

Chief Justice Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah constituted the bench of the apex court that heard the petition.

Attorney General Anwar Mansoor Khan also had said that simple act of Parliament would be required for fixation of the tenure of the Army Chief.

The brief judgment was pronounced by Chief Justice Asif Saeed Khosa who is attaining superannuation on 20th of this month and expected to handed the detailed judgment four days before his retirement. He had been part of the benches which had heard and disposed many important cases of the recent history of the country. Wild speculation is underway throughout the country about the expected detailed judgment that has attained significant importance.

 

[ghazi52]

Ball in parliament's court to provide certainty to army chief's post with new law: SC detailed verdict
Haseeb Bhatti
December 16, 2019

The Supreme Court has given the parliament six months to legislate on the matter of reappointment of Army Chief Gen Qamar Javed Bajwa. — Reuters/File

The Supreme Court on Monday released its detailed judgement in the case pertaining to the extension of Army Chief Gen Qamar Javed Bajwa, emphasising that it is now up to the parliament to carry out legislation that will provide "certainty and predictability" to the post of chief of army staff (COAS) for all times to come.

Prime Minister Imran Khan had extended Gen Bajwa's tenure through a notification in August, but the SC had suspended it on November 26 due to irregularities in the manner of extension. After three days of heightened uncertainty, the apex court, through a short order on November 28, had announced that Gen Bajwa would remain the COAS for another six months during which the parliament would legislate on the army chief’s extension/reappointment.

"We would like to emphasise that this crucial matter of the tenure of COAS and its extension, which has a somewhat chequered history, is before the Parliament, to fix for all times to come," wrote Justice Syed Mansoor Ali Shah, a member of the three-judge bench which heard the case, in the court's 43-page judgement.

"It is now for the people of Pakistan and their chosen representatives in the Parliament to come up with a law that will provide certainty and predictability to the post of COAS, remembering that in strengthening institutions, nations prosper."

Both Justice Mazhar Alam Khan Miankhel and Chief Justice Asif Saeed Khosa agreed with Justice Shah's judgement, with Justice Khosa saying in his additional note that it had been a "shocking revelation" to the bench that the terms and conditions of service of the COAS, the tenure of his office, extension in the tenure of his office or his reappointment to that office "have remained unregulated by any law so far".

The court summarised its findings after exploring the scope of Article 243 of the Constitution — which governs the army chief's appointment, reviewing the Pakistan Army Act, 1952, reviewing the Pakistan Army Act, 1952, the Pakistan Army Act Rules, 1954, and the Army Regulations (Rules). Some of the key points from the findings are:

• 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. It does not provide for essential elements required to raise and maintain an Army, particularly the grant of commissions in the Army and the terms of service of the commissioned officers including tenure and extension of a general.

• 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 required to be made under clause (3) of Article 243 yet in the absence of such law the said practice can be enforced to remove uncertainty as to the tenure of a general and to make the constitutional post of COAS functional. However, in the first instance, the matter should be allowed to be regulated by law, made by the legislature, as mandated by the Constitution.

• 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, which could be enforced in absence of the law on the subject.

• The summaries of the Ministry of Defence approved by the president, the prime minister and the cabinet for the reappointment, extension and fresh appointment of Gen Bajwa seem to be meaningless and of no consequence, in absence of the law prescribing tenure of a general and providing extension for another tenure.

• Regulation 255 of the Army Regulations (Rules), in its original as well as amended form, does not confer authority on the Federal Government to grant extension of another full tenure to a general. This regulation provides for only a temporary arrangement for a short term, if the exigencies of service so require in the public interest.

• Regulation 255 and other Regulations of the Army Regulations (Rules) on the subject of “retirement” appear to be ultra vires the Pakistan Army Act, as Section 176 of the Pakistan Army Act has assigned the subject of “retirement” to be regulated under the Rules and not under the Regulations. The Regulations can be made only for the matters other than those which are to be dealt with under the Rules.

• Section 176-A of the Pakistan Army Act and the regulations made under it appear to suffer from the excessive delegation of the essential legislative function, as neither that section nor any other section of the Pakistan Army Act provides the essential legislative policy guidelines for making the delegated legislation, viz the regulations, on the subjects mentioned therein.

• In view of the assurance of the attorney general given on behalf of the Federal Government to process the legislation for meeting the deficiencies in the Pakistan Army Act, in particular, the tenure, age of retirement and if deemed proper, the extension of tenure of a general, it is appropriate to leave the matter, at the first instance, to be decided by the chosen representatives of the people of Pakistan by making an appropriate legislation.

• 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 organisation 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 SC has clarified, however, that in case the federal government remains unable to regulate the tenure and terms of service of a general and as a consequence of the army chief through an appropriate legislation by the parliament within a period of six months, "the tenure of the constitutional post of COAS could not be left totally unregulated and to continue forever" because "this would be inconceivable and amount to a constitutional absurdity."

In case of such failure of the federal government, the verdict says, the institutional practice of retirement of a general on completion of the tenure of three years "shall stand enforced" to regulate the tenure of Gen Bajwa and consequentially his tenure as COAS, from the date of his promotion to the rank of general and appointment as the army chief, i.e. November 29, 2016.

In that scenario, "the president shall, on advice of the prime minister, appoint a serving general officer as the new COAS", the judgement adds.

 

[El Sidd]

I have zero confidence in the parliament for legislating on such grave matters.

The recent episodes of drafting names for ECP and NAB are evidence enough along with proposals by the government to change the NAB Laws to benefit the political elite rendering them as infallible for corruption offenses.

With massive allegations of rigging and pundits calling the GE2018 as barely fair and free, it cannot be allowed to legislate in such matters. No open debate is expected in the parliament which is a tea party club of pillagers and looters united in the cause of bleeding and choking Pakistan.

I hereby refuse to accept any such laws made in the sabotaged parliament with respect to Pakistan Armed Forces, Accountability and Economical model of the country.

Thanks and Regards.

 

[ghazi52]

The Supreme Court, in its detailed judgement in the case of the army chief’s tenure extension, has provided relief to the Pakistan Tehreek-e-Insaf government and has not directed for amending the Constitution, which would require a two-thirds majority in Parliament.


The government is just required to pass simple legislation, which would only require a simple majority, to give legal cover to the army chief’s job extension

 

[ghazi52]

Army chief’s extension: Supreme Court provides easy solution to govt

ISLAMABAD: The Supreme Court’s detailed judgment in the Army Chief’s extension case provides an easy solution of a simple legislation and not a constitutional amendment to fix tenure of the Army Chiefand include provision about extension.

However, in case the government fails to legislate the required law within six months, the tenure of the Army Chief stands fixed for three years without any provision of extension. In such a scenario, Army Chief General Qamar Javed Bajwa will get retired on May 28, 2020 as the judgment protects his six months extension.

In view of the judgment, the previous extensions given to former Army Chiefs or Chiefs of other services were without any legal backing. According to the judgment, “In case the Federal Government remains unable to regulate the tenure and terms of Constitution Petition No. 39 of 2019 42 service of a General and as a consequence of the COAS through an appropriate legislation by Parliament as assured by the Attorney-General, within a period of six months, the tenure of the constitutional post of COAS could not be left totally unregulated and to continue forever. This would be inconceivable and amount to a constitutional absurdity. Therefore, in case of such failure of the Federal Government the institutional practice of retirement of a General on completion of the tenure of three years as pleaded by the Attorney-General and borne out from the record, shall stand enforced to regulate the tenure of General Bajwa and consequentially his tenure as COAS, from the date of his promotion to the rank of General and appointment as COAS, i.e. 29.11.2016. And the President shall, on advice of the Prime Minister, appoint a serving General officer as the new COAS.”

The above para of the judgment provides for fixed three-year tenure of the Army Chief without any provision of extension in case the government fails to do the required legislation.

The following para of the judgment requires the government to make a simple law and rules out the constitutional amendment to provide for Army Chief tenure and extension provision: “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 for the law required to be made under clause (3) of Article 243, yet in the absence of such law the said practice can be enforced to remove uncertainty as to the tenure of a General and to make the constitutional post of COAS functional. However, in the first instance, the matter should be allowed to be regulated by law, made by the legislature, as mandated by the Constitution.”

The following are the paras, in view of which all past extensions of Services Chiefs were without any legal backing: “5) That the Summaries of the Ministry of Defence approved by the President, the Prime Minister and the Cabinet for the reappointment, extension and fresh appointment of General Bajwa seem to be meaningless and of no consequence, in absence of the law prescribing tenure of a General and providing extension for another tenure. 6) That Regulation 255 of the Army Regulations (Rules), in its original as well as amended form, does not confer authority on the Federal Government to grant extension of another full tenure to a General. This Regulation provides for only a temporary arrangement for a short term, if the exigencies of service so requires in the public interest. 7) That Regulation 255 and other Regulations of the Army Regulations (Rules) on the subject of “retirement” appear to be ultra vires the Pakistan Army Act, as Section 176 of the Pakistan Army Act has assigned the subject of “retirement” to be regulated under the Rules and not under the Regulations. The Regulations can be made only for the matters other than those which are to be dealt with under the Rules.”

 

[ghazi52]

COAS service terms unregulated by law so far, wonders CJP

December 16, 2019
https://tribune.com.pk/story/2119253/1-coas-service-terms-unregulated-law-far-wonders-cjp/
ISLAMABAD: Chief Justice of Pakistan Asif Saeed Khosa has wondered that the terms and conditions of the service of chief of the army staff (COAS) have been “unregulated by any law so far”.

“I understand that democratic maturity of our nation has reached a stage where this court can proclaim that, as declared by Chief Justice Sir Edward Coke of England in the Commendam case in the year 1616 regarding the powers of King James I, ‘Howsoever high you may be, the law is above you,’” writes the justice chief in his brief additional note on the Supreme Court detailed judgment.

The verdict was about deciding the question whether the top military post in the country, that of the chief of the army staff (COAS), the commanding officer of the Pakistan Army, is regulated by the Constitution and the law; and whether the COAS has a tenure or can seek an extension or has any terms of service under the law.

The chief justice, while agreeing with the main detailed judgment authored by Justice Syed Mansoor Ali Shah, adds that in our peculiar historical context the chief of the army staff holds a powerful position in ways more than one.

“Unbridled power or position, like unstructured discretion, is dangerous,” the chief justice says, adding that it has been a shocking revelation to us that the terms and conditions of service of the chief of the army staff, the tenure of his office, extension in the tenure of his office or his reappointment to that office have remained unregulated by any law so far.

“Clause (3) of Article 243 of the Constitution of the Islamic Republic of Pakistan, 1973 mandates that the president’s power to raise and maintain the armed forces is to be “subject to law” and, thus, leaving some vital aspects relevant to the office of chief of the army staff without being regulated by any law militates against the said express provision of the Constitution,” says Justice Khosa.

The chief justice, who is retiring on Dec 20, further writes, “In the backdrop of the last three scores and twelve years of our history I may observe with hope and optimism that framing of a law by the parliament regulating the terms and conditions of the office of chief of the army staff may go a long way in rectifying multiple historical wrongs and in asserting sovereign authority of the chosen representatives of the people besides making exercise of judicial power of the courts all pervasive.”