FeaturedNationalVOLUME 15 ISSUE # 09

Apex court’s verdict and after

A serious constitutional crisis which was in the making has been averted. For a moment a clash between institutions seemed imminent. But the clouds of uncertainty have soon cleared.

The Supreme Court in its short order announced that General 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 verdict after being assured by the government that the parliament will pass legislation within six months.

According to the short order, the federal government presented the 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 the 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 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.”

The top court’s ruling came at a critical moment. Prime Minister Imran Khan had extended COAS 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. The SC had taken up the case and noted a number of flaws in the government’s original notification through which the sitting Army Chief was granted a fresh term of three years. There was total confusion in both political and legal circles as it came to light that the notification had been originally signed by the prime minister and not the president – as per rules – and that the subsequent cabinet approval for the decision did not appear to be solid. Following this, a new emergency meeting of the cabinet was called by the prime minister to discuss the issue.

It is apparent that those in the government handling the matter made mistakes in drafting the original notification as they seemed unclear about the provisions of the Army Act and Army Rules. Needless to say, the SC has passed an order in a matter whose importance cannot be overemphasised.

The court has ruled that the parliament and the federal government should clearly “specify the terms and conditions of service of the COAS through an act of parliament and to clarify the scope of the Article 243 of the Constitution in this regard”. The point here is that while the government had been pointing to the Article 243(4)(b) of the Constitution and Regulation 255 of the Army Regulations (Rules), 1998, the court found that the legislation did not specify the Army Chief’s appointment, duration of service and extension. Yet, such extensions have been granted multiple times in the past.

In this background, the case has acquired historic significance. As per rules, the defence ministry, after examining the detailed order of the Supreme Court, will forward a proposal of amending the Army Act in accordance with the guidelines set by the apex court. The law ministry will finalize the bill and lay it before the National Assembly. The Pakistan Tehreek-i-Insaf can get through the bill in the lower house. However, it is not an easy job in the Senate since it has fewer seats in the upper house. For this, the PTI needs to get support from the PML-N and the PPP. Ultimately, it depends upon the behavior and statesmanship of Prime Minister Imran Khan as to how he would win the support of opposition parties to keep General Bajwa in the office of COAS beyond six months.

The ball is now in parliament’s court. The people’s elected representatives have been provided an opportunity by the apex court to frame the legal process pertaining to the appointment of Army Chiefs and the length of their tenure in office. Given the crucial position of the Army Chief within the state structure, the parliament must come up with legislation that takes into account all aspects of the matter. There should be wide ranging discussions and consultation between the government and the opposition so that the issue is debated in detail before the final legislation is drafted. All efforts should be made to produce a law that strengthens all institutions and the system as a whole.

The Army Chief’s appointment and extension in tenure is of prime importance in our situation and it should not be politicized. It is hoped that despite the current tensions, the opposition will respond to the issue positively. The need is for a constructive working relationship inside the parliament without which it would be difficult to handle the critical task at hand.