Detailed verdict in army chief?s extension case: If law not enacted, Bajwa will stand

[ahlam1399]

SLAMABAD: The Supreme Court, in its detailed verdict on the extension of the Chief of Army Staff (COAS), stated on Monday that in the absence of legislation on the matter within six months, the institutional practice of retirement of a general on the completion of tenure of three years “shall stand enforced”.The apex court in its short order on November 28 had allowed the federal government to grant a six-month extension to COAS Gen Qamar Javed Bajwa.The 43-page detailed judgment, authored by Justice Syed Mansoor Ali Shah with additional note of Chief Justice of Pakistan (CJP) Asif Saeed Khosa, stated in the light of the attorney general’s assurances as well as the importance of the responsibilities of the COAS, it was appropriate that the incumbent COAS may continue for a period of six months.The order stated the SC bench explored the scope of Article 243 of the Constitution, and reviewed the Pakistan Army Act, 1952, and the Pakistan Army Act Rules, 1954. The verdict noted: “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 the summaries for the reappointment, extension and fresh appointment of General Bajwa were “meaningless” in absence of the relevant law.CJP Khosa, in his additional note, said: “I agree with the judgment authored by my learned brother Syed Mansoor Ali Shah J, 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 position, like unstructured discretion, is dangerous. It has been a shocking revelation to us that the terms and conditions of service of 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.“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.“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.”http://feeds.feedburner.com/~r/com/cwEr/~4/_Eq1evcWCng

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