SC provides easy solution to govt

[ahlam1399]

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 Chief and 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.”http://feeds.feedburner.com/~r/com/cwEr/~4/5_OQV5Ds-bc

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