COAS extension detailed judgement

The Supreme Court's (SC's) eagerly awaited detailed judgement on the issue of giving an extension to Chief of Army Staff (COAS) General Qamar Javed Bajwa has laid down that there exists a vacuum in law regarding the appointment, tenure, and extension of service of any General, including the COAS. Instead, as pointed out by the Attorney General for Pakistan (AGP) during the proceedings of the case, there is an 'unwritten institutional practice' in vogue since long whereby the tenure of a General is considered to be of three years. The SC verdict says an 'institutional practice' cannot be a valid substitute for what has emerged from the court's review of Article 243 of the Constitution, the Pakistan Army Act 1952, the Pakistan Army Act Rules 1954, and the Army Regulations (Rules), as the legal vacuum regarding the matter. The court, exercising judicial restraint, and on the assurance of the AGP that the government would bring in the necessary legislation within six months, referred the matter to parliament to provide, through appropriate legislation, 'certainty and predictability' to the post of COAS. Mindful of the critical role of the COAS in commanding the army, the court allowed an extension of six months to General Bajwa, pending parliament's fulfilling the legislative task in this time period. If, however, parliament fails to bring about the legislation to allow General Bajwa the extension of three years as desired by the government, he would stand retired at the expiry of the six months and the President would then appoint a fresh COAS on the advice of the Prime Minister. The SC expressed its astonishment that the constitutional appointment of the COAS was unregulated under a written Constitution. It also pointed out that the tenure of the COAS had a chequered history. The strengthening of institutions through proper regulation would contribute to the country's prosperity. Chief Justice of Pakistan Justice Asif Saeed Khosa wrote an additional note pointing out that the army chief's position was a very powerful one and unbridled power for such a position could be dangerous. The course suggested by the SC to parliament may go a long way in rectifying multiple historical wrongs, asserting the sovereign authority of parliament, and making the exercise of judicial power of the courts all-pervasive.

The detailed verdict of the SC has settled many questions, first and foremost the need for a lawful regulation of the terms and conditions, rules of appointment, tenure and extension of service of the COAS, arguably the most powerful post in our history. Given the pattern of military coups and interventions in that same history, the army chief, once in power, had no legal constraint (as has emerged in this case) to extending his tenure. That practice has been witnessed since the early 1950s. To critics who raise the question why this lacuna was never addressed earlier, the answer lies in the imbalance between the civilian and military sectors, which constrained the former from interfering in the affairs of the latter beyond a minimal point. It may be considered an inadvertent blessing that what had in the past been a simple matter and well entrenched practice, i.e., giving an extension to the COAS by a civilian government, became a judicial matter because of the inept handling by the Pakistan Tehreek-i-Insaaf (PTI) government. However, the task ahead may not be as easy as appears at first sight. First and foremost, the government has been making noises about a possible review petition being moved once the detailed judgement has been perused. If the government does so decide, the time-frame of six months may be eaten into and whatever the end result of the review petition, leave precious little time for the legislative task. As it is, in the polarised polity of today, consensus on such a bill may not prove an easy task, especially since despite the fact the SC has only laid down that a bill is needed to be passed by a simple majority and not a constitutional amendment requiring a two-thirds majority, the PTI government has only a razor-thin majority in the National Assembly and does not enjoy a majority in the Senate. That arithmetic suggests that without a consensus across the political divide, the bill may run into heavy weather and delays. That too may impinge on the six-month deadline. Necessary as the SC has found the legislation regarding the COAS, that may prove the relatively easier part.