All eyes on today’s top court ruling on Bajwa extension

Tariq Butt

The eagerly awaited detailed judgment of the Supreme Court on extension/reappointment of Chief of Army Staff General Qamar Javed Bajwa will be released on Monday.

The government and opposition parties are equally anxiously waiting for the detailed verdict. After three-day hearing, a three-member bench headed by Chief Justice Asif Saeed Khosa and comprising Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah had reserved its verdict on Nov.28.

Senior leaders of both the government and opposition parties have stated that a movement forward on having a new law or amending an existing statute will take place after the detailed judgment will be available.

The chief justice retires on Dec.20 after attaining the age of superannuation.

The short order said considering that the bench, while exercising judicial restraint, finds it appropriate to leave the matter to the Parliament and the federal government to clearly specify the terms and conditions of service of the army chief through an Act of Parliament and to clarify the scope of Article 243 of the Constitution in this regard.  Therefore, the current appointment of General Bajwa as the army chief shall be subject to this legislation and shall continue for a period of six months from today, whereafter the new law shall determine his tenure and other terms and conditions of service.

Attorney General Anwar Mansoor Khan said after the short order was announced that an ordinary law or an amendment in an existing statute will be required and there is no need for a constitutional change.

Explaining the short order, prominent lawyer Barrister Omar Sajjad said that according to his reading, either an independent law would be made or the present Pakistan Army Act will be amended.

But he conceded that another opinion propounded by some law experts was that a constitutional amendment was desirable. He said Article 243 serves as the umbrella provision to make or change laws to specify the tenure, retirement, reappointment, extension, terms and conditions etc., of the army chief.

Sajjad said that it all depends on the detailed judgment.  It will have to be seen what the elaborate ruling will provide for, he said and added that if it directed to amend the Constitution, it will have to be done, and if it ordered formulation of a law or amendment in an existing legislation, it will have to be done.

Answering a question, the expert said that the parliament has powers to undo the effect of a Supreme Court judgment by amending the Constitution or the concerned law as the case may be.

If the impact comes on the Constitution, a constitutional amendment is needed and if the effect is on a law, that is required to be changed, he opined.

He pointed out that separate laws exist for the president of Pakistan, the prime minister, judges, National Assembly Speaker, Senate Chairman and others which specify their salaries, perks and privileges etc. A similar law will is envisaged for the army chief as well, he said.

If the government finally concluded after going through the detailed judgment, as the attorney general has stated after the handing of the short order, that an ordinary law or an amendment in a present legislation is requisite, simple majority will be sufficient to carry it out in the two Houses of Parliament. However, if the constitutional amendment was to be made, a two-thirds majority will be necessary for its parliamentary approval.

Infuriated by the attack on the London apartments of deposed Prime Minister Nawaz Sharif by a mob, allegedly affiliated with the Pakistan Tehrik-e-Insaf (PTI), senior PML-N leader announced in the National Assembly two days back that his party will hold no talks with the government on any legislative and other critical matters.

The apex court bench examined Article 243(4)(b), Pakistan Army Act, 1952, Pakistan Army Act Rules, 1954 and Army Regulations (Rules), 1998 and said that in spite of the assistance rendered by the attorney general, the panel could not find any provision relating to the tenure of the army chief or a general and whether the military chief can be reappointed or his term can be extended or his retirement can be limited or suspended under the Constitution or the law.