On November 28, the top court, in its short order, had allowed the federal government to grant a six-month extension to COAS General Qamar Javed Bajwa.
In the detailed verdict penned by Justice Mansoor Ali Shah and issued today, the court states that SC bench “explored the scope of Article 243 of the Constitution, reviewed the Pakistan Army Act, 1952, the Pakistan Army Act Rules, 1954”.
The court “found that the Pakistan Army Act, 1952 falls deficient of the structural requirements for raising and maintaining an Army under clause (3) of Article 243 of the Constitution”.
The verdict noted 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 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 that the summaries for the reappointment, extension and fresh appointment of General Bajwa were “meaningless” in absence of the relevant law.
The verdict further stated that in the light of the attorney general’s assurances as well as the importance of the responsibilities of the COAS, it is appropriate that the incumbent COAS may continue for a period of six months.
However, the court warns that in the absence of legislation on the matter within six months, the institutional practice of retirement of a General on completion of the tenure of three years “shall stand enforced”.
Chief Justice of Pakistan Asif Saeed Khosa, in his additional note in the verdict, said that “in our peculiar historical context Chief of the Army Staff holds a powerful position in ways more than one,” adding that “unbridled power or position, like unstructured discretion, is dangerous.”
The chief justice further said that “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 have remained unregulated by any law so far.”
Justice Khosa, ended his note by saying that “the 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”.