Out of the crisis

It is a revelation the Constitution does not carry a single provision to support an extension in army chief’s tenure

Mercifully, we are out of the crisis — at least for now. The Supreme Court has allowed Gen Qamar Javed Bajwa — whose term as army chief stood expired on November 28 — to continue in his position for a period of six months during which parliament will have to legislate on the issue of extension in the tenure of an army chief. That way, the legality of Gen Bajwa’s reappointment or continuation of service now rests on the law that the government would bring. It must have been a revelation for many — even lawmakers and law experts — that the Constitution does not carry a single provision to support an extension in the tenure of the country’s top soldier. And the only law that is referred to in the context all too frequently — i.e. Article 243 of the Constitution — only deals with the appointment of an army chief and does not say anything on a re-appointment or an extension.

Better late than never: the Supreme Court made sure that this must not continue. The top court thus admitted a petition challenging the re-appointment of the army chief and, after a tense debate spanning three days, ruled on the need to provide legal cover to an issue of vital importance that has thus far been deemed legal only for being a convention i.e. an existing practice. The court ruling that the extension should be backed by the law actually implies that none of the previous extensions — even those made by elected heads of the state — was legal. In what indicates a thoroughly democratic approach, the three-judge bench observed that there is “no better forum than the parliament” to remove “the ambiguity in the Army Act”.

In line with the court order, “the Parliament and the Federal Government [have] to clearly specify the terms and conditions of service of the COAS through an Act of Parliament”. Legislating through an act of parliament only requires a simple majority in parliament, which means the government and its allies need not worry about the opposition’s take on the different aspects of the issue. However, it is the democratic duty of the government to bring all political forces on board for a unanimous decision.

Published in The Express Tribune, November 29^th, 2019.

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