Supreme Court suspends reappointment notification: Govt in the soup by own error on extension of COAS General Qamar Bajwa

ISLAMABAD: The Supreme Court of Pakistan on Tuesday suspended until today (Wednesday) the operation of the federal government’s notification for extension in service to Chief of Army Staff (COAS) General Qamar Javed Bajwa.

A three-member bench of the apex court, headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Mazhar Alam and Justice Syed Mansoor Ali Shah, heard a petition challenging the extension of the COAS. The court noted that the prime minister had himself passed an order reappointing the current chief of army staff for a second term in that office on 19.08.2019 whereas under Article 243 of the Constitution, it is the president who is the appointing authority for that office.

Gen Qamar Bajwa is set to retire on November 29 upon completion of his three-year term. The government on August 19 had notified reappointment of General Bajwa, extending his tenure by three years, citing “regional security environment”.

The court, while converting the instant petition into suo motu proceedings, issued notices to the federal government, Gen Qamar Javed Bajwa through the Ministry of Defence as well as the Ministry of Law and adjourned the hearing for today (Wednesday). The court made Gen Bajwa a respondent to the petition and held that the operation of the impugned order/notification in respect of extension/re-appointment of Gen Bajwa for another term in the said office will remain suspended.

Advocate Riaz Hanif Rahi, on behalf of the Jurist Foundation, had filed the petition in the Supreme Court, praying to declare the extension of the COAS illegal. The court in its order noted that a handwritten application was produced before it, submitted by the petitioner seeking permission to withdraw this petition. The court ruled that the petitioner has failed to appear in person nor anybody else has appeared on his behalf, adding that the application received does not carry any date and the same is not accompanied by any affidavit.

“There is nothing before us to accept or to presume that the said application has actually been submitted by the petitioner himself or that he has submitted the same voluntarily,” says the order of the court. The court held that the petition in hand invokes Article 184(3) of the Constitution and the subject matter of the petition involves a question of public importance with reference to enforcement of fundamental rights and, thus, the individual capacity of the petitioner pales into insignificance even if he decides not to pursue the present petition.“The application attributed to the petitioner is, therefore, not entertained.”

The attorney general after repeated queries of the court referred to Regulation No 255 of the Army Regulations (Rules) according to which the retirement of an army officer can temporarily be suspended or limited. The AG while placing reliance upon the said regulation maintained that the federal government has the requisite authority to re-appoint or extend the services of an incumbent chief of army staff prior to his retirement if the exigencies of the service so require or the public interest so demands.

The court, however, observed that a bare perusal of Regulation No 255 prima facie shows that the said provision can be invoked after an officer has already retired from service and that is why the said regulation speaks of suspension of retirement or limiting of retirement.

Disagreeing with the argument of the attorney general, the chief justice said that suspending a retirement or limiting a retirement before the retirement has actually taken effect and may amount to putting the cart before the horse.

Anwar Mansoor submitted that in the entire body of laws pertaining to the Pakistan Army, there is no provision available regarding re-appointment or extension in the service of a chief of army staff.

The AG presented before the court photocopies of many documents leading to an order passed by the president approving the summary sent to him by the prime minister along with his advice for extension/re-appointment of Gen Bajwa for a fresh term of three years in that office after expiry of his first term.

The court went through the documents and noted that a summary had initially been moved by the Ministry of Defence for extension of the term of the office of the chief of army staff and subsequently he was appointed chief of army staff for a second term of three years after completion of his first term in that office but the attorney general for Pakistan has not been able to refer to any provision in any legal instrument regarding extension in service of a chief of army staff upon completion of his first term in that office or for his re-appointment to that office after completion of his first term.

The court noted that in the case in hand, the prime minister had himself passed an order appointing the current chief of army staff for a second term in that office on 19.08.2019 whereas under Article 243 of the Constitution, it is the president who is the appointing authority for that office.

“Apparently that mistake came to notice straightaway and on the same day, i.e. 19.08.2019, a summary was moved by the Prime Minister’s Office to the president for extension/re-appointment of the incumbent chief of army staff and on that very day, i.e. 19.08.2019, the president was pleased to approve the summary in that regard and, hence, the advice of the prime minister was apparently accepted and acted upon,” the court noted in its order.

The court said it appears that even that process was found to be flawed and on that very day, it was realized that the prime minister or the president could not take the above-mentioned actions without the approval of the cabinet and, thus, on the next day, i.e. 20.08.2019, a summary was moved for approval of the cabinet and on 21.08.2019, the cabinet was said to have approved the said proposal through circulation.

“The opinion of the cabinet recorded in this regard, photocopies whereof have been produced before us, shows that there are 25 members of the cabinet and out of those 25 members, only 11 had agreed to the proposal which shows that the majority of the cabinet had not approved the said proposal. Was the silence of other ministers considered as consent”, the chief justice said.

The court observed that another peculiar aspect is that after the purported or so-called approval of the cabinet regarding extension/re-appointment of the incumbent chief of army staff, the matter was never sent to the prime minister or the president again for the purpose of a fresh advice or a fresh order of the prime minister and the president respectively.

The court noted in the order that the stated purpose for the proposed re-appointment/extension in the term of the office of the incumbent chief of army staff is “regional security environment”.

“The said words are quite vague and if at all there is any regional security threat, it is the gallant armed forces of the country as an institution which is to meet the said threat and an individual’s role in that regard may be minimal”, the court ruled in its order, adding that if the said reason is held to be correct and valid, every person serving the armed forces would claim re-appointment/extension in his service on the basis of the said reason.

The court said the points noted call for a detailed examination of the matter of extension/re-appointment of Gen Bajwa and, therefore, he is hereby made a respondent to this petition and the office is directed to carry out the necessary addition in the memorandum of this petition.

The court issued notices to all the respondents for today (Wednesday) as requested by the attorney general for Pakistan.

Meanwhile, the operation of the impugned order/notification in respect of extension/re-appointment of Gen Bajwa for another term in the said office will remain suspended, the court concluded.

Meanwhile, the federal cabinet that amended Rule 255 of the Army Regulation in an emergency meeting on Tuesday approved a new summary for extension in the tenure of Army Chief General Qamar Javed Bajwa and consigned it to the president for approval.

The federal cabinet and its allied parties have expressed complete support for extension in the service of the General. Asif Saeed Khan Khosa, CJ. The Court-Associate has produced before us a handwritten application submitted by the petitioner seeking permission to withdraw this petition. The petitioner has failed to appear in person nor anybody else has appeared on his behalf. The application received does not carry any date and the same is not accompanied by any affidavit. There is nothing before us to accept or to presume that the said application has actually been submitted by the petitioner himself or that he has submitted the same voluntarily. Be that as it may the petition in hand invokes Article 184(3) of the Constitution and the subject matter of the petition involves a question of public importance with reference to enforcement of fundamental rights and, thus, the individual capacity of the petitioner pales into insignificance even if he decides not to pursue the present petition. The application attributed to the petitioner is, therefore, not entertained.

2. The learned Attorney-General for Pakistan is in attendance on his own and he has presented before us photocopies of many documents leading to an order passed by the President approving the summary sent to him by the Prime Minister along with his advice for extension/re-appointment of General Qamar Javed Bajwa, Chief of the Army Staff for a fresh term of three years in that office after expiry of his first term in that office. With the assistance of the learned Attorney-General for Pakistan we have gone through the said documents and have ex facie noticed the following things:

i) A summary had initially been moved by the Ministry of Defence for extension of the term of office of the Chief of the Army Staff and subsequently he was appointed as Chief of the Army Staff for a second term of three years after completion of his first term in that office but the learned Attorney-General for Pakistan has not been able to refer to any provision in any legal instrument regarding extension in service of a Chief of the Army Staff upon completion of his first term in that office or for his re-appointment to that office after completion of his first term.

ii) In the case in hand the Prime Minister had himself passed an order appointing the current Chief of the Army Staff for a second term in that office on 19.08.2019 whereas under Article 243 of the Constitution it is the President who is the appointing authority for that office. Apparently that mistake came to notice straightaway and on the same day, i.e. 19.08.2019 a summary was moved from the Prime Minister’s office to the President for extension/re-appointment of the incumbent Chief of the Army Staff and on that very day, i.e. 19.08.2019 the President was pleased to approve the summary in that regard and, hence, the advice of the Prime Minister was apparently accepted and acted upon. It appears that even that process was found to be flawed and on that very day it was realized that the Prime Minister or the President could not take the above mentioned actions without the approval of the Cabinet and, thus, on the next day, i.e. 20.08.2019 a summary was moved in the relevant regard for approval of the Cabinet and on 21.08.2019 the Cabinet was said to have approved the said proposal through circulation. The opinion of the Cabinet recorded in this regard, photocopies whereof have been produced before us, shows that there are 25 members of the Cabinet and out of those 25 members only 11 had agreed to the proposal which shows that the majority of the Cabinet had not approved the said proposal. Yet another peculiar aspect is that after the purported or so-called approval of the Cabinet regarding extension/re-appointment of the incumbent Chief of the Army Staff the matter was never sent to the Prime Minister or the President again for the purposes of a fresh advice or a fresh order of the Prime Minister and the President respectively.

iii) After our repeated queries the learned Attorney-General for Pakistan has referred to Regulation No. 255 of the Army Regulations (Rules) according to which a retirement of an Army officer can temporarily be suspended or limited. By placing reliance upon the said Regulation the learned Attorney-General for Pakistan has maintained that the Federal Government has the requisite authority to re-appoint or extend the services of an incumbent Chief of the Army Staff prior to his retirement if the exigencies of the service so require or the public interest so demands. A bare perusal of Regulation No. 255, however, prima facie shows that the said provision can be invoked after an officer has already retired from service and that is why the said Regulation speaks of suspension of retirement or limiting of retirement. Suspending a retirement or limiting a retirement before the retirement has actually taken effect may amount to putting the cart before the horse. The learned Attorney-General for Pakistan has, however, very candidly submitted before us that in the entire body of laws pertaining to the Pakistan Army there is no express provision available regarding re-appointment or extension in the service of a Chief of the Army Staff.

iv) The stated purpose for the proposed re-appointment/extension in the term of office of the incumbent Chief of the Army Staff is “regional security environment”. The said words are quite vague and if at all there is any regional security threat then it is the gallant armed forces of the country as an institution which are to meet the said threat and an individual’s role in that regard may be minimal. If the said reason is held to be correct and valid then every person serving in the armed forces would claim re-appointment/extension in his service on the basis of the said reason.

3. The points noted above call for a detailed examination of the matter of extension/re-appointment of General Qamar Javed Bajwa, Chief of the Army Staff and, therefore, he is hereby made a respondent to this petition and the office is directed to carry out the necessary addition in the memorandum of this petition. Let notice of this petition be issued to all the respondents for tomorrow, i.e. 27.11.2019, as requested by the learned Attorney-General for Pakistan. In the meanwhile the operation of the impugned order/Notification in respect of extension/re-appointment of General Qamar Javed Bajwa, Chief of the Army Staff for another term in the said office shall remain suspended.