Factors before SC for granting army chief an extension: Law, procedure, grounds

ISLAMABAD: The Supreme Court on Wednesday said there were three points which the court will consider on the matter of extension to the tenure of Chief of Army Staff (COAS) General Qamar Javed Bajwa: the law, procedure involved, and grounds for granting extension.

The court took strong exception to the government’s move for coming up with different versions while moving a fresh summary notifying extension in service to General Bajwa.

A three-member bench of the apex court headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah heard a petition challenging the extension of COAS General Qamar Javed Bajwa.

The chief justice at the outset made it clear that the court is hearing a petition and it has not taken suo motu notice.

Former law minister Farogh Naseem also came to the court for representing the COAS.

The court noted that the prime minister had requested a reappointment whereas the president had issued a notification for extension in the army chief's tenure.

"Army officers are respectable but the Law Ministry, with its erroneous documentation, has attempted to disrespect them," said the chief justice.

The court on Tuesday had suspended operation of the federal government notification for extension in service to COAS General Qamar Javed Bajwa.

The court had noted that in the case in hand, the prime minister had himself passed an order appointing the current COAS 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.

General 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.”

After the court suspended the earlier notification, the federal cabinet later after amending Rule 255 of the Army Regulation in an emergency meeting approved a new summary for extension in the tenure of General Bajwa and dispatched it to the president for approval.

“Even such a summary is not issued for the appointment of an assistant commissioner the way you have issued a summary for extension in service to the army chief,” the chief justice asked Attorney General Anwar Mansoor Khan that resulted in a laughter in the courtroom.

The chief justice said the prime minister, president, judges, speaker National Assembly, attorney general and Auditor General of Pakistan are constitutional offices. “At least one should have read the summary before issuing,” the CJP remarked and wondered as to why nobody even bothered to go through the summary before issuing it.

“Two meetings were held and we hoped that big minds assembled and would present some good, but we have been thoroughly disappointed,” the CJP remarked.

“Whosoever had done this, check out their educational degrees,” the CJP asked the attorney general in a lighter tone.

“But Attorney General we sympathise with you”, the CJP said.

The Justice Khosa said that there are three issues: one, whether the matter has any legal backing, second if any procedure and process was adopted as per law, and thirdly reasons for appointment.

“But for us only the first two are very much important therefore we have to decide it in accordance with law while you will have to take decision in this regard”, the Chief Justice asked the attorney general.

The chief justice further observed that this is a court of law, adding that personalities don’t matter to them, but the institutions.

“If everything was done in accordance with law than we would have no issue, but if it is done illegally, we have to protect the law and Constitution,” the chief justice remarked, adding that they have taken the oath to protect the Constitution and hence they are answerable to Almighty Allah.

Earlier, at the outset of the hearing, Justice Mansoor Ali Shah questioned as to how an army chief can be reappointed to the office when he is no longer part of the staff.

The attorney general replied that the army chief cannot be considered retired until he hands command to another general. Justice Mansoor Ali Shah observed that Article 243 of the Constitution talks about the appointment of an officer, and questioned whether it also refers to period of appointment as well?”

“Where does it say that it is a three-year term (for an extension)?” asked Justice Shah.

The AG admitted that the period of the tenure is not specified in the rules. However, he said that there is no bar in the Constitution over the extension in service to the army chief.

The chief justice said the matter is very much important, adding that in the past, five or six generals have granted themselves extensions, however, nobody noticed it, but now it has come to the court and they are looking into it and will settle the parameters so that it does not happen in the future.

The attorney general while citing Article 146 of the Army Act submitted that officials can be granted an extension of two months in case of a war. The chief justice said that as per law, the army chief can stop officers’ retirements in times of war, but here the government wants to stop the army chief’s retirement.

The chief justice observed that Section 255 of the Army Regulation amended by the government did not concern the army chief. He pointed out to the attorney general the amendment made by the government in the said section which relates to officials either retired or expelled from their services.

Justice Syed Mansoor Ali Shah asked the AG as to whether a retired general can be appointed as the army chief. The AG however, replied that the reappointment and tenure are decided under the 1947 Convention.

The Chief Justice said that there is no need of convention when laws are available, adding that when the law is silent on anything, convention follows.

“We have a written Constitution, while the British constitution is based on convention,” the CJP said.

The AG replied that law is silent over the tenure that’s why he referred to convention.

The chief justice asked the AG to read out chapters of the Army Act, so that they could have a clear and whole picture to understand the rules. The attorney general went through various sections of the Army Act. He also clarified while referring to army rules on Tuesday. He submitted that the court wrote ‘law’ in its order. The CJP observed that the court had given its order after looking at the documents presented by the AG.

“The attorney general says that a general never retires,” remarked the chief justice. “The attorney general has interpreted Article 243 according to which even he can be made an army chief.”

The chief justice told the attorney general that the president had not issued the notification on the prime minister’s advice. He told the attorney general that the court was giving him one day to come up with a solution to the problem. He said if the mistakes are repeated then the court will have no other option, but to nullify the appointment

“You have made the army chief a shuttlecock,” said Justice Khosa.

“There is still time. The government should step back and assess what it is doing,” the chief justice remarked. “They should not do something like this with a high-ranking officer.”

The chief justice on one point read out the oath of Army officers, saying they would lay down their lives if needed for the defence of the country. “I will also not get involved in any political matters, very good,” the CJP remarked while further reading the oath of army officer.

Meanwhile, the court asked Barrister Farogh Naseem to arrange a lawyer so that he could argue on behalf of the COAS. The chief justice asked Farogh Naseem to settle his issue with the Pakistan Bar Council (PBC) pertaining to his law practicing licence which has been suspended by the Council.

Vice Chairman Pakistan Bar Council Syed Amjad Shah along with his other companions and members of the Council was present in the courtroom right from the start of the proceedings. He told the court that Farogh Naseem could not argue before the court as the Council has suspended his licence.

Farogh Naseem submitted before the court that the attorney general had already suspended the order of the Pakistan Bar Council. The chief justice asked Farogh Naseem that in order to avoid any difficulty during the proceedings, he should arrange his associate so that he could argue on his behalf.

“You can be allowed to stand with your associate on the rostrum during his arguments before the court,” the CJP told Farogh Naseem.

Meanwhile, the court adjourned the hearing for today (Thursday).