ISLAMABAD – The Supreme Court on Wednesday adjourned the hearing of the case pertaining to the extension in service of 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 comprises of Justice Mazhar Alam and Justice Syed Mansoor Ali Shah heard the case.
As the hearing resumed, CJP Khosa remarked that media had misunderstood yesterday s proceedings and clarified that the court had not taken suo motu notice. “We are continuing your petition,” the top judge told the petitioner who was in court today.
Former law minister Farogh Naseem, who stepped down from his post yesterday, appeared before the court on behalf of General Bajwa.
“Where were you yesterday […] we have maintained your plea?” CJP Khosa asked petitioner Riaz Rahi to which he replied that he could not appear as circumstances were different. On this, the top judge remarked that “we will have to move ahead in prevailing circumstances […] please take a seat.”
CJP Khosa said that the media had misunderstood yesterday’s proceedings and clarified that the court had not taken suo motu notice. “We are continuing your petition,”
Attorney General (AG) Anwar Mansoor took to the rostrum and said: “I referred to army rules yesterday. The court wrote ‘law’ in its order,” the AG said, to which the chief justice said: “The court had given its order after looking at your documents.”
Referring to the point questioned by the court yesterday that only 11 members of the cabinet had earlier approved the extension, Justice Shah observed: “Answers were not submitted in the time fixed for cabinet members.”
“But now the government has gone ahead with the matter […] the court had made the judgement in the light of your documents,” the CJP said.
“According to Rule 19, silence can mean an agreement,” the AG said, and submitted fresh documents to the court.
The AG said that even yesterday he had told the court that response from several ministers regarding a notification for giving an extension to the army chief was pending as the ministers were given time.
The CJP inquired from the AG if no response from the ministers was considered “yes”. To this, the AG said that it was true in accordance with the rules.
CJP Khosa said: “This is considered only if the response is sought within a specified time.”
The attorney general argued: “Nowhere the government has stated that it had committed a mistake, at first, the court should hear me [to know] the details […] I will answer to the court’s queries after completion of my arguments.”
“The appointment’s tenure is written in the notification that is the prerogative [of the prime minister],” he added.
“In the past, army chiefs had been getting extensions for ten, ten years […] now we will consider this matter for improvement in the future […] the impression was given that army chief’s tenure is extended for three years,” he said.
The attorney general identified a man approaching the rostrum but he was sent back by the CJP. Mr Anwar Mansoor told the court that Section 262(A) of the Army Rules and Regulations (ARR) explains about the retirement and the Article 243 explains that the president of the state is the supreme commander of Pakistan Army.
To this, CJP Khosa said that the documents presented in the court referred to suspension from the duty and any officers could be penalised after retiring him from his duty according to the ARR.
“Recently, three senior officers’ retirement was suspended and they were punished,” he said.
“Where the term of the army chief is fixed for three years? Does the army chief retires after three years?” Justice Shah questioned.
CJP Khosa further asked under which provision of the Law this new regulation was made.
The attorney general responded that an amendment was made to Article 255 in accordance with Section 176 of the ARR.
“We need to look at the whole book and not only a part of it […] not a certain section of it […] Rule 255 pertains to the reinstatement of any officer and penalising him,” the CJP went on to say.
“Where it is written that the tenure of [the army chief] will be three years?” Justice Shah asked further.
“We have to look from the perspective of what happens after three years,” the CJP said but the AG interrupted him.
CJP Khosa asked him: “Are you in a state of hurry?” The AG responded: “No, I am here till night.”
Farogh Naseem argued that any army officer could be stopped from retirement if a war breaks out.
“According to Article 255, during a war, the army chief can stop officers’ retirements,” the CJP responded. “However, the government wants to stop the army chief’s retirement.”
The AG said that the definition of appointment included that of reappointment. “There is a word in Article 255 that addresses the issue […] if the circumstances doesn’t support retirement, then an extension for two months can be granted […] since 1948, all army chiefs have been appointed at the same tradition.”
While presenting arguments, the AG, mistakenly, called former army chief general Ashfaq Pervez Kiyani as “Justice Kiyani”.
The CJP responded: “He was not a justice instead general Kiyani […] all of your case is resolving around Article 255.”
Justice Mansoor Ali Shah said the matter pertained to extension and reappointment and it needed to be justified legally. “I am dissatisfied with the Attorney General’s document of rules […] during a war, it is possible to prevent any officer from retirement; but the extension in the tenure for the constitutional rank is not in accordance with the Law.”
“The extension was granted under the Temporary Service Rules […] apparently the extension was not given under Army Regulations.
The CJP stated that the yesterday’s ruling was made in the light of documents presented before the court. “Okay, then we are going to give ruling in accordance with yesterday’s situation,” the court said.
Justice Mansoor Ali Shah questioned if a retired general could be appointed as the army chief?
The attorney general said the amendment was made under Section 176 of the Army Act, and in the documents [presented before the court], for the absent members of the federal cabinet, it was written “waiting”.
The court responded that it had given the judgement after reading those documents.
“The matter of [granting] an extension in the tenure of the army chief is very crucial, and legal points are silent on this matter […] in the past, the generals had obtained extensions in their tenures for several years and nobody ever raised a question about it […] now when a question is raised, let us examine the matter,” the CJP said.
“Show us the provisions of the Law upon which implementation was done for the reappointment or extension [of the army chief]?” the court asked.
Mr Anwar Mansoor said he would answer the court after completing his arguments. “No book of army regulation is available in the market,” he said.
The hearing was adjourned till 1pm.
When the hearing was resumed, the top court questioned that when the provisions of the Constitution were silent on the tenure/extension/reappointment of the army chief, then under what provision(s) the reappointment of the army chief could be made.
Importantly, the court observed that appointment of the army chief was the premier’s prerogative but the actual complication was relating to the army chief’s reappointment.
“Without comprehending the Army Act, how can we understand the arguments?” the court stated.
The AG said he would answer every question.
The CJP said: “You are allowed to explain whatever you want to […] we will talk about legal aspects [of the case].”
AG Anwar Mansoor said: “Let us read the Army Rules and Regulations, there is no point in answering [about the case] in chunks.”
“The court should not follow the Constitution so strictly […] sometimes, the stick can break from stiffness,” he said
Justice Shah once again asked AG Khan if a retired general can be appointed as the army chief. The attorney general said that the appointment and tenure are decided under the 1947 Convention.
He vowed to “satisfy the court regarding the reappointment of the army chief”.
Justice Khosa emphasised that the court was looking at the rules regarding the tenure of the army chief, not a general.
“This is a court of law; it is the law we are looking at, not personalities,” Justice Khosa remarked. “If something is wrong as per the law, we cannot say that it is correct. If [the decision] is not correct as per the law, we will give our verdict.”
“The retirement is of two types, the first pertains to completion of [one’s] service whereas the other relates to before completion of [one’s] service […] if any amendment was made to the Army Rules and Regulations, then present a copy of it,” the top judge added.
“This is a prerogative of the prime minister [to give extension to the army chief] but where it is written that the tenure will last for three years?” he asked.
The bench told the attorney general to read out the first three chapters of the Army Act, so that the court could understand the rules.
The attorney general pointed out that the duration of the tenure was not mentioned in the Army Act.
Thereafter, Justice Shah inquired him about the tenure’s duration and outlined that when the the law talks about retirement, it also determines the duration.
When the AG read out Section 16 and 17, the chief justice interrupted and told him that they were regarding dismissal from employment.
The attorney general argued that the army chief has the authority to dismiss anyone from their post.
“Can the federal government also remove someone from their post?” questioned Justice Shah.
The attorney general replied that army chief’s powers were limited, but the federal government has the complete authority. “Army chief can dismiss junior officials.”
The chief justice said that the government could order the retirement of any officer, including the field marshall “voluntarily or by force”.
“Army is not a democratic institution as it runs through command all over the world,” the AG responded.
AG Khan then read out the oath sworn by officers when they are appointed in the army.
“The oath of an army officer says that they would lay down their lives if need be. This is a very significant thing,” the chief justice observed.
“‘I will never involve myself in any political activities.’ This sentence is also part of the oath. It is a positive thing to stay away from political activities,” Justice Khosa remarked.
Yesterday, the media reported that the petition was converted into a suo motu case; however the CJP Khosa categorically refuted that information.
The court yesterday issued notices to the president, the PM and the federal government through the defence secretary in the same case for the explanation of extension/reappointment of the army chief as his term ends on Nov. 28.
However, the federal cabinet cancelled the previous extension order, signed by Prime Minister Khan on Aug. 19, of the army chief and signed a new summary for his tenure extension for another three years.
PM Khan and afterwards President Arif Alvi approved new fresh notification for the extension of the COAS’s tenure.
The cabinet approved an amendment in the Rule 255 of Army regulation in order to justify before the court its move.
The SCP on Tuesday suspended a notification of extension in the service of General Bajwa
Justice Khosa remarked that the Constitution doesn’t allow re-appointment or extension in the service of the army chief.
The Prime Minister issued a self-deployment notification on August 19, stating that the Army Chief’s term was extended.
In a verbal order following the hearing, the court said that the prime minister had issued a notification of Gen Bajwa’s “appointment in his own capacity on August 19”.
“The mistake was realised after the notification [was issued] and the prime minister sent the summary to the president. The president approved it on August 19.
“The court was told that the extension is being granted in light of the regional security situation. Dealing with regional security situation is the job of the army as an institution, not just that of an officer’s.
“If the regional security situation reasoning is accepted, then every army officer would want a re-appointment.”
“The attorney general could not present any legal reason for an extension in tenure or a new appointment,” the court observed.
According to the Army Rules, the verbal order said, retirement of an army official can only be temporarily suspended.
“The points raised in the case need to be examined in detail,” the order added.
On August 19, Prime Minister Imran Khan had approved an extension in the tenure of Gen Bajwa for another three years.
“General Qamar Javed Bajwa is appointed Chief of Army Staff for another term of three years from the date of completion of current tenure,” the brief notification issued by the prime minister’s office had said.
“The decision has been taken in view of the regional security environment,” the document with the logo carrying the emblem of Prime Minister of Pakistan and an official number; PMO/ 3232/M SPM/19, dated Aug. 19 had read.
The situation in the region got tense following the unilateral decision India to revoke the special status of occupied Kashmir.
Tensions between nuclear-armed states increased after Modi-led Hindu nationalist government revoked articles 370 and 35A, of its Constitutions through a rushed presidential decree, which had secured special autonomy of Jammu and Kashmir.
General Bajwa took command of the Pakistan Army on Nov. 29, 2016 as the 16th Chief of Army Staff when the country had been fighting a fierce war against terror, and faced internal and external challenges.