All eyes are on the Supreme Court where a three-judge bench on Thursday reserved the verdict in a case pertaining to the extension/reappointment of incumbent Chief of Army Staff (COAS) Gen Qamar Javed Bajwa.
As Gen Bajwa is set to retire at midnight, today’s hearing that started at 9:30am was the last opportunity for the government to satisfy the court on the legal grounds of the move.
As the hearing started, the bench — comprising Chief Justice of Pakistan (CJP) Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah — directed Attorney General of Pakistan Anwar Mansoor Khan to submit the extension notification issued for former army chief Gen (retd) Ashfaq Pervez Kayani as well as that of Gen (retd) Raheel Sharif’s retirement in the court.
It is pertinent to mention that over the past two decades, Gen Raheel Sharif is the only army chief to have retired on time. Gen Kayani’s tenure was extended for another three years by the PPP-led government in 2010. Interestingly, the service extension given to Kayani was also challenged in the Islamabad High Court but was dismissed by the bench as “non-maintainable”, saying Article 199 (3) of the Constitution barred the high court from hearing a case against persons subject to the Pakistan Army Act (PAA).
“Under what section was Gen (retd) Kayani granted an extension?” the chief justice asked during today’s hearing. “We want to see what pension and perks Gen Kayani got after retirement.”
Referring to the retirement of army generals, Justice Khosa said: “If an army general never retires, then under what rule did Raheel Sharif retire?”
“You said that generals never retire; if they don’t retire, then they wouldn’t be entitled to pension either,” he observed. The attorney general said that he wanted to assist the court on the matter.
Justice Khosa said that the court will examine the grounds on which Gen (retd) Kayani was granted an extension and adjourned the hearing for 15 minutes.
Meanwhile, the Pakistan Bar Association restored the license of Farogh Naseem, who stepped down as law minister to represent Gen Bajwa. The CJP had told him yesterday that the court didn’t want to waste time on a side issue to let the institution of army suffer and asked Naseem to settle the licence issue or come with an associate if he wanted to argue on COAS behalf.
After the hearing resumed, the AG submitted the summary of the draft notification for Gen Bajwa’s extension prepared by the government yesterday following the court’s adjournment. An emergency meeting was called at Prime Minister House on Wednesday evening to debate the government’s strategy for today’s hearing. The meeting was attended by Gen Bajwa himself, along with Prime Minister Imran and several ministers.
Upon examining the summary, the CJP berated the attorney general over the mention of the Supreme Court’s proceedings in the draft notification.
“Bear your own burden, why do you use our name?” Justice Khosa asked. “Do your own work, why do you drag us in the middle?”
He directed the attorney general to eliminate the mention of the court from the summary, saying: “The court’s name has been used so we cannot even point out what’s wrong.”
He raised questions over the appointment of the army chief, noting that the post was already occupied by Gen Bajwa.
“How can an appointment be made on a position that is already occupied?” the chief justice asked.
It seems like this time a lot of thought has been put into drafting the notification, the chief justice remarked. “Take out the part about the court’s advice,” Justice Khosa directed the attorney general. “If the president seeks our advice, that is a different matter.”
Justice Shah noted once again that the law does not mention that the duration of the tenure is three years.
The chief justice regretted that no one had examined the law while extensions were being granted.
“There is no check on the activities that are going on in cantonment or under which law an action is being taken,” he said.
“Now a constitutional institution is examining this matter.”
He said that the process of appointment on a constitutional post should be clear.
“The summary neither mentions the army chief’s salary nor the perks he is receiving,” Justice Shah pointed out. “The attorney general too must have read the laws regarding the army for the first time.”
“We were labelled as agents of India and the CIA when we examined the Army Act yesterday,” the chief justice regretted. AG Khan told him that India “took a lot of advantage” of yesterday’s arguments.
“It is our right to ask questions,” the CJP declared.
Justice Shah asked the AG to “suggest how to fix laws regarding the army”.
Govt fails to satisfy court
The chief justice, before adjourning the hearing yesterday, said that there were three points which the court will consider:
- the law
- the procedure involved
- the grounds for granting the army chief an extension
He had said that the first two issues are very important and based on those, the court will announce its decision. Gen Bajwa will be able to continue his service if the Supreme Court decides the case in his favour before November 29.
During yesterday’s hearing, the bench was irked by the fact that after Tuesday’s cabinet meeting, Prime Minister Imran Khan submitted a summary to President Arif Alvi for approval to “reappoint” the army chief on his retirement and the new appointment was made under Article 243(4) of the Constitution, but the notification later issued pertains to the “grant of extension” to the COAS for another term of three years.
The attorney general chalked the gaffe up to “clerical errors” by the ministry.
“No one even bothered to read what they are issuing,” Justice Khosa observed, regretting the way the law ministry dealt with the issue.
“Please settle the matter by Thursday because you have only one day or the time will be over and the court will decide in accordance with the Constitution and the law,” the chief justice said, highlighting the need for urgency in view of COAS’ fast-approaching retirement. “You have amended Regulation 255 of the army rules in Tuesday’s cabinet meeting when it does not deal with the appointment of the army chief but that of other officers,” he observed.
Recalling that several generals in the past had granted themselves extension, the court observed that it was necessary to settle the service matters of the army chief for all times to come.
“Personalities don’t matter to us since it is a court of law,” the CJP said, explaining that the court would be satisfied if everything was done in a legal manner. To understand the scheme of the service structure, the court also asked the AG to read one by one the entire provisions of the Pakistan Army Act (PAA) 1952 as well as the army rules and regulations.
Suspension of notification
In an unanticipated development on Tuesday, CJP Khosa had suspended the federal government’s notification of Gen Bajwa’s extension and issued notices to the army chief, defence ministry and the federal government.
The Supreme Court said the AG could not refer to any provision in any legal instrument regarding extension in service of the army chief upon completion of his first term for his re-appointment.