–Bench says govt failed to present any legal reason for extension, decides to examine case in detail under Article 184
–Court says dealing with regional security situation is job of army as an institution instead of single officer
ISLAMABAD: In an unprecedented move, the Supreme Court (SC) on Tuesday suspended the notification of a three-year extension in the tenure of Chief of Army Staff General Qamar Javed Bajwa till Wednesday on the account of the summary being “not correct”.
The army chief — whose tenure was slated to end on Nov 29 — was given an extension by Prime Minister Imran Khan in August. “General Qamar Javed Bajwa is appointed Chief of Army Staff for another term of three years from the date of completion of current tenure,” a notification issued from the Prime Minister Office (PMO) said at the time.
The extension was confirmed by the government last week, saying that a notification to this effect has already been issued on Aug 19.
However, the top court halted the extension, with the top judge, Chief Justice Asif Saeed Khosa, observing that “the summary and approval of the army chief’s extension is not correct”. In this regard, the court issued notices to the Defence Ministry, the federal government and Gen Bajwa.
The development came after the SC rejected a plea filed by The Jurists Foundation seeking withdrawal of their earlier plea that challenged the tenure extension and decided to convert the plea into a suo motu case under Article 184 of the Constitution.
Questioning the legality of the notification of the extension, the chief justice said: “If the notification was issued on August 19, then what did the prime minister approve on August 21?” To which Attorney General (AG) Anwar Mansoor Khan responded that the prime minister signed the notification after the cabinet’s approval.
“After the cabinet gave its approval, did the president approve it again?” the chief justice asked, to which the attorney general responded in the negative.
“Only the president of Pakistan can extend the tenure of the army chief,” said Justice Khosa. “We can take approval from the president again,” the attorney general replied.
Justice Khosa then noted that out of 25 cabinet members, only 11 had approved the extension. “Fourteen members of the cabinet did not give any opinion due to non-availability,” Justice Khosa observed.
“Did the government take their silence as agreement?” he asked. “Those who did not say ‘yes’ had not taken part in the voting,” the AG informed the court.
“Does the cabinet not want to give members the time to think? The 14 members of the cabinet still have not said ‘yes’ to army chief’s extension,” the top judge noted.
During the hearing, the chief justice said the summary issued in this regard mentioned an ‘extension’ while the notification issued by the PM Office says the army chief has been ‘reappointed’.
“As per rules, there is no authority of extending army chief’s tenure or his reappointment. The government can only suspend his retirement and the army chief has not retired yet,” said the CJP.”
“The entire process was upside down. First, the cabinet should have given the approval, then the prime minister and president should have been advised,” CJP Khosa added.
Justice Mansoor Ali Shah said the cabinet didn’t debate on the merits of extension, questioning whether the cabinet had given the decision to grant an extension to the army chief “enough thought”.
The court noted that it was told that the extension was being granted in light of the regional security situation. However, it remarked that dealing with the 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, the 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.
“General Qamar Javed Bajwa, Chief of the Army Staff 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, said the order.
“In the meanwhile, the operation of the impugned order/notification in respect of extension/re-appointment of General Qamar Javed Bajwa in the said office shall remain suspended.”