–Baffled CJP says PM requested ‘reappointment’ of COAS Bajwa while president issued ‘notification for extension’
–Court questions three-year extension in army chief’s tenure, says it won’t overlook illegalities
–AG Mansoor says though Army Act doesn’t mention extension, it is mentioned in the rules
ISLAMABAD: The Supreme Court (SC) on Wednesday resumed the hearing of a case pertaining to the extension in army chief General Qamar Javed Bajwa’s tenure and censured Attorney General Anwar Mansoor Khan over the government’s incompetence in dealing with the matter.
An SC bench comprising Chief Justice of Pakistan Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah heard the case, whereas the army chief was represented by former law minister Farogh Naseem.
During the day-long hearing which was adjourned twice, the chief justice said that the prime minister had requested a reappointment whereas the president had issued a notification for extension in the army chief’s tenure, questioning the lack of seriousness in the case.
The attorney general informed the court that the summary which notifies Gen Bajwa’s extension had referred to Article 243 and Article 245 of the Constitution.
“Please do not do something like this,” said Justice Shah.
It seems they never bothered to read the summary once again, the CJP observed. The attorney general, however, said the faux pas was due to “clerical errors” by the ministry.
The attorney general said that the army chief is due to retire at midnight on Thursday.
Justice Shah wondered how an army chief can be reappointed to the office “when he is no longer part of the staff”. The attorney general said that “until command is handed over to another general, the army chief cannot be considered retired”.
The CJP said the government should step back for assessment; there is still time. “They should not do something like this with a high-ranking officer,” he said, referring to Gen Bajwa.
The extension in the tenure of army chief was nothing new, said the attorney general, adding that they had been notified in the same manner as well.
“In the past, the court never stepped in to assess someone’s extension in tenure,” said Justice Alam.
The proceedings were adjourned till Thursday.
At the outset of the hearing, AG Mansoor told the court that a retired general can be appointed army chief but there was no precedent.
“Article 243 of the Constitution talks about the appointment of an officer,” said Justice Shah, inquiring whether it pertained to the period of appointment as well.
Justice Shah asked if a general can continue to work if his tenure is extended two days before his retirement. “Where does it say that it is a three-year term [for an extension]?” he asked.
The attorney general admitted that the period of the tenure was not specified in the rules. “The term tenure is used but the duration has not been specified anywhere,” the AG said.
However, the CJP said this was an important matter and the court would look at this closely so that it doesn’t happen in the future. “This is an extremely important matter and the constitution is quiet about this,” he added.
“This is about the matters of extension and reappointment,” Justice Shah said. “How will you prove this legally?” The attorney general insisted that the “definition of appointment also includes reappointment”.
“The rules mention retirement and discharge,” the chief justice noted. He observed that the federal government can only suspend a retirement after an individual retires.
He further said that the retirement of an army chief “can be temporarily delayed” if a war is underway. The attorney general, however, argued that the delay in retirement is not temporary.
The AG said that according to Article 176 of the Army Act, officials can be granted an extension of two months in case of a war.
“According to the law, during a war, the army chief can stop officers’ retirements,” the CJP noted. “However, the government wants to stop the army chief’s retirement.”
Referring to the amendment in Section 255 of the Army Rules and Regulations, the chief justice asked: “Under which section of the constitution and law was the rule amended?”
He then pointed out that Article 255 did not concern the army chief.
“The section that you amended is not about the army chief at all,” Justice Khosa said. “Article 255 is regarding those officials who have retired or have been expelled from service.”
In the second part of the hearing, the chief justice said the court wanted to understand the Army Act first as it would be better than getting “answers in pieces”.
AG Mansoor said the appointment and tenure of an army officer are decided under the 1947 Convention. The CJP responded that the court was looking at the rules regarding the tenure of an army chief specifically.
He said the court won’t hesitate to give its verdict if it found something is wrong as per the law, adding it was a court of law and that it could not overlook illegalities.
In a rather sardonic tone, the AG asked the court “not to be so strict about the law” as sometimes, the “stick can break from stiffness”.
“First, present your legal arguments,” the chief justice told him.
The issue of tenure’s duration came up once again when Justice Shah asked the attorney general to tell the bench about it through in the light of the Army Act.
The AG said the act in itself doesn’t mention the duration, but the rules do discuss the extension in tenure.
CJP Khosa said rules were drafted in line with acts and laws, adding there was nothing in the act that stopped the retirement of a very capable officer.
As AG Mansoor read out Section 16 and 17, the chief justice pointed out that they were regarding dismissal from employment. The attorney general told the court that the army chief has the authority to dismiss anyone from their post.
Justice Shah questioned if the federal government could remove someone from their post.
The federal government has complete authority, while the army chief, with his limited authority, can dismiss junior officials, said the AG.
The chief justice said that the government can order the retirement of any officer, including the field marshall “voluntarily or by force”.
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 very good thing to stay away from political activities,” Justice Khosa remarked.
The hearing was adjourned again.
As the court resumed the case, CJP Khosa clarified that the court had not taken suo motu notice. “We are continuing your petition,” the top judge told the petitioner.
The AG took to the rostrum and said he wished to “clarify something”.
“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.”
Justice Shah, while referring to the point raised by the court yesterday that only 11 members of the cabinet had earlier approved the extension, observed that answers were not submitted in the time fixed for cabinet members. The AG said the silence of a minister was considered a ‘yes’ in line with the Rule 19.
He said the cabinet cannot send recommendations for the army chief’s appointment in accordance with Article 243.
“If the recommendation of the cabinet is not required, then why was this matter sent to the cabinet twice?” the chief justice inquired.
The chief justice also appreciated that the government “admitted the shortcomings pointed out yesterday and they were corrected”. However, the AG said the government didn’t consider the points raised by the bench in previous hearing as shortcomings.
“If they were not accepted as shortcomings, why were they corrected?” Justice Khosa inquired.
“I will clarify this,” the AG said. “The impression that only 11 members of the federal cabinet had answered ‘yes’ is wrong.”
“If the rest answered ‘yes’, tell us how much time they took,” said Justice Khosa. “Eleven members had written ‘yes’ in the document you submitted yesterday.
“If you have received a new document then show it to us,” the top judge quipped.
SUSPENSION OF EXTENSION:
In an unprecedented move, the SC on Tuesday suspended the notification of a three-year extension in the tenure of Chief of Army Staff General Qamar Javed Bajwa.
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.