SC temporarily suspends army chief’s extension

Court issues notices to govt, defence ministry, Gen Qamar

Aqeel Afzal November 26, 2019
Army Chief Gen Qamar Javed Bajwa. PHOTO: ISPR/FIle

ISLAMABAD: The Supreme Court has suspended until Wednesday (today) a government notification of reappointment of Chief of Army Staff General (COAS) Qamar Javed Bajwa for another three-year term.

A three-judge bench of the apex court – headed by Chief Justice Asif Saeed Khosa – on Tuesday took up an application seeking withdrawal of a petition against the extension/reappointment of the army chief.

The application was submitted by The Jurist Foundation which had challenged Gen Bajwa’s reappointment through its counsel Riaz Hanif Rahi, requesting the apex court to declare it null and void, and illegal.

Chief Justice Khosa rejected the application and took up the petition under Article 184 (3) of the Constitution as it involved a question of “public importance”. The court issued notices to the federal government, the defence ministry, and Gen Qamar and adjourned the hearing until Wednesday.

Gen Qamar was due to retire on November 29. According to a statement issued by the Prime Minister’s office on November 21, the notification for Gen Qamar’s reappointment was issued on August 19, which said that he would continue to serve as COAS until November 2022.

When the court assembled on Tuesday, a hand-written application from the petitioner was submitted before the bench, seeking withdrawal of his petition. The chief justice remarked that the application was not accompanied by any affidavit and it was not known if the withdrawal of the petition was voluntarily.

The attorney general informed the bench that a similar petition was filed in the Peshawar High Court but it was withdrawn. Sitting on the bench, Justice Mansoor Ali Shah inquired when was the army chief retiring? Attorney General Anwar Mansoor Khan said he would retire on November 29.

The chief justice said a summary issued in this regard mentioned “extension” while the notification issued by the Prime Minister’s Office said the army chief had been “reappointed”. As per rules, he said, the government can only suspend retirement and the army chief had not retired yet.

The chief justice said 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,” he added. He also inquired if the notification was issued on August 19, then what did the prime minister approve on August 21?

The attorney general said that the prime minister had signed the notification after its approval from the cabinet. “Did the president of Pakistan approve it again after the cabinet’s approval,” asked Justice Khosa. The attorney general replied in the negative.

Justice Mansoor Ali Shah inquired if there was a provision in any legal instrument for the extension in the tenure of the army chief. The attorney general said there was no particular provision, adding that only the cabinet had the authority to extend the tenure.

The attorney general argued that the army chief’s tenure was extended after the president’s approval. “The summary had been approved by the cabinet,” he added. “The federal cabinet has the right to extend the tenure of the army chief.”

The apex court, in an order after the hearing, said the prime minister issued the notification in his own capacity and the mistake was realised after the notification was issued. The prime minister then sent the summary to the president, who then approved it on August 19, according to the order.

The court further said that dealing with regional security was the job of the army as an institution and not the sole responsibility of an officer. If the reason of regional security was accepted, then all officers would want a reappointment, it added.

The court said that the attorney general could not provide any legal reasoning for the extension and according to the army rules, the retirement of an officer can only be temporarily suspended. Points raised need to be examined, said the court, concluding the order.

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