Army Chief Gen Qamar Javed Bajwa. PHOTO: ISPR/FIle
A day after striking down a government notification of the reappointment of COAS General Qamar Javed Bajwa, a three-judge bench of the apex court – headed by Chief Justice Asif Saeed Khosa – on Wednesday gave the government another day to satisfy the judges on the lawfulness of a three-year extension given to COAS Gen Qamar.
The bench, which also comprises Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah, was hearing a petition which it has admitted for hearing as it involved “public importance” while rejecting an eleventh-hour withdrawal request from the petitioner.
The petition was filed by Advocate Riaz Hanif Rahi of The Jurist Foundation challenging the extension/reappointment of COAS Gen Qamar. And his “hand-written” application to withdraw the petition was turned down by the apex court under Article 184 (3) of the Constitution as it involved a question of “public importance”.
Cabinet approves new summary to ‘extend’ COAS tenure
The chief justice, however, clarified on Wednesday it was not a suo motu case as was being “misreported in a section of the media”.
Attorney General of Pakistan Mansoor Ali Khan submitted before the bench a fresh summary hastily crafted at an unscheduled sitting of the federal cabinet Tuesday night where Rule 255 of the Army Regulations was tweaked to bring in the words “extension in service” to satisfy the apex court which had pointed out discrepancies in the first summary and the notification.
Justice Khosa remarked that the bench would view the Army Act and regulations section-wise to reach a conclusion on the army chief's tenure.
The bench told the AGP to explain why the government has granted a three-year extension in the service of COAS Gen Qamar, who was due to retire on November 29 (tomorrow). “If something unlawful has happened, then we have taken oath to correct it,” Justice Khosa remarked. The government has so far failed to furnish a legal justification for reappointing Gen Bajwa, he added.
Justice Shah remarked that the bench knows that the prime minister has the authority to appoint anyone as COAS but the question is whether a retired army chief could be reappointed.
The notification for COAS Gen Qamar’s re-appointment for another three-year term was issued on August 19, signed by Prime Minister Imran Khan. However, it came to light in a statement issued by the Prime Minister’s office to announce the appointment of General Nadeem Raza as Chairman Joint Chiefs of Staff Committee last Thursday.
At Wednesday’s hearing, the bench pointed out yet another contradiction between the notification and the fresh summary prepared by the cabinet. The bench said it was giving the “last chance” to fix the error.
“We are on oath and we are answerable to God,” Justice Khosa said. The prime minister may appoint anyone as COAS, “it is not our job”, he said. The time given to the government would be over on Wednesday, then “we have to give a decision”, he added.
The bench said that sometimes, the government makes a mistake that “we have to annul”. “Today, if this happens to the army chief, tomorrow it might happen to Chief Justice Asif Saeed Khan Khosa, the prime minister and the president. Did no one bother to read the notification? He wondered.
At the onset of the hearing, the chief justice enquired about the whereabouts of the petitioner. Calling Advocate Rahi to the rostrum, the chief justice asked: “Where were you yesterday? We have kept your petition alive even in your absence.”
He added that incorrect news were circulated in the media that “we have taken a suo motu notice”, but the fact is that “we have only considered the petition in light of Article184 (3) of the Constitution while deeming the matter as of public interest”.
The chief justice asked the petitioner if he wished to pursue his petition. Advocate Rahi responded that the situation had changed and a new notification had been issued. At this, Justice Khosa told him to “sit down, as the court is proceeding with the case”.
When the AGP stood up to speak before the bench, the chief justice asked him about the questions raised by the court the previous day. Objecting to the court's order on Tuesday, the AGP said he wanted to explain.
According to Article 243 of the Constitution, the president is the supreme commander of the armed forces. Under Article 243, the COAS is appointed by the president on the advice of the prime minister, he argued.
Law minister resigns to represent Gen Qamar
Article 243 relates to the appointment of COAS. To this, Justice Shah enquired if there was any mention of the tenure in the Constitution. “Can a retired general be appointed as the army chief?”
The chief justice remarked that if the tenure was not mentioned in the cabinet circular, then ignore it. However, he asked the AGP if the flaws identified by the court the previous day were accepted and rectified. The AGP said the government has not mentioned anywhere that it committed any mistake.
According to Rule 19, if a summary is not answered by the cabinet, then it could be assumed as ‘yes’. The chief justice said that under Rule 19 a ‘yes’ could only be assumed if a timeframe was specified.
He asked as to how much time was given to the cabinet members on the extension, adding that they still could give their opinion if no time was given. The AGP said he would respond to the court queries after completing his arguments.
The chief justice said the tenure of COAS was a very important issue and the Constitution was silent on it. The AGP said the tenure was notified by the government as it was discretionary.
Justice Khosa remarked that five or seven generals extended their tenures but no one demurred. Some of them even extended their tenure for 10 years. “This question came up today and we will look into the matter for future,” he said.
“There is this impression that the COAS is appointed for a three-year term,” he added. The AGP said there was no mention of tenure. A lieutenant general retires at the age of 57 after completing four years in the rank, he said.
But some lieutenant generals don’t get even four years to service in the rank, said Justice Khosa and asked if there was a fixed tenure for any other rank.
The chief justice told the AGP that he had not presented the draft of the Army Regulations in the court. The AGP said he would do that after making its photo copies.
The chief justice observed that the pages presented from the draft were related to termination from service. As per the Army Regulations, army officers could be given punishment after suspending their retirement. Three senior officers were punished recently after suspending their retirement.
Justice Khosa said if there was no change in the situation, then the court could decide the matter according to the law. However, the AGP presented a new cabinet summary of extension and referred to laws which were followed.
He said the law was silent on the tenure of the army chief, adding that the cabinet could not recommend an extension under Article 243 because this was the prime minister’s prerogative.
Justice Shah said it was clear that the prime minister would appoint the COAS. The chief justice asked if the cabinet recommendation was not necessary, why the case was sent to the cabinet twice.
“Your entire case is around Article 255A of the Army Regulations,” the chief justice told the AGP, who said all army chiefs since 1948 had been appointed in the same manner.
During the otherwise tense proceedings, there were some lighter moments. In a slip of tongue, the AGP, while citing the example of ex-COAS Gen Ashfaq Parvez Kayani, called him ‘Justice Kayani’, triggering laughter from the courtroom.
The chief justice corrected the AGP that Kayani was a general and not a judge. He then asked the AGP if he was in a hurry, the court wasn’t in a hurry and would hear him out.
The AGP said he argue till late night.
The chief justice said the army chief could suspend the retirement even after the retirement. Justice Shah said that in case of war, retirement could be suspended. “This law may have been made for this reason.”
The chief justice said, according to the law, the COAS could put retirement of officers on hold during war. However, the question here was whether the government wanted to prevent the army chief’s retirement.
The AGP said suspension of retirement was a temporary measure. Justice Shah said the Constitution doesn’t allow temporary extension for a constitutional post.
He asked if a retired general could be appointed as COAS. Perhaps he could, though it hasn’t happened till date, the AGP said.
The chief justice said military officers retired when they reached the age of superannuation. “We want to understand the scheme of law, we are in no hurry,” he said, adding that Rule 255 amended by the government was not related to the COAS.
Justice Shah said the Army Act only stated that the COAS would command the armed forces. The government has the authority to make rules regarding the military command, said the AGP.
The chief justice said the rules regarding Article 184(3) would be discussed in the full court meeting.
The court called a recess. And when it resumed hearing after the break, Justice Shah said the COAS appointment was the prime minister’s prerogative but the issue under consideration was reappointment of the COAS. “If the tenure is not fixed, will the COAS stay in his post for life?”
The deployment of the COAS is made under Article 243, and the deployment period is derived from the 1947 Convention, said the AGP. “I will inform the public how the deployment period is determined.”
The chief justice said it was the court of law, where individuals didn’t matter. “How can we allow something when it is not legally correct?”
The AGP urged the court "not to be so strict about the law". "Sometimes, the stick can break from stiffness," he said. Justice Khosa told him: "First, present your legal arguments."
Farogh Nasim’s arguments
Representing Gen Qamar, Barrister Farogh Naseem also spoke in the court. Syed Amjad Shah, the Vice Chairman of the Pakistan Bar Council, said that the licence of Naseem was suspended, therefore, he could not appear in the court.
However, Naseem sought permission of the court to speak in his defence. At this, the chief justice said that “we will give you the full opportunity, but first we want to hear the AG [attorney general].
Barrister Farogh Naseem informed the court that the army chief’s term ends at 12 midnight between Thursday and Friday. The chief justice told Naseem that the attorney general had said the general never retired.
The attorney general said that the army could not be left without command. The chief justice stated that no-one wanted the army without command, instead the law ministry was trying fully to leave the army without command.
“Even the appointment of assistant commissioner is not done like this. You have said that extension and re-appointment were two difference things. Check the degrees of those who issued the notification.”
The CJ said: “We had thought that something commendable would come out of the two cabinet meetings; on this matter, the offices of the law ministry, the prime minister and president were used.”
While adjourning the hearing until Thursday (today), the chief justice said the government had one day. In this matter these things were necessary: there should be the legal support of the army chief’s appointment; all procedure should be legal; inform the court about the reasons of the appointment. He termed the first two conditions obligatory.
The court said that the time limit for the government would end on November 28 and then “we will decide.” The court stated that it did not want to affect the army. The further hearing of the case will be held on Thursday (today).
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