The Supreme Court Wednesday adjourned the hearing of the case against the three-year extension in service of Chief of Army Staff (COAS) General Qamar Javed Bajwa till Thursday (today).
The three-year term of Gen Bajwa as chief of the army staff is ending today at midnight and will be able to continue his service only if the Supreme Court decides the case in his favour today.
During the course of proceedings on Wednesday, Chief Justice Asif Saeed Khan Khosa observed that the prime minister had sent a summary recommending ‘re-appointment’ of Gen Bajwa as COAS while the president approved ‘extension’ in his service. It was mentioned in the summary that the army chief would retire on November 29 and the re-appointment meant that his first tenure had expired.
The CJP headed a three-member comprising Justice Mian Mazhar Alam and Justice Syed Mansoor Ali Shah, which heard the petition of Hanif Rahi Advocate challenging the extension in the tenure of Gen Bajwa as army chief.
The chief justice remarked that the Law Ministry and the Cabinet Division should have read the summary before issuing the notification. Even an assistant commissioner is not appointed in such a way, he remarked.
He questioned as to who will be responsible if the institution remains without command. “Such a situation can also arise in case of the president and the prime minister due to such negligence. The testimonials of officers, who are responsible for mistakes in the notification, should be re-verified,” he observed.
The chief justice asked the attorney general for Pakistan (AGP) to sort out the matter by Thursday (today) as any illegality cannot be allowed by the court.
Attorney General Anwar Mansoor argued that the president of Pakistan is the supreme commander of the armed forces under Article 243 of the constitution and under the same law the president and the prime minister have re-appointed the army chief. The president, he said, signed the summary for re-appointment of the army chief while it was written as extension (in service) in the notification issued at the ministry level. Gen Bajwa cannot be considered as retired till the change of command, he argued.
Justice Mansoor Ali Shah observed that the change of command (in the armed forces) is just a formal practice. The AGP contended that the extension in the army chief’s service is not a new practice as it had been done in the past as well. To this, Justice Mazhar Alam remarked that the matter has come before the judiciary for the first time.
At the outset of hearing, the CJP observed that the court will view the Army Act and other regulations to reach on a conclusion on the army chief’s tenure period. He also clarified that it was not a suo motu case.
Justice Mansoor Ali Shah remarked that the prime minister is authorised to recommend anyone for the army chief but the question is that whether a retired army chief can be appointed again.
Barrister Farogh Naseem appeared before the bench on behalf of Gen Bajwa and submitted his power of attorney. The AGP placed the documents related to the army rules, army chief’s appointment and fresh approval of the cabinet before the court. The AGP apprised the court that the extension has been given to Gen Bajwa under 1975 Convention. He also informed the bench regarding the fresh amendment approved by the federal cabinet in Section 255 of the Army Regulations, which allows re-appointment of army officers.
To this, the chief justice remarked that the law only pertains to reappointment of army officers and not for the COAS, who is the commanding authority. Justice Mansoor Shah observed that there is nothing mentioned about the army chief’s tenure in the Army Act.
To a court query regarding framing of rules under Section 176A of Army Act, the attorney general said the federal government is authorised to prepare rules regarding the army’s command and service. He contended that the law is silent regarding the army chief’s tenure period. The cabinet cannot give any recommendation in accordance with Article 243. To this, the chief justice remarked that then as to why the matter was sent to the cabinet twice. The AGP said the tenure period of army chief used to be mentioned on the notification of his appointment, which is a discretionary power.
