The Supreme Court is hearing a case related to the extension of the incumbent Chief of Army Staff General Qamar Javed Bajwa’s tenure.
General Bajwa’s three-year term is due to end on Thursday, and if the Supreme Court rules in his favor before November 29, he can continue his service with reappointment for another three years.
Yesterday, Supreme Court Order Sheet clearly mentioned that this case against "Army Chief Extension" is now a "Suo Moto" under Art. 184(3) of Constitution. Today we hear that media got it wrong, its not "Suo Moto" but a petition. Something is very strange here & very confusing!
— Moeed Pirzada (@MoeedNj) November 27, 2019
A Supreme Court bench, comprising of Chief Justice of Pakistan Asif Saeed Khosa, Justice Syed Mansoor Ali Shah and Justice Mian Mazhar Alam Khan Miankhel, is presiding over the hearing. Farogh Naseem is representing the Chief of Army Staff after resigning from his position as the Federal Minister Law, while Attorney General (AG) Anwar Mansoor Khan will be representing the Federal Government.
Suo Motu not Taken
At the beginning of the hearing, the Chief Justice explained that the media has misinterpreted yesterday’s hearing and clarified that a Suo Motu notice has not been taken. CJP Khosa informed the petitioner, “We are proceeding with your petition.”
Justice Syed Mansoor Ali Shah inquired whether a retired general can be appointed as the Chief of Army Staff, to which the Attorney General Responded, “Perhaps a retired general can be appointed as the Army Chief but there is no precedent.”
Read more: Supreme Court suspends notification extending Army Chief’s tenure for time being
Justice Shah noted that Article 243 of the Constitution pertains to the appointment of an officer, and questioned, “Does it talk about the period of appointment as well?” He questioned if a general can continue his services if his tenure is extended two days prior to his retirement.
He asked, “Where does it say that an extension comprises a three-year term?” The Attorney General admitted that the clause does not specify the period of tenure. He said, “The term tenure has been used but the duration is unspecified.”
#BajwaExtension: SC continues hearing in case related to COAS's tenure extension notificationhttps://t.co/zBgS7tOz8V
— ARY NEWS (@ARYNEWSOFFICIAL) November 27, 2019
Chief Justice Khosa said, “The issue of the period of Army Chief’s tenure is crucial. Previously, five or six generals have granted extensions to themselves. We will examine this matter extensively to ensure that this does not occur again.”
He added, “This is a matter of great significance and the Constitution is silent about it.”
Approval of the Federal Cabinet
As the hearing began at 9:30 am this morning, Attorney General Khan took to the podium and attempted to clarify certain matters. He said, “I referred to the Army Rules in yesterday’s hearing. In its order, the court mentioned the law”.
The Chief Justice responded, “The court gave its order after examining your documents.” Discussing the point highlighted by the court in yesterday’s hearing that only 11 cabinet members had approved the extension earlier, Justice Shah said, “Answers were not submitted in the allocated time for cabinet members.”
The Attorney General submitted recent documents to the court and argued, “As per Rule 19, silence denotes an agreement.” H argued that under Article 243 of the Constitute, the Cabinet cannot provide recommendations for the appointment of the Army Chief.
Read more: General Qamar Bajwa’s Extension as Army Chief: The Right Decision?
The Chief Justice inquired, ‘If the cabinet’s recommendation is not required, then why was this matter discussed with the cabinet twice.” The Attorney General informed the court, “The Chief of Army Staff commands the military, and the President appoints the Army Chief on Prime Minister’s recommendations.”
Justice Shah observed that it is “very obvious that the Prime Minister is the one who sends recommendations for Army Chief’s appointment.”
Extension & Reappointment: Legal Basis?
Justice Shah said, “This is related to the question of extension and reappointment. How will you substantiate it legally?”
Attorney General Khan stressed that the “definition of appointment also includes reappointment.” To this, the Chief Justice responded, “The rules mention retirement and discharge.” He noted that the Federal Government can only suspend the retirement after the individual retires.
Going by the arguments and observations made by the SC bench yesterday and this morning it may not be out of place to suggest that the extension may be ruled beyond the law by the Court
But then again, anything can happen … pic.twitter.com/uJ95Zo4fY9
— omar r quraishi (@omar_quraishi) November 27, 2019
The CJP further observed that the retirement of an Army Chief “can be delayed temporarily” in the instance of war. However, the Attorney General argued that retirement delays are not temporary.
Citing Article 176 of the Army Act, the Attorney General argued that in case of a war, officials of the army can be allowed an extension of two months. The CJP observed, “As per the law, the Army Chief can stop the retirements of officers during a war. However, in this case, the government wants to stop the retirement of the Army Chief.”
Section 255 of Army Rules & Regulations
Observing the amendment made in Section 255 of the Army Rules and Regulations, the Chief Justice questioned, “The rule was amended under which section of the law and Constitution?”
He highlighted that Section 255 is not relevant to the Army Chief. Justice Khosa said, “The section that has been amended does not concern the Army Chief at all. Article 255 is relevant to those officials who have either retired or have been expelled from the force.”
Read more: Army Regulations Amended: Farogh Naseem Resigns to Represent Govt in Supreme Court
The Attorney General explained that he has just obtained the amended documents, but Justice Miankhel said that the court has not been provided with the documents.
The hearing was adjourned until 1 pm.