SC adjourns Gen Bajwa’s extension case till Thursday

ISLAMABAD, Nov 27 (APP):The Supreme Court Wednesday adjourned the case against the three-year extension in service of Chief of Army Staff (COAS) General Qamar Javed Bajwa till Thursday.

During the course of proceedings, Chief Justice of Pakistan (CJP) Asif Saeed Khan Khosa observed that the prime minister had sent a summary recommending re-appointment of Gen Bajwa as the COAS while the president had 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 was heading the 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 was not appointed in such a way, he added.

He questioned as to who would be responsible if the institution remained without command. Such a situation could also arise in case of the president and the prime minister due to such negligence. The testimonials of officers, who were responsible for mistakes in the notification, should be verified, he added.

The CJP asked the Attorney General for Pakistan (AGP) to sort out the matter by tomorrow as any illegality could not be allowed by the court.

Attorney General Anwar Mansoor argued that the President of Pakistan was the supreme commander of armed forces under Article 243 of the Constitution and under the same law the president and the prime minister had re-appointed the army chief.

The president, he said, had signed the summary for re-appointment of the army chief while it was written as extension (in service) in the notification issued by the ministry level. Gen Bajwa could not be considered as retired till the change of command.

Justice Mansoor Ali Shah observed that the change of command (in the armed forces) was just a formal practice.

The AGP contended that the extension in the army chief’s service was not a new practice as it had been done in the past.

To this, Justice Mazhar Alam remarked that the matter had come before the judiciary first time. The army could not be left without command, he said.

At the outset of hearing, the CJP observed that the court would view the Army Act and other regulations to reach on a conclusion on the army chief’s tenure period. He said it was not a suo moto case.

Justice Mansoor Ali Shah remarked that the prime minister was authorized to recommend anyone for the army chief but the question was that whether a retired army chief could 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 had 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 allowed the re-appointment of army officers.

At this, the chief justice remarked that the law only pertained to reappointment of army officers and not for the COAS, who was a commanding authority.

Justice Mansoor Shah observed that there was 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 was authorized to prepare rules regarding the army’s command and service.

He contended that the law was silent regarding the army chief’s tenure period. The cabinet could not give any recommendation in accordance with Article 243.

To that, the chief justice remarked that then as to why the matter was sent to the cabinet twice.

The AGP said that the tenure period of army chief used to be mentioned on the notification of his appointment, which was a discretionary power.

Justice Mansoor Ali Shah observed that a complete draft of army regulations had not been produced before the the top court.

CJP Khosa noted that five to six generals had extended their tenures by themselves in the past and no one questioned them. Now the matter was before the top curt, which should be let it settled.

The attorney general said it was a wrong impression that only 11 cabinet members had approved the re-appointment of army chief. If no response was given by some federal ministers, it was assumed as their agreement under rule 19, he added.

The bench observed said that the course of action was only acceptable when the answer had to be given within a certain time period.

Justice Shah asked that whether a retired general could be appointed as army chief.

The AGP replied it might happen but there was no such precedent. He contended that lieutenant generals were used to be retired at the age of 57 after completion of four years in the post, the tenure time of army chief was not mentioned anywhere.

The chief justice remarked that the federal government could even suspend the retirement of army officers in war situation. The AGP said the suspension of retirement was not temporary.

Justice Shah observed that the extension in the tenure on a constitutional post was given under temporary service rules rather than in accordance with the Constitution.

The attorney general pleaded that the appointment period of army chief was extracted from the convention of 1947.

The chief justice remarked that the government was depending on Section 255 of Army Regulations, which was only relevant to army officers and there was nothing in the Army Act to stop retirement of any officer on the basis of his good performance.

The AGP said the army was not a democratic institution and its affairs were run under a command all over the world.

Chief Justice Khosa remarked that it was included in the army chief’s oath that ‘he would sacrifice his life if it was required and he wouldn’t indulge himself in political activities.’

He noted that the retirement of three army officers were suspended under Section 255 and they were given punishment.

At this, the AGP said the convicted officers were not summoned under Section 255, rather Section 292 of the Army Act was applied on them.

To this, the bench sought the details of trial of three officers to view the matter.

The attorney general said the government had nothing to do with it. It was the president who had approved the appointment of army chief on the recommendation of the prime minister.

To this, the bench remarked that if the government had no authority to appoint the army chief then how it could give him extension in his service.

On a query, the AGP said that Gen Bajwa was going to retire on November 28.