Chief Justice of Pakistan Asif Saeed Khosa on Tuesday suspended the government's notification of Army Chief Gen Qamar Javed Bajwa's tenure extension until the top court's hearing tomorrow.
The chief justice observed that "the summary and approval of army chief's extension is not correct".
The court issued notices to defence ministry, federal government and Gen Bajwa, who is due to retire on November 29 (Friday). The hearing was adjourned until Wednesday.
On August 19, Prime Minister Imran Khan had approved an extension in the tenure of Gen Bajwa for another three years.
The chief justice today took up a withdrawal application of a petition filed by The Jurists Foundation challenging the extension in Gen Bajwa's tenure. The top judge, however, rejected the application to withdraw the petition, saying it fell into the domain of public interest under Article 184 (3) of the Constitution. The case was converted into a suo motu notice.
"The petitioner has failed to appear in person nor anybody else has appeared on his behalf. The application received does not carry any date and the same is not accompanied by any affidavit. There is nothing before us to accept or to presume that the said application has actually been submitted by the petitioner himself or that he has submitted the same voluntarily," noted the CJP in the written order after the hearing.
Approval by cabinet
"If the notification was issued on August 19, then what did the prime minister approve on August 21?" Justice Khosa inquired during the proceedings.
"Cabinet's approval was required," Attorney General (AG) Anwar Mansoor Khan responded. "The prime minister signed [the notification] after the cabinet's approval."
"After the cabinet gave its approval, did the president approve it again?" the chief justice asked, to which the attorney general responded in the negative.
"Only the president of Pakistan can extend the tenure of the army chief," said CJP Khosa.
"We can take approval from the president again," the attorney general said.
Justice Khosa then noted 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," Justice Khosa said. "Did the government take their silence as agreement?"
"Those who did not say 'yes' had not taken part in the voting," the AG informed the court.
"Does the cabinet not want to give members the time to think? The 14 members of the cabinet still have not said 'yes' to army chief's extension," the top judge noted.
Justice Mansoor Ali Shah, who was part of the three-judge bench hearing the case, questioned if the cabinet had given the decision to grant an extension to the army chief enough thought, noting: "No reasons for extensions were debated in the cabinet."
"After the purported or so-called approval of the Cabinet regarding extension/re-appointment of the incumbent Chief of the Army Staff, the matter was never sent to the Prime Minister or the President again for the purposes of a fresh advice or a fresh order of the Prime Minister and the President, respectively," pointed out the written order.
'Regional security job of the army as an institution'
Referring to regulation No 255 of the Army Regulations (Rules), the court said retirement of an army official can only be temporarily suspended. "The said provision can be invoked after an officer has already retired from service and that is why the said regulation speaks of suspension of retirement or limiting of retirement," observed the CJP.
"Suspending a retirement or limiting a retirement before the retirement has actually taken effect may amount to putting the cart before the horse. The learned Attorney-General for Pakistan has, however, very candidly submitted before us that in the entire body of laws pertaining to the Pakistan Army, there is no express provision available regarding re-appointment or extension in the service of a Chief of the Army Staff."
Elaborating further in the written order, the CJP said the stated purpose for the proposed re-appointment/extension “regional security environment” was "quite vague". "If at all there is any regional security threat, then it is the gallant armed forces of the country as an institution which are to meet the said threat and an individual’s role in that regard may be minimal. If the said reason is held to be correct and valid then every person serving in the armed forces would claim re-appointment/extension in his service on the basis of the said reason."
"The attorney general could not present any legal reason for an extension in tenure or a new appointment," the court observed. "The points raised in the case need to be examined in detail."
"General Qamar Javed Bajwa, Chief of the Army Staff is hereby made a respondent to this petition and the office is directed to carry out the necessary addition in the memorandum of this petition," said the order.
"In the meanwhile, the operation of the impugned order/notification in respect of extension/re-appointment of General Qamar Javed Bajwa in the said office shall remain suspended."