The Supreme Court on Wednesday adjourned the hearing of a case pertaining to the extension/reappointment in incumbent Army Chief Gen Qamar Javed Bajwa's tenure until tomorrow.
The three-year term of Gen Bajwa, who is reaching the age of superannuation [60 years] next year, as Chief of the Army Staff (COAS) is ending on Thursday at midnight. He will be able to continue his service if the SC decides the case in his favour before November 29.
An SC bench comprising Chief Justice of Pakistan Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah heard the case. The army chief was represented by Farogh Naseem, who resigned from his post as law minister yesterday to pursue the case, while Attorney General (AG) Anwar Mansoor Khan presented arguments on behalf of the government.
The chief justice, before wrapping up the hearing for the day, said that there were three points which the court will consider:
- the law
- the procedure involved
- the grounds for granting the army chief an extension
He said that the first two issues are very important and based on those, the court will announce its decision.
It is pertinent to mention that over the past two decades, Gen Raheel Sharif is the only army chief to have retired on time.
Following the court's adjournment, an emergency meeting was called at Prime Minister House to debate the government's strategy for tomorrow's hearing. The meeting was attended by Gen Bajwa himself, along with Prime Minister Imran Khan and several ministers.
No details from the government huddle were officially released.
Later that night, a draft notification for Gen Bajwa's extension — keeping in view the court's observations — was prepared to be submitted to the court the next day. Sources told DawnNewsTV that the notification will be approved by the cabinet via the circulation of a summary tonight.
'Govt should step back and assess'
The day-long hearing was adjourned twice. The second time the court resumed proceedings, the attorney general informed the court that the summary which notifies Gen Bajwa's extension had referred to Article 243 and Article 245 of the Constitution.
The chief justice pointed out that the prime minister had requested a reappointment whereas the president had issued a notification for extension in the army chief's tenure.
At this, the courtroom erupted into laughter.
"Please do not do something like this," said Justice Shah.
The chief justice wondered how it was that no one had bothered to read the summary once again.
"They never bothered to check what is written and what they are sending," he said.
The attorney general chalked the gaffe up to "clerical errors" by the ministry, adding that the army chief is due to retire at midnight tomorrow.
"Why do you make such errors?" asked the chief justice.
"On the one hand it says he is retiring while on the other, it says he is not retiring. Then it states that the army chief does not retire at all. Please clarify this," the bench remarked.
"Army officers are respectable but the law ministry, with its erroneous documentation, has attempted to disrespect them," said the chief justice.
"If his tenure had not been extended and if he had retired, then what would have happened?" asked Justice Shah.
"Then he would have handed over command to his subordinate," said the attorney general, adding that the government notification had not specified a duration.
The chief justice also questioned the wisdom behind referring to conventions when the law is available for guidance. He said that only where the law is silent should conventions be employed.
The attorney general said that since there was nothing specified regarding the duration of tenure, the 1947 Convention had been referred to.
"What kind of laws are being made? They are not suitable even for the appointment of an assistant commissioner," remarked the chief justice.
"You have turned the army chief into a shuttlecock," he said, adding: "You should have the degrees of those people examined who are responsible for drafting these documents."
Justice Shah wondered how an army chief can be reappointed to the office "when he is no longer part of the staff".
At this, the chief justice once more inquired whether a retired officer can be reappointed at all.
The attorney general said that "until the command is handed over to another general, the army chief cannot be considered retired", contending that the army as an institution cannot operate without a chief.
"There is still time. The government should step back and assess what it is doing," the chief justice remarked. "They should not do something like this with a high-ranking officer."
The attorney general argued that the process was "nothing new". "Extensions were notified in the same manner in the past."
To this, Justice Alam responded: "In the past, the court never stepped in to assess someone's extension in tenure."
The chief justice pointed out that in each of the summaries — of the cabinet, prime minister and president — there was a different viewpoint.
"Please resolve these discrepancies by tomorrow. We are not against anyone," he said, adding that the court will decide the matter in accordance with the law and nothing "illegal" will be allowed to take place.
"If something illegal is witnessed, our oath obliges us to declare it null and void. We are answerable to only God and no one else," said CJP Khosa.
'What is the duration of a tenure?'
In the first half of the hearing, the attorney general argued that the army chief's appointment is made by the president — who is the army's supreme commander — on the advice of the prime minister, in accordance with Article 243 of the Consitution.
Justice Shah noted that Article 243 talks about the appointment of the Army chief. "How long is an army chief appointed for?" he asked.
He also inquired whether only a serving army officer can be appointed as the army chief or if a retired general can also be assigned the role. He said it was important to assess the rules regarding this.
AG Khan said: "Maybe a retired general can be appointed [army chief] but there is no precedent."
"Where does it say that it is a three-year term [for an extension]?" asked Justice Shah.
The attorney general admitted that the period of the tenure is not specified in the rules. "The term tenure is used but the duration has not been specified anywhere," said the AG.
"The matter of the period of army chief's tenure is very important," the chief justice said. "In the past, five or six generals have granted themselves extensions. We will look at this matter closely so that this does not happen in the future.
"This is an extremely important matter [and] the Constitution is quiet about this," he added.
"This is about the matter of the army chief's extension and reappointment," Justice Shah said. "How will you prove this legally?"
The attorney general insisted that the "definition of appointment also includes reappointment".
"The rules mention retirement and discharge," the chief justice noted.
He observed that the federal government can only suspend a retirement after an individual retires. He further said that the retirement of an army chief "can be temporarily delayed" if a war is underway.
The attorney general, however, argued that the delay in retirement is not temporary.
The AG said that according to Section 176 of the Army Act, officials can be granted an extension of two months in case of a war.
"According to the law, during a war, the army chief can stop officers' retirements," the CJP noted. "However, the government wants to stop the army chief's retirement."
Referring to the government's amendment in Section 255 of the Army Rules and Regulations, the chief justice asked: "Under which section of the Constitution and law was the rule amended?"
He then pointed out that Section 255 did not concern the army chief.
"The section that you amended is not about the army chief at all," Justice Khosa said. "Section 255 is regarding those officials who have retired or have been expelled from service."
The attorney general explained that he had just received the amended document to which Justice Miankhel responded: "We didn't even get that."
The hearing was adjourned until 1pm.
Understanding the Army Act
As the hearing resumed, the chief justice suggested that instead of "giving answers in pieces", it would be better if the court first understands the Army Act.
"There are two ways to go about this: we can either allow you to conclude your arguments and then read the laws or you can discuss the law first and then present your arguments," Justice Khosa said.
"I will answer every question the court has," AG Anwar said.
"Giving answers in pieces does no good," the chief justice said. "How will we understand your arguments without understanding the Army Act?"
Justice Shah once again asked AG Khan if a retired general can be appointed as the army chief. The attorney general said that the appointment and tenure are decided under the 1947 Convention.
He vowed to "satisfy the court regarding the reappointment of the army chief".
Justice Khosa emphasised that the court was looking at the rules regarding the tenure of the army chief, not a general.
"This is a court of law; it is the law we are looking at, not personalities," Justice Khosa remarked. "If something is wrong as per the law, we cannot say that it is correct. If [the decision] is not correct as per the law, we will give our verdict."
The attorney general, in response, urged the court "not to be so strict about the law". "Sometimes, the stick can break from stiffness," he said.
"First, present your legal arguments," the chief justice told him.
The bench told the attorney general to read out the first three chapters of the Army Act, so that the court can understand the rules.
"The matter of the tenure's duration is surfacing again and again so tell us about that," Justice Shah said.
The attorney general told the court that the duration of the tenure was not mentioned in the Army Act, but the rules discussed the extension in tenure.
"Rules are always drafted in line with acts and laws," Justice Khosa said and added: "There is nothing in the act, which stops the retirement of a very capable officer."
As AG Khan read out Section 16 and 17, the chief justice pointed out that they were regarding dismissal from employment.
The attorney general told the court that the army chief has the authority to dismiss anyone from their post.
"Can the federal government also remove someone from their post?" asked Justice Shah to which the attorney general replied: "Army chief's powers are limited, but the federal government has complete authority. Army chief can dismiss junior officials."
The chief justice said that the government can order the retirement of any officer, including the field marshall "voluntarily or by force".
The attorney general argued that the "army is not a democratic institution" and that it "runs through command all over the world".
"We know that," said Justice Shah.
AG Khan then read out the oath sworn by officers when they are appointed in the army.
"The oath of an army officer says that they would lay down their lives if need be. This is a very significant thing," the chief justice observed.
"'I will never involve myself in any political activities.' This sentence is also part of the oath. It is a very good thing to stay away from political activities," Justice Khosa remarked.
The hearing was adjourned again.
At the outset of the hearing, CJP Khosa said that media had misunderstood yesterday's proceedings and clarified that the court had not taken suo motu notice. "We are continuing your petition," the top judge told the petitioner who was in court today.
As the hearing started around 9:30am, AG Khan took to the rostrum and said he wished to "clarify something". "I referred to army rules yesterday. The court wrote 'law' in its order," the AG said, to which the chief justice said: "The court had given its order after looking at your documents."
Referring to the point raised by the court yesterday that only 11 members of the cabinet had earlier approved the extension, Justice Shah observed: "Answers were not submitted in the time fixed for cabinet members."
"According to Rule 19, silence can mean an agreement," the AG said.
He said that under Article 243 of the Constitution, the cabinet cannot send recommendations for the army chief's appointment.
"If the recommendation of the cabinet is not required, then why was this matter sent to the cabinet twice?" the chief justice inquired.
"The army chief commands the military. The president appoints the army chief on the prime minister's recommendations," the attorney general told the court.
Justice Shah said that it is "very clear that the prime minister is the one who sends recommendations for army chief's appointment".
The chief justice also appreciated that the government "admitted the shortcomings pointed out yesterday and they were corrected".
The attorney general, however, said that the points that were raised by the bench regarding government's decision to extend Gen Bajwa's tenure during yesterday's hearing "had not been accepted as shortcomings".
"If they were not accepted as shortcomings, why were they corrected?" Justice Khosa inquired.
"I will clarify this," the AG said. "The impression that only 11 members of the federal cabinet had answered 'yes' is wrong."
"If the rest answered 'yes', tell us how much time they took," said Justice Khosa. "Eleven members had written 'yes' in the document you submitted yesterday.
"If you have received a new document then show it to us."
Suspension of notification
In an unanticipated development on Tuesday, CJP Khosa had suspended the federal government's notification of Gen Bajwa's extension and issued notices to the army chief, defence ministry and the federal government.
The Supreme Court said the AG could not refer to any provision in any legal instrument regarding extension in service of the army chief upon completion of his first term for his re-appointment.
Shortly after the extension order was struck down by the top court, the cabinet amended Section 255 of the Army Rules and Regulations (ARR) and included the words “extension in tenure” to meet the legal lacuna in the rule.
It also emerged that the federal cabinet in its two sittings, Prime Minister Imran Khan and President Dr Arif Alvi approved a fresh notification for the extension of the COAS.
It is pertinent to mention that over the past two decades, Gen Raheel Sharif is the only army chief to have retired on time.