• Govt fails to satisfy court on legality of its move as Gen Bajwa’s tenure nears completion
• PM’s summary mentions ‘reappointment’, notification by president says ‘extension’
• Law ministry working ‘very hard’ to make the institution headless, says CJP
• No bar on appointing ex-general as army chief and Constitution also silent on tenure, argues AG
• SC tells govt to settle matter today or law will take its course
• Farogh told to resolve licence issue before making arguments
ISLAMABAD: Not happy with what the cabinet did during its two sessions, the Supreme Court on Wednesday provided last opportunity to the federal government to rectify the wrong in its move for granting extension to incumbent Chief of the Army Staff (COAS) Gen Qamar Javed Bajwa.
What disturbed the apex court was the fact that after Tuesday’s cabinet meeting, Prime Minister Imran Khan submitted a summary to President Arif Alvi for approval to “reappoint” the army chief on his retirement and the new appointment was made under Article 243(4) of the Constitution, but the notification later issued pertains to the “grant of extension” to the COAS for another term of three years.
“The words even the nomenclature in the documents shown by Attorney General Anwar Mansoor regarding the cabinet decision of extending the service tenure are different [from one another],” wondered Chief Justice of Pakistan Asif Saeed Khosa while heading a three-judge bench in a packed to capacity Courtroom No 1.
“No one even bothered to read what they are issuing,” the CJP observed regretting the way the law ministry dealt with the issue.
“Please settle the matter by Thursday because you have only one day or the time will be over and the court will decide in accordance with the Constitution and the law,” the CJP observed, highlighting the need for urgency in view of COAS tenure that will be over after Nov 28 midnight.
“You have amended Regulation 255 of the army rules in Tuesday’s cabinet meeting when it does not deal with the appointment of the army chief but that of other officers,” he observed.
The chief justice told the AG that he would have to satisfy the court on three issues namely the legal backing behind the decision of granting extension to the COAS, the process behind it as well as reasons for extending the service tenure. “We don’t want to create uncertainty in the country,” CJP Khosa said.
Recalling that several generals in the past had granted themselves extension, the court observed that it was necessary to settle the service matters of the army chief for all times to come.
“Personalities don’t matter to us since it is a court of law,” the CJP said, explaining that the court would be satisfied if everything was done in a legal manner. To understand the scheme of the service structure, the court also asked the AG to read one by one the entire provisions of the Pakistan Army Act (PAA) 1952 as well as the army rules and regulations.
The apex court asked the government for a clarification if it was permissible under the law to appoint an army chief who already stands retired. “How the notification for granting extension to the army chief will be valid when it was not in accordance even with the order of the president,” the CJP wondered.
The AG explained that what the government did on Tuesday was to curtail the termination to the tenure of the current army chief, insisting that the COAS was not being reappointed. The laws and rules governing the service issue of the army chief were “silent on the tenure” because if it was strictly followed the entire armed forces would be left headless, he contended.
“Rigidity breaks the stick but flexibility keeps it intact,” the AG retorted.
The CJP said: “The law ministry is working very hard to make this institution headless.” He added that even an assistant commissioner was not appointed the way the army chief was being reappointed. He reminded the government that it was the army chief who was at the receiving end.
He said: “We were hoping that the cabinet must have done something outstanding ….but what came out was painful to see.”
The apex court was also startled when the AG commented that the army chief “never retires until he hands over the command” to next officer.
When Justice Syed Mansoor Ali Shah wondered if the Prime Minister could appoint a former general who had retired a decade ago as the COAS, the AG replied that there was no bar under the Constitution.
If this was the case, then the Constitution was also silent about the qualification of the army chief, Justice Shah said, adding that this meant “even you [the AG] can be appointed as the army chief.” The CJP remarked then petitioner Riaz Hanif Rahi could be appointed the army chief. “We do not want any ambiguity in the appointment matters of the army chief, because we have greatest respect for the office,” the CJP said.
Justice Shah observed that Article 243 (4) of the Constitution provided a substantive authority to the President to appoint the army chief but it did not envisage reappointment of a retired officer.
The Supreme Court was also unable to grasp why the army chief was reappointed or granted extension under Regulations 255 of the army rules — a subordinate legislation — when at the same time it was not reappointment under Article 243.
Justice Shah wondered when the federal government under the law and rules could not appoint the army chief then how it could deal with the terms and conditions of the appointment.
The court observed that Regulation 255 was only about retaining the services of the officers temporarily, reaching retirement age in view of the imminent war or the existing war. But it had nothing to do with the appointment, reappointment or extension of the army chief, it noted.
Justice Shah asked repeatedly about the authority to fix the tenure of the army chief but the AG replied that the laws were silent on the matter.
During the hearing, the CJP read out army officers’ oath while getting commission pledging to remain faithful to Pakistan, the Constitution and to bear allegiance to the President and serve even to the peril of their life. “This is the biggest oath since the army officer is asked to lay down his life in the line of duty,” he said.
Similarly, the oath asked army officers not to engage themselves in “political activities”, the CJP said while calling it a good oath.
The AG argued that the institution of the armed forces was not a democratic institution, because it was a matter of command issue and this was how the military functioned in every part of the world. “I think we know that,” Justice Shah observed, and the entire courtroom burst into laugh.
Farogh Nasim, the former law minister who resigned just a day ago to represent the army chief in the case, was asked to settle the matter about cancellation of his licence first. The CJP told him that the court didn’t want to waste time on a side issue to let the institution of army suffer and asked Mr Nasim to settle the licence issue or come with an associate if he wanted to argue on COAS behalf.
The court hearing that continued till Wednesday evening with two breaks was postponed till Thursday.
Published in Dawn, November 28th, 2019