SC seeks more clarity on COAS extention matter

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– Govt prepares fresh draft to remove SC objections

By Shakeel Ahmed
ISLAMABAD: The Supreme Court on Wednesday resumed the case pertaining to the extension in army chief General Qamar Javed Bajwa’s tenure and censured Attorney General Anwar Mansoor Khan over the government’s incompetence in dealing with the matter.
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, whereas the army chief was represented by former law minister Farogh Naseem.
During the day-long hearing which was adjourned twice, the chief justice said that the Prime Minister had requested a reappointment whereas the President had issued a notification for extension in the army chief’s tenure, questioning the lack of seriousness in the case.
According to 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. “Please do not do something like this,” said Justice Shah.
It seems they never bothered to read the summary once again, the CJP observed. The attorney general, however, said the faux pas was due to “clerical errors” by the ministry. The attorney general said that the army chief is due to retire at midnight on Thursday.
Justice Shah wondered how an army chief can be reappointed to the office “when he is no longer part of the staff”.  The attorney general said that “until command is handed over to another general, the army chief cannot be considered retired”.
The CJP said the government should step back for assessment; there is still time. “They should not do something like this with a high-ranking officer,” he said, referring to Gen Bajwa.
The extension in the tenure of army chief was nothing new, said the attorney general, adding that they had been notified in the same manner as well.
“In the past, the court never stepped in to assess someone’s extension in tenure,” said Justice Alam.
The proceedings were adjourned till Thursday.
At the outset of the hearing, AG Mansoor told the court that a retired general can be appointed army chief but there was no precedent.
“Article 243 of the Constitution talks about the appointment of an officer,” said Justice Shah, inquiring whether it pertained to the period of appointment as well.
Justice Shah asked if a general can continue to work if his tenure is extended two days before his retirement. “Where does it say that it is a three-year term [for an extension]?” he asked.
The attorney general admitted that the period of the tenure was not specified in the rules. “The term tenure is used but the duration has not been specified anywhere,” the AG said.
However, the CJP said this was an important matter and the court would look at this closely so that it doesn’t happen in the future.  “This is an extremely important matter and the constitution is quiet about this,” he added.
“This is about the matters of 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 Article 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 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 Article 255 did not concern the army chief.
“The section that you amended is not about the army chief at all,” Justice Khosa said. “Article 255 is regarding those officials who have retired or have been expelled from service.”
In the second part of the hearing, the chief justice said the court wanted to understand the Army Act first as it would be better than getting “answers in pieces”.
AG Mansoor said the appointment and tenure of an army officer are decided under the 1947 Convention. The CJP responded that the court was looking at the rules regarding the tenure of an army chief specifically.
He said the court won’t hesitate to give its verdict if it found something is wrong as per the law, adding it was a court of law and that it could not overlook illegalities.
In a rather sardonic tone, the AG asked the court “not to be so strict about the law” as sometimes, the “stick can break from stiffness”.
“First, present your legal arguments,” the chief justice told him.
The issue of tenure’s duration came up once again when Justice Shah asked the attorney general to tell the bench about it through in the light of the Army Act.
The AG said the act in itself doesn’t mention the duration, but the rules do discuss the extension in tenure.
CJP Khosa said rules were drafted in line with acts and laws, adding there was nothing in the act that stopped the retirement of a very capable officer.
Govt standing with Army, asserts PM
ISLAMABAD:  As the Supreme Court is on Wednesday hearing a case pertaining to the extension in Chief of Army Staff (COAS) General Qamar Javed Bajwa’s tenure, Prime Minister Imran Khan has asserted that the government is standing with Pakistan Army. Sources familiar with the matter have informed that the premier conducted a high-level meeting with senior ministers and deliberated on the current situation in the country. Imran Khan stressed that General Qamar Javed Bajwa’s tenure was extended in the light of the existing circumstances.
Let it be known that the top court’s three-member bench comprising Chief Justice of Pakistan (CJP) Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah is hearing the case of General Bajwa’s extension on a petition filed by Riaz Hanif Rahi.–Agencies