ISLAMABAD: The Supreme Court of Pakistan on Wednesday resumed hearing into a case regarding the extension in service of Army Chief General Qamar Javed Bajwa.
The three-member bench of the highest court is headed by Chief Justice Asif Saeed Khan Khosa, and includes Justice Mazhar Alam and Justice Syed Mansoor Ali Shah.
The federal law minister Farogh Naseem, who resigned from his post on Tuesday after the court took up the case, in order to represent the army chief, submitted his power of attorney on arrival to the courtroom today.
During Wednesday’s hearing, the chief justice asked Attorney General Anwar Mansoor Khan if the government had accepted the points raised by the court yesterday. To this, the attorney general replied that they have not accepted the mistake.
Commenting in the courtroom, the CJP remarked they will hear everyone as it is an important issue, adding that earlier this question was never raised and now that it has been brought forward, all the legal aspects of will be reviewed.
We are not in a hurry, the CJP observed.
Justice Khosa stated that in the past, five or six generals had their tenures extended by themselves and no one questioned them.
While commenting on the attorney general’s reliance on Article 255, the chief justice remarked that the rule applies to officers and not the army chief.
The chief justice further clarified that the media has understood the case incorrectly. “This is not a suo motu case. We are hearing the petition filed by Advocate Riaz Hanif,” Chief Justice Khosa said.
The chief justice then asked the attorney general to present the summary approved by the federal cabinet in its meeting on Tuesday, which he did.
“I informed the court yesterday as well that we are still waiting for some federal ministers to respond to the extension notification,” the attorney general replied.
“If there is no answer till now, should we assume the answer is yes?” the CJP asked.
To this AG Khan responded that as per the law, that would be correct.
The top judge then said that this course of action is only acceptable when the answer has to be given within a certain time period. “If this was an open mandate we would have let it go. The cabinet has accepted the mistakes that we pointed out,” he added.
The attorney general then submitted the documents pertaining to yesterday’s decisions by the federal cabinet to the court.
The court then adjourned the hearing till 1pm.
After the resumption of the hearing after the break, CJP Khosa remarked that it would be better if the court reviews the Army Act and rules to understand the legal point of view behind the appointment of the army chief.
Justice Mansoor Ali Shah asked if under Article 243 a retired individual can be appointed as the army chief. To this, the attorney general replied that the army chief has been appointed under the 1975 convention.
On Tuesday, the federal cabinet met twice and reviewed the situation arising out of the Supreme Court’s order, which suspended the notification extending the tenure of the army chief.
The cabinet, in its second meeting, amended Rule 255 of the Army Regulation. It then prepared a new summary for the extension and sent it to President Arif Alvi for approval.
During today’s hearing, the court noted that the prime minister had on his own passed an order reappointing the current chief of army staff for a second term on August 19, whereas under Article 243 of the constitution, it is the president who is the appointing authority.
Suspension of the notification
The government on August 19 had reappointment General Bajwa, extending his tenure for three years, citing the “regional security environment”. However, on Tuesday, the supreme court suspended the notification and issued notices to the federal government, General Bajwa through the Ministry of Defense and the Ministry of Law.
The court made the army chief a respondent to the petition and held that the operation of the impugned order/notification in respect of extension/re-appointment of General Bajwa for another term in the said office will remain suspended.
The attorney general had admitted in court that according to Regulation No 255 of the Army Regulations (Rules), the retirement of an army officer can temporarily be suspended or limited. The court, however, observed that a bare perusal of Regulation No 255 prima facie shows that the said provision can be invoked after an officer has already retired from service.
The court also observed that after the approval of the cabinet, regarding extension/re-appointment of the incumbent chief of army staff, the matter was never sent to the prime minister or the president again for fresh advice.