ISLAMABAD – The Supreme Court Tuesday suspended the notification forextension in service of Chief of Army Staff (COAS) General Qamar JavedBajwa for another term of three years and served notices to federalgovernment, Ministry of Defense and Gen Bajwa for tomorrow.
Chief Justice Asif Saeed Khan Khosa remarked that only the President ofPakistan was authorized to extend the tenure of army chief in accordance oflaw.
A three member bench of SC headed by Chief Justice Asif Saeed Khan Khosaand comprising Justice Mazhar Alam Khan and Justice Syed Mansoor Ali Shahheard the case withdrawal application of Hanif Rahi challenging the freshextension to Gen Qamar Javed Bajwa.
During the outset of hearing, Justice Mansoor Ali Shah asked that when thecurrent tenure of COAS was going to expire to this attorney general saidthat Mr. Bajwa was supposed to retire on November 29.
Addressing the attorney general, the Chief Justice said that the extensionnotification was issued on August 19, then what approval, the primeminister had given on August 21. Whether the president had approved theextension before the decision of cabinet, he asked.
Chief Justice Khosa observed that there were 25 ministers in cabinetmeeting but only eleven members gave approval for the army chief’sextension. Was this called a decision with majority members? he asked. Henoted that the cabinet had given the approval from the date of issuednotification.
Justice Shah remarked that no reasons of extension came under discussion inthe cabinet meeting. Whether the cabinet had applied its mind while takingthe decision, he said.
The CJP observed that how an extension term of army chief could be fixed.How it had been predicted that the emergency situation would sustain forcoming three years, he asked, adding that the retirement could be suspendedtemporarily if it was necessary.
Justice Khosa said that under which rule, the extension had been given toCOAS– adding that the law did not permit extension or re-appointment ofarmy chief. Justice Shah remarked that it seemed that it was a newappointment not an extension.
It further stated “the Attorney-General for Pakistan has presented beforeus photocopies of many documents leading to an order passed by thePresident approving the summary sent to him by the Prime Minister alongwith his advice for extension of General Qamar Javed Bajwa, Chief of theArmy Staff for a fresh term of three years in that office after expiry ofhis first term.”
The order said a summary had initially been moved by the Ministry ofDefence for extension of the term of office of the Chief of the Army Stafffor three years. But the Attorney-General has not been able to refer to anyprovision in any legal instrument regarding extension in service of a COASor for his re-appointment.
It read, “The Prime Minister had himself passed an order appointing thecurrent COAS for a second term in on 19.08.2019 whereas under Article 243of the Constitution it is the President who is the appointing authority forthat office. Apparently that mistake came to notice straightaway and on thesame day, a summary was moved from the Prime Minister’s office to thePresident for extension of the incumbent Chief of the Army Staff and onthat very day, i.e. 19.08.2019, the President was pleased to approve thesummary in that regard and, hence, the advice of the Prime Minister wasapparently accepted and acted upon.
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It appears that even that process was found to be flawed and on that veryday it was realized that the Prime Minister or the President could not takethe above mentioned actions without the approval of the Cabinet and, thus,on the next day, i.e. 20.08.2019, a summary was moved in the relevantregard for approval of the Cabinet and on 21.08.2019, the Cabinet was saidto have approved the said proposal through circulation. The opinion of theCabinet recorded in this regard, photocopies whereof have been producedbefore us, shows that there are 25 members of the Cabinet and out of those25 members only 11 had agreed to the proposal which shows that the majorityof the Cabinet had not approved the said proposal. Yet another peculiaraspect is that after the purported or so-called approval of the Cabinetregarding extension of the incumbent Chief of the Army Staff, the matterwas never sent to the Prime Minister or the President again for thepurposes of a fresh advice or a fresh order of the Prime Minister and thePresident respectively.”
The SC stated in its order, “After repeated queries the Attorney-Generalhas referred to Regulation No. 255 of the Army Regulations (Rules)according to which a retirement of an Army officer can temporarily besuspended or limited. By placing reliance upon the said Regulation thelearned Attorney-General for Pakistan has maintained that the FederalGovernment has the requisite authority to re-appoint or extend the servicesof an incumbent Chief of the Army Staff prior to his retirement if theexigencies of the service so require or the public interest so demands.
A bare perusal of Regulation No. 255, however, prima facie shows that thesaid provision can be invoked after an officer has already retired fromservice and that is why the said Regulation speaks of suspension ofretirement or limiting of retirement. Suspending a retirement or limiting aretirement before the retirement has actually taken effect may amount toputting the cart before the horse. The learned Attorney-General forPakistan has, however, very candidly submitted before us that in the entirebody of laws pertaining to the Pakistan Army there is no express provisionavailable regarding re-appointment or extension in the service of a Chiefof the Army Staff.
The stated purpose for the proposed re-appointment/extension in the term ofoffice of the incumbent Chief of the Army Staff is “regional securityenvironment”. The said words are quite vague and if at all there is anyregional security threat then it is the gallant armed forces of the countryas an institution which are to meet the said threat and an individual’srole in that regard may be minimal. If the said reason is held to becorrect and valid then every person serving in the armed forces would claimre-appointment/extension in his service on the basis of the said reason,”the order further said.
The top court said that the points noted above call for a detailedexamination of the matter of extension/re-appointment of General QamarJaved Bajwa, Chief of the Army Staff and, therefore, he is hereby made arespondent to this petition and the office is directed to carry out thenecessary addition in the memorandum of this petition. Let notice of thispetition be issued to all the respondents for tomorrow, as requested by thelearned Attorney-General for Pakistan.
In the meanwhile the operation of the impugned order/Notification inrespect of extension of General Qamar Javed Bajwa, Chief of the Army Stafffor another term in the said office shall remain suspended, the orderconcluded.
The top court said the Court-Associate has produced before us a handwrittenapplication submitted by the petitioner seeking permission to withdraw thispetition. The petitioner has failed to appear in person nor anybody elsehas appeared on his behalf.
The application received does not carry any date and the same is notaccompanied by any affidavit.
There is nothing before us to accept or to presume that the saidapplication has actually been submitted by the petitioner himself or thathe has submitted the same voluntarily. The application attributed to thepetitioner is, therefore, not entertained.
