On Wednesday, the Supreme Court postponed the hearing of a case related to the extension / re-election in the post of the current head of the army, General Qamar Javed Bajwa, until tomorrow.
The three-year term of Gen Bajwa, who is reaching retirement age. [60 years] next year, as Chief of the General Staff of the Army (COAS) will end Thursday at midnight. You can continue with your service if the SC decides the case in your favor before November 29.
A bank of SC composed of the president of the court of justice of Pakistan, Asif Saeed Khosa, Judge Mian Mazhar Alam Khan Miankhel and Judge Syed Mansoor Ali Shah heard the case. The army chief was represented by Farogh Naseem, who resigned his position as minister of law yesterday to continue the case, while Attorney General (AG) Anwar Mansoor Khan presented arguments on behalf of the government.
The president of the court, before concluding the day's hearing, said there were three points that the court will consider:
- the law
- the procedure involved
- the reasons for granting an extension to the army chief
He said the first two issues are very important and, based on them, the court will announce its decision.
It is pertinent to mention that in the last two decades, General Raheel Sharif is the only army chief who retired on time.
Following the suspension of the court, an emergency meeting was convened at the Prime Minister's House to discuss the government's strategy for the hearing tomorrow. The meeting was attended by Gen Bajwa himself, along with Prime Minister Imran Khan and several ministers.
Details of the government group were not officially disclosed.
Later that night, a draft notification was prepared for the extension of General Bajwa, taking into account the observations of the court, to be presented to the court the next day. Sources counted DawnNewsTV that the notification will be approved by the cabinet by circulating a summary tonight.
& # 39; The government should step back and evaluate & # 39;
The one-day hearing was postponed twice. The second time the court resumed proceedings, the attorney general informed the court that the summary notifying General Bajwa's extension referred to article 243 and article 245 of the Constitution.
The president of the court said the prime minister had requested a new designation, while the president had issued a notice of extension in the mandate of the army chief.
Given this, the courtroom burst into laughter.
"Please, don't do something like this," Judge Shah said.
The president of the court wondered how it was that no one had bothered to read the summary one more time.
"They never bothered to verify what is written and what they are sending," he said.
The attorney general attributed the error to "office errors" by the ministry, adding that the army chief will retire at midnight tomorrow.
"Why do you make such mistakes?" asked the chief justice.
"On the one hand, he says he is retiring, while on the other, he says he is not retiring. Then he says that the army chief is not retiring at all. Please clarify this," the bank said.
"Army officers are respectable, but the law ministry, with its erroneous documentation, has tried to disrespect them," said the president of the court.
"If his term had not been extended and if he had retired, what would have happened?" Judge Shah asked.
"Then he would have handed over his subordinate," said the attorney general, adding that the government's notification had not specified a duration.
The president of the court 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 used.
The attorney general said that since nothing was specified about the length of tenure, reference was made to the 1947 Convention.
"What kind of laws are being made? They are not suitable even for the appointment of an assistant commissioner," said the president of the court.
"You have turned the army chief into a flyer," he said, adding: "You should examine the grades of the people who are responsible for drafting these documents."
Judge Shah wondered how an army chief can be renamed to the office "when he is no longer part of the staff."
Given this, the president of the Supreme Court asked once again if a retired officer can be reappointed.
The attorney general said that "until the command is handed over to another general, the army chief cannot be considered retired," and said the army as an institution cannot operate without a chief.
"There is still time. The government should step back and evaluate what it is doing," said the president of the court. "They shouldn't do something like that with a senior officer."
The attorney general argued that the process "was nothing new." "Extensions were notified in the same way in the past."
To this, Judge Alam replied: "In the past, the court never intervened to assess the extent of someone's tenure."
The president of the court noted that in each of the summaries – of the cabinet, prime minister and president – there was a different point of view.
"Please resolve these discrepancies for tomorrow. We are not against anyone," he said, adding that the court will decide the matter according to the law and nothing "illegal" will be allowed to happen.
"If something illegal is present, our oath forces us to declare it null and void. We only respond to God and no one else," said CJP Khosa.
& # 39; What is the duration of a mandate? & # 39;
In the first half of the hearing, the attorney general argued that the appointment of the head of the army is made by the president, who is the supreme commander of the army, with the advice of the prime minister, in accordance with article 243 of the Constitution.
Judge Shah noted that article 243 talks about the appointment of the head of the army. "How long is an army chief appointed?" I ask.
He also asked if only a serving army officer can be appointed as head of the army or if a retired general can also be assigned the role. He said it was important to evaluate the rules in this regard.
AG Khan said: "Perhaps a retired general can be appointed [army chief] but there is no precedent. "
"Where do you say it is three years? [for an extension]"asked Judge Shah.
The attorney general admitted that the tenure period is not specified in the rules. "The term tenure is used, but the duration has not been specified anywhere," said the AG.
"The issue of the tenure period of the army chief is very important," said the president of the court. "In the past, five or six generals have been granted extensions. We will analyze this issue closely so that this does not happen in the future."
"This is an extremely important issue. [and] the Constitution says nothing about this, "he added.
"It's about the extension and re-election of the army chief," Judge Shah said. "How will you prove this legally?"
The attorney general insisted that the "definition of appointment also includes re-election."
"The rules mention retirement and discharge," said the president of the court.
He noted that the federal government can only suspend a retirement after a person leaves. He also said that the withdrawal of an army chief "may 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 in accordance with Section 176 of the Army Law, officials may be granted a two-month extension in case of war.
"According to the law, during a war, the army chief can stop the withdrawal of officers," said the CJP. "However, the government wants to stop the retirement of the army chief."
Referring to the government amendment in Section 255 of the Army Rules and Regulations, the president of the court asked: "Under what section of the Constitution and the law was the rule modified?"
He then noted that Section 255 did not refer to the head of the army.
"The section he modified is not about the army chief at all," Judge Khosa said. "Section 255 refers to officials who have retired or been expelled from the service."
The attorney general explained that he had just received the modified document to which Judge Miankhel replied: "We did not even receive it."
The hearing was postponed until 1:00 p.m.
Understanding Army Law
As the hearing resumed, the president of the Supreme Court suggested that, instead of "giving answers by parties," it would be better if the court first understood Army Law.
"There are two ways to do it: we can allow you to conclude your arguments and then read the laws or you can first discuss the law and then present your arguments," Judge Khosa said.
"I will answer all the questions the court has," AG Anwar said.
"Giving answers in pieces is of no use," said the president of the court. "How will we understand their arguments without understanding Army Law?"
Judge Shah once again asked AG Khan if a retired general can be appointed head of the army. The attorney general said that the appointment and tenure are decided under the 1947 Convention.
He promised "to satisfy the court regarding the re-election of the army chief."
Judge Khosa emphasized that the court was observing the rules regarding the tenure of the army chief, not a general.
"This is a court of justice; it is the law we are seeing, not personalities," said Judge Khosa. "If something is wrong according to the law, we cannot say that it is correct. Yes [the decision] it is not correct according to the law, we will give our verdict. "
The attorney general, in response, urged the court to "not be so strict with the law." "Sometimes, the stick can be broken by stiffness," he said.
"First, present your legal arguments," the president of the court told him.
The bank told the attorney general to read the first three chapters of the Army Law, so that the court can understand the rules.
"The issue of the term of the mandate is coming up again and again, so tell us about that," Judge Shah said.
The attorney general told the court that the length of tenure was not mentioned in the Army Law, but the rules discussed the extent of tenure.
"The rules are always drafted in accordance with the acts and laws," Judge Khosa said, adding: "There is nothing in the act that stops the retirement of a very capable officer."
While AG Khan was reading Sections 16 and 17, the president of the court said they were referring to dismissal.
The attorney general told the court that the army chief has the authority to fire anyone from office.
"Can the federal government also remove someone from office?" Judge Shah asked what the attorney general replied: "The powers of the army chief are limited, but the federal government has full authority. The army chief can dismiss minor officials."
The president of the Supreme Court said the government can order the withdrawal of any officer, including the field sheriff "voluntarily or by force."
The attorney general argued that "the army is not a democratic institution" and that "it is under the command of the whole world."
"We know that," Judge Shah said.
AG Khan then read the oath of the officers when they were appointed in the army.
"The oath of an army officer says they would give their lives if necessary. This is something very significant," said the president of the court.
"& # 39; I will never get involved in any political activity & # 39 ;. This phrase is also part of the oath. It is very good to stay away from political activities," Judge Khosa commented.
The hearing was postponed again.
Cabinet Approval
At the beginning of the hearing, CJP Khosa said that the media had misunderstood yesterday's procedures and clarified that the court had not taken note of suo motu. "We continue with your request," said the superior judge to the petitioner who was in court today.
When the hearing began around 9:30 am, AG Khan went to the stand and said he wanted to "clarify something." "I referred to the rules of the army yesterday. The court wrote & # 39; law & # 39; in its order," the AG said, to which the president of the court said: "The court had given its order after reviewing its documents. "
Referring to the point raised yesterday by the court that only 11 members of the cabinet had previously approved the extension, Judge Shah noted: "The responses were not presented in the time set for the members of the cabinet."
"According to Rule 19, silence can mean an agreement," said the AG.
He said that according to article 243 of the Constitution, the cabinet cannot send recommendations for the appointment of the head of the army.
"If the cabinet recommendation is not required, then why was this matter sent to the cabinet twice?" the chief justice asked.
"The army chief sends the military. The president designates the army chief according to the prime minister's recommendations," the attorney general told the court.
Judge Shah said it is "very clear that the prime minister is the one who sends recommendations for the appointment of the head of the army."
The president of the court also appreciated that the government "admitted the deficiencies noted yesterday and were corrected."
However, the attorney general said that the points raised by the bank regarding the government's decision to extend General Bajwa's mandate during yesterday's hearing "had not been accepted as deficiencies."
"If they were not accepted as defects, why were they corrected?" Judge Khosa asked.
"I will clarify this," said the AG. "The impression that only 11 members of the federal cabinet had responded & # 39; yes & # 39; is wrong."
"If the rest answered & # 39; yes & # 39 ;, tell us how long they took," Judge Khosa said. "Eleven members had written & # 39; yes & # 39; in the document they sent yesterday.
"If you have received a new document, show it to us."
Notification Suspension
In an unexpected development on Tuesday, CJP Khosa had suspended the federal government's notification about the extension of General Bajwa and issued notices to the army chief, the defense ministry and the federal government.
The Supreme Court said that the AG could not refer to any provision in any legal instrument with respect to the extension to the service of the head of the army when completing his first term for his new appointment.
Shortly after the extension order was revoked by the higher court, the cabinet amended Section 255 of the Army Rules and Regulations (ARR) and included the words "extension in tenure" to comply with the legal loophole in the rule .
It was also learned that the federal cabinet in its two sessions, Prime Minister Imran Khan and President Dr. Arif Alvi approved a new notification for the extension of COAS.
It is pertinent to mention that in the last two decades, General Raheel Sharif is the only army chief who retired on time.
Source: https://www.dawn.com/news/1519144/sc-to-hold-cliffhanger-hearing-on-extension-of-gen-bajwas-tenure