Extension in tenure of army chief: SC suspends notification

The Supreme Court on Tuesday suspended the operation of the notification related to extension/ re-appointment of the incumbent Chief of Army Staff (COAS) General Qamar Javed Bajwa for another term of three years.

A three-judge bench, headed by Chief Justice Asif Saeed Khan Khosa, and comprising Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah on Tuesday heard Jurists Foundation's petition filed through Riaz Hanif Rahi against the extension in the tenure of Army Chief General Bajwa.

Attorney General for Pakistan Anwar Mansoor Khan informed the bench that the purpose for the proposed reappointment/ extension in the term of office of the incumbent Chief of the Army Staff is 'regional security environment'. The bench questioned how the government could perceive this situation earlier before granting extension.

"The said words are quite vague and if at all there is any regional security threat then it is the gallant armed forces of the country as an institution which are to meet the said threat and an individual's role in that regard may be minimal," said the four-page written order.

"If the said reason is held to be correct and valid then every person serving in the armed forces would claim re-appointment/extension in his service on the basis of the said reason," it added. Upon repeated queries by the bench, the attorney general referred to Regulation No. 255 of the Army Regulations (Rules). According to that, retirement of an army officer can temporarily be suspended or limited. He maintained that under the said Regulation the federal government has requisite authority to reappoint or extend the services of an incumbent chief of the army staff prior to his retirement if the exigencies of the service so require or the public interest so demands. The court noted that bare perusal of Regulation No. 255, however, prima facie shows that the said provision can be invoked after an officer has already retired from service and that is why the said Regulation speaks of suspension of retirement or limiting of retirement. "Suspending a retirement or limiting a retirement before the retirement has actually taken effect may amount 'to putting the cart before the horse'."

The attorney general very candidly submitted that in the entire body of laws pertaining to the Pakistan Army, there is no expressed provision available regarding re-appointment or extension in the service of a chief of the army staff.

In August, Prime Minister Imran Khan approved extension in the tenure of General Bajwa for another three years. "General Qamar Javed Bajwa is appointed Chief of Army Staff for another term of three years from the date of completion of current tenure," said a notification issued by PM Imran Khan on 19-08-2019.

The petitioner, Hanif Rahi, through court-associate submitted a handwritten application for withdrawal of his petition. However, the bench did not entertain it. Rahi was present in the courtroom when the case was called, but he left quietly when the bench started hearing it. The court noted that the petitioner neither appeared in person nor anybody else even advocate on record (AOR) appeared on his behalf. "The application received does not carry any date and the same is not accompanied by any affidavit. There is nothing before us to accept or to presume that the said application has actually been submitted by the petitioner himself or that he has submitted the same voluntarily," said the four-page order.

The court observed that the petitioner invoked Article 184(3) of the Constitution and the subject matter of it involves a question of public importance with reference to enforcement of fundamental rights and, thus, the individual capacity of the petitioner pales into insignificance even if he decides not to pursue the present petition.

AGP Anwar Mansoor presented the photocopies of many documents those led to an order passed by the President approving the summary sent by the Prime Minister along with his advice for extension/reappointment of General Qamar Javed Bajwa, Chief of the Army Staff, for a fresh term of three years in that office after expiry of his first term in that office. The bench with the assistance of the attorney general examined the said documents.

It noted that a summary had initially been moved by the Ministry of Defence for extension of the term of office of the Chief of the Army Staff and subsequently he was appointed as Chief of the Army Staff for a second term of three years after completion of his first term in that office. However, the attorney general failed to refer to any provision in any legal instrument regarding extension in service of a Chief of the Army Staff upon completion of his first term in that office or for his reappointment to that office after completion of his first term.

The court noted that Prime Minister Imran Khan on 19-08-201 himself had passed an order appointing General Bajwa as COAS for a second term in that office whereas under Article 243 of the Constitution it is the President who is the appointing authority for that office.

"Apparently that mistake came to notice straightaway and on the same day, i.e. 19.08.2019 a summary was moved from the Prime Minister's office to the President for extension/re-appointment of the incumbent Chief of the Army Staff and on that very day, i.e. 19.08.2019 the President was pleased to approve the summary in that regard and, hence, the advice of the Prime Minister was apparently accepted and acted upon," the court observed.

The Chief Justice said it appears that even that process was found to be flawed and on that very day it was realized that the Prime Minister or the President could not take that actions without the approval of the Cabinet; therefore, the following day i.e. 20.08.2019 a summary was moved for approval of the Cabinet and on 21.08.2019 the Cabinet was said to have approved the said proposal through circulation.

The attorney general produced the photocopies of cabinet record, which showed that out of 25 cabinet members only 11 had agreed to the proposal which shows that the majority of the Cabinet had not approved the said proposal. The court noted that after the purported or so-called approval of the Cabinet regarding extension/re-appointment of the incumbent Chief of the Army Staff, the matter was never sent to the Prime Minister or the President again for the purposes of a fresh advice or a fresh order of the Prime Minister and the President respectively.

The bench after hearing AGP Anwar Mansoor said the points raised call for a detailed examination of the matter of extension/re-appointment of General Bajwa as army chief. The court made him party to this case and directed the office to carry out necessary addition in the memorandum of this petition.

The bench issued notices to the federation through secretary defense, Prime Minister and President of Pakistan for today (27th November, 2019). The bench suspended the operation of the impugned order/notification related to extension/re-appointment of General Bajwa for another term.