Friday 6 December 2019
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Dawn News - 9 days ago

SC questions rules regarding tenure of an army chief s extension

The Supreme Court is hearing a case pertaining to the extension/reappointment in incumbent Army Chief Gen Qamar Javed Bajwa s tenure. An SC bench comprising Chief Justice of Pakistan Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah is hearing the case. The army chief is being represented by Farogh Naseem, who resigned from his post as law minister yesterday to pursue the case. At the outset of the hearing, CJP Khosa said that media had misunderstood yesterday s proceedings and clarified that the court had not taken suo motu notice. We are continuing your petition, the top judge told the petitioner who was in court today. Attorney General (AG) Anwar Mansoor Khan took to the rostrum and said he wished to clarify something . I referred to army rules yesterday. The court wrote law in its order, the AG said, to which the chief justice said: The court had given its order after looking at your documents. Referring to the point raised by the court yesterday that only 11 members of the cabinet had earlier approved the extension, Justice Shah observed: Answers had not been submitted in the time fixed for cabinet members. According to Rule 19 of the Army Act, silence can mean an agreement, the AG said, and submitted fresh documents. Justice Shah inquired if a retired general can be appointed as an army chief. He also observed that Article 243 talks about appointment of an officer and asked: Does it mention the period of appointment as well? The matter of the period of army chief s tenure is very important, the chief justice said. In the past, five or six generals have granted themselves extensions. We will look at this matter closely so that this does not happen in the future. This is an extremely important matter [and] the Constitution is quiet about this, he added. 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? he asked. The attorney general admitted that the period of the tenure is not specified in the rules. The term tenure is used but the duration has not been specified anywhere, AG said. Suspension of notification In an unanticipated development on Tuesday, CJP Khosa had suspended the federal government s notification of Gen Bajwa s extension — who is due to retire as Chief of the Army Staff (COAS) on November 29 — and issued notices to the army chief, defence ministry and the federal government. The Supreme Court said the AG could not refer to any provision in any legal instrument regarding extension in service of the army chief upon completion of his first term for his re-appointment. Shortly after the extension order was struck down by the top court, the cabinet amended Section 255 of the Army Rules and Regulations (ARR) and included the words “extension in tenure” to meet the legal lacuna in the rule. It also emerged that the federal cabinet in its two sittings, Prime Minister Imran Khan and President Dr Arif Alvi approved a fresh notification for the extension of the COAS. Court proceedings The chief justice a day earlier rejected an application for the withdrawal of a petition that was filed against Gen Bajwa s extension after noting that both the appellant and his lawyer were absent from the court. He took up the original petition in public interest under Article 184 (3) of the Constitution. During yesterday s hearing, AG Khan, who was in attendance inside the courtroom on his own when called upon by the court, presented photocopies of documents leading to an order passed by the president approving the summary sent to him by the prime minister along with his advice for extension/reappointment of Gen Bajwa as COAS for a fresh term of three years after expiry of his first term in office. The court then went through the documents and noticed a number of defects like the summary for extension was initially moved by the defence ministry. Justice Khosa had observed that the summary and approval of the army chief s extension is not correct . The order said that Prime Minister Imran Khan himself had passed an order appointing the current army chief for a second term on August 19, whereas under Article 243 of the Constitution it is the President who is the appointing authority for that office. That mistake, the order said, came to the prime minister s notice straight away and on the same day i.e. August 19 a summary was moved from the PM Office to the president who approved it and the premier s advice was apparently accepted and acted upon. The top court further observed that it appeared that even that process was found to be flawed and on that very day it was realised that the prime minister or the president could not take these actions without the approval of the cabinet and, thus, on August 20, a summary was moved for approval of the cabinet. Following yesterday s court hearing, the federal cabinet passed a fresh notification that was approved by the president on the same day.

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