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Dawn News - 9 days ago

SC, Attorney General discuss rules regarding tenure, duration 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. The three-year term of Gen Bajwa, who is reaching the age of superannuation [60 years] next year, as Chief of the Army Staff (COAS) is ending on Thursday and he can continue his service if the SC decides the case in his favour before Nov 29. Farogh Naseem (right), who is representing the Army Chief today, arrives at Supreme Court. — DawnNewsTV 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, while Attorney General (AG) Anwar Mansoor Khan is arguing on behalf of the government. 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. What is the duration of a tenure? Justice Shah inquired if a retired general can be appointed as army chief, to which AG Khan said: Maybe a retired general can be appointed [army chief] but there is no precedent. Justice Shah also observed that Article 243 of the Constitution talks about the appointment of an officer and asked: Does it mention the period of appointment as well? 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 [for an extension]? 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. 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. This is about the matters of extension and reappointment, Justice Shah said. How will you prove this legally? The attorney general insisted that the definition of appointment also includes reappointment . The rules mention retirement and discharge, the chief justice noted. He observed that the federal government can only suspend a retirement after an individual retires. He further said that the retirement of an army chief can 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 according to Article 176 of the Army Act, officials can be granted an extension of two months in case of a war. According to the law, during a war, the army chief can stop officers retirements, the CJP noted. However, the government wants to stop the army chief s retirement. Referring to the amendment in Section 255 of the Army Rules and Regulations, the chief justice asked: Under which section of the Constitution and law was the rule amended? He then pointed out that Section 255 did not concern the army chief. The section that you amended is not about the army chief at all, Justice Khosa said. Article 255 is regarding those officials who have retired or have been expelled from service. The attorney general explained that he had just received the amended document to which Justice Miankhel responded: We didn t even get that. The hearing was adjourned till 1pm. After the hearing resumed, the chief justice suggested that instead of giving answers in pieces , it would be better if the court first understands the Army Act. There are two ways to go about this: we can either allow you to conclude your arguments and then read the laws or you can discuss the law first and then present your arguments, Justice Khosa said. I will answer every question the court has, AG Anwar said. Giving answers in pieces does no good, the chief justice said. How will we understand your arguments without understanding the Army Act? AG Khan said that he will tell the public how the duration of the tenure is decided . He explained that the duration of army chief s tenure was decided in accordance with the 1947 Convention . Cabinet s approval Earlier in the morning, as the hearing started around 9:30am, AG 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 were not submitted in the time fixed for cabinet members. According to Rule 19, silence can mean an agreement, the AG said. He said that under Article 243 of the Constitution, the cabinet cannot send recommendations for the army chief s appointment. If the recommendation of the cabinet is not required, then why was this matter sent to the cabinet twice? the chief justice inquired. The army chief commands the military. The president appoints the army chief on the prime minister s recommendations, the attorney general told the court. Justice Shah said that it is very clear that the prime minister is the one who sends recommendations for army chief s appointment . The chief justice also appreciated that the government admitted the shortcomings pointed out yesterday and they were corrected . The attorney general, however, said that the points that were raised by the bench regarding government s decision to extend Gen Bajwa s tenure during yesterday s hearing had not been accepted as shortcomings . If they were not accepted as shortcomings, why were they corrected? Justice Khosa inquired. I will clarify this, the AG said. The impression that only 11 members of the federal cabinet had answered yes is wrong. If the rest answered yes , tell us how much time they took, said Justice Khosa. Eleven members had written yes in the document you submitted yesterday. If you have received a new document then show it to us. Suspension of notification In an unanticipated development on Tuesday, CJP Khosa had suspended the federal government s notification of Gen Bajwa s extension 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. It is pertinent to mention that over the past two decades, Gen Raheel Sharif is the only army chief to have retired on time. Tuesday s 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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