SC to take up General Bajwa's extension case on Thursday

Chief Justice Asif Saeed Khosa on Wednesday clarified that the Supreme Court has not taken a suo motu notice in the case pertaining to the extension of army chief General Qamar Javed Bajwa and is hearing the case on the request of the petitioner.

A three-member bench of the apex court, headed by CJP Asif Khosa and comprising Justice Mazhar Alam and Justice Syed Mansoor Ali Shah, resumed the hearing of the petition challenging the extension of the COAS.

After a day-long hearing of the case, the apex court adjourned the hearing until tomorrow morning, so it can be resumed on Thursday.

Based on the attorney general's interpretation of Article 243, even he can become the army chief: Justice Khosa

Chief Justice Khosa and the attorney general had an interesting conversation in court. The chief justice told the attorney general that according to him, the army chief will retire on Thursday.

"The attorney general says that a general never retires," remarked the chief justice. "The attorney general has interpreted Article 243 according to which even he can be made an army chief."

The court then told the attorney general that according to him, any retired general can be made the chief of army staff.

"An army chief is appointed by the president on the prime minister's advice," said Justice Mansoor. "If the government can't appoint an army chief, how can it extend his tenure?"

In response to a question from Justice Mansoor, the attorney general said that the army chief will retire tomorrow night (Thursday).

The chief justice told the attorney general that the president had not issued the notification on the prime minister's advice. He told the attorney general that the court was giving him one day to come up with a solution to the problem.

"You have made the army chief a shuttlecock," said Justice Khosa.

During the proceedings, Justice Khosa remarked that the government has accepted the objections raised by the court. He added that the government tried to correct these errors in the fresh summary because the court had objected to the procedure earlier adopted in this regard.

However, the Attorney General Anwar Mansoor replied that the government has not accepted its mistakes.

The government’s lawyer also shared the notification approved by the federal cabinet with the court, after the CJP asked him to provide a copy of it.

The CJP remarked they will hear everyone as it is an important issue.

He added that earlier this question was never raised and now that it has been raised all the legal aspects of the matter will be reviewed.

We are not in a hurry, he observed.

Justice Khosa stated that in the past five or six generals have got their tenures extended by themselves and no one questioned them.

While commenting on the attorney general’s reliance on Article 255, the chief justice remarked that the rule applies to officers and not the army chief. Justice Khosa also observed that the rule amended by the government does not relate to the army chief.

The hearing was adjourned till 1:00 pm.

After the resumption of the hearing Chief Justice of Pakistan Asif Saeed Khosa decided that it would be better if the court reviews the Army Act and rules to understand the legal point of view behind the appointment of the army chief.

While, Justice Mansoor Ali Shah asked if under Article 243 a retired individual can be appointed as the army chief. To this, the attorney general replied that the army chief has been appointed under the 1975 convention.

Jutice Shah stated that there is clarity that the prime minster has the right to appoint an army chief. He told the attorney general that problem can be resolved if he gives a clear answer whether a retired army chief can be re-appointed or not.

The CJP wondered that the Army act does not define a commissioned officer. To this, Mansoor responded that the definition is there, a high ranking officer is called a commissioned officer. The CJP responded that there is a problem somewhere and they are trying to understand where the problem lies.

Justice Mansoor asked where it was written that a good officer can be given an extension. The attorney general replied that rule 176 has clarified this. However, the judge remarked that rule 176 only has the rules and does not talk about giving extension to a good officer.

The CJP remarked that an army officer takes oath that he will give his life if it comes to it, adding that this is a big thing. He also said that the oath also says “I will not get myself involved in any political matters”, which is also a good thing if followed.

Justice Shah then inquired if there was mention of the years of service of any officer in the Army Act?

To this the attorney general told the court the terms for employment were mentioned in the rules, not in the Army Act.

Responding to the attorney general’s reply, Justice Khosa said there was no mention of the terms and reappointment in the Army Act, neither was there any mention of the extension of the army chief's term in the Army Act.

The top judge added that the government can retire any army officer, including a field marshal. “The government can voluntarily or forcibly retire,” he said.

To this the AG Khan said there was no mention of any period.

Justice Khosa further remarked that the COAS is also an adviser to the government on military affairs. He is also responsible for discipline in the army. is also imposed on the Army Chief. “We are looking into all the regulations,” he added.

Farogh Naseem presents his arguments

The CJP asked General Bajwa’s lawyer, Farogh Naseem, if the army chief will retire tomorrow (on Thursday), adding that according to the AG’ a general never retires’.

“In your opinion, can a former army chief also be appointed as COAS?” the SC CJP said.

“As per the attorney general and the definition of article 243, even he [the AG] can appoint the army chief” Justice Mansoor Ali Shah remarked. If the federal government doesn’t appoint an army chief, how can it grant him an extension, Justice Shah opined.

“If the duration/tenure is over, does that mean that the army chief can be considered retired?” To which the attorney general replied that there was no age limit to a general’s retirement.

“That means that any retired military officer can be appointed army chief,” observed Justice Shah. “Where does it say that a COAS has to be from the army?”

The attorney general stated that General Bajwa will retire tomorrow night.

“Then this case must be decided on an urgent basis,” said the CJP.

“Where it is written that good officer can be given extension?”

Jutice Shah stated that there is a clarity that the prime minster has the right to appoint an army chief. He told the attorney general that problem can be resolved if he give a clear answer whether a retired army chief can be re-appointed or not.

The CJP wondered that the Army Act does not define a commissioned officer. To this, Mansoor responded that the definition is there, a high ranking officer is introduced as a commissioned officer. The CJP responded that there is a problem somewhere and they are trying to understand where the problem lies.

Justice Mansoor asked where it was written that a good officer can be given an extension. The attorney general replied that rule 176 has clarified this. However, the judge remarked that rule 176 only has the rules and does not talk about giving extension to a good officer.

The CJP remarked that an army officer takes oath that he will give his life if it comes to it, adding that this is a big thing. He also said that the oath also says “I will not get myself involved in any political matters”, which is also a good thing if followed.

Justice Shah then inquired if there was mention of the years of service of any officer in the Army Act?

To this the attorney general told the court the terms for employment were mentioned in the rules, not in the Army Act.

Responding to the attorney general’s reply, Justice Khosa said there was no mention of the years of service and reappointment in the Army Act, neither was there any mention of the extension of the army chief's term in the Army Act.

The top judge added that the government can retire any army officer, including a field marshal. “The government can voluntarily or forcibly retire,” he said.

To this the AG Khan said there was no mention of any period.

Justice Khosa further remarked that the COAS is also an adviser to the government on military affairs. He is also responsible for discipline in the army. is also imposed on the Army Chief. “We are looking into all the regulations,” he added.

New summary

The cabinet, in its second meeting on Tuesday, amended the Rule 255 of the Army Regulation which was questioned by the apex court. It also approved a new summary for the extension in the tenure of army chief General Qamar Bajwa and sent it to President Arif Alvi for approval.

The court, during initial hearing, noted that the prime minister had himself passed an order reappointing the current chief of army staff for a second term in that office on August 19 whereas under Article 243 of the Constitution, it is the president who is the appointing authority for that office.

The government on August 19 had notified reappointment of General Bajwa, extending his tenure by three years, citing “regional security environment”.

The attorney general had contended that according to Regulation No 255 of the Army Regulations (Rules) the retirement of an army officer can temporarily be suspended or limited. The court, however, observed that a bare perusal of Regulation No 255 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.

The court had also questioned the process and found it to be flawed. The court also observed that another peculiar aspect is that after the purported or so-called approval of the cabinet regarding extension/re-appointment of the incumbent chief of army staff, the matter was never sent to the prime minister or the president again for the purpose of a fresh advice or a fresh order of the prime minister and the president respectively.

The court noted in the order that the stated purpose for the proposed re-appointment/extension in the term of the office of the incumbent chief of army staff is “regional security environment”.