COAS Bajwa's extension: SC adjourns hearing till tomorrow

ISLAMABAD: The Supreme Court (SC) has adjourned the hearing on a petition challenging the extension given to Chief of Army Staff (COAS) General Qamar Javed Bajwa till tomorrow (Thursday), ARY News reported.

A Supreme Court bench comprising Chief Justice of Pakistan Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah heard the case today.

The army chief is being represented by Farogh Naseem, who resigned from his post as law minister yesterday to pursue the case. Naseem also submitted his power of attorney upon arrival at the court.

The hearing will be resumed on Thursday (tomorrow) at 1:00 pm.

During the hearing, Justice Khosa remarked that the amendment in Army Rule could not be applied to the rank of Chief of Army Staff (COAS) as the Army Chief is a commander which is a separate category.

Justice Khosa questioned Farogh Naseem for the time for the retirement of the Army Chief. Naseem answered that the tenure of COAS will expire on Thursday’s 12:00 midnight.

“How can a federal government extends the tenure of an army chief if it is not making an appointment? Is it possible to consider the retirement after conclusion of a tenure?” questioned Justice Shah.

“There is no age limit set for the retirement of a general,” said the attorney general.

“It means that a retired general can be appointed as an Army Chief. This will also allow to make you the Army Chief,” remarked Justice Shah.

CJP Khosa said that the notification was issued for re-appointment, posting and an extension in the summary.

“This matter needs an immediate decision. We have to nullify the appointment citing such mistakes. It is sorrowful that this shouldn’t be emerged on the matter related to the Army Chief. The Army Chief never retires until he gives charge to another chief. It is a position of Chief of Army Staff but not the Chief of Army Service.”

Later, the top court adjourned the hearing till Thursday which would be resumed at 1:00 pm tomorrow.

During the hearing today, Chief Justice Khosa asked Attorney General (AG) Anwar Mansoor Khan if they had accepted the points raised by the court yesterday.

To this, the attorney general replied that they have not accepted the mistakes.

“This is not a suo motu case, media did not understand it correctly,” the chief justice remarked. “We are hearing the case on the petition filed by Riaz Rahi.”

The chief justice then asked the attorney general to present the summary approved by the federal cabinet in its meeting on Tuesday.

“I informed the court yesterday as well that we are waiting for some ministers to respond on the extension notification,” the attorney general said.

“If there is no answer, we will assume the answer is yes?” the CJP inquired.

To this AG Khan replied that according to the law, that is correct.

The top judge then said that this course of action is only acceptable when the answer has to be given in a certain time period.

“If this was an open mandate we would have let it go. The cabinet has accepted the mistakes that we pointed out,” he added.

The attorney general then submitted the documents pertaining to yesterday’s decisions by the federal cabinet to the court.

On Tuesday, the court noted that the prime minister had himself passed an order reappointing the current chief of army staff for the 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 the reappointment of General Bajwa, extending his tenure by three years, citing a “regional security environment”.

The court has made the army chief a respondent to the petition and held that the operation of the impugned order/notification in respect of extension/re-appointment of General Qamar Javed Bajwa for another term in the said office will remain suspended.

During yesterday’s hearing, 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”.

The court said the points noted call for a detailed examination of the matter of extension/re-appointment of COAS Bajwa and made him a respondent to the petition.

Four Possible Outcomes

The three-year term of Gen Bajwa, who is reaching the age of superannuation (60 years) next year, is ending later this week and he can continue his service if the top court decides the case in his favour before Nov 29.

Given the situation, a number of possibilities exist as far as the outcome of the case is concerned.

First, the apex court could accept the government’s steps to fix the legal weaknesses in the original notification and declare the fresh notification as valid, reverting the situation to the status quo and Gen Bajwa would start his next three-year term as the chief of army staff (COAS).

Second, the Supreme Court could declare that the fresh notification is not valid and the extension of the COAS Bajwa would not proceed, indicating that he would retire on November 29.

Third, the bench may not make a decision today and ask for more arguments. If the next hearing is scheduled for a date after Friday when Gen Bajwa retires, then the government will need to announce a new COAS.

Fourth, the government can also opt to take more time for a fresh appointment and in the meantime, the charge of the army chief is handed over to someone else within the high command of the army as per the established rule.