SC suspends COAS extension notification

ISLAMABAD, Nov 26 (APP):The Supreme Court Tuesday suspended the notification for extension in service of Chief of Army Staff (COAS) General Qamar Javed Bajwa for another term of three years and served notices to federal government, Ministry of Defense and Gen Bajwa for tomorrow.

Chief Justice Asif Saeed Khan Khosa remarked that only the President of Pakistan was authorized to extend the tenure of army chief in accordance of law.

A three member bench of SC headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Mazhar Alam Khan and Justice Syed Mansoor Ali Shah heard the case withdrawal application of Hanif Rahi challenging the fresh extension to Gen Qamar Javed Bajwa.

During the outset of hearing, Justice Mansoor Ali Shah asked that when the current tenure of COAS was going to expire to this attorney general said that Mr. Bajwa was supposed to retire on November 29.
Addressing the attorney general, the Chief Justice said that the extension notification was issued on August 19, then what approval, the prime minister had given on August 21. Whether the president had approved the extension before the decision of cabinet, he asked.

Chief Justice Khosa observed that there were 25 ministers in cabinet meeting but only eleven members gave approval for the army chief’s extension. Was this called a decision with majority members? he asked. He noted that the cabinet had given the approval from the date of issued notification.
Justice Shah remarked that no reasons of extension came under discussion in the cabinet meeting. Whether the cabinet had applied its mind while taking the decision, he said.

The CJP observed that how an extension term of army chief could be fixed. How it had been predicted that the emergency situation would sustain for coming three years, he asked, adding that the retirement could be suspended temporarily if it was necessary.

Justice Khosa said that under which rule, the extension had been given to COAS– adding that the law did not permit extension or re-appointment of army chief. Justice Shah remarked that it seemed that it was a new appointment not an extension.

It further stated “the Attorney-General for Pakistan has presented before us photocopies of many 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 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.”

The order said 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 for three years. But the Attorney-General has not been able to refer to any provision in any legal instrument regarding extension in service of a COAS or for his re-appointment.

It read, “The Prime Minister had himself passed an order appointing the current COAS for a second term in on 19.08.2019 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, a summary was moved from the Prime Minister’s office to the President for extension 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.

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 the above mentioned actions without the approval of the Cabinet and, thus, on the next day, i.e. 20.08.2019, a summary was moved in the relevant regard for approval of the Cabinet and on 21.08.2019, the Cabinet was said to have approved the said proposal through circulation. The opinion of the Cabinet recorded in this regard, photocopies whereof have been produced before us, shows that there are 25 members of the Cabinet and out of those 25 members only 11 had agreed to the proposal which shows that the majority of the Cabinet had not approved the said proposal. Yet another peculiar aspect is that after the purported or so-called approval of the Cabinet regarding extension 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 SC stated in its order, “After repeated queries the Attorney-General has referred to Regulation No. 255 of the Army Regulations (Rules) according to which a retirement of an Army officer can temporarily be suspended or limited. By placing reliance upon the said Regulation the learned Attorney-General for Pakistan has maintained that the Federal Government has the requisite authority to re-appoint 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.

A 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 learned Attorney-General for Pakistan has, however, very candidly submitted before us that in the entire body of laws pertaining to the Pakistan Army there is no express provision available regarding re-appointment or extension in the service of a Chief of the Army Staff.

The stated purpose for the proposed re-appointment/extension in the term of office of the incumbent Chief of the Army Staff is “regional security environment”. 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. 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,” the order further said.

The top court said that the points noted above call for a detailed examination of the matter of extension/re-appointment of General Qamar Javed Bajwa, Chief of the Army Staff and, therefore, he is hereby made a respondent to this petition and the office is directed to carry out the necessary addition in the memorandum of this petition. Let notice of this petition be issued to all the respondents for tomorrow, as requested by the learned Attorney-General for Pakistan.

In the meanwhile the operation of the impugned order/Notification in respect of extension of General Qamar Javed Bajwa, Chief of the Army Staff for another term in the said office shall remain suspended, the order concluded.

The top court said the Court-Associate has produced before us a handwritten application submitted by the petitioner seeking permission to withdraw this petition. The petitioner has failed to appear in person nor anybody else has 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. The application attributed to the petitioner is, therefore, not entertained.