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‘Article 255 has nothing to do with army chief’

November 27, 2019
‘Article 255 has nothing to do with army chief’

Photo: AFP

The Supreme Court adjourned on Wednesday hearing a petition against the three-year extension in Chief of Army Staff General Qamar Javed Bajwa’s tenure. It heard the case for six hours on Wednesday.  

The court asked the petitioner, Riaz Hanif Rahi, where he was yesterday. The judges asked him whether he wanted to proceed with his petition. When he said that due to some reasons, he did not, the judges said the court would proceed with it for him.

The court said that incorrect news had been circulating that it had taken suo motu notice of this case.

Attorney General of Pakistan Anwar Mansoor Khan is present in court and says he will talk about the cabinet issue raised in the petition.

He said that under Article 243 of the Constitution, the president of Pakistan is the supreme commander of the armed forces and has the power to make appointments. When the court asked under what law the army regulation law is made, AGP Khan replied the Army Act.

The court said the Army Act has no mention of extending the COAS’ term. Section 8 only mentions that the COAS will be the commander of the armed forces, it noted. Article 243 of the Constitution says the COAS will be appointed by the president, noted the judges.

Article 255, which was amended by the government yesterday, has nothing to do with the army chief, it has to do with army officers, said the court. When AGP Khan countered that the army chief was also an army officer, the court countered it with an example.

The president is not a civil servant because he appoints them, it said. Therefore, the army chief, who appoints army officers, is not an officer himself, it said.

The court noted that there was no mention of the army chief’s tenure in the law. The law is silent on this matter so under which rule is his tenure set, asked the judges.

Justice Mansoor Ali Shah asked the AGP that if the government has the power to extend retired officers’ tenures, then can a retired officer be appointed COAS.

The army chief has the power to extend tenures during war time but what about his tenure, asked the judges.

Chief Justice Asif Saeed Khosa said five to seven generals have been extending their tenures for 10 years at a time and no one asked any questions. We will look into this case, the Army Act and regulations, understand it, and make a decision that will set a precedent in the country, said the judges.

The court was informed that the army chief’s tenure expires on Friday at midnight. The judges questioned the attorney general on the laws governing the appointment on army chiefs and the length of their tenures.

The AGP informed the court that a retirement age had been set for officers up to the rank of lieutenant general. When Justice Miankhel asked what the retirement age was for an army chief, he replied that an army chief is a position where your rank is that of a general. Section 255 mentions the federal government, said Justice Shah.

But the army chief is appointed by the president on the prime minister not federal government’s recommendation, noted Justice Shah. The federal government can’t touch an appointment it hasn’t made, he said, adding that Section 255 didn’t apply to the army chief.

When the attorney general presented the notification of General Bajwa’s reappointment, the court noted that it didn’t specify how long his tenure had been extended. What is the need of an extension when according to this notification he will remain army chief forever, asked the chief justice.

He asked whether General Bajwa had been informed how many years his term was being extended for.

The court asked whether General Bajwa’s tenure had been extended or whether he had been reappointed. The notification mentions an extension and there is no mention of Article 253, said the judges.

But the AGP said the prime minister had sent a recommendation that the army chief be reappointed. The notification was, however, issued for an extension, he said. The court asked whether anyone had even bothered to read the notification before it was approved.

Background

The petition has been filed by Riaz Hanif Rahi on behalf of the Jurist Foundation. On Tuesday, the foundation sought to withdraw it petition. This request was heard by three judges of the Supreme Court: Chief Justice Asif Saeed Khosa, Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah. But the bench rejected the request to withdraw the original petition.

On Tuesday, the Supreme Court suspended the official notification that extended the army chief’s tenure. Farogh Naseem resigned as federal law minister to represent General Bajwa in the case.

The court said that it will hear the case as it is a matter of national interest and comes under Article 184 (3) of the Constitution. The court has converted the petition into a suo motu case.

The court has named the army chief as a party in the case and ordered the attorney general, the highest legal representative of the government, to give final arguments. The court has issued notices to other parties named in the case, including the prime minister and President Dr Arif Alvi. It has asked them to submit their replies.

The Supreme Court said that the attorney general was asked under what law can an army chief’s tenure be extended or he can be re-appointed. But the country’s top lawyer failed to do so.

Understanding the case

On August 19, the prime minister re-appointed the army chief. But when he was informed that he didn’t have the power to do so, as it was the prerogative of the president, then a summary was sent on the same day to the President House. President Arif Alvi then approved the re-appointment, according to the court.

After this, the government realized that the cabinet has to approve the extension. Then, on August 20, a day after the notification had been issued, a summary for the extension was sent to the cabinet: 11 out of 25 cabinet members approved the summary. The rest of the cabinet members did not respond. The court said that since the majority of the cabinet did not approve the summary, it could not be considered as approved. Even if it was considered approved by the cabinet, the summary was never sent back to the prime minister or the president.

The court said if the argument that the army chief’s tenure should be extended because of a threat to regional security was to be accepted, then everyone in the army would start seeking an extension in their tenures. It was not an individual’s responsibility, but the entire army’s as an institution to counter a regional threat.

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army chief, coas, general bajwa, bajwa, extension, bajwa extension, supreme court, sc, Qamar Javed Bajwa, Supreme Court case
 
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