Real cliffhanger: Government given one day to sort out army chief's 're-appointment' issue

The Supreme Court on Wednesday granted one day to the federal government to sort out the Chief of Army Staff's (COAS's) re-appointment issue strictly in accordance with Constitution and law.

Justice Khosa said there are three issues before the court; a) legal backing, b) procedure should be correct, and c) reasons for reappointment. "If the steps taken by the government would not be legal then the court would pass an order, which the government would have to accept," said the CJP.

He said: "We will act only in accordance with the Constitution and law as we are answerable to Allah." He further said that they don't like to leave any ambiguity for armymen to say who their commander is, adding that therefore they have asked the government to resolve it in accordance with law.

A three-member bench headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah heard Jurists Foundation's petition filed through Riaz Hanif Rahi against the extension in tenure of Army Chief General Bajwa.

Hanif Rahi, the petitioner, during the course of proceedings, came to the rostrum and said he wanted to withdraw his petition. The Chief Justice turned down his plea and told him that he brought the matter to the court's notice, which they are hearing.

The Chief Justice said the government previous day made amendment in the law, which was about the COAS. The Chief Justice said on 26-11-2019 the federal government recognized that his (General Bajwa) term will expire on 29th November as per the notification. General Bajwa's tenure as COAS will end on 28th November midnight, the court noted.

The federal government on Tuesday cancelled its earlier notification of 19th August and issued a fresh one for extension in the tenure of the Army Chief.

Justice Mansoor Ali Shah inquired from Attorney General for Pakistan (AGP) Anwar Mansoor that Article 243 of Constitution does not envisage a retired officer be re-appointed as chief of army staff. He said the staff means serving army officers, adding: how come a retired officer be made commander of serving army officers?

The Chief Justice noted there is nothing in the Constitution and the Army Act about reappointment or extension.

Justice Mansoor questioned wherefrom the "tenure" of COAS came, because neither the Constitution and Army Act, nor Regulations talk about tenure. The AGP replied that the tenure of COAS is given in convention. The Chief Justice noted that conventions are imported in those cases where the law is silent, but in this case the law is very much clear. The AGP said the law is silent about the tenure; therefore, the conventions are relevant for the purpose of COAS' tenure.

The AGP argued that there is no retirement age of a general. Justice Mansoor, addressing the AGP, said, "You mean to say that COAS after the completion of his tenure does not retire. If COAS' term is not a fixed term, why this case is being heard."

The Chief Justice remarked then it means that any retired general could be appointed as COAS. The AGP responded; "Yes he (retired general) can (become army chief)."

The AGP said for the continuity in the command, the new COAS is appointed/ reappointed on completion of his first tenure. "Army can't be left headless."

The Chief Justice said if the Army Chief is appointed then he will take over the army command on expiry of tenure of incumbent army chief on 29th November. The AGP said, "Yes, physically." He contended that on 29th November he (General Bajwa) will not be a retired officer unless he transfers command to new army chief and relinquishes his command to his subordinate officer.

The AGP contended that chief of army staff is appointed under the Constitution, adding that army chief is the creation of Constitution. The prime minister advises a name for appointment and the president approves it.

Justice Mansoor asked the AGP, "According to you, some officers' term is extended by the federal government, some officers' by the army chief, while COAS is appointed under the Constitution." He said if this is the case then how come the authorities who don't appoint him can grant the COAS extension or reappoint him.

Noting the "glaring anomalies" in the new notification for reappointment, Justice Khosa said a summary sent by Prime Minister Imran Khan to President Arif Alvi is about reappointment, while the notification is for extension. He said at one place the government is limiting the retirement of incumbent army chief under Regulation 255 of Army Regulations (Rules), but under the Article 243 is granting him extension.

The Chief Justice noted that reappointment means that the first appointed tenure has ended. He said there is great respect for army in society. But the Law Ministry, Cabinet Division and the PM Office handled the case non-professionally. Similar mistakes were made for the appointment of former Justice Deedar Hussain Shah as chairman NAB, but in the instant case it is even worse. The affected person is the COAS; this should not have happened. Even an assistant commissioner is not appointed in such manner that the government is doing in the reappointment of the COAS.

The Chief Justice pointed out that the Prime Minister had requested a reappointment whereas the President had issued a notification for extension in the Army Chief's tenure.

At this, the courtroom erupted into a laughter. "Please do not do something like this," said Justice Mansoor.

The Chief Justice wondered how it was that no one had bothered to read the summary once again. "They never bothered to check what is written and what they are sending," he said.

The AGP stated that it is a "clerical error" by the ministry. "Why do you make such errors?" asked the Chief Justice.

The Chief Justice noted that presently the court is being approached regarding the reappointment of the COAS, and the next day prime minister, president, speaker, chairman Senate, auditor general, election commissioner and some other officers would seek reappointments.

Farogh Naseem, who is representing incumbent COAS General Qamar Javed Bajwa, has been asked to resolve the issue of his license first. The Chief Justice told him that he should bring some junior lawyer with him to represent General Bajwa, adding that they would allow him to stand with the counsel.