Pakistan Supreme Catches The Army By The Jugular Vein
In an order that may change the course of country’s political and judicial history, the Supreme Court on Tuesday suspended the federal government’s Aug 19 notification for the extension/reappointment of Army Chief General Qamar Javed Bajwa for another term of three years after completion of his tenure on Nov 28.
Shortly after the extension order was struck down by the top court, the federal cabinet in its two sittings, Prime Minister Imran Khan and then President Dr Arif Alvi approved within hours a fresh notification for the extension of the Chief of the Army Staff (COAS).
The SC bench comprising Chief Justice of Pakistan Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah earlier issued notices to the president, the PM and the federal government through the defence secretary for Wednesday.
As Attorney General Anwar Mansoor candidly admitted before the top court that in the entire body of laws pertaining to the Pakistan Army, there was no express provision available regarding reappointment or extension in COAS service, the cabinet in order to address a “lacuna” in the Army Rules and Regulations Section-255 [which was silent on the extension in service of army chief] made an amendment to it, incorporating the words “extension in tenure” to justify the fresh extension order before the court on Wednesday during the hearing of a petition that was converted into a suo motu case against the extension.
The cabinet also cancelled the previous three-year extension order of the COAS signed by Prime Minister Khan on Aug 19 and issued a fresh extension order after its approval in its meeting on Tuesday. Shortly after the cabinet’s approval, the PM signed the extension order and the president also gave his final nod.
While addressing a post-cabinet meeting press conference along with Railways Minister Sheikh Rashid Ahmed and Special Assistant to the Prime Minister on Accountability Shahzad Akbar, Education Minister Shafqat Mehmood said: “Under Article 243 of the Constitution, the prime minister has a prerogative to give extension to the army chief keeping in view the prevailing circumstances.”
‘Lacuna’ in army rules
He said although Article 243 empowered the PM to give extension in tenure of the COAS, Section 255 of the Army Rules and Regulations (ARR) substantiated the PM’s decision. He, however, said the cabinet also amended Section 255 and included the words “extension in tenure” to meet legal lacuna in the rule.
The minister said the prime minister had taken the decision of extension in Gen Bajwa’s service against the backdrop of poor India-Pakistan relations, violations of Line of Control and prevailing situation in Kashmir. “India attacked Pakistan in Balakot which was repulsed by the Pakistani armed forces; unprecedented violations of LoC and present grave situation in India-occupied Jammu & Kashmir were in the mind of the prime minister while giving extension in the service of the army chief,” he said, adding that India could also go for false flag operation against Pakistan.
Possible scenarios
The three-year term of Gen Bajwa, who is reaching the age of superannuation [60 years] next year, is ending on Thursday and he can continue his service if the SC 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 SC 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 COAS.
Second, the SC could declare the fresh notification as not valid and the extension of the COAS would not proceed indicating that he would retire on Nov 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.
Railways Minister Sheikh Rashid in reply to a question disclosed that Law Minister Farogh Nasim had resigned from the cabinet to pursue the case of COAS as his lawyer in the Supreme Court.
He rejected media reports that PM Khan had reprimanded the law minister for not following the prescribed procedure of extension of the COAS, with the result that the Supreme Court suspended the Aug 19 notification of his extension.
“It is a wrong impression that the prime minister showed his anger to Farogh Nasim rather Mr Naseem left his ministry voluntarily to assist Attorney General Anwar Mansoor in the case of COAS extension in the Supreme Court,” he explained.
He said Gen Bajwa was not the only army chief who got extension in tenure as the facility had already been obtained by multiple army chiefs in the past including Gen Ayub Khan, Gen Ziaul Haq and Gen Ashfaq Pervez Kayani.
PM’s aide on accountability Shahzad Akbar said it was untrue that only 11 of the 25 cabinet members had signed the first extension order of the COAS. He said eight more members had later signed it, while five members could not do so as they were abroad.
Mr Akbar insisted that “no irregularity or negligence” had been committed in the first order made by the PM. “As we have not got the interpretation of Mustafa Impact case, therefore the first extension order was signed by the prime minister and not by the cabinet members,” he added.
Asked what the government was expecting in the case which could be decided by the apex court today [Wednesday], the SAPM said: “Anything can happen; either the court will endorse army chief’s extension or he can be sent home.”
Court proceedings
Earlier when the case was called for hearing, a court-associate brought to the attention of the SC bench towards a handwritten application stately submitted by petitioner Riaz Hanif Rahi seeking to withdraw his petition filed a day ago.
In the petition, the petitioner pleaded before the court either to set aside the Aug 19 notification for being ‘unconstitutional’ or appropriate amendment be brought in law if the regional security environment requires COAS extension so that the office-bearer may avoid from the consequences of illegal and unconstitutional notification in the interest of justice.
The bench observed that the petition invokes Article 184(3) of the Constitution, which involves a question of public importance with reference to enforcement of fundamental right. Thus, the individual capacity of the petitioner pales into insignificance even if he decides not to pursue the present petition, the court order explained.
The AG who was in attendance inside the courtroom on his own when called upon by the court presented photocopies of 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/reappointment of Gen Bajwa as COAS for a fresh term of three years after expiry of his first term in office.
The court then went through the documents and noticed a number of defects like the summary for extension was initially moved by the defence ministry.
The SC order said the AG could not refer to any provision in any legal instrument regarding extension in service of the army chief upon completion of his first term for his re-appointment after completion of his first term.
The order said the PM himself had passed an order appointing the current army chief for a second term on Aug 19, whereas under Article 243 of the Constitution it is the President who is the appointing authority for that office.
Apparently that mistake came to the notice straightaway and on the same day i.e. Aug 19 a summary was moved from the PM Office to the President who approved it and the PM’s advice was apparently accepted and acted upon.
The SC observed that it appeared that even that process was found to be flawed and on that very day it was realised that the PM or the president could not take these actions without the approval of the cabinet and, thus, on Aug 20, a summary was moved for approval of the cabinet.
On Aug 21, the cabinet approved the proposal through circulation but the opinion of the cabinet, the photocopies of which was also produced before the court, showed that there were 25 members of the cabinet of which only 11 agreed to the proposal showing that the majority of the cabinet had not approved the proposal.
Another peculiar aspect was that after the purported approval of the cabinet the matter was never sent to the PM or the President again for the purposes of a fresh advice or a fresh order of the prime minister and the president, the order recalled.
On repeated queries, the order said, the AG referred to Regulation No 255 of the Army Regulations (Rules) according to which a retirement of the army officer could temporarily be suspended or limited. It said a bare perusal of the Regulation 255, prima facie showed that this provision could be invoked after an officer had already retired from service and that was why regulation spoke of suspension of retirement or limiting of retirement.
The points noted call for a detailed examination of the matter of extension/re-appointment of the army chief, therefore, the army chief was made a respondent, the order explained.
“Suspending a retirement or limiting a retirement before the retirement has actually taken effect may amount to putting the cart before the horse,” CJP Khosa observed and recalled how recently a trial of three army officers took place when they were inducted again after their retirement.
The cabinet, it seems, did not exercise independent mind to grant extension to the army chief, Justice Shah observed.
The purpose for the proposed reappointment/ extension in the term of office of the incumbent army chief was stated to be the regional security environment, the order observed. These words are quite vague and if at all there was any regional security threat then it was the gallant armed forces of the country as an institution that were to meet such threat and an individual’s role in that regard may be minimal, the order stated.
The SC order said if this reason was held to be correct and valid, then every person serving in the armed forces would claim reappointment or extension in his service on its basis.
