ISLAMABAD - The Supreme Court of Pakistan Wednesday directed the federal government to resolve Chief of Army Staff (COAS) extension issue in one day, strictly in accordance with the constitution and law.

A three-member bench of the apex court 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 against the extension of tenure and reappointment of General Qamar Bajwa as Army Chief.

During the hearing, Justice Khosa remarked that there were three issues before the court: legal backing of General Bajwa’s reappointment, the procedure adopted for it, and the reason of his reappointment.

“If the steps taken by the government would not be legal, they would pass an order which the government would have to accept.... We will act only in accordance with the Constitution and law as we are answerable to Allah.”

The chief justice said that as they do not want to leave any ambiguity and confusion among the Army men about their commander, therefore they have asked the government to resolve the issue in accordance with the law.

He pointed out that the summaries of the cabinet, the prime minister and the president carry different viewpoints over the reappointment matter. “Please resolve these discrepancies by tomorrow. We are not against anyone.”

Justice Khosa added that the court will decide the matter in accordance with the law and nothing illegal will be allowed to take place. “If something illegal is witnessed, our oath obliges us to declare it null and void. We are answerable to only God and no one else,” he added.

During the proceedings, Hanif Rahi, through whom the petition was filed, came to the rostrum and said that he wanted to withdraw his petition. The chief justice turned down his plea and told him that he brought the matter to the court notice, and now they are hearing it.

The CJP said that on 26-11-2019 the federal government recognized that his (General Bajwa’s) term will expire on November 29, as per the notification. General Bajwa tenure as COAS will end 28th November midnight, the court noted.

Justice Mansoor Ali Shah inquired from Attorney General for Pakistan Anwar Mansoor that Article 243 of Constitution does not envisage a retired officer be reappointed as Chief of Army Staff. He said that the staff means serving army officers, adding that how come a retired officer be made commander of serving army officers.

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

Justice Mansoor questioned about the legal origin of the tenure of COAS because neither the Constitution nor the Army Act, nor Regulations specifically talk about army chief’s tenure. The attorney general replied that tenure of COAS is a convention. The chief justice noted that the conventions are imported in those cases where the law is silent, but in this case the law is very much clear.

The attorney general said that the law is silent about the tenure therefore the convention is relevant for the purpose of COAS’s tenure.

The attorney general contended that there is no retirement age of a General. Justice Mansoor addressing the AGP said that you mean to say that COAS after the completion of his tenure does not retire. If COAS term is not fixed term then why this case is being heard.

The CJP remarked, then it means that any retired General could be appointed as COAS. The AGP responded, “Yes he (retired General) can (become army chief).”

Mansoor said that for the continuity in the command, the new COAS is appointed/ reappointed on completion of his first tenure. The chief justice said if army chief is appointed then he will take over the army command on expiry of incumbent army chief on 29th of November.

The attorney general said ‘yes physically’. He contended that on November 29 he (General Bajwa) would not be retired officer, unless he transfers command to new army chief and relinquishes his command to his subordinate officer. He added that the army as an institution cannot operate without a chief.

Anwar Mansoor argued that Chief of Army Staff is appointed under 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 that if according to him some officers’ term was extended by the federal government, some others’ by the army chief, while COAS is appointed under constitution. He said if this is the case then how the authorities who do not appoint the COAS can grant him extension or reappoint him.

Noting the glaring anomalies in the new notification for reappointment, Justice Khosa said that summary sent by Prime Minister Imran Khan to President Arif Alvi is about extension, while the notification is for the 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 Article 243 granting him extension.

The chief justice noted that reappointment means that the first appointed tenure ended. He said that there is great respect of army in the society. But the law ministry, cabinet division and the PM office handled the case non-professionally. Such mistakes were also made in the appointment of Justice (r) Deedar Hussain Shah as Chairman NAB, but in the instant case it is even worse. The effected person is COAS, this should not happen. Even an Assistant Commissioner is not appointed in the manner that the government was doing in the reappointment of COAS.

Justice Khosa 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 laughter. “Please do not do something like this,” said Justice Mansoor.

The chief justice wondered that 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 attorney general stated that those were “clerical errors” by the ministry. “Why do you make such errors?” asked the chief justice.

Questioning the very reason for the reappointment of the COAS, the chief justice remarked that today it is army chief and tomorrow it could be Prime Minister, President, Speaker, Chairman Senate, Auditor General, Election Commissioner or some other officer who would seek a reappointment.

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

At the outset of the hearing, CJP Khosa said that media had misunderstood yesterday’s proceedings and clarified that the court had not taken suo motu notice. “We are continuing your petition,” the CJP told the petitioner who was in court on Wednesday.

As the hearing started, Anwar Mansoor took to the rostrum and said that he wanted to clarify something. He said, “I referred to army rules yesterday. The court wrote law in its order.” To which the chief justice said, “The court had given its order after looking at your documents.”

The hearing was deferred until Thursday (today) for further proceedings.