Army Act in focus, SC final decision today
Court gives one day to AG to come up with a solution to the issue; CJP says ‘you have made the army chief a shuttlecock; Article 255 applies to officers and not army chief
Staff Reporter
Islamabad
The Supreme Court on Wednesday adjourned the hearing of the case pertaining to the extension in service of Chief of Army Staff General Qamar Javed Bajwa till today (Thursday)
A three-member bench of the apex court, headed by Chief Justice Asif Saeed Khan Khosa, comprises of Justice Mazhar Alam and Justice Syed Mansoor Ali Shah heard the case.
Former law minister Farogh Naseem, who had stepped down from his post, represented General Bajwa in the court, while Attorney General Anwar Mansoor Khan presented arguments on behalf of the government.
As the hearing resumed, CJP Khosa remarked that media had misunderstood Tuesday’s proceedings and clarified that the court had not taken suo motu notice. “We are continuing your petition,” the top judge told the petitioner who was in court Wednesday.
“Where were you yesterday […] we have maintained your plea?” CJP Khosa asked petitioner Riaz Rahi to which he replied that he could not appear as circumstances were different. On this, the top judge remarked that “we will have to move ahead in prevailing circumstances […] please take a seat.”
Chief Justice Khosa and the attorney general had an interesting conversation in court. The chief justice told the attorney general that according to him, the army chief will retire on Thursday.
“The attorney general says that a general never retires,” remarked the chief justice. “The attorney general has interpreted Article 243 according to which even he can be made an army chief.” The court then told the attorney general that according to him, any retired general can be made the chief of army staff.
Attorney General Anwar Mansoor took to the rostrum and said: “I referred to army rules yesterday. The court wrote ‘law’ in its order,” the AG said, to which the chief justice said: “The court had given its order after looking at your documents.”
Referring to the point questioned by the court yesterday that only 11 members of the cabinet had earlier approved the extension, Justice Shah observed: “Answers were not submitted in the time fixed for cabinet members.” “But now the government has gone ahead with the matter […] the court had made the judgement in the light of your documents,” the CJP said. “According to Rule 19, silence can mean an agreement,” the AG said, and submitted fresh documents to the court. The AG said that even yesterday he had told the court that response from several ministers regarding a notification for giving an extension to the army chief was pending as the ministers were given time. The CJP inquired from the AG if no response from the ministers was considered “yes”. To this, the AG said that it was true in accordance with the rules.
CJP Khosa said: “This is considered only if the response is sought within a specified time.” The attorney general argued: “Nowhere the government has stated that it had committed a mistake, at first, the court should hear me [to know] the details […] I will answer to the court’s queries after completion of my arguments.” “The appointment’s tenure is written in the notification that is the prerogative [of the prime minister],” he added. Army Act in focus…. The attorney general identified a man approaching the rostrum but he was sent back by the CJP. Mr Anwar Mansoor told the court that Section 262(A) of the Army Rules and Regulations explains about the retirement and the Article 243 explains that the president of the state is the supreme commander of Pakistan Army.
To this, CJP Khosa said that the documents presented in the court referred to suspension from the duty and any officers could be penalised after retiring him from his duty according to the ARR. “Recently, three senior officers’ retirement was suspended and they were punished,” he said. “Where the term of the army chief is fixed for three years? Does the army chief retires after three years?” Justice Shah questioned. CJP Khosa further asked under which provision of the Law this new regulation was made. The attorney general responded that an amendment was made to Article 255 in accordance with Section 176 of the ARR. “We need to look at the whole book and not only a part of it […] not a certain section of it […] Rule 255 pertains to the reinstatement of any officer and penalising him,” the CJP went on to say. “Where it is written that the tenure of [the army chief] will be three years?” Justice Shah asked further. “We have to look from the perspective of what happens after three years,” the CJP said but the AG interrupted him.
Farogh Naseem argued that any army officer could be stopped from retirement if a war breaks out. “According to Article 255, during a war, the army chief can stop officers’ retirements,” the CJP responded. “However, the government wants to stop the army chief’s retirement.” The AG said that the definition of appointment included that of reappointment. “There is a word in Article 255 that addresses the issue […] if the circumstances doesn’t support retirement, then an extension for two months can be granted […] since 1948, all army chiefs have been appointed at the same tradition.” While presenting arguments, the AG, mistakenly, called former army chief general Ashfaq Pervez Kiyani as “Justice Kiyani”. The CJP responded: “He was not a justice instead general Kiyani […] all of your case is resolving around Article 255.”
Justice Mansoor Ali Shah said the matter pertaining to extension and reappointment and it needed to be justified legally. “I am dissatisfied with the Attorney General’s document of rules […] during a war, it is possible to prevent any officer from retirement; but the extension in the tenure for the constitutional rank is not in accordance with the Law.” “The extension was granted under the Temporary Service Rules […] apparently the extension was not given under Army Regulations.
The CJP stated that the yesterday’s ruling was made in the light of documents presented before the court. “Okay, then we are going to give ruling in accordance with yesterday’s situation,” the court said. Justice Mansoor Ali Shah questioned if a retired general could be appointed as the army chief? The attorney general said the amendment was made under Section 176 of the Army Act, and in the documents [presented before the court], for the absent members of the federal cabinet, it was written “waiting”.
The court responded that it had given the judgement after reading those documents. “The matter of [granting] an extension in the tenure of the army chief is very crucial, and legal points are silent on this matter […] in the past, the generals had obtained extensions in their tenures for several years and nobody ever raised a question about it […] now when a question is raised, let us examine the matter,” the CJP said.
“Show us the provisions of the Law upon which implementation was done for the reappointment or extension [of the army chief]?” the court asked. Mr Anwar Mansoor said he would answer the court after completing his arguments. “No book of army regulation is available in the market,” he said.
After the resumption of the hearing after the break, the top court questioned that when the provisions of the Constitution were silent on the tenure/extension/reappointment of the army chief, then under what provision(s) the reappointment of the army chief could be made. Importantly, the court observed that appointment of the army chief was the premier’s prerogative but the actual complication was relating to the army chief’s reappointment.
“Without comprehending the Army Act, how can we understand the arguments?” the court stated. The AG said he would answer every question. The CJP said: “You are allowed to explain whatever you want to […] we will talk about legal aspects [of the case].” AG Anwar Mansoor said: “Let us read the Army Rules and Regulations, there is no point in answering [about the case] in chunks.”“The court should not follow the Constitution so strictly […] sometimes, the stick can break from stiffness,” he said.
Justice Shah once again asked AG Khan if a retired general can be appointed as the army chief. The attorney general said that the appointment and tenure are decided under the 1947 Convention. He vowed to “satisfy the court regarding the reappointment of the army chief”.
Justice Khosa emphasised that the court was looking at the rules regarding the tenure of the army chief, not a general. “This is a court of law; it is the law we are looking at, not personalities,” Justice Khosa remarked. “If something is wrong as per the law, we cannot say that it is correct. If [the decision] is not correct as per the law, we will give our verdict.” “The retirement is of two types, the first pertains to completion of [one’s] service whereas the other relates to before completion of [one’s] service […] if any amendment was made to the Army Rules and Regulations, then present a copy of it,” the top judge added.
