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All eyes on top court as hearing against Gen Bajwa's extension begins

The Supreme Court is hearing a case pertaining to the extension/reappointment in incumbent Army Chief Gen Qamar Javed Bajwa's tenure.

An SC bench comprising Chief Justice of Pakistan Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah is hearing the case. The army chief is being represented by Farogh Naseem, who resigned from his post as law minister yesterday to pursue the case.

During the hearing, Attorney General (AG) Anwar Mansoor Khan said that he wished to "clarify something".

"I referred to army rules yesterday. The court wrote 'law' in its order," the AG said and added: "The court said only 11 members of the cabinet approved the extension."

"Answers had not been submitted in the time which was fixed for cabinet members," Justice Shah observed.

Suspension of notification

In an unanticipated development on Tuesday, CJP Khosa had suspended the federal government's notification of Gen Bajwa's extension — who is due to retire as Chief of the Army Staff (COAS) on November 29 — and issued notices to the army chief, defence ministry and the federal government.

The Supreme Court 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.

Shortly after the extension order was struck down by the top court, the cabinet amended Section 255 of the Army Rules and Regulations (ARR) and included the words “extension in tenure” to meet the legal lacuna in the rule.

It also emerged that the federal cabinet in its two sittings, Prime Minister Imran Khan and President Dr Arif Alvi approved a fresh notification for the extension of the COAS.

Court proceedings

The chief justice a day earlier rejected an application for the withdrawal of a petition that was filed against Gen Bajwa's extension after noting that both the appellant and his lawyer were absent from the court. He took up the original petition in public interest under Article 184 (3) of the Constitution.

During yesterday's hearing, AG Khan, 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. Justice Khosa had observed that "the summary and approval of the army chief's extension is not correct".

The order said that Prime Minister Imran Khan himself had passed an order appointing the current army chief for a second term on August 19, whereas under Article 243 of the Constitution it is the President who is the appointing authority for that office.

That mistake, the order said, came to the prime minister's notice straight away and on the same day i.e. August 19 a summary was moved from the PM Office to the president who approved it and the premier's advice was apparently accepted and acted upon.

The top court further observed that it appeared that even that process was found to be flawed and on that very day it was realised that the prime minister or the president could not take these actions without the approval of the cabinet and, thus, on August 20, a summary was moved for approval of the cabinet.

Following yesterday's court hearing, the federal cabinet passed a fresh notification that was approved by the president on the same day.

Four scenarios

The three-year term of Gen Bajwa, who is reaching the age of superannuation (60 years) next year, is ending later this week and he can continue his service if the top court 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 apex court 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 the chief of army staff (COAS).

Second, the Supreme Court could declare that the fresh notification is not valid and the extension of the COAS would not proceed, indicating that he would retire on November 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.



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