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SC grants conditional permission for fresh appointment of Gen Bajwa as COAS

SC grants conditional permission for fresh appointment of Gen Bajwa as COAS
November 28, 2019
ISLAMABAD (92 News) – The Supreme Court of Pakistan on Thursday granted conditional permission for fresh appointment of General Qamar Javed Bajwa as Chief of Army Staff. A three-member bench comprising Chief Justice of Pakistan (CJP) Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah ruled that Gen Bajwa will stay on as the COAS for six more months. After six months, General Qamar Bajwa’s service tenure, perks and other matters will as per new legislation. The new service tenure of the Army Chief will start at 12 night. The court ruled that it had left the matter to the parliament and the government by displaying patience. According to the verdict, the constitution and the law are silent over the retirement of the Army Chief. There is no mention of restricting or suspending the retirement. “The parliament should formulate the law by reviewing Article 245 and the Army Act within six months. The question before the court was whether extension can be granted or not,” the court ruled. Chief Justice Asif Saeed Khosa remarked that they were termed Indians and CIA agents for reviewing the Army Act. “We were branded as part of the fifth generation war.” He further remarked that whether the Army Chief should keep his eye on the defence of the country or remove the legal mistake. A notification regarding extension in the service tenure of Chief of Army Staff Gen Qamar Bajwa was submitted to court. According to the notification, General Qamar Bajwa was appointed, but there was no section regarding his service tenure. According to the attorney general, it has been a tradition. The court, before adjourning the hearing close to 11:30am, had asked the government to submit the following:
  • an undertaking that the parliament will pass legislation in this regard within six months
  • an amended notification
The amendments will include the elimination of:
  • the mention of the Supreme Court
  • duration of the army chief's tenure
  • the description of army chief's salary and incentives
It is pertinent to mention here that Gen Bajwa is set to retire at midnight, today’s hearing was the last opportunity for the government to satisfy the court on the legal grounds of the move. Before adjourning the hearing briefly, the chief justice told Farogh Naseem that the government should submit a written statement to ensure that the parliament will legislate on the matter within six months. “If legislation is not done within six months, the appointment will become illegal,” he warned. The chief justice observed that there was ambiguity in the Army Act. “Parliament has to remove that ambiguity,” Justice Shah said and added: “There is no better forum than the parliament to fix the system.” Earlier today, the SC has reserved its judgment in the case pertaining to the extension of chief of army staff (COAS), General Qamar Javed Bajwa. The SC bench headed by Chief Justice Asif Saeed Khan Khosa, and comprises of Justice Mazhar Alam and Justice Syed Mansoor Ali Shah took up the case. At the outset of the hearing, the CJP, while referring to the retirement of army generals, remarked: “If an army general never retires, then under what rule did Raheel Sharif retire? You said that generals never retire; if they don’t retire, then they wouldn’t be entitled to pension either,” he observed. The court sought details of former COAS General (retd) Raheel Sharif’s retirement and General (retd) Ashfaq Parvez Kayani’s extension from the attorney general in 15 minutes. AGP Khan said the army chief has been reappointed under Article 243. Justice Khosa asked how today’s appointment was different from the previous one. The AGP replied that today’s appointment was under Article 243 (4) B. You will have to satisfy us on how this appointment is valid, said Justice Khosa. Justice Shah noted that there is no mention of a tenure of three years in the law. He said the appointment must be according to the law. He also noted that extensions had been given before and no one took notice. “No one looked at what’s happening in the cantonments, he said. Now the court of law is looking into it,” he said. The summary mentions the judicial investigation into the matter, noted Justice Khosa. “Shoulder the burden yourselves. Why are you trying to use our shoulders,” he asked. He ordered the AGP to remove the court’s name from the summary. He told the AGP to specifically remove the part referencing the court’s advice from the summary. If the president wants our advice, that is a different matter, he said. “We will see whether the appointment is legal or not,” he added. The chief justice observed that the reappointment had been made from November 28 (today). But today General Bajwa is already the army chief, so how can a reappointment be made on a post that is not empty, he asked. The SC adjourned hearing the petition challenging a three-year extension in army chief’s tenure Thursday. The hearing will resume at 1pm. It is pertinent to mention here that the case was adjourned Wednesday’s hearing after six hours. The case was initially filed by the Jurists’ Foundation but after it asked to withdraw the case, the court decided to take it up itself. Yesterday, the top adjourned the hearing of the case regarding extension of Chief of Army Staff General Qamar Javed Bajwa till Thursday. A three-member bench presided over by Chief Justice Asif Saeed Khosa heard the case. Former law minister Farogh Naseem appeared on behalf of COAS General Qamar Javed Bajwa. Attorney General Anwar Mansoor presented the new approval regarding extension in the tenure of Chief of Army Staff General Qamar Javed Bajwa in court. The attorney general contended that the impression of unavailability of law regarding extension in the tenure of Chief of Army Staff General Qamar Javed Bajwa is wrong. “The service tenure is written in the notification, which is prerogative,” he contended. Chief Justice remarked that the government had tried to rectify the points raised by court after accepting them. “The section amended by the government does not pertain to Chief of Army Staff General Qamar Javed Bajwa,” he said. “Can a retired army chief be re-appointed? The issue can be resolved if a clear reply is given,” he remarked. He ruled that the government had not mentioned the word ‘mistake’ in the documents. “If the circumstances are normal, we decide the case as per law.” He also clarified that it had not taken suo motu notice of the matter. “According to the summary, the prime minister had recommended the new appointment. The President issued a notification regarding the extension. Has no one tried to go through the summary and notification? The summary was sent and approved yesterday,” the CJ remarked. The attorney said that the extension was made under Article 243. Chief Justice Asif Saeed Khosa remarked that a new appointment, not extension, was made under Article 243. Expressing his indignation, he said that the government had made the Army Chief a shuttlecock. “Even an assistant commissioner is not appointed in this way. It has been written in the summary that General Bajwa will retire on November 29.” The CJ remarked that there are three issues before the court. “The first issue is the legal status of the appointment. The second one is the method of the appointment and the third is the reasons behind the appointment. It is not our problem who is appointed the Army Chief by the prime minister,” he said. He said that the court will have to make the decision as there will be no time after tomorrow. “The government should find out a solution to the issue till tomorrow. If there is anything illegal, it is our oath to declare it illegal,” the CJ remarked. Justice Mansoor Ali Shah remarked that temporary extension in the retirement can be granted during a war. “It does not mean that extension be granted for three years. It is surprising that there is no mention of tenure and reappointment in the Army Act. Now we decide the matter as it has been presented before us.” He also remarked that officers can be stopped from retirement during a war. “The government can suspend the retirement only after the retirement,” he observed. The court ruled that the court would review the rules and Army Act para-wise to understand the spirit of the law pertaining to appointment and extension of the army chief. Justice Mansoor Ali Shah ruled that the appointment would be a retired general after it. The attorney general stated that the Army Chief does not retire till handing over the command. On Tuesday, the SC had suspended the notification regarding the extension of Chief of Army Staff General Qamar Javed Bajwa for another three years.
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