Chief Justice of Pakistan Asif Saeed Khosa on Tuesday suspended the government's notification of Army Chief Gen Qamar Javed Bajwa's tenure extension until the top court's hearing tomorrow.
The chief justice observed that "the summary and approval of army chief's extension is not correct".
The court issued notices to defence ministry, federal government and Gen Bajwa, who is due to retire on November 29 (Friday). The hearing was adjourned until Wednesday.
On August 19, Prime Minister Imran Khan had approved an extension in the tenure of Gen Bajwa for another three years.
"General Qamar Javed Bajwa is appointed Chief of Army Staff for another term of three years from the date of completion of current tenure," the brief notification issued by the prime minister's office had said.
The chief justice today took up a withdrawal application of a petition filed by The Jurists Foundation challenging the extension in Gen Bajwa's tenure. The top judge, however, rejected the application to withdraw the petition and took it up in public interest under Article 184 (3) of the Constitution. The case was converted into a suo motu notice.
"The petitioner has failed to appear in person nor anybody else has appeared on his behalf. The application received does not carry any date and the same is not accompanied by any affidavit. There is nothing before us to accept or to presume that the said application has actually been submitted by the petitioner himself or that he has submitted the same voluntarily," noted the CJP in the written order.
Approval by cabinet
"If the notification was issued on August 19, then what did the prime minister approve on August 21?" Justice Khosa inquired during the hearing.
"Cabinet's approval was required," Attorney General (AG) Anwar Mansoor Khan responded. "The prime minister signed [the notification] after the cabinet's approval."
"After the cabinet gave its approval, did the president approve it again?" the chief justice asked, to which the attorney general responded in the negative.
"Only the president of Pakistan can extend the tenure of the army chief," said CJP Khosa.
"We can take approval from the president again," the attorney general said.
Justice Khosa then noted that out of 25 cabinet members, only 11 had approved the extension.
"Fourteen members of the cabinet did not give any opinion due to non-availability," Justice Khosa said. "Did the government take their silence as agreement?"
"Those who did not say 'yes' had not taken part in the voting," the AG informed the court.
"Does the cabinet not want to give members the time to think? The 14 members of the cabinet still have not said 'yes' to army chief's extension," the top judge noted.
Justice Mansoor Ali Shah, who was part of the three-judge bench hearing the case, questioned if the cabinet had given the decision to grant an extension to the army chief enough thought, noting: "No reasons for extensions were debated in the cabinet."
"After the purported or so-called approval of the Cabinet regarding extension/re-appointment of the incumbent Chief of the Army Staff, the matter was never sent to the Prime Minister or the President again for the purposes of a fresh advice or a fresh order of the Prime Minister and the President, respectively," the written order notes.
'Regional security job of the army as an institution'
In a verbal order following the hearing, the court said that the prime minister had issued a notification of Gen Bajwa's "appointment in his own capacity on August 19".
"The mistake was realised after the notification [was issued] and the prime minister sent the summary to the president. The president approved it on August 19.
"The court was told that the extension is being granted in light of the regional security situation. Dealing with regional security situation is the job of the army as an institution, not just that of an officer's.
"If the regional security situation reasoning is accepted, then every army officer would want a re-appointment."
"The attorney general could not present any legal reason for an extension in tenure or a new appointment," the court observed.
According to the Army Rules, the verbal order said, retirement of an army official can only be temporarily suspended.
"The points raised in the case need to be examined in detail," the order added.
Tags:
Court