Government counsel urges court to show some flexibility in application of law or risk it ‘breaking’
The Supreme Court of Pakistan on Wednesday continued hearing a case concerning the legality of the extension in the tenure of Pakistan Army chief Gen. Qamar Javed Bajwa, with a three-member bench questioning under which law the federal cabinet amended the Army Rules a day earlier.
The government on Tuesday amended Section 255 of the Army Rules and Regulations, claiming it legalized the extension process for the incumbent Army chief. Chief Justice Asif Saeed Khosa, however, said the clause did not concern the Chief of Army Staff. “The section that you amended is not about the Army chief at all,” he said, adding, “Article 255 is regarding those officials who have retired or have been expelled from service.”
In response, Attorney General Anwar Mansoor Khan said he had not yet had time to examine the amendment, prompting the court to suggest that it might be better to first properly understand the Army Act, dealing with laws related to the armed forces. “How will we understand your arguments if we do not understand the Army Act,” the CJP asked.
According to the AG, the duration of tenure—three years in this case—was decided in accordance with the 1947 Convention. The top judge countered by saying those rules concerned generals, not the Army chief. “This is a court of law… we will decide on the basis of merit,” he said. To this, the AG urged the court to show more flexibility with application of the law. “If a stick is too rigid, it can break,” he added.
During the proceedings, Justice Syed Mansoor Ali Shah asked the AG to clarify if a retired general could be appointed as Army chief. “Perhaps… but there is no precedent for this,” responded Mansoor Khan. Shah also wondered how and why a three-year term was determined for an extension to which the AG admitted that the duration had not been specified in any laws.
“The matter of the Army chief’s tenure is very important,” said the Chief Justice. “In the past, five or six generals have granted themselves extensions. We will look at this matter closely so that this does not happen in the future,” he said, adding the court was in no rush to render its verdict.
The apex judge noted that per law the federal government could only suspend an individual’s retirement after they had been superannuated. The retirement of an Army chief “can be temporarily delayed” if a war is underway, he added to which the AG argued that any delay in retirement is not temporary. The CJP told the AG that he had not presented any convincing arguments pertaining to the Army Act or the Army Rules that explained the extension process or its tenure.
The chief justice during Wednesday’s hearing also appreciated that the government “admitted its shortcomings and corrected them.” However, the AG argued that the government had done no such thing. “If they were not accepted as shortcomings, why were they corrected?” Justice Khosa said, referring to the whirlwind of government activity yesterday to issue a fresh notification and amend Army Rules. “The impression that only 11 members of the federal cabinet had answered ‘yes’ is wrong,” said the AG in response.
A three-member bench of the Supreme Court, comprising Chief Justice Asif Saeed Khosa, Justice Mian Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah, is hearing the case of Pakistan Army chief Gen. Qamar Javed Bajwa’s extension. Farogh Naseem, who resigned as law minister law night to pursue the case, is representing the Army chief.