—File Photo

ISLAMABAD: The Supreme Court of Pakistan on Wednesday adjourns hearing into a case regarding the extension in service of Army Chief General Qamar Javed Bajwa till Thursday.

A three-member bench of the apex court, headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Mazhar Alam and Justice Syed Mansoor Ali Shah, is hearing the petition turned suo motu notice challenging the extension of the COAS.

Former federal law minister Farogh Naseem who resigned from his post on Tuesday to represent the army chief in the case submitted his power of attorney upon arrival at the court today.

As the hearing commenced the court clarified that the it had not taken suo-motu notice and media misunderstood the whole scenario. "We are hearing the case on the petition filed by Raiz Riahi", said  the top judge.

Justice Shah inquired if a retired general can be appointed as an army chief.

He also observed that Article 243 of the Constitution talks about appointment of an officer and asked if the article mention the period of appointment as well?

"The matter of the period of army chief's tenure is very important," the chief justice said. "In the past, five or six generals have granted themselves extensions. We will look at this matter closely so that this may not happen in the future.

He further added that, "This is an extremely important matter and the Constitution is quiet about this?".

Justice Shah asked if a general can continue to work if his tenure is extended two days before his retirement.

"Where does it say that it is a three-year extension ?" he asked. The attorney general admitted that the period of the tenure is not specified in the rules.

"The term tenure is used but the duration has not been specified anywhere," AG said.

"Read Rule 262(C) of the Army Act," the chief justice told the attorney general. "The retirement age of a general is 60 years."

"This is about the matters of extension and reappointment," Justice Shah said. "How will you prove this legally?

The attorney general insisted that the "definition of appointment also includes reappointment".

"The rules mention retirement and discharge," the chief justice noted.

He observed that the federal government can only suspend a retirement after an individual retires.

Further he said that the retirement of an army chief "can be temporarily delayed" if a war is underway.

The AG said that according to Article 176 of the Army Act, officials can be granted an extension of two months in case of a war.

"According to the law, during a war, the army chief can stop officers' retirements," the CJP noted. "However in this case, the government wants to stop the army chief's retirement."

Referring to the amendment in Section 255 of the Army Rules and Regulations, the chief justice asked: "Under which section of the Constitution and law was the rule amended?"

He then pointed out that Section 255 did not concern the army chief.

"The section that you amended is not about the army chief at all," Justice Khosa said. "Article 255 is regarding those officials who have retired or have been expelled from service."

The case was then adjourned till 1pm.

After the hearing resumed, the CJP suggested that "we can either allow you to conclude your arguments and then read the laws or you can discuss the law first and then present your arguments."

"I will answer every question the court has," AG Anwar assured the bench.

"Giving answers in pieces does no good," the chief justice said. "How will we understand your arguments without understanding the Army Act?"

The bench asked the Attorney General to explain to the public how the duration of the tenure is decided?. To this the AG explained that the "duration of tenure was decided in accordance with the 1947 Convention".

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, personalities do not matter here. How can a step, which is legally wrong, be declared right?," said the CJP.

The attorney general, in response, urged the court "not to be so strict about the law".

"First, present your legal arguments," the chief justice told him.

The attorney general said that he will read out Section 2 of the Army Act, which pertains to officers in active service. He also read out Section 16, which, the chief justice pointed out, is about the dismissal from employment.

"Can the federal government also remove someone from their post?" asked Justice Shah to which the attorney general replied: "Army chief's powers are limited, but the federal government has complete authority. Army chief can dismiss junior officials."

The chief justice said that the government can order the retirement of any officer, including the field marshall, voluntarily or by force.

The attorney general argued that the "army is not a democratic institution" and that "runs through command all over the world".

AG Khan then read out the oath sworn by officers when they are appointed in the army.

"The oath of an army officer says that they would lay down their lives if need be. This is a very significant thing," the chief justice observed.

"'I will never involve myself in any political activities.' This sentence is also part of the oath. It is a very good thing to stay away from political activities," Justice Khosa remarked.

Hurdle for Farogh Naseem

Vice Chairman of Pakistan Bar Council Amjad Shah was also present in court. Shah will present his objection before the bench if Farogh Naseem decided to present the case of COAS extension as he claims that the license of Naseem was suspended and as per law he is not eligible to appear in court and represent any client. Farogh Naseem on the other hand differs from Shah's objection stating that his license was restored by Attorney General.

Approval from Cabinet

Earlier on Tuesday, Federal cabinet approved the summary regarding the extension of Army chief General Qamar Javed Bajwa’s tenure.

The new approved summary was then forwarded to president Arif Alvi.

Soon after the SC suspension came in effect Prime Minister Imran Khan called an emergency meeting at PM office. The meeting, headed by PM Imran reviewed the decision taken by supreme court in detail.

The cabinet was briefed over the SC’s decision.

Later speaking in a press conference after the meeting of the federal cabinet Shafqat Mehmood said that PM has the authority to  appoint army chief. He said that PM sent a summary to the president for approval. Under the article 243 PM has authority to give suggestion to the president on the appointment of army chief, he added. Mehmood said that president approved extension in army chief’s tenure after the suggestion of PM.

Speaking on Kashmir issue the minister said that India has imposed curfew in Kashmir and it (India) can resort to false flag operation. He said that the region is passing through very critical time. India is threatening Pakistan, he added. He said that PM has taken the decision after considering these critical conditions.

The minister said that cabinet has made amendments in the rules of article 255 of the constitution and the word extension has been added to the article.