Khalid Hussain –
The day began with petitioner Hanif Rahi apprising the court the Federal Government has issued a revised notification. The Chief Justice of Pakistan (CJP) Sardar Asif Saeed Khan Khosa however, asked him why he did not attend the court yesterday and then told him to take a seat as the new notification was not relevant to the proceedings. “We have kept your application alive and the media misreported we converted it into suo moto proceedings”, he said.
Attorney General for Pakistan (AGP) Captain (Retired) Anwar Mansoor Khan began by asserting the court incorrectly noted in its order yesterday that only 11 out of the 25 cabinet members approved the recommendation for reappointment of the COAS. This led the CJP to observe that the AG has changed the proceedings and was making new submissions. He submitted that Rule 19 (1) categorically states no response is to be considered a positive affirmation.
During the proceedings, a member of the bench Justice Mansoor Ali Shah asked if the rules do not call for a time specification within which cabinet members have to respond the AGP tried evading the reply but was forced to admit by the bench that no time was set although the rules indeed called for stipulation of time within which cabinet members could respond and if they don’t then that cannot be taken for affirmation. “Do tell us if the cabinet has made a formal approval”, the CJP asked the AGP adding, “if the cabinet did not appreciate the weaknesses in the earlier process then why did it reconsider it?
Having begun on the wrong foot, the AG further shot himself in the foot by waiving a copy of the Army Rules 1970 and referring to it which led the bench to ask why he has not provided them a copy of the same. The AG said he had provided one relevant chapter of these rules in photocopy because he “only got one copy this very morning”. However, another copy was produced shortly afterwards which led to a lot of questions
A very patient three-member bench led by the Chief Justice Sardar Asif Saeed Khan Khosa tried to sort out complicated legal issues involved, “We have not yet been able to understand the scheme of the Army Rules formulated under the Army Act”, CJP observed while adjourning hearing to the afternoon today.
“Legal questions can only be formulated and expounded after we have understood the scheme of these rules”, the CJP added before the adjournment for a few hours to make room for the full bench hearing the writ petition by Justice Qazi Faez Isa challenging the Presidential Reference to the Supreme Judicial Council (SJC) against him.
It was a momentous day in the Supreme Court today with Court Room One jam packed and laywers and journalists standing wall to wall witnessing the fast unfolding suspense thriller of a writ petition. The bench was also excited at having gotten its hands on a copy of the Army Rules for the first time. The AG had earlier only provided one chapter in photocopy to the bench which led the CJP to observe it would have been better if he had gotten them a copy of the full book.
“There are three issues that we have in front of us. One is a set of legal issues while another is the process pertaining to the procedural correctness and the third is that of reasons. The first two are very important”, the CJP stressed at the very end of the proceedings today while adding, “we are least concerned who you appoint or do not appoint”.
He was referring to the new notification by the Federal Government and changes in the Army Rules approved by the Federal Cabinet the day before. The bench noted that the advice from the Prime Minsiter to the President and the resulting notifications did not comply with each other. The advice was for “extension” while the notification declares “reappointment” which led the CJP to say, “We are deeply disappointed.” He observed that Constitutional offices like that of the Prime Minister, President, Judges, COAS, Auditor General, Speaker of the National Assembly would then soon become arbitrary in tenure if the court was to accept the AG’s submission that the COAS has no fixed tenure.
The AGP was almost divorced from the gravity of the situation as he began the day by waving a copy of the Army Rules 1970 in the faces of the three member bench whom it told it could not get a copy made for them because he “only got it this morning himself but has made a photocopy of a relevant chapter for the bench which has been shared”. This embarrassed the bench so obviously that it mentioned the fact of it not being able to understand the “scheme of things”.
This prompted Supreme Court Attorney Colonel (Retired) Ikramullah Inaam to furnish the bench his own personal copy. The CJP observed it was not available in the market while Justice Mansoor Ali Shah rummaged through the book speedily with an obvious effort to make sense of what it contains. The AG tried to force a reading of the rules he had selected but the Bench forced him to help them understand the “scheme of things” under these rules.
In a long drawn out repetitive set of submissions, it transpired that the Army Rules (ARs) had two iterations with one being regulatory and the other being instructive. These were formulated under the Army Act 1954 in 1970 and superseded those formulated in 1960. The AGP asserted Rule 255 of the ARs governed appointments for all officers but not that of the gazette officers who were appointed under the constitution by the President.
A day filled with loud laughters in a jam packed court room with lawyers standing wall to wall as the AGP berated the bench with meaningless Army Rules that actually had nothing to do with the retirements, extension in service or reappointment of the COAS. After a day long patient questioning by the Bench, AGP finally squarely told the court that a General has no fixed tenure and there is no date for his retirement set in his appointment as the term mentioned is but only a convention. This led the CJP to observe that when laws are available there was no room for a convention which harks back to the English traditions for they have no written constitutional unlike Pakistan.
There were loud laughs in the hall many times when the AGP asserted that the COAS cannot be retired until he “relinquishes” the command. This led Justice Mansoor Ali Shah to ask would that mean he can continue in service forever? To another question the AGP gave two different replies first saying the COAS was due to retire on midnight November 28 and then saying it means November 29. Other questions put to him included if a retired general can be appointed the COAS to which he insisted that General Bajwa was not retiring for there is no tenure mentioned in his appointment letter and the law was silent on it as well.
The court heard arguments by the AGP all day on the reappointment/extension of the Chief of the Army Staff (COAS) in three hearings with two adjournments during the day. However, no conclusion could be reach thanks a petulant Attorney General for Pakistan Anwar Mansoor Khan and an aggressive former federal law minister Farogh Nasim. He tried to assert that his license to practice as a supreme court lawyer was intact as the Attorney General has signed it in his capacity as Chairman of the Pakistan Bar Council. Justice Mansoor Ali Shah noted that his right is contested as there were objections by some segments and they wanted a debate and the CJP observed that this was a case the court was not hearing.
At the end of the day, the CJP was so fed up with the repetitive argumentation and aggressive posturing by the former federal minister that he told him, “sort out your problems Farogh Nasim Sahib for we do not know. And he advised him to get a junior of his to come with him and argue in his stead. “Do get us some sane advice by tomorrow or time will be wasted in argumentation” and added, “If you don’t fix it, what can we do?”
The day ended with the CJP sharing his deep sense of disappointment in the arbitrary nature of changes made in the Army Rules by the Cabinet amending Article 255 which has no bearing on the case being heard. “Doesn’t any one read what they write and sign”, he asked adding, “Get their degrees checked at the law ministry if they really have genuine educational certifications!”
Hearing will resume on Thursday at 9:30 AM.
