ISLAMABAD: The federal government moved the Supreme Court on Thursday seeking to overturn its Nov 28 verdict granting six-month extension to Chief of the Army Staff General Qamar Javed Bajwa.

“It is accordingly prayed that this Hon’ble Court may please grant leave to appeal and set aside the impugned judgement after allowing the petition,” said a petition seeking to review the SC verdict which had asked parliament to consider legislating the tenure and issues concerning extension in service of the army chief.

Jointly moved on behalf of the defence ministry, Prime Minister Imran Khan, Presi­dent Dr Arif Alvi and Gen Bajwa, the review petition was filed soon after Law Minister Farogh Naseem paid a visit to the Attorney General Office.

The petition was filed under Article 188 of the Constitution dealing with the review jurisdiction under which earlier orders of the court can be altered only if some error is highlighted, as well as under Article 187 that empowers the top judiciary to issue directives to do complete justice.

Says apex court cannot interfere in legislative domain or assume parallel legislative function

A source confided to Dawn that an application seeking constitution of a larger bench rather than the earlier three-judge SC bench that delivered the Nov 28 verdict as well as holding of in-camera proceedings had also been filed along with the main petition.

In a related development, Special Assistant to the Prime Minister on Information Dr Firdous Ashiq Awan told the media that the filing of the review petition was in higher public interest and it should not be construed as if the government had foreclosed its option to raise the matter in parliament. This option still existed but the petition was only meant to remove and rectify certain errors on the face of the judgement, she explained.

The review petition argued before the apex court that a directive to the legislature could be given by courts only to avert a situation of unconstitutionality or illegality, but not to convert a convention into a codified law. Thus the apex court could not interfere in the legislative domain or assume a parallel legislative function, it contended.

The petition said the enemies of Pakistan were extremely happy when they thought that Gen Bajwa’s extension or reappointment had fallen into jeopardy. “Pakistan is undergoing a fifth generation war and very recently the Pulwama incident bears testimony to the preparedness of our armed forces under the able captaincy of Gen Bajwa, who on his proactive initiative has also mustered healthy military international relations and support for Pakistan,” argued the review petition.

Moreover, it said, the war on terror was not over and the wounds from the Army Public School (APS) incident were not forgotten, adding that the preservation of two leading institutions of the state — the armed forces and the superior judiciary — were necessary concomitant to a healthy democracy, rule of law and safety and security against internal and external aggression.

The enemies of the state had ganged up to destabilise Pakistan, the petition said, adding that Gen Bajwa’s contribution to take vital steps to facilitate safety and security in the country would go down in history. Besides, Gen Bajwa’s reappointment had been warmly welcomed by the people at large, it said, adding that there were seminars and processions in favour of his reappointment from which the pulse of the public opinion could be appreciated. In the present times, it was most appropriate to reappoint Gen Bajwa, who himself never sought a reappointment, the petition highlighted.

But through the Nov 28 verdict, the petition argued, the Supreme Court stepped into the shoes of the executive, substituting its opinion, when the Constitution never empowered the court to settle the tenure or terms and conditions of the army chief.

The federal government had in its wisdom taken a policy decision which was not inconsistent with the fundamental rights enshrined in the Constitution, the petition said. This decision was also in line with public opinion and popular aspirations to appoint Gen Bajwa for another term and on grounds of public policy and pre-eminent collective conscience of the state and society, no interference should have been made in the military dispensation or the most significant military appointment, the petition contended.

If parliament with open eyes in the last seven decades had consciously chosen not to legislate and let the issue be governed through conventions or practices/customs, this was sufficient indicator that parliament had exercised its choice not to legislate, highlighted the petition. Equally, it said, there was nothing in constitutional jurisprudence which provided that where a constitution was written, no gaps or vacuums could be filled through conventions or that all conventions needed to be converted into codified law.

The petition said the government believed that the Nov 28 verdict was in breach of natural justice and violated Article 10-A of the Constitution as the order was based on issues which were never before the court or argued. Moreover, it argued, the term “appointment” included “reappointment” or any extension in the appointment, adding that the apex court should look into the substance of the appointment and not get bogged down by technicality.

If one would look into the parliamentary debates or otherwise, it would make it rather clear that intentionally and deliberately the matter of appointment or extension of the army chief was left at the discretion of the prime minister/president, the petition said.

The Army Regulations (Rules), 1998 (ARR) sufficiently contained the “key structural areas” that constituted the raising and maintaining of an army, commissioned officers and their commanders in chief, the petition said, adding that wherever it was thought necessary the retirement age or retiring mechanism had been given in the ARR, whereas with regard to a general, the retirement standard or age was governed by conventions. Thus ARR read with Section 176-A of the Pakistan Army Act 1952 sufficiently meets the requirements of Article 243(3) of the Constitution.

The petition contended that it was also incorrect to suggest that Regulation 255 of the ARR only dealt with a temporary arrangement, adding that the amendment suggested in Regulation 255 during the pendency of the hearing was sufficient to equip the federal government to grant a reappointment or an extension to the army chief. Thus the interpretation offered in the Nov 28 judgement on Regulation 255 was unwarranted since the apex court had no basis to read the provision of Regulation 255-A into Regulation 255. Both were independent regulations, the petition argued.

Published in Dawn, December 27th, 2019