ISLAMABAD: The federal government on Thursday filed a review petition against verdict of the Supreme Court (SC) on the extension of service of Chief of the Army Staff (COAS) General Qamar Javed Bajwa.
The federal government through Secretary, Ministry of Defence, Prime Minister of Pakistan, Prime Minister’s Office, President of Pakistan and COAS General Qamar Javed Bajwa filed a review petition for leave to appeal under Article 188 of the Constitution against the apex court judgment delivered on Nov 28.
The Jurists Foundation through its Chairman Riaz Hanif Rahi, Advocate Supreme Court of Pakistan, who had challenged before the Supreme Court the extension of General Qamar Javed Bajwa as Chief of the Army Staff was made as respondent in the review petition.
The government submitted that the impugned judgment is bad in law and facts and is completely without jurisdiction, void ab initio and of no legal effect.
On November 28, a three-member bench of the apex court headed by former chief justice Asif Saeed Khan Khosa granted six-month extension in service to the Chief of the Army Staff General Qamar Javed Bajwa after the government gave an undertaking to make proper legislation within a period of six months specifying the terms and conditions of service of the COAS.
General Qamar Bajwa was set to retire on November 28 upon completion of his three-year term however, the government appointed General Qamar Javed Bajwa as COAS under Article 243(4)(b) of the Constitution with effect from November 28, 2019.
Earlier, in August Prime Minister Imran Khan extended General Bajwa's tenure through a notification however, the Supreme Court on November 26 suspended the notification.
The court had held that the recent appointment of General Qamar Javed Bajwa as COAS will continue for six months subject to the legislation to be made by the government, determining his tenure and other terms and conditions.
“Considering that the COAS is responsible for the command, discipline, training, administration, organisation and preparedness for war of the Army and is the chief executive in General Headquarters, we, while exercising judicial restraint, find it appropriate to leave the matter to Parliament and the federal government to clearly specify the terms and conditions of service of the COAS through an act of Parliament and to clarify the scope of Article 243 of the Constitution in this regard”, the court ruled in its short order.
Therefore, the current appointment of General Qamar Javed Bajwa as COAS shall be subject to the said legislation and shall continue for a period of six months from today, whereafter the new legislation shall determine his tenure and other terms and conditions of service”, the short order had further read.
In its review petition, the government questioned as to whether glaring omissions and patent mistakes have crept into the impugned judgment, violating the law, Constitution and public policy and are floating on the surface.
It further questioned as to “Whether Article 243(3) of the Constitution is independent of Article 240(a) of the Constitution. And whether the Army Regulations (Rules), 1998 (ARR) has constitutional protection under Article 241?”
The government contended that the errors in the impugned judgment, pointed out below, are so manifest that they float on the surface. It is respectfully pointed out that if the said errors had been noticed prior to the rendition of the impugned judgment, this court would have arrived at a different conclusion. The review petition pointed out that in para 45 of the impugned judgment it has been held that although where the law is silent an institutional practice can resolve the controversy, but for a constitutional post in the “Service of Pakistan” it is “inconceivable” that the matter is left unregulated to continue forever.
The chosen representatives should decide the length of tenure of General/COAS. The people of Pakistan may accept or reject the institutional practice through their chosen representatives in Parliament.
With due respect this means that the appointment has to be made through the chosen representatives, who have left the matter to be dealt with by conventions by not legislating for 7 decades and there is nothing wrong with this”, the government contended.
It submitted that in the present case, the appointment of the COAS was strictly in accordance with the settled departmental practice followed for seven decades or so. This departmental practice has earned a vested right in favour of the Petitioner No.4/COAS;
“The appointment of the COAS is an appointment made under Article 234(4) of the Constitution by the President on the advice of the Prime Minister”, the government claimed adding that all the terms and conditions of the COAS are stipulated by the President on the advice of the Prime Minister and the same cannot be interfered with.
It submitted that the enemies of Pakistan were extremely happy when they thought that General Bajwa’s extension or re-appointment had fallen into jeopardy. The review petition further contended that Pakistan is undergoing a 5th generation war and very recently, the Pulwama incident bears testimony to the preparedness of our armed forces under the able captaincy of General Bajwa, who on his proactive initiative has also mustered healthy military international relations and support for Pakistan.
The war on terror is not over while the wounds from the APS incident are not forgotten, it added. It further submitted that the impugned judgment is in breach of natural justice and violates Article 10-A of the Constitution, as the judgment has been based on issues, which were never before this court or argued nor confronted by the court to the petitioners or their counsels.
Through the impugned judgment the Supreme Court has stepped into the shoes of the executive, substituting its opinion, notwithstanding that there is nothing in the Constitution which empowers the Supreme Court to settle the tenure or terms and conditions of the COAS.
The government contended that in the facts and circumstances of the case, the court could not interfere in the legislative domain or equip itself with the function of a parallel legislative authority.
It is respectfully pointed out that the direction to the legislature could only be given by the courts so as to avert a situation of unconstitutionality or illegality, says the review petition adding that no judicial directions to the legislature could be given so as to convert a convention into codified law.
It prayed that the apex court may please grant leave to appeal and set aside the impugned judgment after allowing the petition.
