The federal government on Thursday approached the Supreme Court with a review petition against its verdict in extension/appointment of an army chief. In the review petition filed by Attorney General for Pakistan Anwar Mansoor Khan, the federal government argued the apex court to form a larger bench to hear the case and set aside the earlier verdict. It also requested the court to keep the proceedings in-camera.
"The review petition was filed [in the Supreme Court] because our legal team thoroughly, comprehensively and closely reviewed all aspects of the decision and concluded that there are several legal gaps in the verdict," Firdous Ashiq Awan, Special Assistant to the Prime Minister on Information and Broadcasting, told media outside the Supreme Court.
The review petition, a copy of which is available with Business Recorder, lists the federal government, President Arif Alvi, Prime Minister Imran Khan and Army Chief Gen Qamar Javed Bajwa as petitioners.
The petition argues that the apex court verdict did not take into account important constitutional and legal points, adding the Supreme Court has itself been giving extensions to additional and ad hoc judges, making a case for the government to exercise this discretion as well.
Besides, the petition argues that the court did not base its decision on the judgement in the judges' extension case. Prime Minister Imran Khan in August had granted a three-year extension to Gen Qamar Javed Bajwa, who was supposed to retire on November 29 last. The top court, led by the then chief justice of Pakistan Asif Saeed Khosa, however, had suspended the notification on November 26 due to irregularities in the manner of extension.
After three days of heightened uncertainty, the three-member Supreme Court bench on Nov 28 had directed the Parliament to legislate on the extension/reappointment of an army chief within six months, during which Bajwa would stay on.
"We would like to emphasize that this crucial matter of the tenure of COAS and its extension, which has a somewhat chequered history, is before the Parliament, to fix for all times to come," wrote Justice Syed Mansoor Ali Shah, a member of the three-judge bench which heard the case, in the court's 43-page judgment.
"It is now for the people of Pakistan and their chosen representatives in the Parliament to come up with a law that will provide certainty and predictability to the post of COAS, remembering that in strengthening institutions, nations prosper," the court had noted.
The petition, submitted by Attorney General Anwar Mansoor, questions the legal aspects of the judgement. It is pertinent to mention here that Mansoor, prior to the short order being announced in November, had given an undertaking in a categorical manner that the earlier practice of granting extensions to the army chief would be codified under the law by pushing legislation through the Parliament.
"The impugned judgment is bad in law and facts. The same is completely without jurisdiction, void ab initio and of no legal effect," reads the petition submitted against the verdict.
It further says that the order "suffers from material irregularities" which have "converted the process from being one in aid of justice to a process of injustice."
It also claims that the court has "completely overlooked" the laws laid out in the Constitution as well as "vital laws."
Furthermore, it has been insisted that the petition has been filed "in the interest of public good."
The petition says that the "court should not have interfered on the grounds of public policy and collective conscience."
"It is respectfully pointed out that glaring omissions and patent mistakes have crept into the impugned judgment, violating the law and the Constitution. The nature of the controversy at hand was really the rarest of the rarest cases in which court should not have interfered on the grounds of public policy and collective conscience. In fact, the court had no role to upset the age-long accepted conventions and the considered policy of the government," says the petition.
The petition notes that the court said that chosen representatives should decide matters pertaining to appointment and extension of the army chief and that people can "accept or reject" the decision taken through their chosen representatives.
"[...] 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 petitioner "with the highest respect" insisted that the judgement by the top court is "patently erroneous" and that the errors are "floating on the face of the record."
The appeal says that the Supreme Court had "fundamentally failed to note" that the terms and conditions, service rights and tenure of a sitting official "can be regulated by departmental instructions, office memoranda, conventions, customs, usages and other executive instructions, provided they are not in violation of any statutory provisions."
"In the present case, the appointment of the COAS was strictly in accordance with the settled departmental practice followed for seven decades or so."
The attorney general, while arguing before the top court in November, had contended that the laws and rules governing the service issue of the army chief were "silent on the tenure" because if they were strictly followed, the entire armed forces would be left headless. "Rigidity breaks the stick but flexibility keeps it intact," the AG had said.
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