–Petitioners calls upon top court to form larger bench in light of ‘glaring omissions and patent mistakes’
–Plea says judiciary can’t direct parliament to convert ‘convention into codified law’, as it can only interfere in legislative domain to avert illegalities
ISLAMABAD: The government on Thursday filed a review petition in the Supreme Court, asking the apex court to form a larger bench to reconsider its decision in the army chief extension as the ruling contained “legal and constitutional flaws”.
This development comes a month after the SC granted the government six months to legislate on the matter if it wanted Gen Bajwa to continue as the chief of the army staff.
The petitioners, including the army chief and the prime minister, reportedly requested the court for a larger bench and sought in-camera hearing of the case as well.
Speaking to the media earlier in the day, Special Assistant to Prime Minister on Information and Broadcasting Dr Firdous Ashiq Awan said that the government’s legal team reviewed all aspects of the court’s decision thoroughly and concluded that there were several “legal gaps in the verdict”.
“There are flaws in the verdict, and legal and constitutional faults surfaced in the decision. With due respect to the judiciary, the government wants rectification of the faults and has thus decided to file the review petition. The review petition is being filed ultimately in the higher public interest,” she added.
The PM aide also said that despite the review petition, the option to legislate on the matter through the parliament would remain intact. She further said that the media would be briefed on the matter extensively by Law Minister Farogh Naseem.
Meanwhile, Federal Minister for Railways Sheikh Rasheed said that all political parties were on the same page regarding the extension in the tenure of the army chief. Addressing the media in Karachi, he said, “The army chief’s issue is not problematic. Everyone is unanimous on his extension. All parties are on board [with the federal government].”
The petition, “filed in the interest of public good”, questioned the legal aspects of the judgement. “The impugned judgement is bad in law and facts. The same is completely without jurisdiction, void ab initio and of no legal effect,” it stated.
“The order suffers from material irregularities which have converted the process from being one in aid of justice to a process of injustice,” it stated, adding that the court had “completely overlooked” the laws laid out in the constitution as well as “vital laws”.
“It is respectfully pointed out that glaring omissions and patent mistakes have crept into the Impugned Judgment, violating the law and the Constitution,” it added.
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 enemies of Pakistan were extremely happy when they thought that General Bajwa’s extension or re-appointment had fallen into jeopardy,” the petition stated, adding, “Pakistan is undergoing a 5th generation war.”
“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,” it said.
“The war on terror is not over. The wounds from the APS incident are not forgotten,” the petition reflected, adding, “The preservation of two leading institutions of the state i.e. the Armed Forces and the Superior Judiciary are necessary concomitants to a healthy democracy, rule of law and safety and security against internal and external aggression.”
“The enemies of the state, now for a number of years have ganged up to destabilise Pakistan,” it added.
“General Bajwa’s contribution to take vital steps so as to facilitate safety and security in the country, will go down in history. The pulse of the people at large is that General Bajwa’s re-appointment has been warmly welcomed. There were seminars and processions in favour of General Bajwa’s re-appointment, from which the pulse of the public opinion can be appreciated,” said the petition, adding, “In the present times, it was most appropriate to re-appoint General Bajwa, who himself never sought a re-appointment.”
“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. No judicial directions to the legislature could be given so as to convert a convention into codified law,” it added.
The review petition also revealed that on November 25, the respondent mala fidely preferred a direct Petition No 39 of 2019 before the apex court under Article 184(3) of the Constitution, challenging the appointment of General Bajwa as the army chief for a second term of three years, commencing from November 29, 2019 to November 29, 2022.
The petition stated that the “appointment of the COAS was strictly in accordance with the settled departmental practice followed for seven decades or so”.
“If one would look into the parliamentary debates or otherwise, which would make it rather clear that intentionally and deliberately the matter of the appointment or extension of the COAS was left at the discretion of the prime minister/president.”
In an unprecedented move, the apex court, last month, had suspended the notification of a three-year extension in the tenure of COAS Bajwa on the account of the summary being “not correct”.
The three-member SC bench, headed by the then chief justice Asif Saeed Khosa, had directed the parliament to legislate on the extension/reappointment of an army chief within six months, after noting that there were no clear laws or rules on the matter.
The court, after grilling the attorney general for three days over the matter, had decided that General Bajwa would remain COAS during the six-month period in which the parliament would draft laws regarding the extension and appointment of an army chief.
“We would like to emphasise 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.