ISLAMABAD - The federal government on Thursday filed a review petition in the Supreme Court against its judgment wherein it had asked the parliament to legislate on the appointment/extension of army chief.
The government prayed to the court to set aside the verdict.
Attorney General Anwar Mansoor filed the petition on behalf of the government. The petition, copy of which is available with The Nation, lists the federal government through Secretary Defence, Prime Minister Imran Khan, President Arif Alvi and Army Chief General Qamar Javed Bajwa as petitioners, and reads: “This Honourable Court may please grant leave to appeal and set aside the Impugned Judgment after allowing the Petition.”
The petition questions the legal aspects of the judgment and adopted, “The Impugned Judgment is bad in law and facts. The same is completely without jurisdiction, void ab initio and of no legal effect.”
It points out that if a gap is filled through legal or constitutional conventions, customs, usages or departmental practices, the court cannot insist on converting such conventions into Acts of Parliament.
The petition adds that if the parliament, in the last seven decades or so, has consciously chosen, with open eyes, not to legislate in a particular sphere and let the issue/matter be governed through conventions or practices/customs/usages, this is a sufficient indicator that the Parliament i.e. the chosen representatives of the people, has exercised its choice not to legislate. Equally, there is nothing in constitutional jurisprudence which provides that where a constitution is written, no gaps or vacuums could be filled through conventions and that all conventions need to be converted into codified law.
“It is a settled principle of law that even where on facts and law a case is made out, the court would not grant relief where the granting of such relief fosters or perpetuates injustice and gives rise to a situation which is adverse to the public interest and the collective conscience of the state and the society,” says the petition.
It further reads “The enemies of Pakistan were extremely happy when they thought that General Bajwa’s extension or reappointment had fallen into jeopardy. 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. The war on terror is not over. The wounds from the APS incident are not forgotten. 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 and disintegrate Pakistan. 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 reappointment has been warmly welcomed. There were seminars and processions in favour of General Bajwa’s reappointment, from which the pulse of the public opinion can be appreciated. In the present times, it was most appropriate to reappoint General Bajwa, who himself never sought a reappointment.”
The petition argues that this was not a case where a court ought to have interfered. The federal government in its wisdom had taken a policy decision which was not inconsistent with the fundamental rights enshrined in the Constitution. And the same was also in line with the public opinion and popular aspirations to appoint General Bajwa for another term. The petition under Article 184(3) was not maintainable and the Fundamental Rights under Articles 19-A and 27 were hardly in question. On grounds of public policy and pre-eminent collective conscience of the state and the society, no interference should have been made in the military dispensation or the most significant military appointment.
It also argues 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 argued nor confronted by the Court to the petitioners or their counsels.
The petition maintains that the term “appointment” includes “reappointment” or any extension in the appointment. The Court has to look on the substance of the appointment and not get bogged down by or create a fetish of form and technicality.
The petition contends “It is also a settled principle of law that if no tenure or terms and conditions have been specified by the law or rules, the authority which has the power to appoint, has the power to prescribe the tenure or terms and conditions of employment.”
“Through the Impugned Judgment the Honourable 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. While rendering the Impugned Judgment, this Honourable Court has failed to consider that Article 8 of the Constitution in its true perspective equates any law with custom or usage,” says the petition.
It continues that 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.
The government points out in the petition that Rule 262 of the Army Regulations Rules (ARR) has capped the retirement age of a General at 60 years. However, subsequently Rule 262-A of the ARR makes no mention of the retiring age. The retirement age of a General was conspicuously left at the discretion of the appointing authority.
It further says 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. No judicial directions to the legislature could be given so as to convert a convention into codified law.
It also says that it is respectfully pointed out that the ARR sufficiently contains the “key structural areas” that constitutes the raising and maintaining of an Army, Commissioned Officers and their Commanders in Chief. Wherever it was thought necessary, the retirement age or retiring mechanism has been given in the ARR. With regard to a General, the retirement standard or age is governed by conventions.
It points out that the ARR read with section 176-A of the 1952 Act sufficiently meets the requirements of Article 243(3).
The petition maintains, “It is incorrect to suggest that Regulation 255 of the ARR only deals with a temporary arrangement. It is respectfully pointed out that the amendment effected in Regulation 255 during the pendency of the hearing was sufficient to equip the Federal Government to grant a re-appointment or an extension to the COAS. The interpretation offered in the Impugned Judgment on Regulation 255 of the ARR was totally unwarranted. The Court had no basis to read the provision of Regulation 255-A into Regulation 255. Both are independent regulations.”
It further says that the judgment “suffers from material irregularities” which have “converted the process from being one in aid of justice to a process of injustice.”
The petition claims that the court has “completely overlooked” the laws laid out in the Constitution as well as “vital facts.”
It maintains “In the present case, the appointment of the COAS was strictly in accordance with the settled departmental practice followed for seven decades or so.”