COAS extension verdict: ‘Govt not to withdraw review petition’
Application would be rendered ‘infructuous’, law experts say
Barrister Farogh Naseem. PHOTO: FILE
ISLAMABAD:
Despite implementing the Supreme Court’s November 28 judgement calling for legislation in determining an army chief’s tenure, the federal government is not interested in withdrawing its review petition against the apex court verdict which called for giving a legal cover to General Qamar Bajwa’s reappointment/extension through Parliament within six months.
In a brief media interaction on Monday, Law Minister Farogh Naseem revealed that the government would not withdraw its review petition, and that it was intact with the legislative process of amendments in the Army Act being separate.
Asked if prime minister will be required to send another advisory for the extension/reappointment of the COAS, the law minister said, “I think a corrigendum, in continuation, will have to be issued along with the previous notification.”
The law minister’s announcement has sparked a debate about the fate of the review petition after the approval of the bill from the upper and lower houses.
Senior lawyers are surprised over Naseem’s statement, saying that the petition would become “infructuous” after completion of the legislative process.
A representative of the Supreme Court Bar Association (SCBA) believes that after implementing the SC verdict, pleading the petition does not make sense.
Some government functionaries, he added, were inviting a clash between institutions and were giving “wrong legal advice” of not withdrawing the petition.
These elements, the representative said, already initiated a clash with the judiciary after filing of a presidential reference against an apex court judge, and announcing to move against Peshawar High Court Chief Justice Waqar Ahmad Seth who co-authored the judgement against Pervez Musharraf in the high treason case.
Legal experts count more than one reason the government decided against the review route.
According to them, the apex court gave the verdict with the consent of the Attorney General of Pakistan (AGP) Anwar Mansoor Khan, who had undertaken appropriate legislation on the matter.
Interestingly, the government, in its review petition, did not give an explanation for approaching the Supreme Court after the AGP’s undertaking.
Meanwhile, under the Supreme Court Rules, the bench that heard the main case will also hear the review petition. A huge percentage of such review petitions are dismissed unless a petitioner highlights some “glaring error” in the judgment.
The federal government in its review petition told the top court that ‘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’.
While the review petition is still pending, few other matters related to the security establishment are also sub judice.
Secondly, the apex court will give final ruling on the fate of Musharraf, a former military ruler, who was awarded death sentence by a Special Court for abrogating the Constitution.
Under the law, a review petition has to be filed within 30 days of the issuance of the judgement. The matter is significant for the security establishment, which has already expressed serious concerns over the death penalty to an ex-army chief.
Thirdly, the apex court’s larger bench is also hearing the government’s appeal against Peshawar High Court (PHC) order which declared internment centres to be “unconstitutional”. The security establishment has reservations on the verdict, and it is expected that a larger bench will resume hearing of the appeal after the winter break.
Fourthly, the presidential reference against Justice Qazi Faez Isa is yet to be decided by the Supreme Judicial Council (SJC). The matter is also pending in the apex court.
Muneer A Malik – Justice Isa’s counsel told the apex court that the judge’s observations in the Faizabad sit-in judgment – “an inconvenient truth” – prompted the Pakistan Tehreek-e-Insaf- (PTI) led federal government to file a presidential reference against him. He told the bench that a “particular mindset” was targeting the SC judge through “coordinated efforts” after the 2017 verdict.
Superior bars also allege that the security establishment was upset over Justice Isa’s Faizabad sit-in judgment and is behind the presidential reference.
Justice Isa’s fate will be significant to determine the relationship between army and judiciary. However, it is seen that the presidential reference could not be helpful for the government as superior bars strongly reacted to it, and challenged the proceedings in the Supreme Court.
Likewise, a majority of judges in the superior judiciary are questioning the alleged surveillance of judges and their family.
Similarly, the federal government’s review petition against Faizabad sit-in is also pending in the apex court.
A senior PTI leader, speaking to The Express Tribune, said it was a mistake on the government’s part to file presidential reference against Justice Isa.
“We should learn lesson from history as whenever the government moved SJC to oust a judge, the strategy failed. Ee witnessed the same in ex-CJP Iftikhar Muhammad Chaudhry’s case,” he said.
Senior lawyers say that it is high time the executive realised that it cannot remove unwanted individuals through references.
The party leader said he also opposed filing of presidential reference against the PHC chief justice as it could have “dreadful consequences”.
It has been seen that whenever a government initiated a campaign against the judiciary, difficult times followed.
While Musharraf lost the power game following his clash with the judiciary in 2007, the PPP regime was discredited by the judiciary, which lost the general elections in 2013. Likewise, the PML-N campaign against the judiciary following the disqualification of Nawaz Sharif in the 2017 Panama Papers case affected the party in 2018 polls: party leaders were sent behind bars, as well as disqualified in contempt cases.
PTI workers repeated the same mistake with their “malicious campaign” against judges after the high treason case verdict.
It is pertinent to mention that the K-P government has already approached SC against PHC direction to Federal Investigation Agency (FIA) to investigate the BRT project.
Keeping in view these sensitive matters, senior lawyers have urged government functionaries to avoid negative confrontation with the judges.
Despite implementing the Supreme Court’s November 28 judgement calling for legislation in determining an army chief’s tenure, the federal government is not interested in withdrawing its review petition against the apex court verdict which called for giving a legal cover to General Qamar Bajwa’s reappointment/extension through Parliament within six months.
In a brief media interaction on Monday, Law Minister Farogh Naseem revealed that the government would not withdraw its review petition, and that it was intact with the legislative process of amendments in the Army Act being separate.
Asked if prime minister will be required to send another advisory for the extension/reappointment of the COAS, the law minister said, “I think a corrigendum, in continuation, will have to be issued along with the previous notification.”
The law minister’s announcement has sparked a debate about the fate of the review petition after the approval of the bill from the upper and lower houses.
Senior lawyers are surprised over Naseem’s statement, saying that the petition would become “infructuous” after completion of the legislative process.
A representative of the Supreme Court Bar Association (SCBA) believes that after implementing the SC verdict, pleading the petition does not make sense.
Some government functionaries, he added, were inviting a clash between institutions and were giving “wrong legal advice” of not withdrawing the petition.
These elements, the representative said, already initiated a clash with the judiciary after filing of a presidential reference against an apex court judge, and announcing to move against Peshawar High Court Chief Justice Waqar Ahmad Seth who co-authored the judgement against Pervez Musharraf in the high treason case.
Legal experts count more than one reason the government decided against the review route.
According to them, the apex court gave the verdict with the consent of the Attorney General of Pakistan (AGP) Anwar Mansoor Khan, who had undertaken appropriate legislation on the matter.
Interestingly, the government, in its review petition, did not give an explanation for approaching the Supreme Court after the AGP’s undertaking.
Meanwhile, under the Supreme Court Rules, the bench that heard the main case will also hear the review petition. A huge percentage of such review petitions are dismissed unless a petitioner highlights some “glaring error” in the judgment.
The federal government in its review petition told the top court that ‘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’.
While the review petition is still pending, few other matters related to the security establishment are also sub judice.
Secondly, the apex court will give final ruling on the fate of Musharraf, a former military ruler, who was awarded death sentence by a Special Court for abrogating the Constitution.
Under the law, a review petition has to be filed within 30 days of the issuance of the judgement. The matter is significant for the security establishment, which has already expressed serious concerns over the death penalty to an ex-army chief.
Thirdly, the apex court’s larger bench is also hearing the government’s appeal against Peshawar High Court (PHC) order which declared internment centres to be “unconstitutional”. The security establishment has reservations on the verdict, and it is expected that a larger bench will resume hearing of the appeal after the winter break.
Fourthly, the presidential reference against Justice Qazi Faez Isa is yet to be decided by the Supreme Judicial Council (SJC). The matter is also pending in the apex court.
Muneer A Malik – Justice Isa’s counsel told the apex court that the judge’s observations in the Faizabad sit-in judgment – “an inconvenient truth” – prompted the Pakistan Tehreek-e-Insaf- (PTI) led federal government to file a presidential reference against him. He told the bench that a “particular mindset” was targeting the SC judge through “coordinated efforts” after the 2017 verdict.
Superior bars also allege that the security establishment was upset over Justice Isa’s Faizabad sit-in judgment and is behind the presidential reference.
Justice Isa’s fate will be significant to determine the relationship between army and judiciary. However, it is seen that the presidential reference could not be helpful for the government as superior bars strongly reacted to it, and challenged the proceedings in the Supreme Court.
Likewise, a majority of judges in the superior judiciary are questioning the alleged surveillance of judges and their family.
Similarly, the federal government’s review petition against Faizabad sit-in is also pending in the apex court.
A senior PTI leader, speaking to The Express Tribune, said it was a mistake on the government’s part to file presidential reference against Justice Isa.
“We should learn lesson from history as whenever the government moved SJC to oust a judge, the strategy failed. Ee witnessed the same in ex-CJP Iftikhar Muhammad Chaudhry’s case,” he said.
Senior lawyers say that it is high time the executive realised that it cannot remove unwanted individuals through references.
The party leader said he also opposed filing of presidential reference against the PHC chief justice as it could have “dreadful consequences”.
It has been seen that whenever a government initiated a campaign against the judiciary, difficult times followed.
While Musharraf lost the power game following his clash with the judiciary in 2007, the PPP regime was discredited by the judiciary, which lost the general elections in 2013. Likewise, the PML-N campaign against the judiciary following the disqualification of Nawaz Sharif in the 2017 Panama Papers case affected the party in 2018 polls: party leaders were sent behind bars, as well as disqualified in contempt cases.
PTI workers repeated the same mistake with their “malicious campaign” against judges after the high treason case verdict.
It is pertinent to mention that the K-P government has already approached SC against PHC direction to Federal Investigation Agency (FIA) to investigate the BRT project.
Keeping in view these sensitive matters, senior lawyers have urged government functionaries to avoid negative confrontation with the judges.